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EXECUTETION COPY
ATSC PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT (as
such agreement may be amended, supplemented or otherwise modified
from time to time, this "Agreement"), dated as of September 29,
1995, is made by ANNTAYLOR STORES CORPORATION, a Delaware
corporation, with its principal place of business located at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Grantor"), in
favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
with an office located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in its capacity as Agent under the Credit
Agreement (as defined below) (the "Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Grantor, (the
"Borrower"), the Agent, BA Securities, Inc., as Arranger, Bank of
America National Trust and Fleet Bank, National Association, as
Co-Agents, and certain financial institutions currently and in
the future to be parties to the Credit Agreement (such financial
institutions being collectively the "Lenders") have entered into
a certain Amended and Restated Credit Agreement dated as of
September 29, 1995, (as such agreement may be amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; the capitalized terms not otherwise defined herein
are being used herein as defined in the Credit Agreement), which
provides for the Lenders to make the Loans and the Issuing Banks
to issue the Letters of Credit. The Credit Agreement amends and
restates an existing credit agreement among the parties thereto,
which existing credit agreement was guaranteed by the Grantor
pursuant to the Guaranty, dated as of July 29, 1994 (the
"Existing Guaranty"). The Existing Guaranty was secured pursuant
to the Pledge Agreement, dated as of July 29, 1994 (the "Existing
Pledge Agreement"), between the Grantor and the Agent. As a
condition precedent to the effectiveness of the Credit Agreement
(i) the Existing Guaranty is being amended and restated by the
Guaranty, dated as of the date hereof, by the Grantor in favor of
the Agent (as amended, supplemented or otherwise modified from
time to time, the "Guaranty") and (ii) the Existing Pledge
Agreement is being amended and restated in its entirety hereby.
NOW, THEREFORE, in consideration of the above premises and
in order to induce the Lenders to make the Loans and each Issuing
Bank to issue the Letters of Credit under the Credit Agreement,
the Grantor hereby agrees with the Agent for its benefit, and for
the benefit of the Lenders and the Issuing Banks, and the Agent,
by acceptance hereof, hereby agrees, that the Existing Pledge
Agreement is hereby amended and restated in its entirety as
follows:
Section 1. Grant of Security. To secure the prompt and
complete payment, observance and performance when due (whether at
the stated maturity, by acceleration or otherwise) of all the
Guaranteed Obligations (as defined in the Guaranty) and all other
obligations of the Grantor under the Guaranty, the Grantor hereby
assigns and pledges to the Agent, and hereby grants to the Agent,
for its benefit and the benefit of the Lenders and the Issuing
Banks, a security interest in, all of the Grantor's right, title
and interest in and to the following, whether now owned or
existing or hereafter arising or acquired and wheresoever located
(collectively, the "Collateral"):
EQUIPMENT: All machinery and equipment, all manufacturing,
distribution, selling, data processing and office equipment, all
furniture, furnishings, appliances, fixtures and trade fixtures,
tools, tooling, molds, dies, vehicles, vessels, aircraft and all
other goods of every type and description (other than
"inventory", as such term is defined in the Uniform Commercial
Code in effect on the date hereof in the State of New York (the
"UCC")), in each instance whether now owned or hereafter acquired
by the Grantor and wherever located (collectively, "Equipment");
GENERAL INTANGIBLES: All rights, interests, choses in
action, causes of action, claims and all other intangible
property of the Grantor of every kind and nature (other than
"accounts", as such term is defined in the UCC), in each instance
whether now owned or hereafter acquired by the Grantor,
including, without limitation, all corporate and other business
records; all loans, royalties, and other obligations receivable;
all inventions, designs, patents, patent applications, service
marks, trade names and trademarks (including any applications for
the foregoing and whether or not registered) and the goodwill of
the Grantor's business connected with and symbolized by such
trademarks, trade secrets, computer programs, software, printouts
and other computer materials, goodwill, registrations, U.S.
registered copyrights, licenses relating to trademarks and U.S.
registered copyrights, franchises, customer lists, credit files,
correspondence and advertising materials; all customer and
supplier contracts, firm sale orders, rights under license and
franchise agreements, and other contracts and contract rights;
all interests in partnerships, joint ventures and other entities;
all tax refunds and tax refund claims; all right, title and
interest under leases, subleases, licenses and concessions and
other agreements relating to real or personal property; all pay
ments due or made to the Grantor in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of
any property by any person or governmental authority; all deposit
accounts (general or special) with any bank or other financial
institution; all credits with and other claims against carriers
and shippers; all rights to indemnification; all reversionary
interests in pension and profit sharing plans and reversionary,
beneficial and residual interest in trusts; all proceeds of
insurance of which the Grantor is beneficiary; and all letters of
credit, guaranties, liens, security interests and other security
held by or granted to the Grantor; and all other intangible
property, whether or not similar to the foregoing, including,
without limitation, all "general intangibles", as such term is
defined in the UCC (in each instance, however and wherever
arising, collectively, "General Intangibles");
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel
paper, all instruments (including, without limitation, (a) the
shares of stock described in Annex I-A hereto (the "Pledged
Shares") and all dividends, instruments and other property from
time to time distributed in respect thereof or in exchange
therefor, and (b) the notes and debt instruments described in
Annex I-B hereto (the "Pledged Debt") and all payments thereunder
and instruments and other property from time to time delivered in
respect thereof or in exchange therefor), and all bills of
lading, warehouse receipts and other documents of title and
documents, including, without limitation, all "chattel paper",
"instruments" and documents", as such terms are defined in the
UCC, in each instance whether now owned or hereafter acquired by
the Grantor, other than any promissory note in an amount less
than $1,000,000 owing to the Grantor from a senior executive or
key employee of the Grantor (an "Excluded Note") (collectively,
"Chattel Paper, Instruments and Documents"); and
OTHER PROPERTY: All property or interests in property now
owned or hereafter acquired by the Grantor which now may be owned
or hereafter may come into the possession, custody or control of
the Agent, any of the Lenders, any Issuing Bank or any agent or
Affiliate of any of them in any way or for any purpose (whether
for safekeeping, deposit, custody, pledge, transmission,
collection or otherwise); and all rights and interests of the
Grantor, now existing or hereafter arising and however and
wherever arising, in respect of any and all (i) notes, drafts,
letters of credit, stocks, bonds, and debt and equity securities,
whether or not certificated, and warrants, options, puts and
calls and other rights to acquire or otherwise relating to the
same; (ii) money; (iii) proceeds of loans; and (iv) insurance
proceeds and books and records relating to any of the property
covered by this Agreement (collectively, "Other Property");
together, in each instance, with all accessions and additions
thereto, substitutions therefor, and replacements, proceeds and
products thereof.
Section 2. Grantor Remains Liable. Anything herein to the
contrary notwithstanding, the Grantor shall remain liable under
the contracts and agreements included in the Collateral to the
extent set forth therein to perform its duties and obligations
thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the
Collateral (except to the extent that such exercise prevents the
Grantor from satisfying such duties and obligations), and (c) the
Agent shall not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of
this Agreement, nor shall the Agent be obligated to perform any
of the obligations or duties of the Grantor thereunder, to make
any payment, to make any inquiry as to the nature or sufficiency
of any payment received by the Grantor or the sufficiency of any
performance by any party under any such contract or agreement or
to take any action to collect or enforce any claim for payment
assigned hereunder.
Section 3. Delivery of Pledged Collateral. All
certificates, notes and other instruments representing or
evidencing the Pledged Shares or the Pledged Debt and all other
instruments now owned or at anytime hereafter acquired by the
Grantor other than any Excluded Notes (collectively, the "Pledged
Collateral") shall be delivered to and held by or on behalf of
the Agent pursuant hereto (except as otherwise provided in the
last sentence of Section 4(f) hereof) and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignments in blank, all in
form and substance satisfactory to the Agent. Upon the
occurrence and during the continuance of an Event of Default, the
Agent shall have the right, at any time in its discretion and
without notice to the Grantor, to transfer to or to register in
the name of the Agent or any nominee of the Agent any or all of
the Pledged Collateral, subject only to the revocable rights
specified in Section 8 hereof. In addition, upon the occurrence
and during the continuance of an Event of Default, the Agent
shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
Section 4. Representations and Warranties. The Grantor
represents and warrants as follows:
(a) As of the date of this Agreement, the locations
listed on Annex II to this Agreement constitute all
locations at which Equipment is located, except for
Equipment temporarily in transit. As of the date of this
Agreement, the chief place of business and chief executive
office of the Grantor are located at the address first
specified above for the Grantor.
(b) The Grantor is the legal and beneficial owner of
the Collateral free and clear of all liens, security inter
ests or other encumbrances, except (other than in respect of
Pledged Collateral described in (e) below) as expressly
permitted by subsection 8.02(b) of the Credit Agreement.
Since the date of its incorporation, Grantor has conducted
business only under its own corporate name (including its
former corporate name, AnnTaylor Holdings, Inc.) and not
under any trade name or other name.
(c) The Grantor has exclusive possession and control
of the Equipment, except for (i) Equipment in the possession
and control of the Grantor's lessees and licensees under
written lease and license agreements entered into in the
ordinary course of business and consistent with past
practice and (ii) Equipment in transit with common or other
carriers.
(d) The Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable. The
Pledged Debt of Grantor's Subsidiaries (if any), and, to the
best of the Grantor's knowledge, all other Pledged Debt, has
been duly authorized, issued and delivered, and is the
legal, valid, binding and enforceable obligation of the
issuers thereof.
(e) The Pledged Shares indicated on Annex I-A hereto
constitute all of the shares held by the Grantor of the
respective issuers thereof. The Pledged Shares and the
Pledged Debt constitute all of the Pledged Collateral except
for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business and with respect
to which the Agent has not at any time requested possession
and which are not a material portion of the Collateral under
this Agreement (the "Personal Property Collateral") either
singly or in the aggregate.
(f) This Agreement creates a valid security interest
in the Collateral (other than the Pledged Collateral),
securing the payment of the Guaranteed Obligations, and all
filings and other actions necessary or desirable to perfect
such security interest under the Uniform Commercial Code as
enacted in any relevant jurisdiction have been duly taken or
will be duly taken not later than five Business Days after
the date hereof (all such actions being the filing of
financing statements in the filing offices listed on Annex
III hereto). The pledge and delivery of the Pledged
Collateral pursuant to this Agreement and all other filings
and other actions taken by the Grantor to perfect such
security interest prior to the date hereof, create a valid
and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Guaranteed
Obligations except for Pledged Collateral consisting of
checks and drafts received in the ordinary course of
business with respect to which the Agent has not at any time
requested possession and which are not a material portion of
the Personal Property Collateral either singly or in the
aggregate.
(g) Other than filings under the UCC, no
authorization, approval or other action by, and no notice to
or filing with, any federal, state or local governmental
authority that have not already been taken or made and which
are in full force and effect, is required (i) for the pledge
by the Grantor of the Pledged Collateral or for the grant by
the Grantor of the security interest in the Collateral
granted hereby or for the execution, delivery or performance
of this Agreement by the Grantor, (ii) for the exercise by
the Agent of the voting or other rights provided in this
Agreement with respect to the Pledged Collateral or the
remedies in respect of the Pledged Collateral pursuant to
this Agreement (except as may be required in connection with
the disposition thereof by laws affecting the offering and
sale of securities generally), or (iii) for the exercise by
the Agent of any of its other rights or remedies hereunder.
Section 5. Further Assurances.
(a) The Grantor agrees that from time to time, at the
expense of the Grantor, the Grantor will promptly execute
and deliver all further instruments and documents, and take
all further action, that may be necessary or desirable, or
that the Agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and
enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the
foregoing, at the request of the Agent, the Grantor shall:
(i) if an Event of Default shall have occurred and be
continuing, ▇▇▇▇ conspicuously each document included in the
Collateral at the request of the Agent made at any time, and
whether or not an Event of Default shall have occurred, ▇▇▇▇
each of its records pertaining to the Collateral with a
legend, in form and substance satisfactory to the Agent,
indicating that such document or Collateral is subject to
the security interest granted hereby; and (ii) execute and
file such financing or continuation statements, or
amendments thereto, and such other instruments or notices,
as may be necessary or desirable, or as the Agent may
reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted
hereby.
(b) The Grantor hereby authorizes the Agent to file
one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the
Collateral without the signature of the Grantor where
permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) The Grantor shall furnish to the Agent from time
to time statements and schedules further identifying and
describing the Collateral and such other reports in
connection with the Collateral as the Agent may request, all
in reasonable detail.
Section 6. As to Equipment. The Grantor shall:
(a) Keep the Equipment (other than Equipment sold in
accordance with Section 8.02 of the Credit Agreement) at the
places specified in Section 4(a) hereof and deliver written
notice to the Agent at least 30 days prior to establishing
any other location at which it reasonably expects to
maintain Equipment in which jurisdiction all action required
by Section 5 hereof shall have been taken with respect to
all such Equipment.
(b) Maintain or cause to be maintained in good repair,
working order and condition, excepting ordinary wear and
tear and damage due to casualty, all of the Equipment, and
make or cause to be made all appropriate repairs, renewals
and replacements thereof, to the extent not obsolete and
consistent with past practice of the Grantor, as quickly as
practicable after the occurrence of any loss or damage
thereto which are necessary or desirable to such end. The
Grantor shall promptly furnish to the Agent a statement
respecting any material loss or damage as a result of a
single occurrence to any of the Equipment which has an
aggregate fair market value exceeding $250,000.
(c) Maintain the same or substantially the same
insurance with respect to its properties as Borrower may be
required to maintain under Section 7.05 of the Credit
Agreement with respect to its properties and to comply with
the terms thereof.
Section 7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred
and be continuing:
(i) The Grantor and not the Agent shall be
entitled to exercise any and all voting and other
rights of consent or approval pertaining to the Pledged
Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the Grantor
shall not exercise or refrain from exercising any such
right without the consent of the Agent if such action
or inaction would have a material adverse effect on the
value of the Pledged Collateral or the benefits to the
Agent, the Lenders and the Issuing Banks including,
without limitation, the validity, priority or
perfection of the security interest granted hereby or
the remedies of the Agent hereunder.
(ii) The Grantor and not the Agent shall
be entitled to receive and retain any and all dividends
and interest paid in respect of the Pledged Collateral;
provided, however, that any and all
(A) dividends and interest paid or
payable other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in respect of,
or in exchange for, any Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in respect
of any Pledged Collateral consisting of stock of
any Subsidiary of the Grantor and dividends and
other distributions paid or payable in cash in
respect of any other Pledged Collateral in
connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital,surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any
Pledged Collateral,
shall forthwith be delivered to the Agent, in the
case of (A) above, to hold as Pledged Collateral and
shall, if received by the Grantor, be received in trust
for the benefit of the Agent, the Lenders and the
Issuing Banks, be segregated from the other property or
funds of the Grantor, and be forthwith delivered to the
Agent, as Pledged Collateral in the same form as so
received (with any necessary indorsement) and, in the
case of (B) and (C) above, to the extent required under
the terms of the Credit Agreement, shall forthwith be
delivered to the Agent to be applied to the Guaranteed
Obligations in such order as provided in subsection
2.06(b) of the Credit Agreement.
(iii) The Agent shall promptly execute
and deliver (or cause to be executed and delivered) to
the Grantor all such proxies and other instruments as
the Grantor may reasonably request for the purpose of
enabling the Grantor to exercise the voting and other
rights which it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends or
interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of
an Event of Default and at the Agent's option:
(i) All rights of the Grantor to exercise
the voting and other rights of consent or approval
which it would otherwise be entitled to exercise
pursuant to Section 8(a)(i) hereof and to receive the
dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant
to Section 8(a)(ii) hereof shall cease, and all such
rights shall thereupon become vested in the Agent, who
shall thereupon have the sole right to exercise such
voting and other rights of consent or approval and to
receive and hold as Pledged Collateral such dividends
and interest payments.
(ii) All dividends and interest payments
which are received by the Grantor contrary to the
provisions of paragraph (i) of this Section 8(b) hereof
shall be received in trust for the benefit of the
Agent, the Lenders and the Issuing Banks and shall be
segregated from other funds of the Grantor and shall be
forthwith paid over to the Agent as Pledged Collateral
in the same form as so received (with any necessary
indorsement).
Section 8. Additional Shares. The Grantor agrees that it
will (i) cause each issuer of the Pledged Shares subject to its
control not to issue any stock or other securities in addition to
or in substitution for the Pledged Shares issued by such issuer,
except to the Grantor or as otherwise permitted under the Credit
Agreement, and (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all
additional shares of stock or other securities of each issuer of
the Pledged Shares. The Grantor hereby authorizes the Agent to
modify this Agreement by amending Annex I to include such
additional shares or other securities.
Section 9. Payment of Taxes and Claims. The Grantor shall
pay (i) all taxes, assessments and other charges of any
Governmental Authority imposed upon it or on any of the
Collateral before any penalty or interest accrues thereon, and
(ii) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums materially adversely
affecting the Collateral, which have become due and payable and
which by law have or may become a lien or other encumbrance upon
any of the Collateral prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such
taxes, assessments and charges of any such governmental authority
referred to in clause (i) above or claims referred to in clause
(ii) above need to be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently
conducted and enforcement thereof is stayed and if a reserve or
other appropriate provision required in conformity with GAAP
shall have been made therefor.
Section 10. The Agent Appointed Attorney-in-Fact. The
Grantor hereby irrevocably appoints the Agent the Grantor's
attorney-in-fact, with full authority in the place and stead of
the Grantor and in the name of the Grantor or otherwise, from
time to time in the Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any
action and to execute any instrument which the Agent may deem
necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Grantor under Section 7
hereof), including, without limitation:
(a) to obtain and adjust insurance required to be paid
to the Agent pursuant to Section 6(c) hereof,
(i) to ask, demand, collect, ▇▇▇ for,
recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in
respect of any of the Collateral,
(ii) to receive, indorse, and collect any
drafts or other instruments, documents and chattel
paper, in connection with clause (i) or (ii) above,
(iii) to sell or assign any Account upon such
terms, for such amount and at such time or times as
Agent deems advisable, to settle, adjust, compromise,
extend or renew any Account or to discharge and release
any Account,
(iv) to file any claims or take any action or
institute any proceedings which the Agent may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the
Agent with respect to any of the Collateral, and
(v) to receive, indorse and collect all
instruments made payable to the Grantor representing
any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof
and to give full discharge for the same.
Nothing set forth in this Section 10 and no exercise by the
Agent of the rights and powers granted in this Section 10 shall
limit or impair the Grantor's rights under Section 7 hereof. The
Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Obligations are paid
in full and the commitments of the Lenders to extend credit under
the Credit Agreement are terminated.
Section 11. The Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Agent, upon written
notice to the Grantor if practicable, may itself perform, or
cause performance of, such agreement, and the expenses of the
Agent incurred in connection therewith shall be payable by the
Grantor under Section 15 hereof.
Section 12. The Agent's Duties. The powers conferred on
the Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon any of them, in the
absence of willful misconduct or gross negligence, to exercise
any such powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received
by it hereunder, the Agent shall have no duty as to any
Collateral. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own
property, it being understood that the Agent shall be under no
obligation to (i) ascertain or take action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Collateral, whether or not the Agent has
or is deemed to have knowledge of such matters, or (ii) take any
necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral, but may do so at its
option, and all reasonable expenses incurred in connection
therewith shall be for the sole account of the Grantor and shall
be added to the Guaranteed Obligations.
Section 13. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the
Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under
the Uniform Commercial Code as in effect from time to time
in the State of New York (the "Code") (whether or not the
Code applies to the affected Collateral) and also may (i)
require the Grantor to, and the Grantor hereby agrees that
it will at its expense and upon request of the Agent
forthwith, assemble all or any part of the Collateral as
directed by the Agent and make it available to the Agent at
a place to be designated by the Agent which is reasonably
convenient to both parties and (ii) without notice except as
specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of
the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as may be
commercially reasonable. The Agent may be the purchaser of
any or all of the Collateral so sold at any public sale (or,
if the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private
sale) and thereafter hold the same, absolutely, free from
any right or claim of whatsoever kind. The Agent is
authorized, at any such sale, if it deems it advisable so to
do, to restrict the prospective bidders or purchasers of any
of the Pledged Collateral to persons who will represent and
agree that they are purchasing for their own account for
investment, and not with a view to the distribution or sale
of any Pledged Collateral, and to take such other actions as
it may deem appropriate to exempt the offer and sale of the
Collateral from any registration requirements of state or
federal securities laws (including, if it deems it
appropriate, actions to comply with Regulation D of the
Securities and Exchange Commission under the Securities Act
of 1933, as from time to time amended (the "Securities
Act")). To the extent permitted by law, the Grantor hereby
specifically waives all rights of redemption, stay or
appraisal which it has or may have under any rule of law or
statute now existing or hereafter in force. The Grantor
agrees that, to the extent notice of sale shall be required
by law, at least ten days' written notice to the Grantor of
the time and place of any public sale or the time after
which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale
having been given. The Agent may adjourn any public or
private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Agent until the selling price
is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser
to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may again be sold upon
like notice. The Agent instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the security
interests herein granted and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
(b) Any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of the Agent,
be held by the Agent as Collateral for, and/or then or at
any time thereafter applied against (after payment of any
amounts payable to the Agent pursuant to Section 16 hereof)
in whole or in part by the Agent, for the benefit of the
Agent, the Lenders and the Issuing Banks, all or any part of
the Guaranteed Obligations. Any surplus of such cash or
cash proceeds held by the Agent and remaining after payment
in full of all the Guaranteed Obligations under this
Agreement and the termination of the commitments of the
Lenders to extend credit under the Credit Agreement shall be
promptly paid over to the Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
Section 14. Registration Rights.
(a) If the Agent shall determine to exercise its right
to sell all or any of the Pledged Collateral pursuant to
Section 13 hereof, the Grantor agrees that, upon request of
the Agent, the Grantor will, at its own expense:
(i) execute and deliver, and cause each issuer of the
Pledged Collateral which is a Subsidiary contemplated to be
sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause
to be done all such other acts and things, as may be
necessary or, in the opinion of the Agent, advisable to
register such Pledged Collateral under the provisions of the
Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion
of the Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission
applicable thereto;
(ii) use its best efforts to qualify the Pledged
Collateral under the state securities or "Blue Sky" laws and
to obtain all necessary approvals of all Governmental
Authorities for the sale of the Pledged Collateral, as
requested by the Agent;
(iii) cause each such issuer to make available to its
security holders, as soon as practicable, an earnings state
ment which will satisfy the provisions of Section 10 of the
Securities Act; and
(iv) do or cause to be done all such other acts and
things as may be necessary to make such sale of the Pledged
Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) Determination by the Agent to exercise its right
to sell any or all of the Pledged Collateral pursuant to
Section 13 hereof without making a request of the Grantor
pursuant to Section 14(a) hereof shall not by the sole fact
of such sale be deemed to be commercially unreasonable.
Section 15. Expenses. The Grantor shall upon written
demand pay to the Agent the amount of any and all expenses,
including the fees and disbursements of its counsel and of any
experts and agents, as provided in Section 12.03 of the Credit
Agreement.
Section 16. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the
Grantor herefrom shall in any event be effective unless the same
shall be in writing and signed by the party to be charged
therewith, and they such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
Section 17. Notices. All notices and other
communications provided for hereunder shall be given in the
manner set forth in the Credit Agreement and to the address first
above written or, as to each party, at such other address as may
be designated by such party in a written notice to the other
party.
Section 18. Continuing Security Interest; Termination. (a)
This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until
payment in full of the Guaranteed Obligations, the termination of
the commitments of the Lenders to extend credit under the Credit
Agreement and the termination of the Credit Agreement, (ii) be
binding upon the Grantor, its successors and assigns and (iii)
except to the extent that the rights of any transferor or
assignor are limited by Section 12.01 (concerning assignments) of
the Credit Agreement, inure, together with the rights and
remedies of the Agent hereunder, to the benefit of the Agent, the
Lenders and the Issuing Banks, subject to the terms and
conditions of the Credit Agreement. Without limiting the
generality of the foregoing clause (iii), any Lender may assign
or otherwise transfer any interest in any Loan owing to such
Lender to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to
the Agent herein or otherwise, subject, however, to the
provisions of Section 12.01 (concerning assignments) of the
Credit Agreement. Nothing set forth herein or in any other Loan
Document is intended or shall be construed to give the Grantor's
successors and assigns any right, remedy or claim under, to or in
respect of this Agreement, any other Loan Document or any
Collateral. The Grantor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession
thereof or therefor.
(b) Upon the payment in full of the Guaranteed Obligations,
the termination of the commitments of the Lenders to extend
credit under the Credit Agreement and the termination of the
Credit Agreement, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to the
Grantor. Upon any such termination, the Agent shall promptly
return to the Grantor, at the Grantor's expense, such of the
Collateral held by the Agent as shall not have been sold or
otherwise applied pursuant to the terms hereof. The Agent will,
at the Grantor's expense, execute and deliver to the Grantor such
other documents as the Grantor shall reasonably request to
evidence such termination.
Section 19. Applicable Law; Severability. This Agreement
shall be construed in all respects in accordance with, and
governed by, the laws of the State of New York. Whenever
possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
Section 20. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE GRANTOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
GRANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED
ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN
(10) DAYS AFTER SUCH MAILING. EACH OF THE GRANTOR AND, BY
ACCEPTANCE HEREOF, THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES
(A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, AND (B) ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly
authorized as of the day first above written.
ANNTAYLOR STORES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. V.P. - Finance
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ANNEX I-A
PLEDGED SHARES
Stock
Class of Certificate No. of
Issuer Stock No. Shares
AnnTaylor, Inc. Common 2 1
ANNEX I-B
PLEDGED DEBT
NONE
ANNEX II
LOCATIONS OF EQUIPMENT
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ANNEX III
UCC FILINGS
Jurisdiction Filing ▇▇▇▇▇▇
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