Receivables Financing Agreement – AnnTaylor Funding Inc., AnnTaylor Inc., Market Street Capital Corp., and PNC Bank NA
AMENDED AND RESTATED
RECEIVABLES FINANCING AGREEMENT
Dated as of October 31, 1995
Among
ANNTAYLOR FUNDING, INC.
as the Company
ANNTAYLOR, INC.
as Servicer
and
MARKET STREET CAPITAL CORP.
as Lender
and
PNC BANK, NATIONAL ASSOCIATION
as Administrator
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TABLE OF CONTENTS
ARTICLE I
LOANS
SECTION 1.01. Commitments to Lend; Limits on
Lender's Obligations 2
SECTION 1.02. Loan Procedures 2
SECTION 1.03. Borrowing Base 3
SECTION 1.04. Note 3
SECTION 1.05. Principal 4
ARTICLE II
INTEREST
SECTION 2.01. Interest 4
SECTION 2.02. Payment Dates 4
SECTION 2.03. Funding with Commercial Paper 5
ARTICLE III
SETTLEMENTS
SECTION 3.01. Settlement Procedures 5
SECTION 3.02. Deemed Collections; Reduction of
Outstanding Principal, Etc 8
SECTION 3.03. Payments and Computations, Etc. 10
SECTION 3.04. Treatment of Collections and Deemed
Collections 11
SECTION 3.05. Spread Account; Customer Letter of
Credit 11
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01. Fees 13
SECTION 4.02. Yield Protection 13
SECTION 4.03. Funding Losses 15
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness 16
SECTION 5.02. Conditions Precedent to All 18
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Company 18
SECTION 6.02. Representations and Warranties of
AnnTaylor 23
ARTICLE VII
GENERAL COVENANTS OF THE COMPANY AND ANNTAYLOR
SECTION 7.01. Affirmative Covenants 27
SECTION 7.02 Separate Corporate Existence 28
SECTION 7.03. Reporting Requirements 31
SECTION 7.04. Negative Covenants of the Company 33
SECTION 7.05 Negative Covenants of AnnTaylor 35
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01. Designation of Servicer 37
SECTION 8.02. Duties of Servicer 38
SECTION 8.03. Rights of the Administrator 39
SECTION 8.04. Responsibilities of the Company 41
SECTION 8.05. Further Action Evidencing Security
Interest 41
SECTION 8.06. Application of Collections 42
ARTICLE IX
SECURITY INTEREST
SECTION 9.01. Grant of Security Interest 42
SECTION 9.02. Remedies 43
ARTICLE X
EVENTS OF DEFAULT
SECTION 10.01. Events of Default 43
SECTION 10.02. Remedies 45
ARTICLE XI
THE ADMINISTRATOR
SECTION 11.01. Authorization and Action 46
SECTION 11.02. Administrator's Reliance, Etc 46
SECTION 11.03. PNC Bank and Affiliates 47
ARTICLE XII
ASSIGNMENT OF LENDER'S INTEREST
SECTION 12.01. Restrictions on Assignments 47
SECTION 12.02. Rights of Assignee 48
SECTION 12.03. Evidence of Assignment 48
ARTICLE XIII
INDEMNIFICATION
SECTION 13.01. Indemnities 48
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Amendments, Etc 52
SECTION 14.02. Notices, Etc. 53
SECTION 14.03. No Waiver; Remedies 53
SECTION 14.04. Binding Effect; Survival 53
SECTION 14.05. Costs, Expenses and Taxes 54
SECTION 14.06. No Proceedings 54
SECTION 14.07. Confidentiality of the Company
Information 55
SECTION 14.08. Confidentiality of Program Information 57
SECTION 14.09. Captions and Cross References 59
SECTION 14.10. Governing Law 59
SECTION 14.11. Waiver Of Jury Trial 59
SECTION 14.12. Consent To Jurisdiction; Waiver Of
Immunities 60
SECTION 14.13. Execution in Counterparts 60
SECTION 14.14. No Recourse Against Other Parties 60
APPENDICES
APPENDIX A Definitions
SCHEDULES
SCHEDULE 6.01(n) List of Offices of the Company where
Records Are Kept
SCHEDULE 6.01(o) List of Lock-Box Banks
SCHEDULE 6.01(p)-1 Forms of Contracts
SCHEDULE 6.01(p)-2 Description of Credit and Collection Policy
SCHEDULE 6.02(k) List of Offices of the Servicer where
Records Are Kept
SCHEDULE 6.02(l) List of Bank Accounts
SCHEDULE 6.01(r) Trade Names
EXHIBITS
EXHIBIT 1.02(a) Form of Borrowing Notice
EXHIBIT 1.04 Form of Note
EXHIBIT 3.01(a) Form of Information Package
EXHIBIT 3.05 Form of Spread Account Agreement
EXHIBIT 5.01(g) Form of Lock-Box Agreement
EXHIBIT 5.01(h)-(i) Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom - Enforceability
EXHIBIT 5.01(h)-(ii) Form of Opinion of General Counsel for the
Company
EXHIBIT 5.01(h)-(iii) Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom - True Sale
EXHIBIT 5.01(h)-(iv) Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom - Substantive Consolidation
EXHIBIT 5.01(h)-(v) Form of Opinion of Connecticut Counsel
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AMENDED AND RESTATED
RECEIVABLES FINANCING AGREEMENT
THIS IS AN AMENDED AND RESTATED RECEIVABLES FINANCING
AGREEMENT, dated as of October 31, 1995, among ANNTAYLOR FUNDING,
INC., a Delaware corporation (the "Company"), ANNTAYLOR, INC., a
------------
Delaware corporation ("AnnTaylor"), as initial servicer, MARKET
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STREET CAPITAL CORP., a Delaware corporation ("Lender"), and PNC
------
BANK, NATIONAL ASSOCIATION, a national banking association ("PNC
---
Bank"), as administrator for Lender (in such capacity, the
- - ----
"Administrator"). Unless otherwise indicated, capitalized terms
- - --------------
used in this Agreement are defined in Appendix A.
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Background
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1. The Company is a limited purpose subsidiary of
AnnTaylor formed for the purpose of purchasing Receivables
generated by AnnTaylor in the ordinary course of its business.
2. The Company, AnnTaylor, Clipper Receivables Corporation
("Clipper"), State Street Boston Capital Corporation ("State
------ -----
Street"), as administrator, and PNC Bank, as relationship bank,
- - ------
entered into the Receivables Financing Agreement, dated as of
January 27, 1994 (as amended prior to the date hereof, the
"Original Financing Agreement").
- - -----------------------------
3. Clipper has assigned to Lender all of its rights,
claims and obligations under the Original Financing Agreement and
the other Transaction Documents pursuant to the Assignment and
Assumption Agreement, dated as of October 31, 1995 (the
"Assignment Agreement"), among Clipper, Lender, State Street and
- - --------------------
PNC Bank.
4. In connection with the assignment to Lender pursuant to
the Assignment Agreement, the parties hereto desire to amend and
restate the Original Financing Agreement in its entirety as set
forth herein.
5. The Company has, and expects to have, Pool Receivables
which the Company intends to finance pursuant to this Agreement.
The Company has requested Lender, and Lender has agreed, subject
to the terms and conditions contained in this Agreement, to make
loans to the Company from time to time during the term of this
Agreement, which loans will be secured by the Receivables Pool.
6. AnnTaylor has been requested by the Company, Lender and
the Administrator to act, and has agreed to act, as initial
Servicer.
7. PNC Bank has been requested, and is willing, to act as
the Administrator.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as
follows:
======================================================================
ARTICLE I
LOANS
SECTION 1.01. Commitments to Lend; Limits on Lender's
-------------------
Obligations. Upon the terms and subject to the conditions of
this Agreement, from time to time prior to the Termination Date,
the Company may request that Lender make loans to the Company
(each being a "Loan") and Lender shall make such Loans; provided
---- --------
that no Loan shall be made by Lender if, after giving effect
thereto, the then Outstanding Principal would exceed either (a)
$40,000,000 (the "Lending Limit"), or (b) the Borrowing Base then
-------------
in effect; and provided further that each Loan made pursuant to
----------------
this Section 1.01 shall have an original principal amount of at
------------
least $5,000,000 and shall be in integral multiples of
$1,000,000, unless the Outstanding Principal is $20,000,000 or
more, in which case, each Loan shall have an original principal
amount of at least $100,000 and shall be in integral multiples of
$100,000.
SECTION 1.02. Loan Procedures.
---------------
(a) Notice of Loan. Each Loan to the Company by Lender
--------------
shall be made on notice from the Company to the Administrator
substantially in the form of Exhibit 1.02(a) (each, a "Borrowing
--------------- ---------
Notice") received by the Administrator not later than noon (New
- - ------
York City time) on the Business Day next preceding the date of
such proposed Loan. Each such notice of a proposed Loan shall
specify the desired amount and date of such Loan, which date
shall be a Settlement Date.
(b) Funding of Loan. On the date of each Loan, Lender
---------------
shall, upon satisfaction of the applicable conditions set forth
in Article V, make available to the Administrator at the
---------
Administrator's Office the principal amount of its Loan in same
day funds, and after receipt by the Administrator of such funds,
the Administrator will disburse such funds to an account of the
Company designated in writing by the Company in the applicable
Borrowing Notice.
SECTION 1.03. Borrowing Base.
--------------
(a) Computation of Borrowing Base. On any date, the
-----------------------------
"Borrowing Base" means an amount equal to
NPB - LR
where:
LR = the Loss Reserve on such date; and
NPB = the Net Pool Balance on such date.
(b) Frequency of Computation. The Borrowing Base shall be
------------------------
computed and reported, as provided in Section 3.01, as of (i) the
------------
date of the initial Loan and (ii) the Cut-Off Date for each
Settlement Period. In addition, if the Administrator reasonably
believes that there shall exist any event or occurrence that has
a reasonable possibility of causing a Material Adverse Effect,
the Administrator may require the Servicer to provide a
computation of Collections received by the Company or the
Servicer since the last Cut-Off Date, the then aggregate Unpaid
Balance of all Pool Receivables and such other information
comprising a part of the Information Package that can be updated
from the last Cut-Off Date for purposes of computing the
Borrowing Base as of any other date, and the Servicer agrees to
do so within 5 Business Days of its receipt of the
Administrator's request.
SECTION 1.04. Note. The Loans shall be evidenced by a
----
replacement promissory note (as from time to time supplemented,
extended, amended, modified or further replaced from time to
time, and including the Original Note for as long as it was in
effect, the "Note"), substantially in the form set forth in
----
Exhibit 1.04, with appropriate insertions, dated the date hereof,
- - -----------
payable to the order of Lender in the maximum principal amount of
$40,000,000 (or, if less, in the aggregate unpaid principal
amount of all of the Loans) on the Termination Date. The
Administrator shall record in its records, or at its option on
the schedule attached to the Note, the date and amount of each
Loan made hereunder, each repayment thereof and the other
information provided for thereon. The aggregate unpaid principal
amount so recorded shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on the Note. The failure
so to record any such information or the error in so recording
any such information shall not, however, limit or otherwise
affect the actual obligations of the Company hereunder or under
the Note to repay the principal amount of all Loans, together
with all interest accruing thereon.
SECTION 1.05. Principal. The Company shall repay the
---------
principal of the Loans (i) on each Settlement Date in an amount
equal to the excess, if any, of the Outstanding Principal over
the Borrowing Base then in effect and (ii) in full on the
Termination Date. Outstanding Principal shall not be considered
reduced by any allocation, setting aside or distribution of any
portion of Collections unless such Collections shall have been
actually delivered to the Administrator pursuant hereto (or
deemed delivered pursuant to Section 3.03(a)(i)). Outstanding
-----------------
Principal shall not be considered reduced by any distribution of
any portion of Collections if at any time such distribution is
rescinded or must otherwise be returned for any reason.
======================================================================
ARTICLE II
INTEREST
SECTION 2.01. Interest. The Company hereby promises to pay
--------
interest for each Interest Period on the unpaid principal amount
of each Loan (or the applicable portion thereof) for the period
commencing on the date of such Loan until such Loan is paid in
full, as follows:
(a) at all times while the making or maintenance
of such Loan (or the applicable portion thereof) by
Lender is funded by the issuance of Commercial Paper
Notes, the CP Rate for such Interest Period; and
(b) at all times while the making or maintenance
of such Loan (or the applicable portion thereof) by
Lender is not funded by the issuance of Commercial
Paper Notes, the Bank Rate applicable to such Interest
Period;
provided, however, that on any day when an Event of Default shall
- - ------- ------
have occurred and be continuing, the Loans shall accrue interest
at a rate per annum equal to the higher of (i) the Alternate Base
Rate plus 2% per annum and (ii) the rate otherwise applicable to
such Loan during such Interest Period plus 2% per annum. The
interest rate on any Loan bearing interest at the Alternate Base
Rate shall change simultaneously with each change in the
Alternate Base Rate.
SECTION 2.02. Payment Dates. Interest accrued on each Loan
-------------
shall be payable, without duplication; (a) on the Termination
Date; (b) on the date of any payment or repayment, in whole or in
part, of any principal outstanding on such Loan and (c) on each
Settlement Date. Interest accrued on Loans after the date such
Loan is due and payable (whether on the Termination Date, upon
acceleration or otherwise), together with interest on any and all
other amounts remaining unpaid, shall be payable upon demand. No
provision of this Agreement shall require the payment or permit
the collection of interest in excess of the maximum permitted by
applicable law. Interest for any Loan shall not be considered
paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason.
SECTION 2.03. Funding with Commercial Paper. Lender will
-----------------------------
initially fund the Loans with Liquidity Loans made to Lender
under the Liquidity Agreement and/or other advances made to
Lender under its other Program Support Agreements. At such time
as (i) the Fixed Charge Coverage Ratio is at least 1.00 to 1.00
for at least one full fiscal quarter, and there has been no
material adverse change in the consolidated financial condition,
business or operations of ATSC and its consolidated Subsidiaries
since the end of such fiscal quarter, (ii) Standard & Poor's and
Moody's Investors Service, Inc. have confirmed that the
Commercial Paper Notes will be rated A1/P-1 after giving effect
to the transaction contemplated by this Agreement, and (iii)
Lender, the Administrator and the Company have agreed upon a new
Program Fee, Lender will, to the extent that it is able to do so,
fund the Loans by the issuance of Commercial Paper Notes.
====================================================================
ARTICLE III
SETTLEMENTS
SECTION 3.01. Settlement Procedures.
---------------------
The parties hereto will take the following actions with
respect to each Settlement Period:
(a) Information Package. On or before the fifth day
-------------------
of the calendar month immediately following the calendar
month in which the Cut-Off Date for such Settlement Period
occurs, or, if such day is not a Business Day, the next
succeeding Business Day (each, a "Reporting Date"), Servicer
shall deliver to the Administrator a report, substantially
in the form of Exhibit 3.01 (each, an "Information
------------ -----------
Package"). In the event that the amount of Collections
-------
received during the Settlement Period to which an
Information Package relates is less than the amount equal to
(i) the Amount Payable for the related Settlement Date minus
(ii) the amount of funds available to be drawn from the
Spread Account on such Settlement Date, the Administrator
shall withdraw the amount of any such deficiency from the
Customer Letter of Credit on the Business Day next
succeeding the applicable Reporting Date. The Administrator
shall hold the funds so withdrawn from the Customer Letter
of Credit in a segregated account for application on the
related Settlement Date pursuant to this Section 3.01.
------------
(b) Collections. Servicer shall set aside for the
-----------
sole benefit of Lender and the Administrator all Collections
received to the extent necessary to pay the Estimated Amount
as it accrues (whether or not then due) that will be payable
during such Settlement Period or on the next occurring
Settlement Date; provided that, unless the Administrator
--------
shall request it to do so in writing after the occurrence
and during the continuance of an Event of Default, Servicer
shall not be required to hold such Collections in a separate
deposit account containing only such Collections. So long
as no Event of Default has occurred and is continuing,
Collections received during a Settlement Period in excess of
the amount to be set aside with respect to the Estimated
Amount for such Settlement Period shall be used by the
Company to pay the purchase price for Receivables generated
by AnnTaylor, as seller, pursuant to the Purchase Agreement;
if any Collections remain after such payment, they shall be
retained by the Company for use in its sole discretion
(subject to the terms of this Agreement). If an Event of
Default has occurred and is continuing, all Collections
shall be held by Servicer pursuant to the first sentence of
this paragraph (b). On each Settlement Date, Servicer shall
------------
remit to the Administrator an amount equal to the lesser of
(1) the amount of Collections received during the Settlement
Period related to such Settlement Date and (2) the sum of
(i) the amount of interest on the Loans accrued during the
most recently ended Interest Period (plus any interest
previously accrued and remaining unpaid), plus (ii) the
----
amount of principal then due and owing with respect to the
Loans (plus any principal previously due and remaining
unpaid), plus (iii) all fees and other amounts accrued and
----
payable by the Company under this Agreement (the amount set
forth in this clause (2), the "Amount Payable"). To the
--------- --------------
extent that the amount described in the foregoing clause (1)
----------
is less than the amount described in the foregoing
clause (2), the Administrator shall withdraw the amount of
---------
any such deficiency from the Spread Account. All
Collections received during the applicable Settlement Period
that exceed the amount described in the foregoing clause (2)
----------
shall be (A) deposited by the Servicer to the Spread Account
and/or (B) paid by the Servicer to the issuer of the
Customer Letter of Credit, in each case, to the extent
necessary to bring the sum of the funds in the Spread
Account plus the stated amount of the Customer Letter of
Credit up to the Enhancement Limit; unless an Event of
Default has occurred and is continuing, all remaining
Collections shall be available to the Company pursuant to
the second sentence of this paragraph (b).
-------------
(c) Order of Application of Collections Prior to
---------------------------------------------
Termination Date. Upon receipt by the Administrator of
---------------
amounts on any Settlement Date pursuant to the foregoing
paragraph (b) and any amounts withdrawn from the Customer
------------
Letter of Credit pursuant to the foregoing paragraph (a)
-------------
prior to the occurrence of the Termination Date, the
Administrator shall apply such amounts to the items
specified in the subclauses below, in the order of priority
of such subclauses:
(i) to accrued and unpaid Servicer's Fee;
(ii) to interest accrued during the most
recently ended Interest Period in respect of the Loans,
plus any such interest previously due and remaining
unpaid;
(iii) to the Program Fee accrued during the
most recently ended Interest Period, plus any portion
of the Program Fee previously due and remaining unpaid;
(iv) to the extent of any principal due on
the Loans, to such outstanding principal;
(v) to accrued and unpaid amounts owed to
the Administrator hereunder;
(vi) to other accrued and unpaid amounts
owing to Lender hereunder;
(vii) on a pro rata basis, to accrued and
--- ----
unpaid amounts owing to any Affected Party hereunder;
and
(viii) any remaining amounts to the Spread
Account, up to the Enhancement Limit or to the issuer
of the Customer Letter of Credit, up to the amount
necessary to restore the stated amount thereof to the
Enhancement Limit, as applicable.
(d) Order of Application of Collections After
-----------------------------------------
Termination Date. Upon receipt by the Administrator of
---------------
amounts on any Settlement Date pursuant to the foregoing
paragraph (b) and any amounts withdrawn from the Customer
-------------
Letter of Credit pursuant to the foregoing paragraph (a) on
-------------
or after the occurrence of the Termination Date, the
Administrator shall apply such items to the item specified
in the subclauses below, in the order of priority of such
subclauses:
(i) to accrued and unpaid Servicer's Fee;
(ii) to interest accrued during the most
recently ended Interest Period in respect of the Loans,
plus any such interest previously due and remaining
unpaid;
(iii) to the Program Fee accrued during the
most recently ended Interest Period, plus any such
Program Fee previously due and remaining unpaid;
(iv) to the outstanding principal of the
Loans until reduced to zero;
(v) to accrued and unpaid amounts owed to
the Administrator hereunder;
(vi) to other accrued and unpaid amounts
owing to Lender hereunder;
(vii) on a pro rata basis, to accrued and
--- ----
unpaid amounts owing to any Affected Party hereunder;
and
(viii) any remaining amounts to the Company.
(e) Non-Distribution of Servicer's Fee. If the
----------------------------------
Administrator consents (which consent may be revoked at any
time during the continuance of an Event of Default), the
amount in respect of Servicer's Fee may be retained by
Servicer, in which case no distribution shall be made in
respect of the Servicer's Fee pursuant to clause (c) or (d)
---------- ---
above, as the case may be.
(f) Delayed Payment. If on any day described in this
---------------
Section 3.01, a payment is not paid because the sum of (i)
------------
Collections during the relevant Settlement Period, (ii) the
amounts in the Spread Account and (iii) the amounts
available to be drawn on the Customer Letter of Credit were
less than the aggregate amounts payable, the next available
Collections shall be applied to such payment.
SECTION 3.02. Deemed Collections; Reduction of Outstanding
-------------------------------------------
Principal, Etc.
- - --------------
(a) Deemed Collections. If on any day
------------------
(i) the Unpaid Balance of any Pool Receivable is
(A) reduced as a result of any defective,
rejected or returned merchandise or services, any cash
discount, or any adjustment by the Company or any
Affiliate of the Company,
(B) reduced or cancelled as a result of a
setoff in respect of any claim by the Obligor thereof
against the Company or any Affiliate of the Company
(whether such claim arises out of the same or a related
or an unrelated transaction), or
(C) reduced on account of the obligation of
the Company or any Affiliate of the Company to pay to
the related Obligor any rebate or refund, or
(D) less than the amount included in
calculating the Net Pool Balance for purposes of any
Information Package, or
(ii) any of the representations or warranties of the
Company set forth in Section 6.01(l), (p) or (u) were not
-------------- --- ---
true when made with respect to any Pool Receivable, or any
of the representations or warranties of the Company set
forth in Section 6.01(l) or (u) are no longer true with
--------------- ---
respect to any Pool Receivable, or
(iii) without duplication, the Company receives a
Deemed Collection (as defined in the Purchase Agreement),
then, on such day, the Company shall be deemed to have received a
Collection of such Pool Receivable
(I) in the case of clause (i) above, in the
----------
amount of such reduction or cancellation or the
difference between the actual Unpaid Balance and the
amount included in calculating such Net Pool Balance,
as applicable;
(II) in the case of clause (ii) above, in
-----------
the amount of the Unpaid Balance of such Pool
Receivable; and
(III) in the case of clause (iii) above, in
------------
the amount so received as a Deemed Collection.
If the Company has paid in full the Unpaid Balance of a
Receivable, such Receivable, and any Related Security therefor,
shall be released from the security interest therein created by
this Agreement, without any further act, and such Receivable
shall no longer be a Pool Receivable.
(b) The Company's Optional Prepayment. The Company may at
---------------------------------
any time elect to prepay the Loans in whole or in part, by giving
the Administrator at least 3 Business Days' prior written notice
of such prepayment (including the amount of such proposed
reduction and the proposed date on which such prepayment will be
made),
provided that,
(A) the amount of any such prepayment shall
be not less than $100,000 and shall be an integral
multiple of $100,000, and the Outstanding Principal
after giving effect to such reduction shall be not less
than $20,000,000 (unless the Outstanding Principal
shall thereby be reduced to zero), and
(B) any prepayment shall be accompanied by
the interest accrued on the amount being prepaid, plus
any Liquidation Fee, plus, if the Termination Date
shall have occurred and the Outstanding Principal shall
thereby be reduced to zero, all other amounts then due
to the Lender or the Administrator.
SECTION 3.03. Payments and Computations, Etc.
------------------------------
(a) Payments. All amounts to be paid, remitted or
--------
deposited by the Company or Servicer to the Administrator or any
other Person hereunder (other than amounts payable under
Section 4.02) shall be paid or deposited in accordance with the
- - ------------
terms hereof no later than 11:30 a.m. (New York time) on the day
when due in lawful money of the United States of America in same
day funds (i) in the case of amounts to be paid, remitted or
deposited in respect of accrued and unpaid interest on the Loans
or in reduction of Outstanding Principal, to the Administrator at
PNC Bank, ABA #043000096, for further credit to Account
#1002420425; Reference: AnnTaylor Funding, (ii) in the case of
all fees, expenses and other amounts (other than amounts payable
under Section 4.02), to the Administrator at PNC Bank, ABA
------------
#043000096, Account #1-188375, Attention: Charlene Wilson, 7001,
and (iii) in all other cases to the address of the Person
entitled to such payment or deposit as such Person shall specify.
(b) Late Payments. Without duplication, the Company shall,
-------------
to the extent permitted by law, pay to Lender interest on all
amounts not paid or deposited when due hereunder and the Servicer
shall, to the extent permitted by law, pay to Lender interest on
all amounts not remitted when due hereunder because of any
failure of the Servicer to comply with its obligations as
Servicer hereunder, in each case at 2% per annum above the
--- -----
Alternate Base Rate, payable on demand, provided, however, that
-------- -------
such interest rate shall not at any time exceed the maximum rate
permitted by applicable law.
(c) Method of Computation. All computations of interest,
---------------------
Liquidation Fee, any fees payable under Sections 4.01(b) and any
----------------
other fees payable by the Company to Lender or the Administrator
in connection with Loans hereunder shall be made on the basis of
a year of 360 days (other than interest calculated by reference
to the Alternate Base Rate, in which case such calculation shall
be made on the basis of a year of 365 or 366 days, as applicable)
for the actual number of days (including the first day but
excluding the last day) elapsed.
SECTION 3.04. Treatment of Collections and Deemed
-----------------------------------
Collections. The Company shall forthwith deliver to Servicer all
- - -----------
Collections deemed received by the Company pursuant to Section
-------
3.02(a), and Servicer shall hold or distribute such Collections
- - ------
pursuant to the terms hereof to the same extent as if such
Collections had actually been received on the date of such
delivery to Servicer. During the continuance of an Event of
Default, if requested by the Administrator, Servicer shall cause
such deemed Collections to be paid on the second Business Day
after they arise to the Lock-Box Bank or, if Collections are
being paid to the Administrator pursuant to Section 8.03(c), to
---------------
the Administrator. So long as the Company shall hold any
Collections or deemed Collections required to be paid to Servicer
or the Administrator, it shall hold such Collections for the sole
benefit of the Lender and the Administrator and shall clearly
mark its records to reflect such benefit (subject to the
Company's right to use certain Collections to pay the purchase
price due under the Purchase Agreement as set forth in Section
-------
3.01(b)); provided that unless the Administrator shall request it
- - ------ --------
to do so in writing after the occurrence and during the
continuance of an Event of Default, the Company shall not be
required to hold such Collections in a separate deposit account
containing only such Collections.
SECTION 3.05. Spread Account; Customer Letter of Credit.
-----------------------------------------
(a) Unless the Company has delivered a Customer Letter of Credit
pursuant to Section 3.05(e), the Company, for the benefit of
---------------
Lender, shall establish and maintain or cause to be established
and maintained in the name of the Company, on behalf of Lender,
with PNC Bank, a segregated account (the "Spread Account"),
--------------
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of Lender. The Spread Account,
all funds deposited therein from time to time, all investments of
such funds and all proceeds of any of the foregoing shall be
subject to a pledge and security interest in favor of the
Administrator for the benefit of Lender pursuant to an agreement
substantially in the form attached hereto as Exhibit 3.05 (such
------------
agreement, as further amended, supplemented or otherwise modified
from time to time, being the "Spread Account Agreement").
------------------------
(b) Except as expressly provided in this Agreement,
Servicer agrees that it shall have no right of setoff or banker's
lien against, and no right to otherwise deduct from, any funds
held in the Spread Account for any amount owed to it by the
Administrator or Lender.
(c) Funds on deposit in the Spread Account shall be
invested at the direction of Servicer in accordance with the
Spread Account Agreement; provided, however, investments of funds
-------- -------
representing Collections collected during any Settlement Period
shall be invested in investments that will mature so that such
funds will be available for transfer on the applicable Settlement
Date with respect to such Settlement Period. All interest and
other investment earnings (net of losses and investment expenses)
on funds on deposit in the Spread Account shall be added to the
balance in the Spread Account and applied in accordance with this
Agreement.
(d) If on any Settlement Date, no Event of Default has
occurred and is continuing and the amount of funds in Spread
Account, after giving effect to all withdrawals therefrom on such
date, exceeds 1.5% of the Lending Limit (the "Enhancement
-----------
Limit"), the amount of such excess shall be released to the
- - -----
Company.
(e) The Company may, at its option, in lieu of establishing
and maintaining the Spread Account, deliver to the Administrator,
for the benefit of Lender, and maintain in force until the Final
Payout Date, one or more irrevocable letters of credit
(collectively, with any substitutions therefor and replacements
thereof, the "Customer Letter of Credit"), with a stated amount
-------------------------
equal to the Enhancement Limit, from, or confirmed by, a bank or
other financial institution whose short term unsecured debt
obligations are rated at least A-1 by Standard and Poor's
Corporation and P-1 by Moody's Investors Service, Inc., and who
is otherwise acceptable to the Administrator (whose acceptance
shall not be unreasonably withheld), and in a form reasonably
acceptable to the Administrator, together with an opinion of
counsel for such Customer Letter of Credit issuer acceptable in
form and substance to the Administrator; provided that a copy of
--------
such Customer Letter of Credit shall have been provided to
Standard & Poor's Corporation and Moody's Investors Service, Inc.
and they shall have either confirmed (orally or in writing) the
rating of the Commercial Paper Notes or waived (orally or in
writing) such requirement of confirmation.
(f) The Company may satisfy its obligations pursuant to
this Section 3.05 by providing both a Spread Account and a
-----------
Customer Letter of Credit, provided that the sum of the amount of
--------
funds from time to time in the Spread Account plus the stated
amount from time to time of the Customer Letter of Credit is at
least equal to the Enhancement Limit. In the event that the
Company has provided a Customer Letter of Credit and the issuer
of such Customer Letter of Credit (including any issuer of a
confirming letter of credit) is downgraded below the ratings
required pursuant to the foregoing paragraph (e) (or such ratings
------------
are withdrawn), unless the Company has provided a substitute
Customer Letter of Credit satisfying the requirements of the
foregoing paragraph (e) or the Company has deposited in the
------------
Spread Account the amount necessary to bring the amount therein
up to the Enhancement Limit, in each case, on or prior to two (2)
Business Days after such downgrading or withdrawal, the
Administrator shall withdraw the full stated amount of the
Customer Letter of Credit and deposit it in the Spread Account.
If the Customer Letter of Credit has a stated expiration date
that is earlier than the Final Payout Date, unless the Company
has substituted therefor another Customer Letter of Credit
satisfying the requirements of the foregoing paragraph (e) or
-------------
deposited into the Spread Account the amount necessary to bring
the amount of funds therein up to the Enhancement Limit on or
before two (2) Business Days prior to the stated expiration date,
the Administrator shall withdraw the full stated amount of the
Customer Letter of Credit and deposit such funds into the Spread
Account.
===================================================================
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01. Fees. The Company shall pay to the
----
Administrator for the account of the Lender certain fees payable
in such amounts and on such dates as are set forth in the fee
letter, dated as of the date hereof (as amended or supplemented
from time to time, the "Fee Letter") among the Company, AnnTaylor
----------
and the Administrator.
SECTION 4.02. Yield Protection.
----------------
(a) If (i) Regulation D or (ii) any Regulatory Change
occurring after the date hereof
(A) shall subject an Affected Party to any tax, duty
or other charge with respect to any Loan owned by, owed to
or funded by it, or any obligations or right to make Loans
or to provide funding therefor, or shall change the basis of
taxation of payments to the Affected Party of any part of
the Loans owned by, owed to or funded in whole or in part by
it or any other amounts due under this Agreement in respect
of the Loans (or any portion thereof) owned by or funded by
it or its obligations or rights, if any, to make Loans or to
provide funding therefor (except for changes in the rate of
any tax which is a franchise tax or a tax on the net income
of such Affected Party imposed by the United States of
America, by any jurisdiction in which such Affected Party's
principal executive office is located and, if such Affected
Party's principal executive office is not in the United
States of America, by any jurisdiction where such Affected
Party's principal office in the United States is located);
or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Federal Reserve Board, but excluding any reserve
included in the determination of the interest rate
applicable to the Loans), special deposit or similar
requirement against assets of any Affected Party, deposits
or obligations with or for the account of any Affected Party
or with or for the account of any affiliate (or entity
deemed by the Federal Reserve Board to be an affiliate) of
any Affected Party, or credit extended by any Affected
Party; or
(C) shall change the amount of capital maintained or
required or requested or directed to be maintained by any
Affected Party in respect of the transactions contemplated
hereby; or
(D) shall impose any other condition affecting any
Loan owned by, owed to or funded in whole or in part by any
Affected Party, or its obligations or rights, if any, to
make Loans or to provide funding therefor;
and the result of any of the foregoing is or would be
(x) to increase the cost to (I) an Affected Party
funding or making or maintaining any Loans (or any portion
thereof), any purchases, reinvestments, or loans or other
extensions of credit under any Program Support Agreement or
any commitment of such Affected Party with respect to any of
the foregoing, or (II) the Administrator for continuing its
or the Company's relationship with Lender,
(y) to reduce the amount of any sum received or
receivable by an Affected Party under this Agreement, or
under any Program Support Agreement with respect thereto, or
(z) in the sole determination of such Affected Party,
to reduce the rate of return on the capital of an Affected
Party as a consequence of its obligations hereunder or
arising in connection herewith to a level below that which
such Affected Party could otherwise have achieved,
then within thirty days after demand by such Affected Party
(which demand shall be accompanied by a statement setting forth
the basis of such demand), the Company shall pay directly to such
Affected Party such additional amount or amounts as will
compensate such Affected Party for such additional or increased
cost or such reduction.
(b) Each Affected Party will promptly notify the Company
and the Administrator of any event of which it has knowledge
which will entitle such Affected Party to compensation pursuant
to this Section 4.02; provided, however, no failure to give or
------------ -------- -------
delay in giving such notification shall adversely affect the
rights of any Affected Party to such compensation except that no
Affected Party shall be entitled to compensation under this
Section 4.02 with respect to any increased costs or reduced
- - ------------
return incurred more than 90 days prior to the date on which a
responsible officer of such Affected Party had actual knowledge
and notified the Company of the event giving rise to such
increased cost or reduced return.
(c) In determining any amount provided for or referred to
in this Section 4.02, an Affected Party may use any reasonable
------------
averaging and attribution methods that it reasonably shall deem
applicable; provided that such Affected Party shall not be
--------
arbitrary with respect to requesting similar compensation with
respect to similar transactions to the extent it is entitled to
do so pursuant to the applicable agreements. Any Affected Party
when making a claim under this Section 4.02 shall submit to the
------------
Company a statement as to such increased cost or reduced return
(including calculation thereof in reasonable detail), which
statement shall, in the absence of demonstrable error, be
conclusive and binding upon the Company.
(d) Any Affected Party which is a participant shall only be
entitled to amounts under this Section 4.02 to the extent that
------------
such amounts, together with all amounts due to the Person selling
such participation under this Section 4.02, do not exceed the
-------------
amounts that would have been due to such Person under this
Section 4.02 if the participation had not been entered into or
- - -----------
sold.
SECTION 4.03. Funding Losses. In the event that any
--------------
Liquidity Bank shall incur any loss or expense (including any
loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Liquidity Bank to make any Liquidity Loan or maintain any
Liquidity Loan, but not including loss of anticipated profit) as
a result of any Loan not being made in accordance with a request
therefore under Section 1.02 (other than by reason of the failure
------------
of Lender to fund such Loan pursuant to its commitment) or as a
result of any Loan being paid on a date other than a Settlement
Date, then, upon written notice from the Administrator to the
Company and Servicer, but without duplication of any Liquidation
Fee paid by the Company, the Company shall pay to Servicer, and
Servicer shall remit such amount paid by the Company to the
Administrator for the account of such Liquidity Bank, the amount
of such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence
of manifest error, be conclusive and binding upon the Company and
Servicer.
====================================================================
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The
-------------------------------------
effectiveness of this Amended and Restated Receivables Financing
Agreement is subject to the condition precedent that the
Administrator shall have received, on or before the date of such
effectiveness, the following, each (unless otherwise indicated)
dated such date and in form and substance satisfactory to the
Administrator:
(a) A copy of the resolutions of the Board of
Directors of each of the Company and AnnTaylor approving
this Agreement and the other Transaction Documents to which
it is a party to be delivered by it hereunder and the
transactions contemplated hereby, certified by its Secretary
or Assistant Secretary;
(b) Good standing certificates for the Company issued
by the Secretaries of State of Delaware and Connecticut;
good standing certificates for AnnTaylor issued by the
Secretaries of State of New York and Delaware;
(c) A certificate of the Secretary or Assistant
Secretary of each of the Company and AnnTaylor certifying
the names and true signatures of the officers authorized on
its behalf to sign this Agreement and the other Transaction
Documents to be delivered by it hereunder (on which
certificate the Administrator and Lender may conclusively
rely until such time as the Administrator shall receive from
the Company or AnnTaylor, as the case may be, a revised
certificate meeting the requirements of this subsection
(c));
(d) The Certificate of Incorporation of each of the
Company and AnnTaylor, duly certified by the Secretary of
State of Delaware, as of a recent date acceptable to
Administrator, together with a copy of the by-laws of each
of the Company and AnnTaylor, duly certified by the
Secretary or an Assistant Secretary of the Company or
AnnTaylor, as the case may be;
(e) Copies of proper assignments of, and amendments
to, the financing statements (Form UCC-1) filed in
connection with the transactions contemplated by the
Original Financing Agreement, and copies of proper financing
statements (Form UCC-1) naming the Company as the debtor and
Lender as the secured party, filed or delivered to the
Lender or the Administrator for filing;
(f) A search report updating the search report
delivered in connection with the Original Financing
Agreement provided in writing to the Administrator by LEXIS
Document Service, listing all effective financing statements
that name the Company or AnnTaylor as debtor and that are
filed in the jurisdictions in which filings were made
pursuant to subsection (e) above and in such other
-------------
jurisdictions that Administrator shall reasonably request,
together with copies of such financing statements (none of
which shall cover the Receivables Pool or any interests
therein other than those in favor of Clipper);
(g) Duly executed copies of Lock-Box Agreements with
each of the Lock-Box Banks;
(h) Opinions of (i) Skadden, Arps, Slate, Meagher & Flom, special counsel to the Company, in substantially the
form of Exhibits 5.01(h)-(i), 5.01(h)-(iii) and 5.01(h)-
------------------- ------------- --------
(iv), (ii) Jocelyn F.L. Barandiaran, general counsel for the
----------
Company, in substantially the form of Exhibit 5.01(h)-(ii)
-------------------
and (iii) Tyler, Cooper & Alcorn, special Connecticut
counsel to the Company, in substantially the form of Exhibit
-------
5.01(h)-(v);
-----------
(i) Such powers of attorney as the Administrator shall
reasonably request to enable the Administrator to collect
all amounts due under any and all Pool Receivables;
(j) A pro forma Information Package, assuming a Cut-
---------
Off Date of October 27, 1995;
(k) The Assignment Agreement, duly executed by
Clipper, State Street, Lender and the Administrator;
(l) The Liquidity Agreement, duly executed by Lender,
the Liquidity Agent and each Liquidity Bank;
(m) The Spread Account Agreement, duly executed by the
parties thereto;
(n) An amendment to the Purchase Agreement, duly
executed by the Company and AnnTaylor;
(o) The Note, duly executed by the Company; and
(p) The Fee Letter, duly executed by the Company and
AnnTaylor.
SECTION 5.02. Conditions Precedent to All Loans. Each Loan
---------------------------------
and the effectiveness of this Amended and Restated Receivables
Financing Agreement shall be subject to the further conditions
precedent that on the date of such Loan or effectiveness, as the
case may be, the following statements shall be true (and the
Company by accepting the amount of such Loan or executing and
delivering this Agreement, as the case may be, shall be deemed to
have certified that):
(a) the representations and warranties contained in
Section 6.01 are correct on and as of such day as though
------------
made on and as of such day and shall be deemed to have been
made on such day,
(b) no event has occurred and is continuing, or would
result from such Loan or effectiveness, as the case may be,
that constitutes an Event of Default or Unmatured Event of
Default,
(c) after giving effect to each proposed Loan, the
Outstanding Principal will not exceed the Lending Limit or
the Borrowing Base, and
(d) the Termination Date shall not have occurred.
====================================================================
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the
-------------------------------------
Company. The Company represents and warrants as follows:
- - -------
(a) Organization and Good Standing. It has been duly
-----------------------------
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its
business as such properties are presently owned and such
business is presently conducted, and had at all relevant
times, and now has, all necessary power, authority, and
legal right to acquire and own the Pool Receivables.
(b) Due Qualification. It is duly qualified to do
-----------------
business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification,
licenses or approvals except where the failure to be in good
standing or to so qualify has not had and will not have a
Material Adverse Effect.
(c) Power and Authority; Due Authorization. It (i)
--------------------------------------
has all necessary power, authority and legal right to (A)
execute and deliver this Agreement, the Note and the other
Transaction Documents to which it is a party, (B) carry out
the terms of the Transaction Documents, and (C) borrow the
Loans and grant the security interest in the Receivables
Pool on the terms and conditions herein provided and (ii)
has duly authorized by all necessary corporate action the
execution, delivery and performance of this Agreement, the
Note and the other Transaction Documents to which it is a
party and the borrowing of the Loans and the granting of the
security interest in the Receivables Pool on the terms and
conditions herein provided.
(d) Valid Security Interest; Binding Obligations.
--------------------------------------------
This Agreement creates a valid first priority security
interest in the Receivables Pool in favor of the Lender,
enforceable against creditors of, and purchasers from, the
Company; and this Agreement constitutes, and the Note and
each other Transaction Document to be signed by it when duly
executed and delivered will constitute, its legal, valid and
binding obligation enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(e) No Violation. The consummation of the
------------
transactions contemplated by this Agreement, the Note and
the other Transaction Documents and the fulfillment of the
terms hereof will not (i) conflict with, result in any
breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default
under, the certificate of incorporation or by-laws of the
Company or any indenture, loan agreement, receivables
purchase agreement, mortgage, deed of trust, or other
agreement or instrument to which the Company is a party or
by which it or any of its properties is bound, except where
such conflict, breach or default has not had and will not
have a Material Adverse Effect, (ii) result in the creation
or imposition of any Lien upon any of the Company's
properties pursuant to the terms of any such indenture, loan
agreement, receivables purchase agreement, mortgage, deed of
trust, or other agreement or instrument, other than this
Agreement, or (iii) violate any law or any order, rule, or
regulation applicable to the Company of any court or of any
federal or state regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over
the Company or any of its properties except where such
violation has not had and will not have a Material Adverse
Effect.
(f) No Proceedings. There are no proceedings or
--------------
investigations pending, or to the Company's knowledge
threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this
Agreement or any other Transaction Document, (ii) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or any other Transaction
Document, or (iii) seeking any determination or ruling that
could reasonably be expected to have a Material Adverse
Effect.
(g) Bulk Sales Act. No transaction contemplated
--------------
hereby requires compliance with any bulk sales act or
similar law.
(h) Government Approvals. No authorization or
--------------------
approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by
the Company of this Agreement or any other Transaction
Document, except for the filing of the UCC statements and
------
the assignments of, and amendments to, the UCC financing
statements referred to in Article V, all of which, at the
---------
time required in Article V, shall have been duly made and
---------
shall be in full force and effect (or shall have been duly
delivered to the Administrator).
(i) Financial Condition. (x) The balance sheet of
-------------------
the Company as of January 28, 1995, and the related
statements of income and shareholders' equity of the Company
for the fiscal year then ended certified by Deloitte & Touche, independent certified public accountants, copies of
which have been furnished to the Administrator, fairly
present the Company's financial condition, business,
business prospects and operations as at such date and the
results of the operations of the Company for the period
ended on such date; and (y) since January 28, 1995, there
has been no material adverse change in any of the Company's
financial condition, business, or operations.
(j) Litigation. No injunction, decree or other
----------
decision has been issued or made by any court, governmental
agency or instrumentality thereof that could reasonably be
expected to have a Material Adverse Effect, and no written
threat by any person has been made to attempt to obtain any
such decision.
(k) Margin Regulations. The use of all funds obtained
------------------
by the Company under this Agreement will not conflict with
or contravene any of Regulations G, T, U and X promulgated
by the Board of Governors of the Federal Reserve System from
time to time.
(l) Quality of Title. The Receivables Pool is owned
----------------
by the Company free and clear of any Lien (other than any
Lien arising hereunder solely as the result of any action
taken by Lender (or any assignee thereof) or by the
Administrator); upon the filing of the assignments of, and
amendments to, the UCC-1 financing statements filed with the
Secretary of State of Connecticut in connection with the
Original Financing Agreement, the filing of new UCC-1
financing statements with the Secretary of State of
Connecticut and the execution of the Spread Account
Agreement, Lender shall have acquired and shall at all times
thereafter continuously maintain a valid and perfected first
priority security interest in the Receivables Pool (other
than with respect to the Spread Account, in which case such
security interest shall be in respect of the Eligible
Investments (as defined in the Spread Account Agreement)
credited thereto), free and clear of any Lien (other than
any Lien arising hereunder solely as the result of any
action taken by Lender (or any assignee thereof) or by the
Administrator); and no financing statement or other
instrument similar in effect covering the Receivables Pool
or any portion thereof is on file in any recording office
except such as may be filed (i) in favor of AnnTaylor in
accordance with the Contracts, (ii) in favor of Lender or
the Administrator in accordance with this Agreement or in
connection with any Lien arising hereunder solely as the
result of any action taken by Lender (or any assignee
thereof) or by the Administrator or (iii) in favor of the
Company pursuant to the Purchase Agreement.
(m) Accurate Reports. No Information Package (if
----------------
prepared by the Company or to the extent information therein
was supplied by the Company) or other information, exhibit,
financial statement, document, book, record or report
furnished or to be furnished in writing by or on behalf of
the Company to the Administrator or Lender in connection
with this Agreement was or will be inaccurate in any
material respect (in light of the circumstances under which
such information was furnished and taken as a whole together
with all other information previously furnished or then
being furnished) as of the date it was or will be dated or
(except as otherwise disclosed to the Administrator and
Lender at or prior to such time) as of the date so
furnished, or contained or will contain any material
misstatement of fact or omitted or will omit to state a
material fact or any fact necessary to make the statements
contained therein not materially misleading on the date as
of which such information is dated or certified.
(n) Offices. The chief place of business and chief
-------
executive office of the Company is located at its address
specified in Schedule 6.01(n), and the offices where the
----------------
Company keeps all its books, records and documents
evidencing Pool Receivables, the related Contracts and all
agreements related to such Pool Receivables are located at
the addresses specified in Schedule 6.01(n) (or at such
----------------
other locations, notified to the Administrator in accordance
with Section 7.01(f), in jurisdictions where all action
--------------
required by Section 8.05 has been taken and completed).
------------
(o) Lock-Box Accounts. The names and addresses of all
-----------------
the Lock-Box Banks, together with the account numbers of the
lock-box accounts of the Company at such Lock-Box Banks, are
specified in Schedule 6.01(o) (or have been notified to the
----------------
Administrator in accordance with Section 7.04(d)).
---------------
(p) Eligible Receivables. Each Receivable included in
--------------------
the Net Pool Balance as an Eligible Receivable on the date
of any calculation of the Borrowing Base shall be an
Eligible Receivable on such date.
(q) Capitalization. The authorized capital stock of
--------------
the Company consists of one hundred (100) shares of common
stock, $1.00 par value, of which all are currently issued
and outstanding. All of such outstanding shares are validly
issued, fully paid and nonassessable and are owned
(beneficially and of record) by AnnTaylor.
(r) Trade Names. Except as disclosed on Schedule
----------- --------
6.01(r), the Company does not use any trade name other than
------
its actual corporate name. From and after the date that
fell five (5) years before the date hereof, the Company has
not been known by any legal name other than its corporate
name as of the date hereof, nor has it been the subject of
any merger or other corporate reorganization except as
disclosed on Schedule 6.01(r).
-------
(s) Taxes. The Company has filed all tax returns and
-----
reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be
owing, except any taxes not yet delinquent and any such
taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
on its respective books.
(t) Compliance with Applicable Laws. The Company is
-------------------------------
in compliance in all material respects with the requirements
of all applicable laws, rules, regulations, and orders of
all governmental authorities (including, without limitation,
Regulation Z, laws, rules and regulations relating to usury,
truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection
practices and privacy and all other consumer laws, rules and
regulations applicable to the Receivables and related
Contracts), a breach of any of which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect.
(u) Receivable Evidenced By Instruments. None of the
-----------------------------------
Receivables is evidenced by an instrument (other than
instruments received in connection with collection efforts,
all of which shall be delivered, duly endorsed, to the
Administrator if requested by the Administrator during the
continuance of an Event of Default).
SECTION 6.02. Representations and Warranties of AnnTaylor.
-------------------------------------------
AnnTaylor, as Servicer, represents and warrants as follows:
(a) Organization and Good Standing. It has been duly
------------------------------
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its
business as such properties are presently owned and such
business is presently conducted.
(b) Due Qualification. It is duly qualified to do
-----------------
business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification,
licenses or approvals except where the failure to be in good
standing or to so qualify has not had and will not have a
Servicer Material Adverse Effect.
(c) Power and Authority; Due Authorization. It (i)
--------------------------------------
has all necessary power, authority and legal right to (A)
execute and deliver this Agreement and the other Transaction
Documents to which it is a party, and (B) carry out the
terms of the Transaction Documents, in its capacity as
Servicer, and (ii) has duly authorized by all necessary
corporate action the execution, delivery and performance of
this Agreement and the other Transaction Documents to which
it is a party in its capacity as Servicer.
(d) Binding Obligations. This Agreement constitutes,
-------------------
and each other Transaction Document to be signed by it in
its capacity as Servicer when duly executed and delivered
will constitute, its legal, valid and binding obligation
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(e) No Violation. The consummation of the
------------
transactions contemplated by this Agreement and the other
Transaction Documents to which AnnTaylor is a party in its
capacity as Servicer, and the fulfillment of the terms
hereof will not (i) conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under,
the certificate of incorporation or by-laws of AnnTaylor or
any indenture, loan agreement, receivables purchase
agreement, mortgage, deed of trust, or other agreement or
instrument to which AnnTaylor is a party or by which it or
any of its properties is bound, except where such conflict,
breach or default has not had and will not have a Servicer
Material Adverse Effect, (ii) result in the creation or
imposition of any Lien upon any of AnnTaylor's properties
pursuant to the terms of any such indenture, loan agreement,
receivables purchase agreement, mortgage, deed of trust, or
other agreement or instrument, other than this Agreement, or
(iii) violate any law or any order, rule, or regulation
applicable to AnnTaylor of any court or of any federal or
state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over
AnnTaylor or any of its properties except where such
violation has not had and will not have a Servicer Material
Adverse Effect.
(f) No Proceedings. There are no proceedings or
--------------
investigations pending, or to AnnTaylor's knowledge
threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this
Agreement or any other Transaction Document to which
AnnTaylor is a party as Servicer, (ii) seeking to prevent
the consummation of any of the transactions contemplated by
this Agreement or any other Transaction Document to which
AnnTaylor is a party as Servicer, or (iii) seeking any
determination or ruling that could reasonably be expected to
have a Servicer Material Adverse Effect.
(g) Government Approvals. No authorization or
--------------------
approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by
AnnTaylor of this Agreement or any other Transaction
Document to which it is a party in its capacity as Servicer.
(h) Financial Condition. (x) The consolidated
-------------------
balance sheets of ATSC and its consolidated Subsidiaries as
at July 29, 1995, and the related statements of income and
shareholders' equity of ATSC and its consolidated
Subsidiaries for the six months then ended, certified by a
Responsible Officer of ATSC, copies of which have been
furnished to the Administrator, fairly present the
consolidated financial condition, business, business
prospects and operations of ATSC and its consolidated
Subsidiaries as at such date and the consolidated results of
the operations of ATSC and its consolidated Subsidiaries for
the period ended on such date, all in accordance with GAAP
consistently applied; and (y) since July 29, 1995 there has
been no material adverse change in any such condition,
business, or operations.
(i) Litigation. No injunction, decree or other
----------
decision has been issued or made by any court, governmental
agency or instrumentality thereof that could reasonably be
expected to have a Servicer Material Adverse Effect, and no
written threat by any person has been made to attempt to
obtain any such decision.
(j) Accurate Reports. No Information Package (if
----------------
prepared by AnnTaylor or any of its Affiliates, (other than
the Company), as Servicer, or to the extent information
therein was supplied by AnnTaylor or any of its Affiliates
(other than the Company), as Servicer, or other information,
exhibit, financial statement, document, book, record or
report furnished or to be furnished in writing by or on
behalf of AnnTaylor or any of its Affiliates (other than the
Company), as Servicer to the Administrator or Lender in
connection with this Agreement was or will be inaccurate in
any material respect (in light of the circumstances under
which such information was furnished and taken as a whole
together with all other information previously furnished or
then being furnished) as of the date it was or will be dated
or (except as otherwise disclosed to the Administrator and
Lender at or prior to such time) as of the date so
furnished, or contained or will contain any material
misstatement of fact or omitted or will omit to state a
material fact or any fact necessary to make the statements
contained therein not materially misleading.
(k) Offices. The chief place of business and chief
-------
executive office of AnnTaylor is located at its address
specified in Schedule 6.02(k), and the offices where
---------------
AnnTaylor keeps all its books, records and documents
evidencing Pool Receivables, the related Contracts and all
agreements related to such Pool Receivables are located at
the addresses specified in Schedule 6.02(k) (or at such
---------------
other locations, notified to the Administrator in accordance
with Section 7.01(f)).
--------------
(l) Bank Accounts. The names and addresses of all
-------------
banks with accounts in which Collections received at
AnnTaylor's stores or its headquarters are deposited,
together with the account numbers of such accounts are
specified in Schedule 6.02(l) (or have been notified to the
---------------
Administrator in accordance with Section 7.03(d)).
---------------
(m) Servicing Programs. No further license or
------------------
approval is required for the Administrator's use of any
program used by Servicer in the servicing of the Pool
Receivables, other than those which have been obtained and
are in full force and effect.
(n) Taxes. AnnTaylor has filed all tax returns and
-----
reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be
owing, except any taxes not yet delinquent and any such
taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
on its respective books.
(o) Compliance with Applicable Laws. AnnTaylor, as
-------------------------------
Servicer, is in compliance in all material respects with the
requirements of all applicable laws, rules, regulations, and
orders of all governmental authorities (including, without
limitation, Regulation Z, laws, rules and regulations
relating to usury, truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy and all other consumer
laws, rules and regulations applicable to the Receivables
and related Contracts), a breach of any of which,
individually or in the aggregate, could reasonably be
expected to have a Servicer Material Adverse Effect.
==========================================================================
ARTICLE VII
GENERAL COVENANTS OF THE COMPANY AND ANNTAYLOR
SECTION 7.01. Affirmative Covenants. From the date hereof
---------------------
until the Final Payout Date, the Company and AnnTaylor each
covenants, as to itself, that it will unless, in each case, the
Administrator shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material
-------------------------
respects with all applicable laws, rules, regulations and
orders with respect to the Pool Receivables and related
Contracts except where such noncompliance has not had and
will not have a Material Adverse Effect, in the case of this
covenant by the Company, or Servicer Material Adverse
Effect, in the case of this covenant by AnnTaylor.
(b) Preservation of Corporate Existence. Preserve and
-----------------------------------
maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises,
privileges and qualification would have a Material Adverse
Effect, in the case of this covenant by the Company, or
Servicer Material Adverse Effect, in the case of this
covenant by AnnTaylor.
(c) Audits. (i) At any time and from time to time
------
during regular business hours, upon reasonable notice and in
a manner designed not to unreasonably disrupt the normal
business operations of AnnTaylor or the Company, permit the
Administrator or any of its agents or representatives, (A)
to examine and make copies of and abstracts from all books,
records and documents (including, without limitation,
computer tapes and disks) in its possession or under its
control relating to the Receivables Pool, including, without
limitation, the related Contracts and other agreements, and
(B) to visit its offices and properties for the purpose of
examining such materials described in clause (i)(A) next
------------
above, and to discuss matters relating to the Receivables
Pool or its performance hereunder with any of its officers
or employees having knowledge of such matters; and (ii)
without limiting the provisions of clause (i) next above,
----------
from time to time on request of Administrator, permit
certified public accountants or other auditors acceptable to
the Administrator to conduct, at AnnTaylor's or the
Company's expense, as the case may be, a review of its books
and records; provided, however, that, unless an Event of
Default has occurred and is continuing, AnnTaylor and the
Company shall only be obligated to pay for (i) the out-of-
pocket expenses of the internal auditors of the
Administrator incurred with respect to such reviews done not
more frequently than three times per year (and such expenses
shall be subject to Section 14.05(a)) and (ii) in addition
----------------
to the amounts set forth in clause (i), the allocated cost
---------
of the internal auditors of the Administrator with respect
to such reviews done not more frequently than once a year.
(d) Keeping of Records and Books of Account. Maintain
---------------------------------------
and implement administrative and operating procedures
(including, without limitation, an ability to recreate
records evidencing Pool Receivables in the event of the
destruction of the originals thereof), and keep and main
tain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all
Pool Receivables (including, without limitation, records
adequate to permit the daily identification of each new Pool
Receivable and all Collections of and adjustments to each
existing Pool Receivable).
(e) Performance and Compliance with Receivables and
-----------------------------------------------
Contracts. At its expense timely and fully perform and
---------
comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts
related to the Pool Receivables and all other agreements
related to such Pool Receivables.
(f) Location of Records. Keep its chief place of
-------------------
business and chief executive office, and the offices where
it keeps its records concerning the Pool Receivables, all
related Contracts and all other agreements related to such
Pool Receivables (and all original documents relating
thereto), at its address(es) referred to in Section 6.01(n)
---------------
or 6.02(k), as the case may be, or, upon 30 days' prior
-------
written notice to the Administrator, at such other locations
in jurisdictions where all action required by Section 8.05
------------
shall have been taken and completed.
(g) Credit and Collection Policies. Comply in all
------------------------------
material respects with the Credit and Collection Policy in
regard to each Pool Receivable and the related Contract.
(h) Collections. Instruct all Obligors to cause all
-----------
Collections of Pool Receivables to be deposited directly
with a Lock-Box Bank.
SECTION 7.02 Separate Corporate Existence. The Company
----------------------------
hereby acknowledges that Lender, the Liquidity Banks and the
Administrator, are entering into the transactions contemplated by
this Agreement and the other Transaction Documents in reliance
upon the Company's identity as a legal entity separate from
AnnTaylor. Therefore, from and after the date hereof, the
Company shall take all steps specifically required by this
Agreement or by the Lender or Administrator to continue the
Company's identity as a separate legal entity and to make it
apparent to third Persons that the Company is an entity with
assets and liabilities distinct from those of Servicer, AnnTaylor
and any other Person, and is not a division of Servicer,
AnnTaylor or any other Person. Without limiting the generality
of the foregoing and in addition to and consistent with the other
covenants set forth herein, the Company shall take such actions
as shall be required in order that:
(a) The Company will be a limited purpose corporation
whose primary activities are restricted in its certificate
of incorporation to purchasing or otherwise acquiring from
AnnTaylor, owning, holding, granting security interests, or
selling interests, in Receivables, Contracts, Related
Security and Collections from AnnTaylor, entering into
agreements for the servicing and financing of the
Receivables Pool, entering into interest rate agreements,
spread account agreements and similar documents and
conducting such other activities as it deems necessary or
appropriate to carry out its primary activities;
(b) Not less than one member of the Company's Board of
Directors (the "Independent Director") shall be an
--------------------
individual who is not a direct, indirect or beneficial
stockholder, officer, director, employee, affiliate,
associate, or supplier of the Company or any of its
Affiliates. The certificate of incorporation of the Company
shall provide that (i) the Company's Board of Directors
shall not approve, or take any other action to cause the
filing of, a voluntary bankruptcy petition with respect to
the Company unless the Independent Director shall approve
the taking of such action in writing prior to the taking of
such action and (ii) such provision cannot be amended
without the prior written consent of the Independent
Director;
(c) The Independent Director shall not at any time
serve as a trustee in bankruptcy for the Company, AnnTaylor
or any Affiliate thereof;
(d) Any employee, consultant or agent of the Company
will be compensated from the Company's funds for services
provided to the Company. The Company will engage no agents
other than its attorneys, auditors and other professionals,
and a servicer for the Receivables Pool, which servicer will
be fully compensated for its services to the Company by
payment of the Servicer's Fee;
(e) The Company will contract with Servicer to perform
for the Company all operations required on a daily basis to
service the Receivables Pool. The Company will pay Servicer
the Servicer's Fee pursuant hereto. The Company will not
incur any material indirect or overhead expenses for items
shared between the Company and AnnTaylor (or any other
Affiliate thereof) which are not reflected in the Servicer's
Fee. To the extent, if any, that the Company and AnnTaylor
(or any other Affiliate thereof) share items of expenses not
reflected in the Servicer's Fee, such as legal, auditing and
other professional services, such expenses will be allocated
to the extent practical on the basis of actual use or the
value of services rendered, and otherwise on a basis
reasonably related to the actual use or the value of
services rendered, it being understood that AnnTaylor shall
pay all expenses relating to the preparation, negotiation,
execution and delivery of the Transaction Documents,
including, without limitation, legal, agency and other fees;
(f) The Company's operating expenses will not be paid
by AnnTaylor or any other Affiliate thereof;
(g) The Company will have its own separate post office
box and stationery;
(h) The Company's books and records will be maintained
separately from those of AnnTaylor and any other Affiliate
thereof;
(i) All financial statements of AnnTaylor or any
Affiliate thereof that are consolidated to include the
Company will contain detailed notes clearly stating that (A)
all of the Company's assets are owned by the Company, and
(B) the Company is a separate corporate entity with
creditors who have received security interests in the
Company's assets;
(j) The Company's assets will be maintained in a
manner that facilitates their identification and segregation
from those of AnnTaylor or any Affiliate thereof;
(k) The Company will strictly observe corporate
formalities in its dealings with AnnTaylor or any Affiliate
thereof, and funds or other assets of the Company will not
be commingled with those of AnnTaylor or any Affiliate
thereof. The Company shall not maintain joint bank accounts
or other depository accounts to which AnnTaylor or any
Affiliate thereof (other than AnnTaylor in its capacity as
Servicer) has independent access; and
(l) The Company will maintain arm's-length
relationships with AnnTaylor (and any Affiliate thereof).
Any Person that renders or otherwise furnishes services to
the Company will be compensated by the Company at market
rates for such services it renders or otherwise furnishes to
the Company. Except as contemplated in the Transaction
Documents neither the Company nor AnnTaylor will be or will
hold itself out to be responsible for the debts of the other
or the decisions or actions respecting the daily business
and affairs of the other.
SECTION 7.03. Reporting Requirements. From the date hereof
----------------------
until the Final Payout Date, the Company and AnnTaylor each
covenants as to itself that it will, unless the Administrator
shall otherwise consent in writing, furnish to the Administrator
the items set forth in paragraphs (a), (b), (g), (h), (i), (j),
-------------- --- --- --- --- ---
(k) and (m) in the case of the Company and the items set forth in
- - --- ---
paragraphs (c), (d), (e), (f), (g), (h), (i), (k), (l) and (m) in
- - ---------- --- --- --- --- --- --- --- --- --- ---
the case of AnnTaylor:
(a) Monthly Financial Statements - the Company. As
------------------------------------------
soon as available and in any event within 45 days after the
end of each month copies of the financial statements of the
Company prepared in conformity with GAAP (but subject to
year end audit adjustments), duly certified by a Responsible
Officer of the Company;
(b) Annual Financial Statements - the Company. As
-----------------------------------------
soon as available and in any event within 90 days after the
end of each fiscal year of the Company, copies of the
financial statements of the Company prepared in conformity
with GAAP, including a footnote containing the aggregate
Unpaid Balance of the Pool Receivables, the Unpaid Balance
of the Delinquent Receivables and of the Defaulted
Receivables, duly certified by independent certified public
accountants of recognized standing selected by the Company;
(c) Quarterly Financial Statements - ATSC. As soon as
-------------------------------------
available and in any event within 45 days after the end of
each fiscal quarter of ATSC, copies of the financial
statements of ATSC and its Subsidiaries prepared on a
consolidated basis in conformity with GAAP, duly certified
by a Responsible Officer of ATSC, together with a
certificate from such officer containing a computation of,
and showing compliance with, the financial restrictions
contained in Sections 7.05(d) and (e);
---------------- ---
(d) Annual Financial Statements - ATSC. As soon as
----------------------------------
available and in any event within 90 days after the end of
each fiscal year of ATSC, copies of the financial statements
of ATSC and its Subsidiaries prepared on a consolidated
basis in conformity with GAAP, duly certified by independent
certified public accountants of recognized standing selected
by ATSC, together with a certificate from such accountants
containing a computation of, and showing compliance with,
the financial restrictions contained in Sections 7.05(d) and
----------------
(e);
---
(e) Financial Statements - AnnTaylor. As soon as
--------------------------------
practicable after requested by the Administrator, copies of
the financial statements of AnnTaylor and its Subsidiaries
prepared on a consolidated basis in conformity with GAAP,
duly certified by a Responsible Officer of AnnTaylor;
(f) Reports to Holders and Exchanges. In addition to
--------------------------------
the reports required by subsections (a), (b), (c), (d) and
--------------- --- --- ---
(e) next above, promptly upon the Administrator's request,
---
copies of any reports which ATSC sends to any of its
securityholders, and any reports or registration statements
that ATSC files with the Securities and Exchange Commission
or any national securities exchange other than registration
statements relating to employee benefit plans and to
registrations of securities for selling securities;
(g) ERISA. Promptly after the filing or receiving
-----
thereof, copies of all reports and notices with respect to
any Reportable Event defined in Article IV of ERISA as to
which the 30-day notice requirement has not been waived by
the Pension Benefit Guaranty Corporation which ATSC, the
Company or AnnTaylor, as the case may be, files under ERISA
with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or
which the Company or AnnTaylor, as the case may be, receives
from the Pension Benefit Guaranty Corporation;
(h) Events of Default. As soon as possible and in any
-----------------
event within five days after a Responsible Officer of the
Company or AnnTaylor, as the case may be, has knowledge of
the occurrence of each Event of Default and each Unmatured
Event of Default, a written statement of a Responsible
Officer of the Company or AnnTaylor, as the case may be,
setting forth details of such event and the action that the
Company proposes to take with respect thereto;
(i) Litigation. As soon as possible and in any event
----------
within five Business Days of the Company's or AnnTaylor's,
as the case may be, knowledge thereof, notice of (i) any
litigation, investigation or proceeding which may exist at
any time could reasonably be expected to have a Material
Adverse Effect and (ii) any material adverse development in
previously disclosed litigation;
(j) Management Report. As soon as available, a copy
-----------------
of the annual management report of ATSC prepared in
connection with the annual audit referred to in Section
-------
7.03(d).
------
(k) Change in Credit and Collection Policy. Prior to
--------------------------------------
its effective date, notice of any change in the Credit and
Collection Policy;
(l) Bank Accounts. On or prior to each January 27th
------------
and, during the continuance of an Event of Default, as often
as requested by the Administrator, an updated and corrected
Schedule 6.02(l); and
---------------
(m) Other. Promptly, from time to time, such other
-----
information, documents, records or reports respecting the
Pool Receivables or the condition or operations, financial
or otherwise, of the Company or AnnTaylor, as the case may
be, as the Administrator may from time to time reasonably
request in order to protect the interests of the
Administrator or Lender under or as contemplated by this
Agreement.
SECTION 7.04. Negative Covenants of the Company. From the
---------------------------------
date hereof until the Final Payout Date, the Company will not
without the prior written consent of the Administrator:
(a) Sales, Liens, Etc. Except as otherwise provided
-----------------
herein or in the Purchase Agreement, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Lien upon or with respect to,
the Receivables Pool, or any interest therein, or any lock-
box account to which any Collections of any Pool Receivable
are sent, or any right to receive income or proceeds from or
in respect of any of the foregoing.
(b) Extension or Amendment of Receivables. Except in
-------------------------------------
accordance with the Credit and Collection Policy as
permitted in Section 8.02, extend, amend or otherwise modify
------------
the terms of any Pool Receivable, or amend, modify or waive
any term or condition of any Contract related thereto.
(c) Change in Business or Credit and Collection
-------------------------------------------
Policy. Make any change in the character of its business or
------
in the Credit and Collection Policy, which change would, in
either case, adversely affect the collectability of a
significant portion of the Pool Receivables or otherwise
adversely affect the first priority, perfected security
interest or remedies of Lender under this Agreement or any
other Transaction Document or, without limiting the
generality of the foregoing, change the method of
calculating aging, which method is described in the Credit
and Collection Policy.
(d) Change in Payment Instructions to Obligors. Add
------------------------------------------
or terminate any bank as a Lock-Box Bank from those listed
in Schedule 6.01(o) or make any change in its instructions
----------------
to Obligors regarding payments to be made to the Company or
Servicer or payments to be made to any Lock-Box Bank, unless
the Administrator shall have received notice of such
addition, termination or change and duly executed copies of
Lock-Box Agreements with each new Lock-Box Bank.
(e) Mergers, Acquisitions, Sales, etc. Be a party to
---------------------------------
any merger or consolidation, or purchase or otherwise
acquire all or substantially all of the assets or any stock
of any class of, or any partnership or joint venture
interest in, any other Person, or sell, transfer, convey or
lease all or any substantial part of its assets (other than
pursuant hereto and the Purchase Agreement), or sell or
assign with or without recourse any Receivables or any
interest therein (other than pursuant hereto or the Purchase
Agreement).
(f) Restricted Payments. Purchase or redeem any
-------------------
shares of the capital stock of the Company, declare or pay
any dividends thereon (other than stock dividends), make any
distribution to stockholders or set aside any funds for any
such purpose, or make any payment in cash with respect to
the Company Note (as defined in the Purchase Agreement)
issued pursuant to the Purchase Agreement, unless after
giving effect thereto, the Company's Net Worth is at least
$850,000.
(g) Deposits to Special Accounts. Deposit or
----------------------------
otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account cash or cash proceeds
other than Collections of Pool Receivables.
(h) Incurrence of Indebtedness. Incur or permit to
--------------------------
exist any indebtedness or liability on account of deposits
or advances or for borrowed money or for the deferred
purchase price of any property or services, except (i)
indebtedness not exceeding in the aggregate $4,995 at any
one time outstanding, (ii) the Company's obligations
hereunder or under the other Transaction Documents and (iii)
the Company's obligations under a reimbursement agreement
related to the Customer Letter of Credit, provided that such
--------
obligations are subordinate to the Company's obligations
hereunder and under the Note and the parties thereto have
agreed to non-petition language with respect to the Company
reasonably satisfactory to the Administrator.
(i) Purchase Agreement. Amend or waive any provision
------------------
of the Purchase Agreement, or terminate the Purchase
Agreement, other than pursuant to the amendment dated the
date hereof.
(j) Certificate of Incorporation. Amend, repeal or
----------------------------
waive Articles III, VII, X, XI, XII or XIV of its
certificate of incorporation, other than the amendment
thereto on or about the date hereof made in connection with
the amendment and restatement of this Agreement.
SECTION 7.05 Negative Covenants of AnnTaylor. From the
-------------------------------
date hereof until the Final Payout Date, AnnTaylor will not,
without the prior written consent of the Administrator:
(a) Conduct of Business. Engage in any business other
-------------------
than the business engaged in by AnnTaylor on the date hereof
and any business activities substantially similar or related
thereto.
(b) Mergers, Acquisitions, etc. Be a party to any
--------------------------
merger, consolidation, or purchase or otherwise acquire all
or substantially all of the assets or any stock of any class
of, or any partnership or joint venture interest in, any
other person, or, except in the ordinary course of its
business, sell, transfer, convey or lease all or any
substantial part of its assets, or sell or assign with or
without recourse any Receivables or any interest therein
other than:
(i) pursuant to the Purchase Agreement;
(ii) licenses of trademarks to the
extent necessary to maintain or protect such trademarks
in jurisdictions outside the United States of America;
(iii) any sale or disposition of
AnnTaylor's interest in the CAT Joint Venture pursuant
to the CAT Joint Venture Agreement;
(iv) any purchase or acquisition of any
assets among AnnTaylor and its Restricted Subsidiaries;
it being understood that AnnTaylor shall be permitted
to incorporate new Restricted Subsidiaries;
(v) any purchase or acquisition of any
interest in joint ventures (in the form of
corporations, partnerships or otherwise) in a maximum
amount not exceeding $10,000,000 at any one time
outstanding;
(vi) any purchase or acquisition of any
assets or capital stock in Unrestricted Subsidiaries in
an amount not to exceed $1,000,000 at any one time
outstanding;
(vii) any purchase or acquisition of any
assets or capital stock in the CAT Joint Venture
pursuant to the CAT Joint Venture Agreement in an
amount not to exceed 15% of Net Worth; and
(viii) any merger or consolidation of any
Subsidiary (other than the Company) into or with
AnnTaylor, so long as AnnTaylor is the surviving
corporation.
(c) Restricted Payments. Violate the provisions of
-------------------
Section 8.05 of the AnnTaylor Credit Agreement as in effect
------------
from time to time or, if the AnnTaylor Credit Agreement is
terminated or cancelled or it expires, as in effect
immediately prior to such termination, cancellation or
expiration (and such provisions, and the definitions related
thereto, are herein incorporated by reference as if fully
set forth herein).
(d) Net Worth. Permit Net Worth as determined at the
---------
end of any fiscal quarter (beginning with the fiscal quarter
ending on or about January 28, 1995) to be less than the Net
Worth on or about October 30, 1994 plus (a) 50% of Net
Income after October 30, 1994 (without deducting from such
cumulative amount the amount of any net loss incurred in any
fiscal year except extraordinary losses associated with the
redemption or repurchase of indebtedness) plus (b) 100% of
the net proceeds of any equity issue or conversion of debt
to equity subsequent to October 30, 1994 minus (c) any
-----
expenses related to the payments for ATSC's share of
expenses incurred in connection with any public offering of
common stock minus (d) payments by ATSC or AnnTaylor to
acquire shares of common stock from employees of ATSC,
AnnTaylor or any Restricted Subsidiary in an aggregate
amount not exceeding $100,000 in any fiscal year.
(e) Fixed Charge Coverage Ratio. Permit the Fixed
---------------------------
Charge Coverage Ratio, as determined at (i) the end of the
fiscal quarter ended in October of 1995 for such fiscal
quarter to be less than 0.45 to 1.00 and (ii) the end of any
fiscal quarter for the preceding four fiscal quarters (or,
if less, the number of full fiscal quarters elapsed since
October 28, 1995) to be less than the ratio set forth
opposite the month in which such fiscal quarter ends:
Quarter Ended Minimum Ratio
------------- -------------
January 1996 0.75 to 1.00
April 1996 1.00 to 1.00
July 1996 1.10 to 1.00
October 1996 1.15 to 1.00
January 1997 and thereafter 1.25 to 1.00
(f) Purchase Agreement. Amend or waive any provision
------------------
of the Purchase Agreement, or terminate the Purchase
Agreement, except for the amendment to the Purchase
Agreement dated the date hereof.
====================================================================
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01. Designation of Servicer.
-----------------------
(a) AnnTaylor as Initial Servicer. The servicing,
-----------------------------
administering and collection of the Pool Receivables shall be
conducted by the Person designated as Servicer hereunder
("Servicer") from time to time in accordance with this Section
-------
8.01. Until the Administrator gives to AnnTaylor a Successor
- - ----
Notice (as defined in Section 8.01(b)), AnnTaylor is hereby
---------------
designated as, and hereby agrees to perform the duties and
obligations of, Servicer pursuant to the terms hereof.
(b) Successor Notice; Servicer Transfer Events. Upon
-----------------------------------------
AnnTaylor's receipt of a notice from the Administrator of the
Administrator's designation of a new Servicer (a "Successor
---------
Notice"), AnnTaylor agrees that it will terminate its activities
- - ------
as Servicer hereunder in a manner that the Administrator believes
will facilitate the transition of the performance of such
activities to the new Servicer, and the Administrator (or its
designee) shall assume each and all of AnnTaylor's obligations to
service and administer such Receivables, on the terms and subject
to the conditions herein set forth, and AnnTaylor shall use its
best efforts to assist the Administrator (or its designee) in
assuming such obligations, including, without limitation, by
allowing the Administrator (or its designee) access to all
computer software and programs used by AnnTaylor to service the
Pool Receivables. The Administrator agrees not to give AnnTaylor
a Successor Notice until after the occurrence and only during the
continuance of any Event of Default (any such Event of Default
being herein called a "Servicer Transfer Event"), in which case
-----------------------
such Successor Notice may be given at any time in the
Administrator's discretion. If AnnTaylor disputes the occurrence
of a Servicer Transfer Event, AnnTaylor may take appropriate
action to resolve such dispute provided that AnnTaylor must
--------
terminate its activities hereunder as Servicer and allow the
newly designated Servicer to perform such activities on the date
provided by the Administrator as described above, notwithstanding
the commencement or continuation of any proceeding to resolve the
aforementioned dispute.
(c) Subcontracts. Servicer may, with the prior consent of
------------
the Administrator, subcontract with any other Person for
servicing, administering or collecting the Pool Receivables,
provided that Servicer shall remain liable for the performance of
the duties and obligations of Servicer pursuant to the terms
hereof.
SECTION 8.02. Duties of Servicer.
------------------
(a) Appointment; Duties in General. Each of the Company,
------------------------------
Lender and the Administrator hereby appoints as its agent
Servicer, as from time to time designated pursuant to Section
8.01, to enforce its rights and interests in and under the Pool
Receivables, the Related Security and the related Contracts.
Servicer shall take or cause to be taken all such actions as may
be necessary or advisable to collect each Pool Receivable from
time to time, all in accordance with applicable laws, rules and
regulations, with reasonable care and diligence, and in
accordance with the Credit and Collection Policy.
(b) Allocation of Collections; Segregation. Servicer shall
--------------------------------------
set aside for the account of the Lender the Collections of Pool
Receivables as set forth in Section 3.01, but shall not be
------------
required (unless otherwise requested by the Administrator after
the occurrence and during the continuance of an Event of Default)
to segregate the funds constituting such portions of such
Collections prior to the remittance thereof in accordance with
such Section. If instructed by the Administrator after the
occurrence and during the continuance of an Event of Default,
Servicer shall segregate and deposit with a bank designated by
the Administrator, the Collections of Pool Receivables, on the
second Business Day following receipt by Servicer of such
Collections in immediately available funds. Such Collections
shall be applied in accordance with Section 3.01.
------------
(c) Modification of Receivables. So long as AnnTaylor is
---------------------------
the Servicer, Servicer may, (A) in accordance with the Credit and
Collection Policy, (i) extend the maturity of, or defer interest
payments or finance charges with respect to, any Pool Receivable
as Servicer may determine to be appropriate to maximize
Collections thereof, and (ii) adjust the Unpaid Balance of any
Receivable to reflect the reductions or cancellations described
in the first sentence of Section 3.02(a) or (B) as a result of a
-------------- ---
natural disaster, extend the maturity or defer interest payments
or finance charges with respect to any Pool Receivable of an
Obligor that is located in the area affected by such natural
disaster as Servicer may determine; provided that the aggregate
--------
Unpaid Balance of such extended or deferred Pool Receivables does
not exceed 3% of Outstanding Principal.
(d) Documents and Records. The Company shall deliver to
---------------------
Servicer, and Servicer shall hold for the sole benefit of the
Company and Lender in accordance with their respective interests,
all documents, instruments and records (including, without
limitation, computer tapes or disks) that evidence or relate to
Pool Receivables.
(e) Certain Duties to the Company. Servicer, if other than
-----------------------------
AnnTaylor, shall, as soon as practicable upon demand, deliver to
the Company copies of all documents, instruments and records in
its possession that evidence or relate to Pool Receivables.
(f) Termination. Servicer's authorization under this
-----------
Agreement shall terminate upon the Final Payout Date.
(g) Power of Attorney. The Company hereby grants to
-----------------
Servicer an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of
the Company all steps which are necessary or advisable to
endorse, negotiate or otherwise realize on any writing or other
right of any kind held or transmitted by the Company or
transmitted or received by Lender (whether or not from the
Company) in connection with any Pool Receivable.
(h) Information. Servicer shall take such steps as shall
-----------
be necessary to enable it to provide complete and accurate
information, within five (or, if an Event of Default is
continuing, one) Business Day(s) of request, to the
Administrator, with respect to the daily amounts and
corresponding locations of those Collections received by the
Company that have not been sent directly to the Lock-Box Banks.
SECTION 8.03. Rights of the Administrator.
---------------------------
(a) Notice to Obligors. At any time after the occurrence
------------------
and during the continuance of an Event of Default the
Administrator may notify the Obligors of Pool Receivables, or any
of them, of the security interest held by Lender.
(b) Notice to Lock-Box Banks. At any time following the
------------------------
occurrence and during the continuance of a Event of Default the
Administrator is hereby authorized to give notice to the Lock-Box
Banks, as provided in the Lock-Box Agreements, of the transfer to
the Administrator of dominion and control over the lock-boxes and
related accounts to which the Obligors of Pool Receivables make
payments. The Company hereby transfers to the Administrator,
effective when the Administrator shall give notice to the Lock-
Box Banks as provided in the Lock-Box Agreements, the exclusive
dominion and control over such lock-boxes and accounts, and shall
take any further action that the Administrator may reasonably
request to effect such transfer. To the extent that the Lock-Box
Banks are transferring Collections directly to the Administrator
or pursuant to instructions from the Administrator, neither the
Company nor the Servicer shall have any obligation to pay over
such Collections pursuant to Section 3.01(b). The Administrator
---------------
hereby agrees that upon the request of the Company (i) at and
after such time that this Agreement is no longer in effect, it
will provide written notice to the Lock-Box Banks and any bank
referred to in Section 7.01(i) to such effect and (ii) unless an
--------------
Event of Default is then continuing, it will within one Business
Day of such request by the Company deliver instructions to any
Lock-Box Bank whose Lock-Box Agreement has been cancelled or
terminated directing that mail addressed to the lock-box account,
administered by such Lock-Box Bank be forwarded to another Lock-
Box Bank as specified in such request by the Company.
(c) Rights on Servicer Transfer Event. At any time
---------------------------------
following a Servicer Transfer Event:
(i) The Administrator may direct the Obligors of Pool
Receivables, or any of them, to pay all amounts payable
under any Pool Receivable directly to the Administrator.
(ii) AnnTaylor shall, at the Administrator's request
and at AnnTaylor's expense, give notice of the Lender's
security interest to each Obligor and direct that payments
be made directly to the Administrator.
(iii) AnnTaylor shall, at the Administrator's request,
(A) assemble all of the documents, instruments and other
records (including, without limitation, computer programs,
tapes and disks) which evidence the Pool Receivables, and
the related Contracts and Related Security, or which are
otherwise necessary or desirable to collect such Pool
Receivables, and make the same available to the
Administrator at a place selected by the Administrator, and
(B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections of
Pool Receivables in a manner acceptable to the Administrator
and promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments
of transfer, to the Administrator.
(iv) Each of AnnTaylor, the Company and Lender hereby
authorizes the Administrator, and grants to the
Administrator an irrevocable power of attorney, to take any
and all steps in the Company's or AnnTaylor's name and on
behalf of the Company, AnnTaylor and Lender which are
necessary or desirable, in the determination of the
Administrator, to collect all amounts due under any and all
Pool Receivables, including, without limitation, endorsing
the Company's or AnnTaylor's name on checks and other
instruments representing Collections and enforcing such Pool
Receivables and the related Contracts; provided that the
Administrator shall not exercise its rights under such power
of attorney unless a Servicer Transfer Event shall have
occurred and be continuing.
SECTION 8.04. Responsibilities of the Company. Anything
-------------------------------
herein to the contrary notwithstanding:
(a) Contracts. The Company shall perform all of its
----------
obligations under the Contracts related to the Pool Receivables
and under the other agreements related thereto to the same extent
as if the security interest had not been granted hereunder and
the exercise by the Administrator or its designee of its rights
hereunder shall not relieve the Company from such obligations.
(b) Limitation of Liability. Neither the Administrator nor
-----------------------
Lender shall have any obligation or liability with respect to any
Pool Receivables, the Contracts related thereto or any other
agreements related thereto, nor shall any of them be obligated to
perform any of the obligations of the Company thereunder.
SECTION 8.05. Further Action Evidencing Security Interest.
-------------------------------------------
(a) Further Assurances. The Company agrees that from time
------------------
to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action
that the Administrator or its designee may reasonably request in
order to perfect or more fully evidence the security interest
granted hereunder, or to enable Lender or the Administrator or
its designee to exercise or enforce any of their respective
rights hereunder or under any Transaction Document. Without
limiting the generality of the foregoing, the Company will upon
the request of the Administrator or its designee:
(i) execute and file such financing or continuation
statements, or amendments thereto or assignments thereof,
and such other instruments or notices, as may be necessary
or appropriate;
(ii) mark its summary master control data processing
records evidencing such Pool Receivables and related
Contracts with a legend, acceptable to the Administrator,
that the Pool Receivable and related Contracts have been
pledged hereunder.
(b) Additional Financing Statements; Performance by
-----------------------------------------------
Administrator. The Company hereby authorizes the Administrator
- - ------------
or its designee to file one or more financing or continuation
statements, and amendments thereto and assignments thereof,
relative to all or any portion the Receivables Pool now existing
or hereafter arising in the name of the Company. If the Company
fails to perform any of its agreements or obligations under this
Agreement, the Administrator or its designee may (but shall not
be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Administrator or
its designee incurred in connection therewith shall be payable by
the Company as provided in Section 14.05.
-------------
(c) Continuation Statements; Opinion. Without limiting the
--------------------------------
generality of subsection (a), the Company will, not earlier than
--------------
six (6) months and not later than three (3) months prior to the
fifth anniversary of the date of filing of the financing
statement referred to in Section 5.01(e) of the Original
--------------
Financing Agreement or any other financing statement filed
pursuant to this Agreement or in connection with any Loan
hereunder, unless the Final Payout Date shall have occurred
execute and deliver and file or cause to be filed an appropriate
continuation statement with respect to such financing statement.
SECTION 8.06. Application of Collections. Any payment by
--------------------------
an Obligor in respect of any indebtedness owed by it to the
Company shall, except as otherwise specified by such Obligor,
required by the underlying Contract or law be applied, first, as
-----
a Collection of any Finance Charge Receivable or Receivables that
are Pool Receivables then outstanding of such Obligor in the
order of the age of such Finance Charge Receivables, starting
with the oldest of such Finance Charge Receivable, second, as a
------
Collection of any Principal Receivable or Receivables that are
Pool Receivables then outstanding of such Obligor in the order of
the age of such Principal Receivables, starting with the oldest
of such Principal Receivable, and third, to any other
-----
indebtedness of such Obligor.
======================================================================
ARTICLE IX
SECURITY INTEREST
SECTION 9.01. Grant of Security Interest. To secure all
--------------------------
obligations of the Company arising in connection with this
Agreement, the Note and each other Transaction Document, whether
now or hereafter existing, due or to become due, direct or
indirect, or absolute or contingent, including, without
limitation, the principal of and interest on the Loans, all
Indemnified Amounts, payments on account of deemed Collections
and fees, the Company hereby assigns and grants to Lender a
continuing security interest in all of the Company's right, title
and interest, now or hereafter existing, in, to and under the
Receivables Pool (other than the Spread Account, it being
understood that the Company has granted a continuing security
interest in the Spread Account to the Lender under the Spread
Account Agreement).
SECTION 9.02. Remedies. Upon the occurrence and during the
--------
continuance of an Event of Default, Lender shall have, with
respect to the collateral granted pursuant to Section 9.01, and
------------
in addition to all other rights and remedies available to Lender
or the Administrator under this Agreement or other applicable
law, all the rights and remedies of a secured party upon default
under the UCC.
====================================================================
ARTICLE X
EVENTS OF DEFAULT
SECTION 10.01. Events of Default. The following events
-----------------
shall be "Events of Default" hereunder:
-----------------
(a) (i) The Company shall fail to pay any principal
of, or interest on, any Loan when due (whether or not
sufficient Collections have then been received to make such
payment) or (ii) Servicer (if AnnTaylor or its Affiliate is
Servicer) shall fail to perform or observe any term,
covenant or agreement that is an obligation of Servicer
hereunder (other than as referred to in clause (iii) next
------------
following) and such failure shall remain unremedied for
three Business Days or (iii) Servicer (if AnnTaylor or its
Affiliate is Servicer) shall fail to make any payment or
deposit to be made by it hereunder when due; or
(b) Any representation or warranty made or deemed to
be made by the Company or AnnTaylor (or any of their
respective officers) under or in connection with this
Agreement shall prove to have been false or incorrect in any
material respect when made (other than a breach of the
representations set forth in Section 6.01(l), 6.01(p) or
-----------------------
6.01(u)); or
------
(c) The Company or AnnTaylor shall fail to perform or
observe any other term, covenant or agreement contained in
this Agreement or any of the other Transaction Documents on
its part to be performed or observed and any such failure
shall remain unremedied for twenty days; or
(d) A default shall have occurred and be continuing
under any instrument or agreement evidencing, securing or
providing for the issuance of indebtedness for borrowed
money in excess of $2,000,000 of, or guaranteed by,
AnnTaylor, ATSC or any Restricted Subsidiary, which default
if unremedied, uncured, or unwaived (with or without the
passage of time or the giving of notice or both) would
permit acceleration of the maturity of such indebtedness and
such default shall have continued unremedied, uncured or
unwaived for a period long enough to permit such
acceleration and any notice of default required to permit
acceleration shall have been given; or any default under any
agreement or instrument relating to the purchase of
receivables of AnnTaylor, ATSC or any Restricted Subsidiary,
or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default is to
terminate, or permit the termination of, the commitment of
any party to such agreement or instrument to purchase
receivables or the right of AnnTaylor, ATSC or any
Restricted Subsidiary to reinvest in receivables the
principal amount paid by any party to such agreement or
instrument for interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and
remain continuing with respect to the Company, AnnTaylor,
ATSC or any Restricted Subsidiary; or
(f) The Net Yield at any time is less than -2%; or
(g) The Gross Default-to-Liquidation Ratio exceeds
2.00% or the Net Default to Liquidation Ratio exceeds 1.45%;
or
(h) The Payment Rate is less than 22%; or
(i) The Delinquency Ratio at any Cut-Off Date is
greater than 11.5% or the average of the Delinquency Ratios
for the most recent three Cut-Off Dates is greater than 11%;
or
(j) There shall exist any event, circumstance or
occurrence that would be reasonably likely to have a
material adverse effect on the validity or enforceability of
this Agreement, the Note or any other Transaction Document
or on the status, existence, perfection, priority or
enforceability of Lender's interest in the Receivables Pool;
or
(k) The warranty in Section 6.01(i)(y) shall not be
------------------
true at any time; or
(l) The occurrence of a Change-in-Control; or
(m) The Internal Revenue Service shall file notice of
a lien pursuant to Section 6323 of the Internal Revenue Code
with regard to any of the assets of the Company and such
lien shall not have been released within 5 days (or 30 days,
if payment in full with respect thereto shall have been made
within 5 days), or the Pension Benefit Guaranty Corporation
shall file notice of a lien pursuant to Section 4068 of
ERISA with regard to any of the assets of the Company; or
(n) The Dilution Ratio exceeds 15%; or
(o) The sum of (i) the balance in the Spread Account
and (ii) the stated amount of the Customer Letter of Credit
as of any Settlement Date, after giving effect to all
withdrawals therefrom or draws thereupon on such date, shall
be less than 0.5% of the then Outstanding Principal; or
(p) The Outstanding Principal shall exceed the
Borrowing Base as set forth in the most recently delivered
Information Package (or portion thereof) and the Company
shall not have prepaid the Loan in the amount of such excess
within one Business Day.
SECTION 10.02. Remedies.
--------
(a) Optional Acceleration. Upon the occurrence of a Event
---------------------
of Default (other than a Event of Default described in subsection
----------
(e) of Section 10.01), the Administrator shall, at the request,
- - --- -------------
or may with the consent, of Lender, by notice to the Company
declare the Loan Termination Date to have occurred, whereupon the
obligation of Lender to make any Loans hereunder shall
immediately terminate, and declare the unpaid principal amount
of, and any and all accrued and unpaid interest on the Loans to
be, and the same shall thereupon be, immediately due and payable,
without presentment, further demand, or protest or other
requirement of any kind, all of which are expressly waived by the
Company.
(b) Automatic Acceleration. Upon the occurrence of a Event
----------------------
of Default described in subsection (e) of Section 10.01 with
-------------
respect to the Company, AnnTaylor or ATSC, or subsection (f),
--------------
(g), (h), (i), (n), (o) or (p) of Section 10.01, the Loan
- - --- --- --- --- --- --- -------------
Termination Date shall occur automatically, whereupon the
obligation of Lender to make any Loan hereunder shall immediately
terminate, and the unpaid principal amount of and any and all
accrued interest on the Loans shall automatically become
immediately due and payable, without presentment, demand or
protest or other requirement of any kind, all of which are hereby
expressly waived by the Company.
(c) Additional Remedies. Upon any Loan Termination Date
-------------------
pursuant to this Section 10.02, no Loans thereafter will be made,
-------------
and the Administrator and Lender shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all
other rights and remedies provided to secured parties under the
UCC of each applicable jurisdiction and other applicable laws,
which rights shall be cumulative.
======================================================================
ARTICLE XI
THE ADMINISTRATOR
SECTION 11.01. Authorization and Action. Lender has
------------------------
appointed and authorized the Administrator (or its designees) to
take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrator
by the terms hereof, together with such powers as are reasonably
incidental thereto.
SECTION 11.02. Administrator's Reliance, Etc. The
-----------------------------
Administrator and its directors, officers, agents or employees
shall not be liable for any action taken or omitted to be taken
by it or them under or in connection with the Transaction
Documents (including, without limitation, the servicing,
administering or collecting Pool Receivables as Servicer pursuant
to Section 8.01), except for its or their own gross negligence or
------------
willful misconduct. Without limiting the generality of the
foregoing, the Administrator: (a) may consult with legal counsel
(including counsel for the Company or AnnTaylor), independent
certified public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) makes no warranty or
representation to Lender or any other holder of any interest in
Pool Receivables and shall not be responsible to Lender or any
such other holder for any statements, warranties or
representations made in or in connection with any Transaction
Document; (c) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms,
covenants or conditions of any Transaction Document by the
Company or AnnTaylor, or to inspect the property (including the
books and records) of the Company or AnnTaylor; (d) shall not be
responsible to Lender or any other holder of any interest in Pool
Receivables for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any
Transaction Document; and (e) shall incur no liability under or
in respect of this Agreement by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or
writing (which may be by facsimile or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 11.03. PNC Bank and Affiliates. PNC Bank and any
-----------------------
of its Affiliates may generally engage in any kind of business
with the Company, AnnTaylor or any Obligor, any of their
respective Affiliates and any Person who may do business with or
own securities of the Company, AnnTaylor or any Obligor or any of
their respective Affiliates, all as if PNC Bank were not the
Administrator, and without any duty to account therefor to Lender
or any other holder of an interest in Pool Receivables.
==========================================================================
ARTICLE XII
ASSIGNMENT OF LENDER'S INTEREST
SECTION 12.01. Restrictions on Assignments.
---------------------------
(a) Neither the Company, nor AnnTaylor, as Servicer, may
assign its rights, or delegate its duties hereunder or any
interest herein without the prior written consent of the
Administrator. Lender may not assign its rights hereunder
(although it may delegate its duties hereunder as expressly
indicated herein) or the Loans (or any portion thereof) to any
Person without the prior written consent of the Company, which
consent shall not be unreasonably withheld; provided, however,
-----------------
that
(i) Lender may assign all of its rights and interests
in the Transaction Documents, together with all its interest
in the Loans, to PNC Bank, or any Affiliate of PNC Bank, or
to any "bankruptcy remote" special purpose entity the
business of which is administered by PNC Bank or any
Affiliate of PNC Bank or to any Program Support Provider;
provided, however, no such assignment may be made unless the
----------------
assignee shall agree with the Company that the Company shall
not be obligated to pay interest on the Loans in excess of
the interest that the Company would have been obligated to
pay absent such assignment, unless an Event of Default has
occurred and is continuing; and
(ii) Lender may assign and grant a security interest
or a participating interest in all of its rights in the
Transaction Documents, together with all of its rights and
interest in the Loans, to the Liquidity Agent or any Program
Support Provider, to secure Lender's obligations under or in
connection with the Commercial Paper Notes, the Liquidity
Agreement and any other Program Support Agreement, and
certain other obligations of Lender incurred in connection
with the funding of the Loans hereunder, which assignment
and grant of a security interest or a participating interest
shall not be considered an "assignment" for purposes of
Section 12.01 or, prior to the enforcement of such security
interest, for purposes of any other provision of this
Agreement.
The parties hereto anticipate that Market Street Capital Corp.
will assign all of its rights and obligations under this
Agreement and the other Transaction Documents to Market Street
Funding Corporation, a Delaware corporation ("Funding"). The
-------
Company and AnnTaylor hereby consent to such assignment, and
agree that upon receipt by AnnTaylor of notice of such assignment
by PNC Bank, (i) all references herein and in the other
Transaction Documents to "Lender" shall be deemed to refer to
Funding and (ii) all references herein and in the other
Transaction Documents to the "Administrator" shall refer to PNC
Bank, as administrator for Funding. The Company and AnnTaylor
hereby agree to execute and deliver such documents and
instruments, including UCC financing statements, as the
Administrator may reasonably request to evidence such assignment.
(b) The Company agrees to advise the Administrator within
five Business Days after notice to the Company of any proposed
assignment by Lender of the Loans (or any portion thereof), not
otherwise permitted under subsection (a), of the Company's
-------------
consent or non-consent to such assignment and if it does not
consent, the reasons therefor. If the Company does not consent
to such assignment, Lender may immediately assign such Loans (or
portion thereof) to PNC Bank or any Affiliate of PNC Bank. All
of the aforementioned assignments shall be upon such terms and
conditions as Lender and the assignee may mutually agree.
SECTION 12.02. Rights of Assignee. Upon the assignment by
------------------
Lender in accordance with this Article XII, the assignee
-----------
receiving such assignment shall have all of the rights of Lender
with respect to the Transaction Documents and the Loans (or such
portion thereof as has been assigned).
SECTION 12.03. Evidence of Assignment. Any assignment of
----------------------
the Loans (or any portion thereof) to any Person may be evidenced
by such instrument(s) or document(s) as may be satisfactory to
Lender, the Administrator and the assignee.
==========================================================================
ARTICLE XIII
INDEMNIFICATION
SECTION 13.01. Indemnities.
----------
(a) General Indemnity. Without limiting any other rights
----------------
which any such Person may have hereunder or under applicable law,
the Company hereby agrees to indemnify each of the Administrator,
Lender, the Liquidity Banks, the other Program Support Providers,
the Liquidity Agent, each of their respective Affiliates, and all
successors, transferees, participants and assigns and all
officers, directors, shareholders, controlling persons, employees
and agents of any of the foregoing (each an "Indemnified Party"),
-----------------
forthwith on demand, from and against any and all damages,
losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of
the foregoing being collectively referred to as "Indemnified
-----------
Amounts") awarded against or incurred by any of them arising out
- - -------
of or relating to the Transaction Documents or the ownership or
funding of the Loans or in respect of any Receivable or any
Contract, excluding, however, (a) Indemnified Amounts to the
--------- -------
extent determined by a court of competent jurisdiction to have
resulted from gross negligence or willful misconduct of such
Indemnified Party, (b) recourse (except as otherwise specifically
provided in this Agreement) for Defaulted Receivables, (c) taxes
on net income, or (d) Indemnified Amounts resulting solely from
acts or omissions of Servicer. Without limiting the foregoing,
the Company shall indemnify each Indemnified Party for
Indemnified Amounts arising out of or relating to:
(i) the transfer by the Company of any interest in any
Receivable other than the grant of a security interest to
Lender pursuant to Section 9.01;
------------
(ii) any representation or warranty made by the
Company under or in connection with any Transaction
Document, any Information Package or any other information
or report delivered by or on behalf of the Company pursuant
hereto, which shall have been false, incorrect or misleading
in any material respect when made or deemed made;
(iii) the failure by the Company to comply with any
applicable law, rule or regulation (including truth in
lending, fair credit billing, usury, fair credit reporting,
equal credit opportunity, fair debt collection practices and
privacy) with respect to any Pool Receivable or the related
Contract, or the nonconformity of any Pool Receivable or the
related Contract with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain vested in Lender
a first priority perfected security interest, in the
Receivables in, or purporting to be in, the Receivables
Pool, free and clear of any Lien, other than a Lien arising
solely as a result of an act of Lender or the Administrator,
whether existing at the time of any Loan or at any time
thereafter;
(v) the failure to file, or any delay in filing,
financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any Receivables in, or
purporting to be in, the Receivables Pool, whether at the
time of any Loan or at any time thereafter;
(vi) without duplication of amounts paid pursuant to
Section 3.02(a), any dispute, claim, offset or defense
---------------
(other than discharge in bankruptcy) of the Obligor to the
payment of any Receivable in, or purporting to be in, the
Receivables Pool (including, without limitation, a defense
based on such Receivable's or the related Contract's not
being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the merchandise or
services related to such Receivable or the furnishing or
failure to furnish such merchandise or services;
(vii) any failure of the Company or Servicer to
perform its duties or obligations in accordance with the
provisions of Article VIII; or
------------
(viii) any products liability claim arising out of or
in connection with merchandise or services that are the
subject of any Pool Receivable.
(b) Indemnity by AnnTaylor. Without limiting any other
----------------------
rights which any such person may have hereunder under applicable
law, AnnTaylor hereby agrees to indemnify each Indemnified Party,
forthwith on demand, from and against any and all Indemnified
Amounts awarded against or incurred by any of them arising out of
or relating to:
(i) any representation or warranty made by AnnTaylor
under or in connection with any Transaction Document in its
capacity as Servicer, any Information Package or any other
information or report delivered by or on behalf of AnnTaylor
in its capacity as Servicer pursuant hereto, which shall
have been false, incorrect or misleading in any material
respect when made or deemed made;
(ii) the failure by AnnTaylor, in its capacity as
Servicer, to comply with any applicable law, rule or
regulation (including truth in lending, fair credit billing,
usury, fair credit reporting, equal credit opportunity, fair
debt collection practices and privacy) with respect to any
Pool Receivable or other related contract; or
(iii) any failure of AnnTaylor to perform its duties,
covenants and obligations in accordance with the applicable
provisions of this Agreement.
(c) After-Tax Basis. Indemnification hereunder shall be in
---------------
an amount necessary to make the Indemnified Party whole after
taking into account any tax consequences to the Indemnified Party
of the payment of any of the aforesaid taxes and the receipt of
the indemnity provided hereunder or of any refund of any such tax
previously indemnified hereunder, including the effect of such
tax or refund on the amount of tax measured by net income or
profits which is or was payable by the Indemnified Party.
(d) Contest. Promptly after receipt of notice of the
-------
commencement of any action involving any indemnified party in
respect of which an indemnity will be sought pursuant to this
Section 13.01, such indemnified party shall promptly notify the
- - -------------
Company or AnnTaylor, as applicable; provided, however, that such
--------
failure to so notify shall not affect the rights of such
Indemnified Party to indemnity hereunder unless such failure
prejudices the Company's or AnnTaylor's ability to contest such
claim. The Company or AnnTaylor, as applicable, shall have the
right to assume the defense with respect to such indemnified
claim, and to retain counsel reasonably satisfactory to the
Indemnified Party to represent such Indemnified Party; provided
--------
that (i) AnnTaylor or the Company, as applicable, shall pay all
of the fees, costs and expenses of such counsel related to such
proceedings, (ii) the Company or AnnTaylor, as appropriate, has
acknowledged in writing to such Indemnified Party that such claim
is an indemnified claim hereunder and (iii) no Event of Default
has occurred and is continuing. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel
at its own expense, except that AnnTaylor or the Company, as
applicable, shall pay the fees and expenses of such counsel
retained by the Indemnified Party in the event that (i) the
Company or AnnTaylor, as applicable, and the Indemnified Party
shall mutually agree to the retention of such counsel or, (ii)
the named parties to any such proceeding (including any impleaded
party) include both the Company and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate, in the reasonable opinion of the Indemnified
Party, due to actual or potential differing interests between
them. Neither the Company nor AnnTaylor, as applicable, shall be
liable for any settlement, compromise or fine or judgement by
consent with respect to any proceeding effected without its
written consent, unless an Event of Default has occurred and is
continuing, but if settled with such consent or if there shall be
a final judgement for the plaintiff, the Company or AnnTaylor, as
applicable, agrees to indemnify the indemnified party to the
extent set forth in this Section 13.01. In addition, neither the
-------------
Company nor AnnTaylor will, without the prior written consent of
the Indemnified Party, settle or compromise or consent to the
entry of any judgement in any pending or threatened claim,
action, suit, proceeding or investigation or agree to any fine in
respect of which indemnification may be sought hereunder (whether
or not the indemnified party is an actual or potential party to
such claim, action, suit, proceeding, or investigation) unless
such settlement, compromise, consent or agreement includes an
unconditional release of each Indemnified Party from all
liability arising out of such claim, action, suit, proceeding or
investigation. If an Event of Default has occurred and is
continuing, neither the Company nor AnnTaylor shall have the
right to control the defense of any indemnified claim pursuant to
this paragraph (d).
------------
(e) Contribution. If for any reason the indemnification
------------
provided above in this Section 13.01 is unavailable to an
------------
Indemnified Party or is insufficient to hold an Indemnified Party
harmless, then the Company or AnnTaylor or both, as applicable,
shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not
only the relative benefits received by such Indemnified Party on
the one hand and the Company or AnnTaylor or both, as applicable,
on the other hand but also the relative fault of such Indemnified
Party as well as any other relevant equitable considerations.
(f) Participants. Any Indemnified Party which is a
------------
participant shall only be entitled to amounts under this Section
-------
13.01 to the extent that such amounts, together with all amounts
- - -----
due to the Person selling such participation under this Section
-------
13.01, do not exceed the amounts that would have been due to such
- - -----
Person under this Section 13.01 if the participation had not been
-------------
entered into or sold.
====================================================================
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Amendments, Etc. No amendment or waiver of
---------------
any provision of this Agreement nor consent to any departure by
the Company or AnnTaylor therefrom shall in any event be
effective unless the same shall be in writing and signed by (a)
the Company, AnnTaylor, the Administrator and Lender (with
respect to an amendment) or (b) the Administrator and Lender
(with respect to a waiver or consent by them) or the Company or
AnnTaylor (with respect to a waiver or consent by it), as the
case may be, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given. The parties acknowledge that, before entering into
such an amendment or granting such a waiver or consent, Lender
may also be required to obtain the approval of some or all of the
Liquidity Banks to obtain confirmation from certain rating
agencies that such amendment, waiver or consent will not result
in a withdrawal or reduction of the ratings of the Commercial
Paper Notes.
SECTION 14.02. Notices, Etc. All notices and other
------------
communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including facsimile communication)
and shall be personally delivered or sent by express mail or
courier or by certified mail, postage prepaid, or by facsimile,
to the intended party at the address or facsimile number of such
party set forth under its name on the signature pages hereof or
at such other address or facsimile number as shall be designated
by such party in a written notice to the other parties hereto.
All such notices and communications shall be effective, (a) if
personally delivered or sent by express mail or courier or if
sent by certified mail, when received, and (b) if transmitted by
facsimile, when sent, receipt confirmed by telephone or
electronic means.
SECTION 14.03. No Waiver; Remedies. No failure on the part
-------------------
of the Administrator, any Affected Party, any Indemnified Party,
Lender or any other holder of the Loans (or any portion thereof)
to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Without limiting the foregoing, to the
fullest extent permitted by law, each of PNC Bank, individually
and as the Administrator, and each Liquidity Bank is hereby
authorized by the Company at any time and from time to time, to
set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
indebtedness at any time owing by PNC Bank or such Liquidity Bank
to or for the credit or the account of the Company for
obligations now or hereafter existing under this Agreement, to
the Administrator, any Affected Party, any Indemnified Party or
Lender, or their respective successors and assigns.
SECTION 14.04. Binding Effect; Survival. This Agreement
------------------------
shall be binding upon and inure to the benefit of the Company,
AnnTaylor, the Administrator, Lender and their respective
successors and assigns, and the provisions of Section 4.02 and
------------
Article XIII shall inure to the benefit of the Affected Parties
- - ------------
and the Indemnified Parties, respectively, and their respective
successors and assigns; provided, however, nothing in the
foregoing shall be deemed to authorize any assignment not
permitted by Section 12.01. This Agreement shall create and
-------------
constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and
effect until the Final Payout Date. The rights and remedies with
respect to any breach of any representation and warranty made by
the Company or AnnTaylor pursuant to Article VI and the
----------
indemnification and other provisions of Article XIII and Sections
------------ --------
4.02, 14.05, 14.06, 14.07, 14.08 and 14.15 shall be continuing
- - ---- ----- ----- ----- ----- -----
and shall survive any termination of this Agreement.
SECTION 14.05. Costs, Expenses and Taxes. In addition to
-------------------------
its obligations under Article XIII, the Company agrees to pay on
------------
demand:
(a) all costs and expenses incurred by the
Administrator, the Liquidity Banks and the Lender in
connection with the negotiation, preparation, execution and
delivery, or the enforcement of, or any actual or claimed
breach of, this Agreement and the other Transaction
Documents, including, without limitation (i) the reasonable
fees and expenses of counsel to any of such Persons incurred
in connection with any of the foregoing or in advising such
Persons as to their respective rights and remedies under any
of the Transaction Documents, and (ii) subject to Section
-------
7.01(c), all reasonable out-of-pocket expenses (including
------
reasonable fees and expenses of independent accountants but,
other than as set forth in Section 7.01(c), excluding
---------------
allocations of any expenses relating to salaries of
employees or other overhead expenses), incurred in
connection with any review of the Company's or AnnTaylor's
books and records either prior to the execution and delivery
hereof or pursuant (it being understood that receipts will
be required for expenses over $5, meal expenses will be
limited to $40 per day per person, air travel shall be by
unrestricted coach class and, unless an Event of Default has
occurred and shall be continuing, flight and lodging
arrangements shall be made through AnnTaylor Travel, Inc.);
and
(b) all stamp and other similar taxes and fees payable
or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement
or the other Transaction Documents, and agrees to indemnify
each Indemnified Party against any liabilities with respect
to or resulting from any delay in paying or omission to pay
such taxes and fees; provided that any Indemnified Party
--------
which is a participant shall only be entitled to amounts
under this Section 14.05(b) to the extent that such amounts,
----------------
together with all amounts due to the Person selling such
participation under this Section 14.05, do not exceed the
-------------
amounts that would have been due to such Person under this
Section 14.05 if the participation had not been entered into
-------------
or sold.
SECTION 14.06. No Proceedings. The Company, AnnTaylor,
--------------
Servicer and PNC Bank (individually and as Administrator) each
hereby agrees that it will not institute against Lender, or join
any other Person in instituting against Lender, any insolvency
proceeding (namely, any proceeding of the type referred to in the
definition of Event of Bankruptcy) so long as any Commercial
Paper Notes issued by Lender shall be outstanding or there shall
not have elapsed one year plus one day since the last day on
which any such Commercial Paper Notes shall have been
outstanding. The foregoing shall not limit the Company's or
AnnTaylor's right to file any claim in or otherwise take any
action with respect to any insolvency proceeding that was
instituted by any Person other than the Company or AnnTaylor.
SECTION 14.07. Confidentiality of the Company Information.
------------------------------------------
(a) Confidential Company Information. Each party hereto
--------------------------------
(other than the Company or AnnTaylor) acknowledges that certain
of the information provided to such party by or on behalf of the
Company or AnnTaylor in connection with this Agreement and the
transactions contemplated hereby is or may be confidential, and
each such party severally agrees that, unless the Company or
AnnTaylor shall otherwise agree in writing, and except as
provided in subsection (b), such party will not disclose to any
-------------
other person or entity:
(i) any information regarding, or copies of, any non-
public financial statements, reports and other information
furnished by the Company or AnnTaylor to Lender or the
Administrator pursuant to Section 3.01, 5.01(j), 5.01(k),
------------ ------ -------
6.01(i), 6.01(j), 6.01(m), 6.02(h), 6.02(i), 6.02(j),
------- ------ ------- ------ ------ -------
7.01(c) or 7.03, or
------ ---
(ii) any other information regarding the Company or
AnnTaylor which is designated by the Company or AnnTaylor to
such party in writing as confidential
(the information referred to in clauses (i) and (ii) above,
----------- ---
whether furnished by the Company, AnnTaylor or any attorney for
or other representative of the Company or AnnTaylor (each a
"Company Information Provider"), is collectively referred to as
- - ----------------------------
the "Company Information"; provided, however, the "Company
------------------- -------- ------- -------
Information" shall not include
- - -----------
(A) any information which is or becomes generally
available to the general public or to such party on a
nonconfidential basis from a source other than any Company
Information Provider, or which was known to such party on a
nonconfidential basis prior to its disclosure by any Company
Information Provider, or
(B) information regarding the nature of this
Agreement, the basic terms hereof (including without
limitation the amount and nature of Lender's commitment and
Outstanding Principal and of the recourse or other credit
enhancement provided by the Company hereunder), the nature,
amount and status of the Pool Receivables, and the current
and/or historical ratios of losses to liquidations,
dilutions and/or outstandings with respect to the
Receivables Pool, such other information as may be required
to be disclosed, in the Administrator's reasonable
judgement, under securities laws applicable to Lender.
(b) Disclosure. Notwithstanding subsection (a), each party
--------- --------------
may disclose any of the Company Information:
(i) to any of such party's independent attorneys,
consultants and auditors, and to each Liquidity Bank, each
other Program Support Provider, any dealer or placement
agent for Lender's commercial paper, and any actual or
potential assignees of, or participants in, any of the
rights or obligations of Lender, any Liquidity Bank, any
other Program Support Provider or the Administrator under or
in connection with this Agreement, who (A) in the good faith
belief of such party, have a need to know such Company
Information, (B) are informed by such party of the
confidential nature of the Company Information and the terms
of this Section 14.07, and (C) are subject to
------------
confidentiality restrictions generally consistent with this
Section 14.07,
------------
(ii) to any rating agency that maintains a rating for
Lender's commercial paper or is considering the issuance of
such a rating, for the purposes of reviewing the credit of
Lender in connection with such rating,
(iii) to any other party to this Agreement, for the
purposes contemplated hereby,
(iv) as may be required by any municipal, state,
federal or other regulatory body having or claiming to have
jurisdiction over such party, in order to comply, in the
reasonable judgement of counsel to such party, with any law,
order, regulation, regulatory request or ruling applicable
to such party, or
(v) subject to subsection (c), in the event such party
-------------
is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand
or similar process) to disclose such Company Information.
(c) Legal Compulsion. In the event that any party hereto
---------------
(other than the Company or AnnTaylor) or any of its
representatives is requested or becomes legally compelled (by
interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any of
the Company or AnnTaylor Information, such party will (or will
cause its representative to)
(i) provide the Company or AnnTaylor with prompt
written notice so that (A) the Company or any other Company
Information Provider may seek a protective order or other
appropriate remedy, or (B) the Company or AnnTaylor may, if
it so chooses, agree that such party (or its
representatives) may disclose such Company Information
pursuant to such request or legal compulsion; and
(ii) unless the Company or AnnTaylor agrees that such
Company Information may be disclosed, make a timely
objection to the request or compulsion to provide such
Company Information on the basis that such Company
Information is confidential and subject to the agreements
contained in this Section 14.07.
------------
In the event such protective order or remedy is not obtained, or
the Company or AnnTaylor waives compliance with the provisions of
this Section 14.07, such party will furnish only that portion of
-------------
the Company Information which (in such party's good faith
judgment) is legally required to be furnished and will exercise
reasonable efforts to obtain reliable assurance that confidential
treatment will be afforded the Company Information.
(d) This Section 14.07 shall survive termination of this
------------
Agreement.
SECTION 14.08. Confidentiality of Program Information.
--------------------------------------
(a) Confidential Information. Each party hereto
-----------------------
acknowledges that PNC Bank regards the structure of the
transactions contemplated by this Agreement to be proprietary,
and each such party severally agrees that:
(i) it will not disclose without the prior consent of
PNC Bank (other than to the directors, employees, auditors,
counsel or affiliates (collectively, "representatives")) of
such party, each of whom shall be informed by such party of
the confidential nature of the Information (as defined
below) and of the terms of this Section 14.08, (A) any
-------------
information regarding the pricing in, or copies of, the Fee
Letter, (B) any information regarding the organization,
business or operations of Lender generally or the services
performed by the Administrator for Lender, or (C) any
information which is furnished by PNC Bank to such party and
which is designated by PNC Bank to such party in writing as
confidential or as not otherwise available to the general
public (the information referred to in clauses (A), (B) and
---------- ---
(C) is collectively referred to as the "Program
-- -------
Information"); provided, however, that such party may
---------- -------- ------
disclose any such Program Information (I) to any other party
to this Agreement for the purposes contemplated hereby, (II)
as may be required, in the reasonable judgement of counsel
to such party, by any municipal, state, federal or other
regulatory body having or claiming to have jurisdiction over
such party, (III) in order to comply with any law, order,
regulation, regulatory request or ruling applicable to such
party, (IV) subject to subsection (c), in the event such
-------------
party is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand
or similar process) to disclose any such Program
Information, (V) to any of such party's independent
attorneys, consultants and auditors, or (VI) in defending
any action or proceeding relating to the Transaction
Documents;
(ii) it will use the Program Information solely for
the purposes of evaluating, administering and enforcing the
transactions contemplated by this Agreement and making any
necessary business judgments with respect thereto; and
(iii) it will, upon written demand, return (and cause
each of its representatives to return) to PNC Bank, all
documents or other written material received from PNC Bank,
as the case may be, in connection with (a)(i)(B) or (C)
--------- ---
above and all copies thereof made by such party which
contain the Program Information.
The parties hereto acknowledge that AnnTaylor will file a copy of
this Agreement with the Securities and Exchange Commission and
will provide copies hereof to Persons requesting such copies as
may be required by applicable law and to such Persons as may have
a valid business need to review this Agreement; provided that
--------
none of the Company, AnnTaylor nor any Affiliate thereof shall
otherwise distribute copies of this Agreement.
(b) Availability of Confidential Information. This Section
---------------------------------------- -------
14.08 shall be inoperative as to such portions of the Program
- - -----
Information which are or become generally available to the public
or such party on a nonconfidential basis from a source other than
PNC Bank or were known to such party on a nonconfidential basis
prior to its disclosure by PNC Bank.
(c) Legal Compulsion to Disclose. In the event that any
----------------------------
party or anyone to whom such party or its representatives
transmits the Program Information is requested or becomes legally
compelled (by interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar
process) to disclose any of the Information, such party will
(i) provide PNC Bank with prompt written notice so
that PNC Bank may seek a protective order or other
appropriate remedy and/or waive compliance with the
provisions of this Section 14.08; and
-------------
(ii) unless PNC Bank waives compliance by such party
with the provisions of this Section 14.08, make a timely
-------------
objection to the request or confirmation to provide such
Program Information on the basis that such Program
Information is confidential and subject to the agreements
contained in this Section 14.08.
-------------
In the event that such protective order or other remedy is not
obtained, or PNC Bank waives compliance with the provisions of
this Section 14.08, such party will furnish only that portion of
-------------
the Program Information which (in such party's good faith
judgment) is legally required to be furnished and will exercise
reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Program Information.
(d) Survival. This Section 14.08 shall survive termination
-------- -------------
of this Agreement.
SECTION 14.09. Captions and Cross References. The various
-----------------------------
captions (including, without limitation, the table of contents)
in this Agreement are provided solely for convenience of
reference and shall not affect the meaning or interpretation of
any provision of this Agreement. Unless otherwise indicated,
references in this Agreement to any Section, Appendix, Schedule
or Exhibit are to such Section of or Appendix, Schedule or
Exhibit to this Agreement, as the case may be, and references in
any Section, subsection, or clause to any subsection, clause or
subclause are to such subsection, clause or subclause of such
Section, subsection or clause.
SECTION 14.10. Governing Law. THIS AGREEMENT, INCLUDING
-------------
THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 14.11. Waiver Of Jury Trial. EACH PARTY HERETO
--------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, THE NOTE, ANY OTHER TRANSACTION DOCUMENT OR UNDER ANY
AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY BE IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM
ANY BANKING OR OTHER RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
SECTION 14.12. Consent To Jurisdiction; Waiver Of
----------------------------------
Immunities. EACH OF ANNTAYLOR AND THE COMPANY HEREBY
- - ---------
ACKNOWLEDGES AND AGREES THAT:
(a) IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION,
FIRST, OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF
FEDERAL JURISDICTION IS NOT AVAILABLE, OF ANY NEW YORK STATE
COURT, IN EITHER CASE SITTING IN NEW YORK, NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN
SUCH NEW YORK STATE OR FEDERAL COURT AND NOT IN ANY OTHER
COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION, EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 14.13. Execution in Counterparts. This Agreement
--------------------------
may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same
Agreement.
SECTION 14.14. No Recourse Against Other Parties. No
---------------------------------
recourse under any obligation, covenant or agreement of Lender
contained in this Agreement shall be had against any stockholder,
employee, officer, director, or incorporator of Lender, provided,
however, that nothing in this Section 14.14 shall relieve any of
-------------
the foregoing Persons from any liability which such Person may
otherwise have for his/her or its gross negligence or willful
misconduct.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ANNTAYLOR FUNDING, INC. as the Company
By /s/ Walter J. Parks
-------------------------------
Title: Vice President
414 Chapel Street
New Haven, CT 06511
Telephone No.: (203) 865-0811
Facsimile No.: (203) 865-2756
Attention: President
ANNTAYLOR, INC., as initial Servicer
By /s/ Walter J. Parks
---------------------------------
Title: Senior Vice President
142 West 57th Street
New York, NY 10019
Telephone No.: (212) 541-3300
Facsimile No.: (212) 541-3299
Attention: Senior Vice President
with a copy to:
AnnTaylor, Inc.
414 Chapel Street
New Haven, CT 06511
Telephone No.: (203) 865-0811
Facsimile No.: (203) 865-2756
Attention: Vice President - Controller
MARKET STREET CAPITAL CORP.,
as Lender
By /s/ Douglas K. Johnson
--------------------------------
Title President
c/o AMACAR Group, L.L.C.
6707-D Fairview Road
Charlotte, North Carolina 28210
Facsimile No.: (704) 365-1362
Attention: Douglas K. Johnson
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ Robert O. Finley, Jr.
--------------------------
Title: Vice President
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15265
Facsimile No.: (412) 762-9184
Attention: Robert O. Finley, Jr.
- - --------------------------------------------------------------
APPENDIX A
DEFINITIONS
This is Appendix A to the Amended and Restated Receivables
Financing Agreement dated as of October 31, 1995 among AnnTaylor
Funding, Inc., AnnTaylor, Inc., Market Street Capital Corp. and
PNC Bank, National Association, as Administrator (as further
amended, supplemented or otherwise modified from time to time,
and including the Original Financing Agreement for the time that
it was in effect, this "Agreement"). Each reference in this
---------
Appendix A to any Section, Appendix or Exhibit refers to such
- - ----------
Section of or Appendix or Exhibit to this Agreement.
A. Defined Terms. As used in this Agreement, unless the
-------------
context requires a different meaning, the following terms have
the meanings indicated hereinbelow:
"Account" means each revolving credit card account
-------
established pursuant to a Contract between AnnTaylor and any
Obligor pursuant to which indebtedness may arise for the purchase
of goods.
"Account Age" has the meaning set forth in Schedule 7.03(c).
----------- ----------------
"Administrator" has the meaning set forth in the preamble.
------------- --------
"Administrator's Office" means the office of the
----------------------
Administrator at Fifth Avenue and Wood Street, Pittsburgh,
Pennsylvania 15265, Attention: Market Street, or such other
address as shall be designated by the Administrator in writing to
the Company and Lender.
"Affected Party" means each of Lender, each Liquidity Bank,
--------------
any assignee or participant of Lender or any Liquidity Bank, each
other Program Support Provider, any assignee or participant of
any Program Support Provider, PNC Bank, any successor to PNC Bank
as Administrator and any sub-agent of the Administrator.
"Affiliate" when used with respect to ATSC, AnnTaylor or the
---------
Company means ATSC or any Subsidiary of ATSC and when used with
respect to any other Person means any other Person controlling,
controlled by, or under common control with, such Person.
"Alternate Base Rate" means, on any date, a fluctuating rate
-------------------
of interest per annum equal to the higher of
--- -----
(a) the rate of interest most recently announced by
PNC Bank in Pittsburgh, Pennsylvania, as its prime rate; and
(b) the Federal Funds Rate (as defined below) most
recently determined by PNC Bank plus 1.0% per annum.
--- -----
The Alternate Base Rate is not necessarily intended to be the
lowest rate of interest determined by the Liquidity Agent in
connection with extensions of credit.
"Amount Payable" has the meaning set forth in
--------------
Section 3.01(b).
- - ---------------
"AnnTaylor" has the meaning set forth in the preamble.
--------- --------
"AnnTaylor Credit Agreement" means the Amended and Restated
--------------------------
Credit Agreement, dated as of September 29, 1995, among
AnnTaylor, Bank of America National Trust and Savings Association
and Fleet Bank, National Association, as Co-Agents, the financial
institutions from time to time party thereto and Bank of America
National Trust and Savings Association, as Agent.
"Assignment Agreement" has the meaning set forth in
--------------------
paragraph 3 of the Background.
- - ----------- ----------
"ATSC" means AnnTaylor Stores Corporation, a Delaware
----
corporation.
"Bank Rate" for any Interest Period means
---------
(a) in the case of any Interest Period other than a
Interest Period described in clause (b), an interest rate
----------
per annum equal to the sum of (x) the Bank Rate Spread, plus
--- ----- ----
(y) the Eurodollar Rate (Reserve Adjusted) for such Interest
Period;
(b) in the case of
(i) any Interest Period on or prior to the
first day of which Lender or any Liquidity Bank shall
have notified the Administrator that (A) the
introduction of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Person
to fund the applicable Loan (or portion thereof) at the
rate described in clause (a), or (B) due to market
----------
conditions affecting the London interbank eurodollar
market, funds are not reasonably available to such
Person in such market in order to enable it to fund
such Loan (or portion thereof) at the rate described in
clause (a) (and in the case of subclause (A) or (B),
---------- ------------- ---
such Person shall not have subsequently notified the
Administrator that such circumstances no longer exist),
or
(ii) any Interest Period as to which the
Administrator does not receive notice or determine, by
no later than 12:00 noon (New York City time) on the
third Business Day preceding the first day of such
Interest Period, that the applicable Loan (or portion
thereof) will be funded by Liquidity Loans and not by
the issuance of Commercial Paper Notes,
an interest rate per annum equal to (x) the Bank Rate
--- -----
Spread, plus (y) the Alternate Base Rate in effect from time
----
to time during such Interest Period.
"Bank Rate Spread" for purposes of determining the Bank Rate
----------------
for any Interest Period means a rate per annum equal to (i) if
--- -----
the Bank Rate for such Interest Period will be based on the
Eurodollar Rate (Reserve Adjusted), 1.25% per annum, and (ii) if
--- -----
the Bank Rate for such Interest Period will be based on the
Alternate Base Rate, 0.25% per annum.
--- -----
"Board of Directors" means either the Board of Directors of
------------------
the Company or any duly authorized committee of that board.
"Borrowing Base" has the meaning set forth in Section
-------------- -------
1.03(a).
- - -------
"Borrowing Notice" has the meaning set forth in Section
---------------- -------
1.02(a).
- - -------
"Business Day" means a day on which both (a) the
------------
Administrator at its principal office in Pittsburgh, Pennsylvania
is open for business and (b) commercial banks in New York City
and Chicago, Illinois are not authorized or required to be closed
for business.
"Capital Expenditures" shall mean, for any period, on a
--------------------
consolidated basis for AnnTaylor and its Restricted Subsidiaries,
the aggregate of all expenditures (whether paid in cash or
accrued as liabilities during that period and including that
portion of Capital Leases (except any capitalized interest) which
is capitalized on the consolidated balance sheet of AnnTaylor and
its Restricted Subsidiaries) made by AnnTaylor or any Restricted
Subsidiary during such period that, in conformity with GAAP, are
required to be included in or reflected by property, plant or
equipment, licenses and permits, or other similar fixed asset
accounts as reflected in such balance sheet (including
expenditures for equipment purchased simultaneously with the
trade-in of existing equipment owned by AnnTaylor or any such
Restricted Subsidiary to the extent the gross amount of such
purchase price exceeds the book value of the equipment being
traded in, but excluding expenditures made in connection with the
replacement or restoration of assets, to the extent reimbursed or
financed from insurance proceeds or condemnation awards).
"Capital Lease", as applied to any Person, shall mean any
-------------
lease of any property (whether real, personal, or mixed) by that
Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Cash Interest Expense" shall mean, for any period, all
---------------------
Interest Expense for such period payable in cash.
"Change in Control" means any of the following:
-----------------
(a) "Change in Control" as defined in the
Indenture dated as of June 15, 1993 from AnnTaylor to
Fleet Bank, N.A., as Trustee relating to the 8-3/4%
Subordinated Notes due 2000 of AnnTaylor as in effect
on the date hereof; or
(b) the failure of AnnTaylor to own directly or
indirectly, 100% of the outstanding voting stock of the
Company.
"Clipper" has the meaning set forth in paragraph 2 of the
------- -----------
Background.
- - ----------
"Collections" means, with respect to any Receivable, all
-----------
funds which either (a) are received by the Company or Servicer
from or on behalf of the related Obligors in payment of any
amounts owed (including, without limitation, purchase prices,
finance charges, interest and all other charges) in respect of
such Receivable, or applied to such amounts owed by such Obligors
(including, without limitation, insurance payments that the
Company or Servicer applies in the ordinary course of its
business to amounts owed in respect of such Receivable and net
proceeds of sale or other disposition of repossessed goods or
other collateral or property of the Obligor or any other party
directly or indirectly liable for payment of such Receivable and
available to be applied thereon), or (b) are deemed to have been
received by the Company or any other Person as a Collection
pursuant to Section 3.02.
------------
"Commercial Paper Notes" means short-term promissory notes
----------------------
issued or to be issued by Lender to fund its investments in
accounts receivable or other financial assets.
"Commitment Fee" has the meaning set forth in the Fee
--------------
Letter.
"Company" has the meaning set forth in the preamble.
------- --------
"Company Information" has the meaning set forth in Section
------------------- -------
14.07(a).
- - --------
"Company Information Provider" has the meaning set forth in
----------------------------
Section 14.07(a).
- - ----------------
"Company's Net Worth" means, at any time, the amount by
-------------------
which the Company's total assets exceed the Company's total
liabilities, as determined in accordance with GAAP.
"Contract" means a contract between AnnTaylor and any Person
--------
pursuant to or under which such Person establishes a revolving
credit card account pursuant to which indebtedness may arise for
the purchase of goods. A "related" Contract with respect to the
Receivables means a Contract under which Receivables in the
Receivables Pool arise or which is relevant to the collection or
enforcement of such Receivables.
"CP Rate" for any period means a rate per annum calculated
------- --- -----
by the Administrator equal to the sum of (i) the rate or, if more
than one rate, the weighted average of the rates, determined by
converting to an interest-bearing equivalent rate per annum the
--- -----
discount rate (or rates) at which Commercial Paper Notes on each
day during such period have been sold by the commercial paper
placement agents selected by the Administrator, plus (ii) the
----
commissions and charges charged by such commercial paper
placement agents with respect to such Commercial Paper Notes,
expressed as a percentage of such face amount and converted to an
interest-bearing equivalent rate per annum.
--- -----
"Credit and Collection Policy" means those credit and
----------------------------
collection policies and practices relating to Contracts and
Receivables described in Schedule 6.01(p)-2, as modified without
------------------
violating Section 7.03(c).
---------------
"Customer Letter of Credit" has the meaning set forth in
-------------------------
Section 3.05(e).
- - ---------------
"Cut-Off Date" means the last day of each Settlement Period.
------------
"Defaulted Receivable" means a Receivable (a) with an
--------------------
Account Age greater than 6, unless a payment has been received in
the past 30 days, and in all cases where the Account Age is
greater than 7, or (b) as to which the computer records of the
Company or the Servicer identify that an Event of Bankruptcy with
respect to the Obligor thereof has occurred and remains
continuing.
"Delinquency Ratio" means the ratio (expressed as a
-----------------
percentage) computed as of any Cut-Off Date by dividing (x) the
sum for each of the four billing dates in the Settlement Period
ending on such Cut-Off Date of the aggregate Unpaid Balance of
all Pool Receivables that are Delinquent Receivables and that
have been billed on one of such four billing dates by (y) the sum
for each of the four billing dates in the Settlement Period
ending on such Cut-Off Date of the aggregate Unpaid Balance of
all Pool Receivables that have been billed on one of such four
billing dates.
"Delinquent Receivable" means a Receivable that is not a
---------------------
Defaulted Receivable and which has an Account Age of 2 or more.
"Dilution Ratio" means the ratio (expressed as a percentage)
--------------
computed as of any Cut-Off Date by dividing (x) the aggregate
reductions in Unpaid Balance of all Pool Receivables on account
of returns, allowances, revisions or cancellations during the
three Settlement Periods ending on such Cut-Off Date by (y) the
sum of the aggregate Unpaid Balance of all Pool Receivables on
the last day of each of such three Settlement Periods.
"Distribution Center" shall mean the distribution center,
-------------------
and related systems and equipment, in Louisville, Kentucky.
"Dollars" means dollars in lawful money of the United States
-------
of America.
"Downgraded Liquidity Bank" means a Liquidity Bank which has
-------------------------
been the subject of a Downgrading Event.
"Downgrading Event" with respect to any Person means the
-----------------
lowering of the rating with regard to the short-term securities
of such Person to below (i) A-1 by Standard & Poor's Corporation,
or (ii) P-1 by Moody's Investors Service, Inc.
"Due Amount" with respect to any Settlement Period means the
----------
sum of (i) the amount of interest on the Loans that will be due
on the Settlement Date relating to such Settlement Period,
together with any interest previously accrued and remaining
unpaid, plus (ii) the amount of principal that will be due and
----
owing with respect to the Loans on the Settlement Date relating
to such Settlement Period, together with any principal previously
due and remaining unpaid, plus (iii) all fees and other amounts
----
that will be payable by the Company on the Settlement Date
relating to such Settlement Period pursuant to the Agreement,
plus (iv) the amount required to be deposited into the Spread
- - ----
Account and/or reimbursed to the issuer of the Customer Letter of
Credit on the Settlement Date relating to such Settlement Period
to bring the sum of the amount of funds on deposit in the Spread
Account plus the stated amount of the Customer Letter of Credit
up to the Enhancement Limit.
"Earned Discount Rate" means with respect to any Settlement
--------------------
Period, the weighted average of the interest rates applicable to
the Loans during such Settlement Period.
"EBITDA" shall mean, for any period, the sum of the amounts
------
for such period, of (a) Net Income, plus (b) to the extent Net
----
Income is reduced thereby (i) all charges for amortization of
intangibles and depreciation, (ii) Interest Expense, (iii) all
income tax expense and (iv) extraordinary losses, minus (c)
-----
extraordinary gains (net of taxes).
"Eligible Contract" means a Contract in one of the forms set
-----------------
forth in Schedule 6.01(p)-1 or otherwise approved by the
------------------
Administrator.
"Eligible Receivable" means, at any time, a Pool Receivable:
-------------------
(a) which was generated by AnnTaylor in the ordinary
course of business and was sold to the Company pursuant to
the Purchase Agreement;
(b) which, (i) if the perfection of Lender's security
interest therein is governed by the laws of a jurisdiction
where the Uniform Commercial Code -- Secured Transactions is
in force, constitutes an account or general intangible as
defined in the Uniform Commercial Code as in effect in such
jurisdiction, and (ii) if the perfection of Lender's
security interest therein is governed by the law of any
jurisdiction where the Uniform Commercial Code -- Secured
Transactions is not in force, the Company has furnished to
the Administrator such opinions of counsel and other
evidence as has reasonably been requested, establishing to
the reasonable satisfaction of the Administrator that
Lender's security interest and other rights with respect
thereto are not significantly less protected and favorable
than such rights under the Uniform Commercial Code;
(c) the Obligor of which is resident of the United
States of America, or any of its possessions or territories,
is not an Affiliate of the Company, and is not a government
or a governmental subdivision or agency;
(d) which is not a Defaulted Receivable or a
Delinquent Receivable;
(e) with regard to which the warranty of the Company
in Section 6.01(l) is true and correct;
---------------
(f) the sale of an undivided interest in which does
not contravene or conflict with any law;
(g) which is denominated and payable only in Dollars
in the United States;
(h) which arises under an Eligible Contract that has
been duly authorized by the parties thereto and that,
together with such Receivable, is in full force and effect
and constitutes the legal, valid and binding obligation of
the Obligor of such Receivable enforceable against such
Obligor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditor's rights generally and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law;
(i) which, together with the Contract related thereto,
does not contravene in any material respect any laws, rules
or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury,
truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party
to the Contract related thereto is in violation of any such
law, rule or regulation in any material respect if such
violation would impair the collectability of such
Receivable;
(j) which satisfies all applicable requirements of the
Credit and Collection Policy; and
(k) the Unpaid Balance (or any portion thereof) of
which is not being disputed by the Obligor.
"Enhancement Limit" has the meaning set forth in Section
-----------------
3.05(d).
"ERISA" means the U.S. Employee Retirement Income Security
-----
Act of 1974, as amended from time to time.
"Estimated Amount" means, with respect to any Settlement
----------------
Period, the sum of the (i) the Due Amount that the Company
reasonably estimates will be due on the Settlement Date relating
to such Settlement Period, plus (ii) the amount that the Company
----
reasonably estimates will be necessary to provide funds for all
other expenses of the Company incurred during such Settlement
Period.
"Eurodollar Rate (Reserve Adjusted)" means, with respect to
----------------------------------
any Interest Period and any Loan (or portion thereof), a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
---------------
(Reserve Adjusted) 1-Eurodollar
Reserve Percentage
where:
-----
"Eurodollar Rate" means, with respect to any Interest Period
---------------
and any Loan (or portion thereof), the rate per annum at
which Dollar deposits in immediately available funds are
offered to the Eurodollar Office of the Administrator two
Eurodollar Business Days prior to the beginning of such
period by prime banks in the interbank eurodollar market at
or about 11:00 a.m., New York City time, for delivery on the
first day of such Interest Period, for the number of days
comprised therein and in an amount equal or comparable to
such Loan (or portion thereof) for such Interest Period.
"Eurodollar Business Day" means a day of the year on which
-----------------------
dealings are carried on in the London eurodollar interbank
market and banks are open for business in London and are not
required or authorized to close in New York City or
Pittsburgh.
"Eurodollar Office" means the Administrator's office located
-----------------
at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania
15265, or such other office as shall be designated by the
Administrator as its Eurodollar Office pursuant to a written
notice delivered by the Administrator to the Liquidity
Agent, AnnTaylor and the Company.
"Eurodollar Reserve Percentage" means, with respect to any
-----------------------------
Interest Period, the applicable percentage (expressed as a
decimal) prescribed by the Federal Reserve Board for
determining reserve requirements applicable to "Eurocurrency
Liabilities" pursuant to Regulation D, on the first day of
such Interest Period.
"Event of Bankruptcy" shall be deemed to have occurred with
-------------------
respect to a Person if either:
(a) a case or other proceeding shall be commenced,
without the application or consent of such Person, in any
court, seeking the liquidation, reorganization, debt
arrangement, dissolution, winding up, or composition or
readjustment of debts of such Person, the appointment of
a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or all or
substantially all of its assets, or any similar action with
respect to such Person under any law relating to bankruptcy,
insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a
period of 60 consecutive days; or an order for relief in
respect of such Person shall be entered in an involuntary
case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or
other proceeding under any applicable bankruptcy,
insolvency, reorganization, debt arrangement, dissolution
or other similar law now or hereafter in effect, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for, such Person or
for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall
fail to, or admit in writing its inability to, pay its debts
generally as they become due, or, if a corporation or
similar entity, its board of directors shall vote to
implement any of the foregoing.
"Event of Default" has the meaning set forth in Section
---------------- -------
10.01.
- - -----
"Exchange Act" means the Securities and Exchange Act of
------------
1934, as amended.
"Federal Funds Rate" means, for any period, a fluctuating
------------------
interest rate per annum equal (for each day during such period)
--- -----
to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by PNC Bank from three
federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
---------------------
Federal Reserve System, or any successor thereto or to the
functions thereof.
"Fee Letter" has the meaning set forth in Section 4.01.
---------- ------------
"Final Payout Date" means the date following the Termination
-----------------
Date on which Outstanding Principal shall have been reduced to
zero and all other amounts payable by the Company under the
Transaction Documents shall have been paid in full or all of the
Pool Receivables existing on or prior to the Termination Date
have been written off as uncollectible in accordance with the
Credit and Collection Policy, whichever occurs first.
"Finance Charge Receivables" shall mean all amounts billed
--------------------------
to the Obligors on any Account in respect of finance charges,
late charges, and other fees and charges with respect to the
Accounts.
"Fixed Charge Coverage Ratio" shall mean, for any period,
---------------------------
the quotient obtained by dividing (a) EBITDA by (b) the sum of
(i) Capital Expenditures paid or payable during such period, plus
----
(ii) scheduled payments made during such period for principal on
Indebtedness excluding any payment made upon termination of the
transactions contemplated by this Agreement, plus (iii) Cash
----
Interest Expense during such period, plus (iv) income tax expense
----
during such period.
"GAAP" means generally accepted accounting principles set
----
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of
the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Gross Default-to-Liquidation Ratio" means the ratio
----------------------------------
(expressed as a percentage) computed as of a Cut-Off Date by
dividing (x) the aggregate Unpaid Balance of all Pool Receivables
that became Defaulted Receivables during the three Settlement
Periods ending on such Cut-Off Date by (y) the aggregate
Collections of all Pool Receivables during such three Settlement
Periods.
"Indemnified Amounts" has the meaning set forth in Section
------------------- -------
13.01.
- - -----
"Indemnified Party" has the meaning set forth in Section
----------------- -------
13.01.
- - -----
"Information Package" has the meaning set forth in Section
------------------- -------
3.01.
- - ----
"Interest Expense" shall mean, for any period for ATSC,
----------------
AnnTaylor and its Restricted Subsidiaries on a consolidated
basis, total consolidated interest expense, whether paid or
accrued (including any amortization of discount and the interest
component of Capital Leases), for such period, including to the
extent included in interest expense, all commissions, discounts
and other fees and charges owed with respect to the letters of
credit, the fees payable under this Agreement and net costs under
Interest Rate Contracts, all as determined in conformity with
GAAP, plus (without duplication) all capitalized interest.
----
"Interest Period" means
---------------
(a) the period from, and including, the date hereof to
the next occurring Settlement Date; and
(b) thereafter, each period from, and including, a
Settlement Date to, but excluding, the next Settlement Date;
provided, however, that the last Interest Period shall end on the
- - -------- -------
date on which the Loans have been reduced to zero and all other
fees and expenses owed by the Company hereunder shall have been
paid in full.
"Lender" has the meaning set forth in the preamble.
------ --------
"Lending Limit" has the meaning set forth in Section 1.01.
------------- ------------
"Lien" means any mortgage, lien, pledge, encumbrance,
----
charge, retained security title of a conditional vendor or lessor
or other security interest of any kind, whether arising under a
security agreement, mortgage, deed of trust, chattel mortgage,
assignment, pledge, retention or security title, financing or
similar statement or notice or arising as a matter of law,
judicial process or otherwise.
"Liquidation Fee" means, for each Loan (or portion thereof)
---------------
for each day in any Interest Period the amount, if any, by which:
(a) the additional interest (calculated without taking
into account any Liquidation Fee) which would have accrued
on any portion of the Loan prepaid during such Interest
Period (as so computed) if such prepayments had not been
made exceeds,
(b) the income, if any, received by Lender from
investing the proceeds of such prepayments of the Loan.
"Liquidity Agent" means PNC Bank, as agent for the Liquidity
---------------
Banks under the Liquidity Agreement, or any successor to PNC Bank
in such capacity.
"Liquidity Agreement" means and includes (a) the Liquidity
-------------------
Agreement dated as of October 31, 1995 among Lender, as borrower,
the Liquidity Agent, and the Liquidity Banks, and (b) any other
agreement hereafter entered into by Lender providing for the
making of loans or other extensions of credit to Lender secured
by a direct or indirect security interest in the Loans (or any
portion thereof), to support all or part of Lender's payment
obligations under the Commercial Paper Notes or to provide an
alternate means of funding Lender's investments in accounts
receivable or other financial assets, and under which the amount
available from such extensions of credit is limited to an amount
calculated by reference to the value or eligible unpaid balance
of such accounts receivable or other financial assets or any
portion thereof or the level of deal-specific credit enhancement
available with respect thereto, as such Liquidity Agreement or
other agreement may be amended, supplemented or otherwise
modified from time to time.
"Liquidity Bank" means any one of, and "Liquidity Banks"
-------------- ---------------
means all of, PNC Bank, United States National Bank of Oregon and
the other commercial lending institutions that are at any time
parties to the Liquidity Agreement.
"Liquidity Loan" means a loan made by the Liquidity Bank (or
--------------
simultaneous loans made by the Liquidity Banks) pursuant to the
Liquidity Agreement.
"Loan" has the meaning set forth in Section 1.01.
---- ------------
"Loan Termination Date" means that day on which an Event of
---------------------
Default has occurred and is continuing, and
(a) the Administrator declares a Loan Termination Date
in a notice to the Company in accordance with Section
-------
10.02(a); or
--------
(b) in accordance with Section 10.02(b), becomes the
----------------
Loan Termination Date automatically.
"Lock-Box Agreement" means a letter agreement, in
------------------
substantially the form of Exhibit 5.01(g), between the Company
---------------
and any Lock-Box Bank.
"Lock-Box Bank" means any of the banks holding one or more
-------------
lock-box accounts for receiving Collections from Pool
Receivables.
"Loss Reserve" means on any day, an amount equal to the
------------
product of the Outstanding Principal multiplied by the sum of
-------------
(1) 16.5%; plus
----
(2) if a positive number, 4.5% minus the Net Yield as of such
-----
day, plus
----
(3) if a positive number, the Dilution Ratio on such day minus
-----
12.5%, plus
----
(4) if a positive number, the Delinquency Ratio minus 11.0%.
-----
"Material Adverse Effect" means, with respect to any event
-----------------------
or circumstance, a material adverse effect on:
(i) the business, assets, financial condition,
operations or prospects of the Company;
(ii) the ability of the Company to perform its
obligations under this Agreement, the Note or any other
Transaction Document;
(iii) the validity or enforceability of this
Agreement, the Note or any other Transaction Document;
(iv) the status, existence, perfection, priority or
enforceability of Lender's interest in the Receivables Pool;
or
(v) the collectability of a significant portion of
the Pool Receivables.
"Net Default-to-Liquidation Ratio" means the ratio
--------------------------------
(expressed as a percentage) computed as of a Cut-Off Date by
dividing (x) the aggregate Unpaid Balance of all Pool Receivables
that became net charge-offs during the three Settlement Periods
ending on the most recent Cut-Off Date by (y) the aggregate
Collections of all Pool Receivables during such three Settlement
Periods.
"Net Income" means, for any period on a consolidated basis
----------
for ATSC, AnnTaylor and its Restricted Subsidiaries, the
consolidated net income (or loss) of AnnTaylor and its Restricted
Subsidiaries for such period taken as a single accounting period,
after adding or deducting the amount of any extraordinary gain
and extraordinary loss net of taxes, determined in conformity
with GAAP.
"Net Pool Balance" at any time means an amount equal to the
----------------
aggregate Unpaid Balance of the Eligible Receivables in the
Receivables Pool as set forth in the most recent delivered
Information Package reduced by the amount by which the Unpaid
Balance of the Eligible Receivables with respect to which
interest payments have been deferred exceeds 3% of Outstanding
Principal.
"Net Worth" shall mean, as at any date of determination, the
---------
amount by which (a) the total consolidated assets of ATSC,
AnnTaylor and its Restricted Subsidiaries exceed (b) the total
consolidated liabilities of ATSC, AnnTaylor and its Restricted
Subsidiaries, as determined in conformity with GAAP, but
excluding for the purposes of this definition, unrealized foreign
exchange translation gains and losses from investments in foreign
Subsidiaries.
"Net Yield" means, with respect to any Settlement Period,
---------
the Portfolio Yield minus the Servicer's Fee Rate, the Earned
Discount Rate and the Program Fee rate.
"Note" has the meaning set forth in Section 1.04.
---- ------------
"Obligor" means a Person obligated to make payments with
-------
respect to a Receivable, including any guarantor thereof.
"Original Financing Agreement" has the meaning set forth in
----------------------------
paragraph 2 of the Background.
- - ----------- ----------
"Original Note" means the promissory note issued by the
-------------
Company and delivered to Clipper pursuant to the Original
Financing Agreement.
"Outstanding Principal" means at any time an amount equal to
---------------------
the aggregate principal amount of the Loans outstanding at such
time.
"Payment Rate" means, with respect to any Settlement Period,
------------
the ratio, expressed as a percentage, of (x) the Collections
received during such Settlement Period to (y) the aggregate
Unpaid Balance of all Pool Receivables as of the last day of the
previous Settlement Period.
"Person" means an individual, partnership, corporation
------
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, government or any
agency or political subdivision thereof or any other entity.
"PNC Bank" has the meaning set forth in the preamble.
-------- --------
"Pool Receivable" means each Receivable described in Section
---------------
1.1(a) or (b) of the Purchase Agreement.
"Portfolio Yield" means, with respect to any Settlement
---------------
Period, the annualized percentage equivalent of a fraction, the
numerator of which is the amount of Finance Charge Receivables
accrued during the immediately preceding Settlement Period, after
subtracting therefrom the aggregate Unpaid Balance of Receivables
which were net charge offs in such Settlement Period, and the
denominator of which is the aggregate Unpaid Balance of Pool
Receivables as of the last day of the immediately preceding
Settlement Period.
"Principal Receivables" means amounts (other than any
---------------------
amounts which represent Finance Charge Receivables) billed to the
Obligor on any Account in respect of purchases of goods.
"Program Fee" has the meaning set forth in the Fee Letter.
-----------
"Program Information" has the meaning set forth in Section
------------------- -------
14.08.
- - -----
"Program Support Provider" means and includes any Liquidity
------------------------
Bank and any other or additional Person (other than any customer
of Lender) now or hereafter extending credit or having a
commitment to extend credit to or for the account of, or to make
purchases from, Lender or issuing a letter of credit, surety bond
or other instrument to support any obligations arising under or
in connection with Lender's securitization program.
"Program Support Agreement" means and includes the Liquidity
-------------------------
Agreement and any other agreement entered into by any Program
Support Provider providing for the issuance of one or more
letters of credit for the account of Lender, the issuance of one
or more surety bonds for which Lender is obligated to reimburse
the applicable Program Support Provider for any drawings
thereunder, the sale by Lender to any Program Support Provider of
the Loans (or portions thereof) and/or the making of loans and/or
other extensions of credit to Lender in connection with Lender's
securitization program, together with any letter of credit,
surety bond or other instrument issued thereunder [(but excluding
any discretionary advance facility provided by the
Administrator).
"Purchase Agreement" means the Purchase and Sale Agreement,
------------------
dated as of January 27, 1994 between the Company and AnnTaylor,
as seller, as it may be amended, supplemented or otherwise
modified from time to time.
"Qualifying Liquidity Bank" means a Liquidity Bank with a
-------------------------
rating of its short-term securities equal to or higher than (i) A-
1 by Standard & Poor's Corporation and (ii) P-1 by Moody's
Investors Service, Inc.
"Receivable" means any right to payment from a Person,
----------
whether constituting an account, chattel paper, instrument or a
general intangible, arising under an Account, and includes the
right to payment of any interest or finance charges and other
obligations of such Person with respect thereto.
"Receivables Pool" means at any time all then outstanding
----------------
Pool Receivables, the Contracts related thereto, Related
Security, the Spread Account, all amounts payable to, or for the
benefit of, the Company under the interest rate agreements, if
any, entered into by the Company, all rights and claims of the
Company in and under the Purchase Agreement, all Collections, all
books and records related to any of the foregoing, and all
proceeds of the foregoing, in each case whether now or hereafter
existing.
"Regulation D" means Regulation D of the Federal Reserve
------------
Board, or any other regulation of the Federal Reserve Board that
prescribes reserve requirements applicable to nonpersonal time
deposits or "Eurocurrency Liabilities" as presently defined in
Regulation D, as in effect from time to time.
"Regulatory Change" means, relative to any Affected Party
-----------------
(a) any change in (or the adoption, implementation,
change in phase-in or commencement of effectiveness of) any
(i) United States federal or state law or
foreign law applicable to such Affected Party;
(ii) regulation, interpretation, directive,
requirement or request (whether or not having the force
of law) applicable to such Affected Party of (A) any
court, government authority charged with the
interpretation or administration of any law referred to
in clause (a)(i) or of (B) any fiscal, monetary or
-------------
other authority having jurisdiction over such Affected
Party; or
(iii) generally accepted accounting
principles or regulatory accounting principles
applicable to such Affected Party and affecting the
application to such Affected Party of any law,
regulation, interpretation, directive, requirement or
request referred to in clause (a)(i) or (a)(ii) above;
------------- -------
or
(b) any change in the application to such Affected
Party of any existing law, regulation, interpretation,
directive, requirement, request or accounting principles
referred to in clause (a)(i), (a)(ii) or (a)(iii) above.
------------- ------- --------
"Related Security" means, with respect to any Pool
----------------
Receivable: (a) all right, title and interest in and to all
Contracts that relate to such Pool Receivable; (b) all interests
in returned merchandise, if any, relating to the sale which gave
rise to such Pool Receivable; (c) all other security interests or
liens and property subject thereto from time to time purporting
to secure payment of such Pool Receivable, whether pursuant to
the Contract related to such Pool Receivable or otherwise; (d)
all UCC financing statements covering any collateral securing
payment of such Pool Receivable; and (e) all guarantees and other
agreements or arrangements of whatever character from time to
time supporting or securing payment of such Pool Receivable
whether pursuant to the Contract related to such Pool Receivable
or otherwise.
"Reporting Date" has the meaning set forth in Section
-------------- -------
3.01(a).
- - -------
"Responsible Officer" means (a) with respect to AnnTaylor or
-------------------
ATSC: the Chief Financial Officer, Treasurer, Vice President -
Financial Reporting or Vice President - Credit and (b) with
respect to the Company: the President, Treasurer or any Vice
President.
"Restricted Subsidiary" shall mean any Subsidiary of
---------------------
AnnTaylor which is not an Unrestricted Subsidiary. Whether or
not a Restricted Subsidiary is a "wholly-owned Restricted
Subsidiary" shall be determined without taking into account any
directors' qualifying shares.
"Secured Parties" means Lender, the Administrator, the
---------------
Indemnified Parties and the Affected Parties.
"Servicer" has the meaning set forth in Section 8.01(a).
-------- ---------------
"Servicer Material Adverse Effect" means, with respect to
--------------------------------
any event or circumstance, a material adverse effect on:
(i) the business, assets, financial condition,
operations or prospects of the Servicer;
(ii) the ability of the Servicer to perform its
obligations under this Agreement or any other Transaction
Document to which the Servicer, in its capacity as such, is
a party;
(iii) the validity or enforceability as against the
Servicer of this Agreement or any other Transaction Document
to which the Servicer, in its capacity as such, is a party;
(iv) the status, existence, perfection, priority or
enforceability of Lender's interest in the Receivables Pool;
or
(v) the collectability of a significant portion of
the Pool Receivables.
"Servicer Transfer Event" has the meaning set forth in
-----------------------
Section 8.01(b).
- - ---------------
"Servicer's Fee" accrued for any day means an amount equal
--------------
to (x) the Servicer's Fee Rate, times (y) the Net Pool Balance at
-----
the close of business on such day, times (z) 1/360.
-----
"Servicer's Fee Rate" means (a) 2% per annum if AnnTaylor is
-------------------
the Servicer and (b) up to 3% per annum if a Person other than
AnnTaylor is the Servicer.
"Settlement Date" means the second Business Day following
---------------
each Reporting Date.
"Settlement Period" means
-----------------
(a) the period from, but excluding, October 24, 1995
to, and including, November 24, 1995; and
(b) thereafter, each period from, but excluding, the
last day of the next preceding Settlement Period to, and
including, the 24th day of the next following calendar
month.
"Spread Account" has the meaning set forth in Section
-------------- -------
3.05(a).
- - -------
"Spread Account Agreement" has the meaning set forth in
------------------------
Section 3.05(a).
- - ---------------
"State Street" has the meaning set forth in paragraph 2 of
------------ -----------
the Background.
----------
"Subsidiary" means a corporation of which AnnTaylor and/or
----------
its other Subsidiaries own, directly or indirectly, such number
of outstanding shares as have more than 50% of the ordinary
voting power for the election of directors.
"Successor Notice" has the meaning set forth in Section
---------------- -------
8.01(b).
- - -------
"Termination Date" means the earliest of
----------------
(a) the date of termination (whether by scheduled
expiration, termination on default or otherwise) of either
the Liquidity Banks' commitments under the Liquidity
Agreement or any other Program Support Provider's commitment
under any other Program Support Agreement;
(b) the Loan Termination Date;
(c) January 27, 1997;
(d) 3 Business Days after the Administrator has
received a written request by the Company to terminate the
commitment of Lender under this Agreement;
(e) failure to obtain a Liquidity Agreement in
substitution for the then existing Liquidity Agreement on or
before 30-days prior to the expiration of the commitments of
the Liquidity Banks thereunder; or
(f) (i) a Downgrading Event with respect to a
Liquidity Bank shall have occurred and been continuing for
not less than 45 days, (ii) the Downgraded Liquidity Bank
shall not have been replaced by a Qualifying Liquidity Bank
pursuant to a Liquidity Agreement in form and substance
acceptable to Lender and the Administrator, and (iii) the
commitment of such Downgraded Liquidity Bank under the
Liquidity Agreement shall not have been funded or
collateralized in such a manner that such Downgrading Event
will not result in a reduction or withdrawal of the credit
rating applied to the Commercial Paper Notes by any of the
rating agencies then rating the Commercial Paper Notes; or
(g) Lender shall become an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
"Transaction Documents" means this Agreement, the Lock-Box
---------------------
Agreements, the Purchase Agreement, the Fee Letter, the Note, the
Spread Account Agreement and the other documents to be executed
and delivered in connection herewith.
"UCC" means the Uniform Commercial Code as from time to time
---
in effect in the applicable jurisdiction or jurisdictions.
"Unmatured Event of Default" means any event which, with the
--------------------------
giving of notice or lapse of time, or both, would become an Event
of Default.
"Unpaid Balance" of any Receivable means at any time (a) in
--------------
the case of any Principal Receivable, the unpaid amount thereof
and (b) in the case of any Finance Charge Receivable, the amount
thereof accrued in accordance with the related Contract and
unpaid at such time.
"Unrestricted Subsidiary" shall mean a Subsidiary of
-----------------------
AnnTaylor which has been designated as such by resolution duly
adopted by the board of directors of AnnTaylor, which at the time
of such designation had assets of $1,000 or less and which does
not own or hold any securities of, or any Lien on any property
of, ATSC, AnnTaylor or any Restricted Subsidiary provided no
--------
Subsidiary of AnnTaylor shall be (or, if already an Unrestricted
Subsidiary shall immediately cease to be) an Unrestricted
Subsidiary if, at any time, ATSC, AnnTaylor or any other
Restricted Subsidiary of AnnTaylor shall create, incur, issue,
assume, guarantee or in any other manner whatsoever be or become
liable with respect to any claim against or any contractual
obligation or indebtedness of, such Subsidiary.
B. Other Terms. The following terms shall have the
-----------
meanings assigned thereto in the AnnTaylor Credit Agreement, as
in effect on the date hereof, and such definitions are hereby
incorporated by reference: "Indebtedness", "Interest Rate
------------ --------------
Contracts" and "Restricted Payment". All accounting terms not
- - --------- ------------------
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such
Article 9.
C. Computation of Time Periods. Unless otherwise stated
---------------------------
in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means
"to but excluding".
- - ----------------------------------------------------------------
Schedule 6.01(n)
----------------
List of Offices Where
Records are Kept
----------------------
AnnTaylor Funding, Inc.
- - -----------------------
Chief place of business and chief executive office:
414 Chapel Street
New Haven, Connecticut 06511
or
142 West 57th Street
New York, New York 10019
location of books and records, etc.
142 West 57th Street
New York, New York 10019
414 Chapel Street
New Haven, Connecticut 06511
=================================================================
Schedule 6.01(o)
----------------
List of Lock-Box Banks
----------------------
AmSouth Bank N.A.
1900 Fifth Avenue North
Birmingham, Alabama 35203
Account Number: 55976026
=====================================================================
Schedule 6.01(p)-1
------------------
Forms of Contracts
------------------
(See AnnTaylor Credit Card Application)
======================================================================
Schedule 6.01(p)-2
-------------------
Credit and Collection Policy and Method of Aging
------------------------------------------------
(Contact AnnTaylor Corporate Offices for copy of Credit And Collection
Policy and Method of Aging)
======================================================================
Schedule 6.01(r)
----------------
TRADE NAMES
-----------
AnnTaylor Funding, Inc.
- - -----------------------
None
=====================================================================
Schedule 6.02(k)
----------------
List of Offices of the Services Where Records Are Kept
------------------------------------------------------
AnnTaylor, Inc.
- - ---------------
Chief place of business and chief executive office:
142 West 57th Street
New York, New York 10019
location of books and records, etc.:
142 West 57th Street
New York, New York 10019
414 Chapel Street
New Haven, Connecticut 06511
=====================================================================
Schedule 6.02(L)
----------------
List of Bank Accounts
---------------------
(See attached)
1 New Haven Peoples 42-7004109
950 Chapel Street 786-2600 Brian
New Haven, CT 06510
2 Westport Chase Manhattan 5601016602
P.O. Box 871
Bridgeport, CT 06601
3 New Canaan Shawmut Bank 006561-0893
Customer Center
P.O. Box 1365
Framingham, MA 01701
4 Greenwich Fleet Bank 1429965
Attn: Donna Flynn
Mail Code: CT E8HX15A
One Constitution Plaza
Hartford, CT 06115-1600
5 Braintree Baybank 3869-909-1
2 Technology Place (800) 833-3336
Mail Code: A-504
Waltham, MA 02154
6 Warwick Citizens Bank & Trust 018-901-4
One Citizens Drive (401) 456-7171
Riverside, RI 02915- 401-456-7500
3000
10 Burlington Baybank 921-258-2
2 Technology Place (617) 273-1700
Mail Code: A-504 1-800-833-3336
Waltham, MA 02154
12 Cambridge Baybank 100-03555
2 Technology Place (617) 661-3300
Mail Code: A-504 (617) 893-7750
Waltham, MA 02154
13 Pheasant Lane First N.H. Bank 20163164801
One Hampshire Plaza (800) FIRSTNH
Manchester, NH 03105
14 80th & Chase Manhattan 034-1-208015
Madison Box 241
New York, NY 10081
15 Eastchester North Fork Bank 2424004097
696 White Plains Rd
Scarsdale, NY 10583
16 Holyoke Mall Springfield Institute 49815723
1441 Main Street
Springfield, MA 01103
20 Riverside United Jersey Bank 111 013224
401 Hackensack Avenue
Hackensack, NJ 07602
21 Georgetown Riggs National Bank 1218-077
Service Line Dept. (202) 835-4000
P.O. Box 96758 Glen Johnson
Washington, DC 20090-
6758
22 Newbury Fleet Bank, MA 2661-5294
Street Attn: Donna Flynn (617) 267-5261
Mail Code: CT E8HX15A
One Constitution Plaza
Hartford, CT 06115-
1600
23 Hartford Shawmut Bank 00-6552-7183
Customer Center
P.O. Box 1365
Framingham, MA 01701
24 Wellesley Shawmut Bank 05-0096-3922
Square Customer Center
P.O. Box 1365
Framingham, MA 01701
25 Michigan First Nat'l Bank of 80-08086
Avenue Chicago (312) 407-1604
Mail Suite 0205
Chicago, IL 60670
28 Oak Street Northern Trust Company 00004319-31
50 South LaSalle Street (312) 630-6652
Chicago, IL 60675 Barbara Perkin
29 Manhasset Crossland Bank 0337701957
2030 Northern Blvd.
Manhasset, NY 11030
30 Tyson's Riggs National Bank 01755552
Service Line Dept. (202) 835-6530
P.O. Box 96758 Glenn Johnson
Washington, DC 20090-
6758
31 White Flint Citizens Bank & Trust 057-4-919
Co. (800) 777-1962
of Maryland
White Flint Mall
Kensington, MO 20895
33 Continental Bank of America 77-93189
Bank 231 South LaSalle St.
Chicago, IL 60697
36 Mazza Riggs National Bank 17184432
Service Line Dept.
P.O. Box 96758
Washington, DC 20090-
6758
40 Central Fleet Bank 263624-7
Office Attn: Donna Flynn (203) 351-1254
Mail Code: CT E8HX15A Mary McArdle
One Constitution Plaza
Hartford, CT 06115-
1600
41 Troy Michigan National Bank 59631-1465-6
2038 West Big Beaver (313) 643-8660
Troy, MI 48984
43 Ardmore Mellon Bank 2-125-649
Mellon Square, Customer (215) 553-8000
Service
Pittsburgh, PA 15259-
0003
44 King of Mellon Bank 2-540-672
Prussia Mellon Square, Customer
Service
Pittsburgh, PA 15259-
0003
46 Oxford Center Dollar Bank 2661397701
340 Fourth Avenue
Pittsburgh, PA 15222
48 North Clark First Nat'l Bank of 1115000631979
Street Chicago (312) 407-4000
1660 N. LaSalle St.
Suite 0294
Chicago, IL 60670-0294
49 Third Avenue European American 106-01414-5
Bank & Trust Co. (212) 688-0992 Ed
800 Third Avenue Kline
New York, NY 10022
51 Ross Park Mellon Bank 1561627
Mellon Square, Customer (412) 366-9710
Service Caroline
Pittsburgh, PA 15259-
0003
52 Walnut Street First Fidelity Bank 3308285
Chester Operations (215) 734-6100
Center
1 West 4th Street
Chester, PA 19013
55 Mt. Lebanon PNC Bank 001-240786
P.O. Box 609 (412) 762-2435
Pittsburgh, PA 15230-
9738
56 Glen Eagle PNC Bank 8559245451
Square P.O. Box 8319
Philadelphia, PA 19101
57 Nanuet Mall Chemical Bank 654-0640488-65
41 South Middletown Rd.
Nanuet, NY 10954
58 Woodbridge First Fidelity Bank 84075-006-91
10 Main Street
Woodbridge, NJ 07095
59 Menlo Park First Fidelity Bank 8503500135
477 Menlo Park (908) 549-1366
Menlo Park Shopping
Center
Edison, NJ 08837
63 Mayfair Coconut Grove Bank 010022006206
Village Branch (305) 858-6666
2701 S. Bayshore Drive
Miami, FL 33133
69 Altamonte Sun Bank 0760-760020586
Mall 498 Palm Springs Drive
Altamonte Springs, FL
32701
70 Westwood Bank of America 1233-9-54955
Attn: Robert Simpson (310) 552-4421
P.O. Box 27128
Concord, CA 94520
71 Woodland Bank of America 1140-8-00-593
Hills Attn: Robert Simpson (818) 712-6070
P.O. Box 27128
Concord, CA 94520
73 Beverly Hills Bank of Los Angeles 137-012-051126
Beverly Hills Office (213) 351-2359
9601 Wilshire Boulevard
Beverly Hills, CA 90210
75 Del Amo Bank of America 09930-10494
Attn: Robert Simpson (310) 212-4802
P.O. Box 27128
Concord, CA 94520
76 Beverly National Bank of 1005308
Center California
Beverly Center
P.O. Box 48929
Los Angeles, CA 90048
79 Horton Plaza Wells Fargo Bank 0780-010542
101 W. Broadway #303 (619) 589-5150
San Diego, CA 92101
83 Houston Town First Interstate Bank 2110064350
& P.O. Box 3326 (713) 464-9431
Country Houston, TX 77253
86 San Antonio Security Sevice FCU 4198691071
474 No. Star Mall
San Antonio, TX 78216
89 New Orleans First Bank of Commerce 1102-93185
Ctr P.O. Box 60279 (504) 561-1641
New Orleans, LA 70160
90 Sutter Street Bank of America 02600-15257
Attn: Robert Simpson (415) 396-2972
P.O. Box 27128 (415) 781-2235
Concord, CA 94520
92 Ghirardelli Wells Fargo Bank 0043-054006
Square #2 Grant Avenue (415) 396-2972
San Francisco, CA 94108 Jennifer
94 Palo Alto Bank of America 05203-11068
Attn: Robert Simpson (415) 853-5811
P.O. Box 27128r
Concord, CA 94520
95 Mail Order Fleet Bank 000-2247852
Attn: Donna Flynn
Mail Code: CT E8HX15A
One Constitution Plaza
Hartford, CT 06115-1600
98 Lakeside Mall Hibernia Bank 67212-709-2
P.O. Box 61540
New Orleans, LA 70161
99 Staten Island Dime Savings Bank 02-00-00103906-4
EAB Plaza (718) 761-6200
12th Floor
Uniondale, NY 11553
100 Old Hyde Park Southern Exchange Bank 100153-2
1509 West Suann Avenue (813) 254-4040
Tampa, FL 33601
101 Fashion Mall Safra Bank 303-517171
300 N.W. 82nd Avenue Cathy Shimko
Plantation, FL 33324
102 Boynton Beach Barnett Bank 1611799545
Corresondence
P.O. Box 30318
Tampa, FL 33633-0663
103 The Avenues Barnett Bank 2181703593
Correspondence (904) 464-7693
P.O. Box 30318
Tampa, FL 33633-0663
104 University Barnett Bank 1406172621
Square Correspondence (813) 225-2200
P.O. Box 30318
Tampa, FL 33633-0663
105 Cherry Hill Midlantic National Bank 14030-9651-2
Cherry Hill Mall
Route 38
Cherry Hill, NJ 08002
106 Mall @ St. Pioneer Bank 3194019
Vincent P.O. Box 31750
Shreveport, LA 71130
108 Cambridgeside East Cambridge Savings 04-80-8001076
292 Cambridge St. (617) 354-7700
Cambridge, MA 02141-
1263
110 Larimer Colorado National Bank 1-227-0088-0646
Square 1515 Arapahoe Street (303) 820-4229
Denver, CO 80292
111 Charleston Harris Bank 158739
Center Mall 1 East Main Street
St. Charles, IL 60174
112 Siena Square Norwest Bank of Boulder 1823473562
1242 Pearl Street
Box 227
Boulder, CO 80306
114 Cherry Creek Cherry Creek National 16-803085
Bank
3033 East First Avenue
Denver, CO 80206-5698
115 Trolley First Security Bank 131-00283-43
Square 445 Trolley Square (801) 350-6600
Salt Lake City, UT
84102
116 Town Square NBD 000410001709287
2000 S. Naperville Road
Wheaton, IL 60187
117 Lincoln Place First Interstate Bank 043-443
150 Washington Ave.
Santa Fe, MN 87501
118 Ocean County First Fidelity Bank 3000-5-12065
1201 Hooper Avenue (908) 905-4274
Tom's River, NJ 08753
119 Las Vegas Bank of America 150199602
2500 W. Spring Mountain Rd.
Las Vegas, NV 89193
121 St. Louis Mercantile Trust Co. NA 1001281409
Center 8th & Locust
P.O. Box 524
St. Louis, MO 63166
122 West County Colonial Bank 01-06944-601
Ctr 12330 Manchester Road (314) 966-8100
Des Peres, MO 63131
123 One Pacific Firstier Bank 0827622
Place 9 Farnam at Seventeenth (402) 345-1100
Omaha, NE 68102
124 Country Club Country Club Bank 078501
414 Nichols Road (816) 931-4060
Kansas City, MI 64112
126 Tower Place Fifth Third Bank 714-16492
7708 Montgomery Rd.
Cincinnati, OH 45230
127 Tucson Mall Bank of America 125-709559
4201 No. Circle Rd.
Tucson, AZ 85705
128 Freehold First Fidelity Bank 3000398408
72 West Main St.
Freehold, NJ 07728
129 Rockingham Shawmut Bank 510017916
Park Mall Customer Center (800) 685-5595
P.O. Box 1365
Framingham, MA 01701
130 Regency Nations Bank 02052218
Square P.O. Box 27025 (804) 788-2030
Richmond, VA 23261-7025
131 Owings Mills First Fidelity Bank 4063798294
P.O. Box 896
Baltimore, MD 21203
132 Harbour Place Nations Bank 00-0140-8032
P.O. Box 27025 (800) 241-5788
Richmond, VA 23261-7025
133 Chesterfield Peoples Bank 004031413712
5756 Hopkins Road
Richmond, VA 23234
134 Union Station Adams National Bank 0100161201
1627 K Street, NW (202) 466-4090,
Washington, DC 20006 ext 160
136 Reston Town First Union Bank of 2070478000217
Ctr Virginia (800) 677-3778
7711 Plantation Rd.
Roanoke, VA 24019
137 Montgomery First Fidelity Bank 4063795803
P.O.Box 896
Baltimore, MD 21203
138 Towson Town Maryland National Bank 09111774
Center P.O. Box 987 (410) 828-9666
Baltimore, MD 21203 Ann O'Neil
140 Woodbury Chemical Bank 141062437865
Commons 7600 Jericho Turnpike (516) 364-0012
Woodbury, NY 11797
143 West Farms Farmington Savings Bank 30-57-000093
P.O. Box 8 677-4541
Farmington, CT 06034-
0008
144 Buckland Savings Bank of 662002398
Hills Manchester (203) 647-1050
923 Main St. P.O. #231
Manchester, CT 06044-
0231
145 75th Street Marine Midland Bank 027712770
1340 Third Ave. (800) 872-0228
New York, NY 10021
151 Ridgedale AmeriBank 1017039
1809 Plymouth Road South ( ) 546-6060
Minnetonka, MN 55343
152 Conservatory Firstar Bank 180000027
1550 E. 79th Street
Bloomington, MN 55425
153 South Bend First Source Bank 119-865-4
P.O. Box 1602
South Bend, IN 46634
154 Fairlane Town NBD 2567524
Center 18800 Hubbard Dr.
Dearborn, MI 48126
155 Briarwood NBD 205000023148
P.O. Box 8601 (313) 995-8100
Ann Arbor, MI 48107 Bob Connor
159 Springfield Nations Bank 11060385
Mall P.O. Box 27025
Richmond,VA 23261-7025
163 Cumberland Sun Trust Bank 9300313351
Mall Mail Code 011 (414) 438-6859
P.O. Box 4418
Atlanta, GA 30302
165 Augusta First Union Bank of GA 2080000090669
699 Broad Street
Augusta, GA 30901
167 Mall of First Bank 1359-30107747
America 9633 Lyndale Ave. South
Bloomington, MN 55420
172 Main Place Bank of America 1233-5-54957
Attn: Robert Simpson (714) 558-2155
P.O Box 27128
Concord, CA 94520
173 La Jolla Wells Fargo Bank 0734-011133
7714 Girard Ave. (619) 454-2265
La Jolla, CA 92037
174 Biltmore First Interstate Bank 096466018
Biltmore Office (602) 528-7400
5050 N. 24th Street
P.O. Box 53412
Phoenix, AZ 85072-3412
177 South Lake Wells Fargo Bank 0613058866
Avenue 82 South Lake Avenue (619) 745-3911
Pasadena, CA 91101
178 Ala Moana Bank of America 8870100646
P.O. Box 539
Honolulu, HI 96809-0539
179 Brea Bank of America 952-2-35581
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
180 Desert Bank of America 09506-01505
Fashion Mall Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
181 Santa Monica Santa Monica Bank 09008586
Place 152 Santa Monica Place
Santa Monica, CA 90401
182 Palos Verdes Union Bank 0730010656
507 Silver Spur Road
Rolling Hills Estates,
CA 90274
183 Media City Wells Fargo Bank 0933-040495
Center 900 N. San Fernando
Blvd.
Burbank, CA 91504
184 No. County Wells Fargo Bank 0760-017830
Fair 1991 E. Valley Pkwy
Escondido, CA 92027
185 University Wells Fargo Bank 0721-113330
Towne 4315 La Jolla Village
Center Dr.
San Diego, CA 92122
187 The Oaks Bank of America 1011-1-11247
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
192 Stonestown Bank of America 0252900245
Attn: Robert Simpson (415) 956-4433
P.O. Box 27128
Concord, CA 94520
193 San Francisco Bank of America 00666-18805
Ctr Attn: Robert Simpson (415) 622-4894
P.O. Box 27128
Concord, CA 94520
194 Pacific First Seafirst Bank 63497713
Ctr 701 Fifth Avenue (206) 358-7800
Seattle, WA 98104 (800) 235-0785
195 Arden Fair Wells Fargo Bank 347056947
1795 Arden Way (916) 440-4670
Sacramento, CA 95815
196 Pioneer Place U.S. Bank of Oregon 0700008980
309 S.W. Sixth Avenue (503) 275-6671
P.O. Box 4412
Portland, OR 97208
197 Stoneridge First Interstate Bank 713515701
Mall 5790 Stoneridge Mall (510) 463-1170
Pleasanton, CA 94566
200 Fifth Avenue Chemical Bank 134069245265
401 Madison Avenue (212) 949-2539
New York, NY 10017
201 Cedarhurst NatWest Bank 2011-60-8235
400 Central Avenue (516) 569-4200
Cedarhurst, LI 11559
203 Upper West Chemical Bank 067-0648979-65
Side 2045 Broadway (212) 974-1616
New York, NY 10023
204 Crossgate Albany Savings Bank 280000-222-8
120 Washington Avenue (518) 426-6401
Ext. Gerrianne
Albany, NY 12203
205 Walden Key Bank 12-100223-3
Galleria 2000 Walden Ave., Suite (716) 683-0480
B 216
Cheektowaga, NY 14225
207 A & S Plaza Chemical Bank 023071029165
349 Fifth Avenue
New York, NY 10016
208 87th Street Citibank 3360-8426
2350 Broadway (212) 868-1100
New York, NY 10024
209 Roosevelt Crossland Bank 0417702354
Field Roosevelt Field Mall
Garden City, NY 11530
241 Fashion Mall NBD 700002-634-309
One Indiana Square - J-
400
Indianapolis, IN 46266
242 Twelve Oaks Comerica Inc. 1840312803
27768 Novi Road
Novi, MI 48050
243 Grosse Point NBD 4163494
P.O. Box 206A (800) CALL-NBD
Detroit, MI 48232 (313) 862-4NBD
244 Kenwood Town Fifth Third Bank 71652145
Center 7708 Montgomery Rd. (513) 891-5600
Cincinnati, OH 45230
245 Columbus City Bank One 11-86775
65 East State Street (800) TRY-8400
Columbus, OH 43271-1040 Shari
(800) 248-2880
246 Woodland Mall Michigan National Bank 5856-160097
2627 E. Beltline SE
Grand Rapids, MI 49546
248 Westgate Dollar Bank 2593219871
20981 Westgate (216) 331-9494
Fairview Park, OH 44126
249 Laurel Park NBD 0010679-14
37458 Six Mile Road (313) 953-0620
Livonia, MI 48152 Jean Phillips
260 Saddlecreek Victory Bank 0200020958
7550 West Farmington
Boulevard
Germantown, TN 38138
261 Bellevue First Tennessee Bank 9111646
Center 8160 Sawyer Brown Rd. (615) 748-4121
Nashville, TN 37230
262 Penn Place Bank of Oklahoma 822007911
3535 NW 58 #200
P.O. Box 24128
Oklahoma City, OK 73124
263 Utica Square F & M Bank and Trust 400029793
Box 4500 (918) 748-4290
Tulsa, OK 74159
266 Willowbrook Charter Bank 40044865
P.O. Box 4525
Houston, TX 77210
271 Hanes Mall First Union Bank of NC. 7188418502
No. Wilkesboro Service
Center
P.O. Box 106
No. Wilkesboro, NC
28659-0106
273 Park Plaza Twin City Bank 90139376
P.O. Box 5581 (501) 661-0265
Capital & Broadway
No. Little Rock, AK
72119
275 Fayette Mall National City Bank 704-08416
P.O. Box 36000
Louisville, KY 40233-
6000
277 Asheville Nations Bank 430062612
1104 Brevard Rd.
Asheville, NC 28802
278 Hamilton First Tennessee Bank 0006213
Place 701 Market Street
Chattanooga, TN 37401
279 Coolsprings First Tennessee Bank 0722596
P.O. Box 100
Franklin, TN 37065-0100
280 Madison First Alabama Bank 0401403478
Square Mall P.O. Box 680
Huntsville, AL 35804-
0680
281 Houston Laredo Bank 801-175-9
Galleria P.O. Box 59
700 San Bernardo
Laredo, TX 78042
282 Hillsdale Wells Fargo Bank 0525-031290
Hillsdale Office (415) 325-2004
SW Hillsdale Boulevard
San Mateo, CA 94403
283 Dallas Nations Bank 059-0001347
Galleria 5304 Alpha Road (214) 647-4488
Dallas, TX 75240
284 Perimeter Sun Trust Bank 8801928410
Mall Mail Code 049
P.O. Box 4418
Atlanta, GA 30302
285 Bellevue Seafirst Bank 67545715
Square P.O. Box 907
Bellevue, WA 01970
286 South Coast Bank of America 0694-2-08817
Plaza Attn: Robert Simpson (714) 840-6447
P.O. 27128
Concord, CA 94520
288 North Shore Salem Five 0089-00710145-7
210 Essex Street
Salem, MA 01970
289 Century City Glendale Federal 1047023283
1801 Avenue of the Stars
Los Angeles, CA 90067-
5902
291 Downtown Bank of America 1233-2-17890
Plaza Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
292 Fairfield Star Bank 48361-0374
Commons 425 Walnut Street
Cincinnati, OH 45203
293 Stamford Town Fleet Bank 886-1005
Center Attn: Donna Flynn (203) 244-5825
Mail Code: CT E8HX15A
One Constitution Plaza
Hartford, CT 06115-
1600
294 Lenox Square Sun Trust Bank 8800781216
Mail Code 049 (404) 588-7521
P.O. Box 4418
Atlanta, GA 30302
295 Worthington NBD 4000003758
Square 175 South Third Street
Columbus, OPH 43215
296 The Grove Shrewsbury State 0110-74426
465 Broad St. (908) 842-7700
Shrewsbury, NJ
297 Ridgewood Natwest Bank 4000019513
10 Exchange Place
Jersey City, NJ
298 Winter Park Barnett Bank 2830666787
Correspondence (407) 646-3281
P.O. Box 30318
Tampa, FL 33633-0663
299 Broadway Bank of America 02240-04907
Plaza Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
300 River Oaks Nations Bank 266-308-5222
West Gray
P.O. Box 2578
Houston, TX 77252-2518
301 Annapolis First Fidelity Bank 0039-29744
Mall P.O. Box 896 (800) 492-1653
Baltimore, MD 21203
302 North Point Sun Trust Bank 8801067144
Mail Code 049
P.O. Box 4418
Atlanta, GA 30302
303 Dadeland Dadeland Bank 10164397500
7439 Dadeland Mall
Miami, FL 33156
304 Boca Town Barnett Bank 1611773989
Center Correspondence
P.O. Box 30318
Tampa, FL 33633-0663
305 Chestnut Hill Baybank 325-699-5
2 Technology Place (617) 273-1700
Mail Code: A-504
Waltham, MA 02154
307 Oakbrook Republic Bank 1930011379
6501 So. Pulaski Rd. (312) 581-4500
Chicago, IL 60629
308 Glendale Wells Fargo Bank 0795-055698
420 North Brand (818) 246-7361
Glendale, CA 91203
309 World Trade Chemical Bank 024-033715
Ctr 100 World Trade Center (212) 912-0163
New York, NY 10048
310 Waterside BancFlorida 070137393
Shops 5801 Pelican Bay Blvd (800) 368-5800
Box 413004
Naples, FL 33941-3004
311 Ft. Barnett Bank 1800122224
Lauderdale Correspondence (305) 522-5550
P.O. Box 30318
Tampa, FL 33633-0663
312 Tysons II Riggs National Bank 01808389
Service Line Dept.
P.O. Box 96758
Washington, DC 20090-
6758
313 Short Hills Investors Savings Bank 0056109969
Mall & Short Hills
Short Hills, NJ 07078
314 La Cumbre I Bank of America 1233-1-18994
Attn: Robert Simpson (800) 262-2726
P.O. Box 27128
Concord, CA 94520
315 Plaza Mark Twain Bank 361-400-5591
Frontenac 1630 S. Lindbergh Road (314) 997-7444
St. Louis, MO 63131
317 Bal Harbour Sun Bank 0599-000137380
Bal Harbour Office (305) 591-6000
9600 Collins Avenue
Bal Harbour, FL 33154
318 Natick Baybank 3867-3408
2 Technology Place
Mail Code: A-504
Waltham, MA 02154
319 Fashion Wells Fargo Bank 0769-259009
Valley 1350 Fashion Valley Road
San Diego, CA 92108
320 North Park Comerica Bank 783101-0215
P.O. Box 650282
Dallas, TX 75265-0282
321 Tower City National City Bank 4601217
P.O. Box 5756
Cleveland, OH 44101-
0756
322 Valley Fair Bank of America 05750-01049
Attn: Robert Simpson (408) 277-7329
P.O. Box 27128
Concord, CA 94520
323 Bridgewater PNC Bank 80-0159-8151
P.O Box 1032
Morristown, NJ 08057-
0932
324 Embarcadero Bank of America 1233-8-54960
Sqr. Attn: Robert Simpson (415) 445-4043
P.O. Box 27218
Concord, CA 94520
325 Charleston First Citizens Bank 079013275701
182 Meeting St. (803) 577-4560
Charleston, SC
326 Santa Anita Bank of America 1233-5-19468
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
327 Pearlridge Bank of America 5955117841
Kam Highway
Aeia, HI 96701
328 Raleigh First Union Bank of NC. 2000000-407737
4401 Glenwood Ave.
Raleigh, NC 27612
329 Prudential Fleet Bank, MA 936361-2920
Center Attn: Donna Flynn
Mail Code: CT EHX15A
One Constitution Plaza
Hartford, CT 06115-1600
330 Corte Madera Bank of America 978-0-08430
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
331 Scottsdale Bank of America 235100550
69100 E. Camelback
Scottsdale, AZ 85251
332 Faneuil Hall Shawmut Bank 200495677
Customer Center
P.O. Box 1365
Framingham, MA 01701
333 Old Orchard First American Bank 12-437-001
4949 Old Orchard Road (312) 679-2200
Skokie, IL 60077
334 K Street Crestar Bank 0520-21442
15th St. & New York Ave. (703) 838-3141
N.W.
Washington, DC 20005
335 Rosedale MidAmerica 8400780612
2440 N. Fairview Ave.
Roseville, MN 55713
336 Northgate Village Bank 1092871
1058 W. Club Blvd.
Durham, NC 27701
337 Coronado Sunwest Bank 0162700363
P.O. Box 2550
Albuquerque, NM 87125-
0550
338 Carousel Key Bank 221-025156
Center 1510 W. Genesee St. (315) 470-5478
Syracuse, NY 13204 Richard Cizensk
340 Fashion Place First Security Bank 0640002614
6161 South St.
Murray, UT 84107
341 Fashion Show Bank of America 150240885
P.O. Box 98600
Las Vegas, NV 89195-
0001
342 Sherman Oaks Bank of America 0397914183
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
343 Trumbull Lafayette Bank & Trust 051008068
Co. (203) 336-6200
P.O. Box 1899
Bridgeport, CT 06601-
9964
344 Arboreteum Bank One 0690014402
Market P.O. Box 2266
Austin, TX 78780-9989
345 Canal Place Premier Bank 54- 19105377
P.O. Box 3399 (504) 569-0483
Baton Rouge, LA 70821
346 Woodland Boatman's Bank 170182756214
Hills 6701 Sou Memorial Dr.
P.O. Box 35829
Tulsa, OK 74133-2000
347 Brandon Town Nations Bank 3603705653
Center 2105 West Brandon Blvd
Brandon, FL 33511-4703
348 Shadyside Integra Bank 84-48889
300 Fourth Avenue (412) 621-3370
Pittsburgh, PA 15278
349 The Bank of New York 6700681597
Westchester 158 Westchester Avenue
White Plains, NY 10601
350 Collin Creek Plano Bank & Trust 0767129
Mall P.O. Box 869111
Plano, TX 75086-9111
351 Shelter Cove Nations Bank 745040798
23C Shelter Cove Lane
Hilton Head, SC 29938
352 Southpark First Union Bank of NC. 2070490732110
Mall Deposit Accounting
Center
Charlotte, NC 28288-
0455
353 Somerset Shawmut Bank 7103-2265
Square Customer Center
P.O. Box 1365
Framingham, MA 01701
354 Beachwood Society National Bank 163200361
26300 Cedar Road (216) 464-9330
Beachwood, OH 44122
355 Riverchase Southtrust Bank 60306603
Galleria 420 North 20 th Street,
Sixth Floor
Birmingham, AL 35203
356 Highland Mall First State Bank 0108-3392
P.O. Box 3550 (512) 495-6050
Austin, TX 78764
357 Hulen Mall Overton Park 00058818
4840 Overton Plaza
Fort Worth, TX 76109-
4990
358 Northbrook Firstar Bank 327046828
1819 Lake Cook Road
Northbrook, IL 60062
359 Four Seasons Wachovia Bank of North 3569-022658
Town Center Carolina
600 Four Seasons Blvd.
Greensboro, NC 27407
360 Oxmoor Center PNC Bank 309547-8353
Customer Service (502) 581-2347
P.O. Box 33000
Louisville, KY 40232-
3000
361 Willow Grove First Valley Bank 069700273
One Bethlehem Plaza
Bethlehem, PA 18018-
5781
362 Madison Chemical Bank 026078694565
Avenue 598 Madison Avenue
New York, NY 10022
363 The Falls Sun Bank 6990010119595
8820 SW 136th Street
Miami, FL 331765
364 Oakview Mall Firstier Bank 053-7-651
1700 Farnam Street
Omaha, NE 68102-2183
366 Palmer Square PNC Bank 80-0053-0825
P.O. Box 1032
Morristown, NJ 08-57-
0932
367 Church Street Merchants Bank 01497676
Marketplace 123 Church Street
P.O. Box 1009
Burlington, VT 05402-
1009
368 Baybrook Bay Area Bank & Trust 079189
218 Nasa Road One
Webster, TX 77598
369 Palisades National Westminster 4370202198
Ave. Bank
42 North Dean Street
Englewood, NJ 07631
380 West Town First Tennessee Bank 67-48767
Mall 800 South Gay Street
Knoxville, TN 37929
381 Charlottesvil Jefferson National Bank 16302-0345-01
le P.O. Box 711
Charlottesville, VA
22902-0711
382 Greenville First Union Bank of SC 2010000140369
652 Haywood Road
Greenville, SC 29607
383 Carmel Place Bank of America 6395-01497
Carmel by the Sea Branch
7th & Mission Street
Carmel, CA 93921
384 Greenhills Third National Bank 1761625
P.O. Box 305110
Nashville, TN 37230-
5110
385 Highland Park Nations Bank 109-15538
P.O. Box 831547
Dallas, TX 75283-7547
386 Erieview Dollar Bank 266-081-4986
1301 E. Ninth St.
Cleveland, OH 44114
387 Larchmont, NY Bank of New York 6701157247
124 Chatsworth Avenue
Larchmont, NY 10538
388 Washington First Interstate Bank 5270159530
Square 9200 S.W.Washington
Sq.Rd
P.O. Box 23037
Tigard, OR 97223-0008
389 Circle Center National City Bank 501877347
101 West Washington
Street
Indianapolis, IN 46255
390 University First Interstate Bank 4040045306
Village 1661 South University
Drive
Ft. Worth, TX 76107
391 Seminole Town Sun Bank 0039004023633
Center 4240 W. Lake Mary
Boulevard
Lake Mary, FL 32746
392 Woodfield NBD 003700001-15479
Higgins & Meacham Roads (312) 882-6400
Schaumburg, IL 60196
393 Eastview Mall Canandaigua National 09-502521-01
Bank
338 Eastview Mall
Victor, NY 14564
394 Southdale First Bank 1-367-30735026
7001 France Avenue South
Edina, MN 55435
395 Northridge Bank of America 24404-04783
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
396 Walt Whitman Republic Bank for 1366001368
Savings (516) 423-7200
Walt Whitman Mall
Route 110
Hungtington Station, NY
11746
397 South Street Citibank 49615556
Seaport 30 Fulton Street
New York, NY 10038
398 The Gardens First Federal of the 2070000757
Palm Beaches (800) 221-8511
P.O. Drawer F
West Palm Beach, FL
33402-3515
401 Mayfair Mall Firstar Bank 112047743
2300 North Mayfair Road (414) 258-1440
Wauwatosa, WI 53226
402 Danbury Fair First Fidelity Bank 2-082-007
Sugar Hollow Rd. 744-1230, ext.
Danbury, CT 06810 2221 Irene
403 St. Louis Commerce Bank 270177458
Galleria 7910 Clayton Road
St. Louis MO 63117-1385
404 Citicorp Bank of America 1233-1-54959
Plaza Attn: Robert Simpson (213) 735-1144
P.O. Box 27128
Concord, CA 94520
406 North Park Trustmark 1001447374
Mall P.O. Box 1200
Jackson, MS 39215
407 Fashion Ctr Chevy Chase 1074300513
Pentagon 1100 S. Hayes Street (800) 825-9000
Arlington, VA 22202 Brian
409 West Shore Barnett Bank 1407137925
Plaza Correspondence
P.O. Box 30318
Tampa, FL 33633-0663
410 Oaks Mall Gainesville State Bank 0400502901
2814 S.W. 34th Street
P.O. Box 147002
Gainesville, FL 32614-
7002
412 Montclair Wells Fargo Bank 0984041046
Plaza PO Box 340214
Sacramento, CA 95834-
0214
502 Kenwood Town Fifth Third Bank 71652268
Ctr 7708 Montgomery Rd.
Cincinnati, OH 45236
503 Columbus Bank One 0236515
Center 65 East State Street
Columbus, OH 43271-
1040
504 Beverly National Bank of 2519291
Center California
145 S. Fairfax Ave.
Los Angeles, CA 90036
505 La Cumbre II Bank of America 1233-0-19239
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
506 Georgetown Riggs National Bank 17187190
Park Service Line Dept.
P.O. Box 96758
Washington, DC 20090-
6758
507 The Grove @ Shrewsbury State Bank 011077220
Shrewsbury 465 Broad Street
Shrewsbury, NJ 07702
508 Plaza Mark Twain Bank 3614020335
Frontenac 1630 S. Lindbergh Road
St. Louis, MO 63131
509 Broadway Bank of America 12333-20533
Plaza Attn: Robert Simpson
P.O.Box 27128
Concord, CA 94520
510 Union Station Adams National Bank 0100768801
1627 K Street, NW
Washington, D.C. 20006
700 Franklin Mellon Bank 8455628
Mills Mellon Square, Customer
Service
Pittsburgh, PA 15259-
0003
701 Sawgrass Barnett Bank 387-1201-716
Mills Correspondence
P.O. Box 30318
Tampa, FL 33633-0663
704 Gurnee Mills NBD 34000600479
513 Central Avenue
Highland Park, IL 60035
705 Potomac Mills Riggs National Bank 1-801-589
Service Line Dept.
P.O. Box 96758
Washington, DC 20090-
6758
706 Millstream Fulton Bank 2318-77085
P.O. Box 4887 (717) 291-2591
Lancaster, PA 17604
707 San Marcos State Bank & Trust 1505920
P.O. Box 649 (512) 396-4411
San Marcos, TX 78667
708 Gulf Coast Barnett Bank 195-919-3980
Factory Correspondence (800)628-5677
P.O. Box 30318
Tampa, FL 36333-0663
709 Woodbury Warwick Savings 032-14-20085
Commons P.O. Box 1008
Highland Mills, NY
10930
710 CastleRock First Bank of Castlerock 285-550-2403
P.O. Box 1300 (303) 688-5000
Castlerock, CO 80104 (800) 964-3444
711 Destin AmSouth Bank of Florida 3400071757
San Destin Branch
5050 highway 98 East
Destin, FL 32541
712 West Fifth Third Bank 758-86328
Lancaster P.O. Box 182026 426-6384
Columbus, OH 43218
713 Birch Run First of America Bank 3130046661
12010 Church Ave. (800) 736-3534
Birch Run, MI 48708
714 Petaluma Bank of America 1233-1-19526
Attn: Robert Simpson
P.O. Box 27128
Concord, CA
715 Gilroy Bank of America 00116-3740
Attn: Robert Simpson (800) 237-8052
P.O. Box 27128
Concord, CA 94520
716 St. Augustine First Union Bank of 2090000394915
Florida (800) 735-1012
P.O. Box 2870
Jacksonville, FL 32231
717 Citadel Bank of California 089002428
Outlets Citadel Office (213) 255-0333
500 Citadel Drive
Commerce, CA 90040
718 Osage Beach First Bank Centre 01005784001
One Financial Centre 348-2265
Osage Beach, MO 65065
719 Grove City Integra Bank 0071726391
201 S. Broad St. (800) 352-0186
P.O. Box 349
Grove City, PA
720 Worchester Bank of Boston 541-65139
P.O. Box 15073
Boston, MA 02106
721 Tuscola Tuscola Nat'l Bank 04-674-4
214 Main St. (217) 253-4711
P.O. Box 110
Tuscola, IL 61953
722 Vero Beach First Union Bank of 2090000468113
Florida
P.O. Box 1269
Vero Beach, FL
723 Riverhead Suffolk County Nat'l 110125911
Bank
6 West Second Street
Riverhead, NY 11901
724 Branson Capital Bank 6411284368
P.O. Box 70
Branson, MO 65616-0070
725 Barstow Bank of America 1233-9-20233
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
726 Gainesville Bank of America Texas 315143632
101 East Broadway
Gainesville, TX 76240-
4010
727 Aurora Farms Second National Bank 2006444601
P.O. Box 1311
Warren, OH 44482-1311
728 Fremont Norwest 85575369
P.O. Box 120
Angola, IN 46703-6740
729 Edinburgh Irwin Union Bank & Trust 39698170
500 Washington Street
Box 929
Columbus, IN 47202
730 Michigan City First of America Bank 7930011551
800 Lincolnway
LaPorte, Indiana 46350
731 Orlando Barnett Bank 2834599958
Correspondence
P.O. Box 30318
Tampa, FL 36333-0663
732 Cabazon North County Bank 610103589
1735 W. Ramsey Street
Banning, CA 92220
737 Rehoboth Midway Mellon Bank 01029153
4537 Highway One
Rehoboth Beach, DE 19971
738 Auburn Seafirst Bank 69727600
Supermall 800 5th Avenue
Seattle, WA 98104
739 Napa Bank of America 00315-09435
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
740 San Leandro Bank of America 1233720791
Attn: Robert Simpson
P.O. Box 27128
Concord, CA 94520
741 Camarillo Santa Barbara Bank & 32005159
Trust
2310 E. Ponderosa Drive
Camarillo, CA 93010
742 Arizona Bank of America 946026509
Factory Shops 3511 W. Peoria Avenue
Phoenix, AZ 85029
743 Magnolia Southeastern Bank 705896
Bluffs P.O. Box 455
Darien, GA 31305
798 Milpitas Wells Fargo Bank 4030-010789
3535 Lincoln Plaza
500 North Akard
Dallas, TX 75201
- - ------------------------------------------------------------
Exhibit 1.02(a)
---------------
[FORM OF BORROWING NOTICE]
[Date]
PNC Bank, National Association,
as Administrator
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15265
Attention: Robert O. Finley, Jr.
Ladies and Gentlemen:
Reference is made to the Amended and Restated Receivables
Financing Agreement, dated as of October 31, 1995, among the
undersigned, AnnTaylor, Inc., as Servicer, Market Street Capital
Corp., as Lender, and PNC Bank, National Association, as
Administrator (as the same may be further amended, supplemented
or otherwise modified from time to time, the "Receivables Financing
---------------------
Agreement"). All capitalized terms used but not otherwise
- - ---------
defined herein which are defined in the Receivables Financing
Agreement have the same meanings when used herein.
The undersigned, AnnTaylor Funding, Inc., refers to the
Receivables Financing Agreement and hereby gives you notice,
irrevocably, pursuant to Section 1.02(a) of the Receivables
---------------
Financing Agreement, that the undersigned hereby requests that a
Loan be made in the aggregate principal amount of $_____________
on _____________, 199_.
The undersigned hereby certifies as of the date hereof, and as
of the date such Loan is made, as follows:
(a) the representations and warranties contained in the
Receivables Financing Agreement are correct, before and after giving
effect to such Loan and to the application of the proceeds therefrom,
as though made on and as of such dates and shall be deemed to have
been made on such dates;
(b) no event has occurred and is continuing, or would
result from such Loan or from the application of the proceeds
therefrom, that constitutes an Event of Default or an Unmatured
Event of Default;
(c) The borrowing Base as of the date hereof is
$_________________.
(d) after giving effect to such Loan, the Outstanding
Principal is $_____________; and
(e) the Termination Date has not occurred.
IN WITNESS WHEREOF, the undersigned has caused this Borrowing
Notice to be executed and delivered by a Responsible Officer on the
date first written above.
ANNTAYLOR FUNDING, INC.
By: __________________
Title: ________________
- - ---------------------------------------------------------------
Exhibit 1.04
-------------
[FORM OF NOTE]
$40,000,000 New York, New York
October 31, 1995
FOR VALUE RECEIVED, the undersigned, ANNTAYLOR FUNDING, INC.
(the "Issuer"), hereby promises to pay to the order of MARKET STREET
------
CAPITAL CORP. (together with its successors and assigns, the "Noteholder"),
----------
on or before January 27, 1997, the principal amount of FORTY MILLION
DOLLARS ($40,000,000) or, if less, the aggregate unpaid principal amount
of all of the Loans (as defined in the Amended and Restated Receivables
Financing Agreement, dated as of October 31, 1995, among the Issuer,
AnnTaylor, Inc., as Servicer, the Noteholder and PNC Bank, National
Association, as Administrator (as the same may be further amended,
supplemented or otherwise modified from time to time, the "Amended and
-----------
Restated Receivables Financing Agreement") made by the Noteholder to
- - ----------------------------------------
the Issuer pursuant to the Amended and Restated Receivables Financing
Agreement.
The undersigned also promises to pay interest on the unpaid
principal amount of each Loan evidenced by this Note from the date
of such Loan until such Loan is paid in full, at the rates and
payable on the dates specified in the Amended and Restated Receivables
Financing Agreement.
This Note evidences indebtedness incurred as Loans under, and
is entitled to the benefits of, the Amended and Restated Receivables
Financing Agreement, to which Amended and Restated Receivables
Financing Agreement reference is hereby made for a statement of its
terms and conditions, including those under which the maturity of this
Note may be accelerated. Upon the occurrence of an Event of Default as
specified in the Amended and Restated Receivables Financing Agreement,
the principal balance hereof and the interest accrued hereon may be
declared to be forthwith due and payable.
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