{"id":41241,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/receivables-financing-agreement-anntaylor-funding-inc5.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"receivables-financing-agreement-anntaylor-funding-inc5","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/receivables-financing-agreement-anntaylor-funding-inc5.html","title":{"rendered":"Receivables Financing Agreement &#8211; AnnTaylor Funding Inc., AnnTaylor Inc., Clipper Receivables Corp., State Street Boston Capital Corp. and PNC Bank NA"},"content":{"rendered":"<pre>      SECOND AMENDMENT TO RECEIVABLES FINANCING AGREEMENT\n\n\n     THIS SECOND AMENDMENT TO RECEIVABLES FINANCING AGREEMENT,\ndated as of March 31, 1995 (this 'Amendment'), is among AnnTaylor\nFunding, Inc. a Delaware corporation (the 'Company'), AnnTaylor,\nInc., a Delaware corporation ('AnnTaylor'), Clipper Receivables\nCorporation, a Delaware corporation ('Lender'), State Street\nBoston Capital Corporation, a Massachusetts corporation, as\nadministrator for Lender (the 'Administrator') and PNC Bank,\nNational Association, a national banking association (the\n'Relationship Bank').\n\n                           BACKGROUND\n\n     1.   The Company, AnnTaylor, Lender, the Administrator and\nthe Relationship Bank entered into a Receivables Financing\nAgreement, dated as of January 27, 1994, as amended by the First\nAmendment to Receivables Financing Agreement, dated as of May 31,\n1994 (the 'Agreement').\n\n     2.   The Company, AnnTaylor, Lender, the Administrator and\nthe Relationship Bank desire to amend the Agreement in certain\nrespects as set forth herein.\n\n     NOW, THEREFORE, in consideration of the foregoing and other\ngood and valuable consideration, the receipt and sufficiency of\nwhich are hereby acknowledged, the parties hereto hereby agree as\nfollows:\n\n     SECTION 1.  Definitions.  The capitalized terms used in this\nAmendment and not otherwise defined herein shall have the\nmeanings assigned thereto in the Agreement.\n\n     SECTION 2.  Mergers.  Section 7.05(b) of the Agreement is\nhereby amended by deleting such Section in its entirety, and\nsubstituting therefor the following:\n\n          'Be a party to any merger, consolidation, or purchase\n     or otherwise acquire all or substantially all of the assets\n     or any stock of any class of, or any partnership or joint\n     venture interest in, any other person, or, except in the\n     ordinary course of its business, sell, transfer, convey or\n     lease all or any substantial part of its assets, or sell or\n     assign with or without recourse any Receivables or any\n     interest therein other than:\n\n          (i)       pursuant to the Purchase Agreement;\n\n          (ii)      licenses of trademarks to the extent\n     necessary to maintain or protect such trademarks in\n     jurisdictions outside the United States of America;\n\n          (iii)     any sale or disposition of AnnTaylor's\n     interest in the CAT Joint Venture pursuant to the CAT Joint\n     Venture Agreement;\n\n          (iv)      any purchase or acquisition of any assets\n     among AnnTaylor and its Restricted Subsidiaries; it being\n     understood that AnnTaylor shall be permitted to incorporate\n     new Restricted Subsidiaries;\n\n          (v)       any purchase or acquisition of any interest\n     in joint ventures (in the form of corporations, partnerships\n     or otherwise) in a maximum amount not exceeding $10,000,000\n     at any one time outstanding;\n\n          (vi)      any purchase or acquisition of any assets or\n     capital stock in Unrestricted Subsidiaries in an amount not\n     to exceed $1,000,000 at any one time outstanding;\n\n          (vii)     any purchase or acquisition of any assets or\n     capital stock in the CAT Joint Venture pursuant to the CAT\n     Joint Venture Agreement in an amount not to exceed 15% of\n     Net Worth; and\n\n          (viii)    any merger or consolidation of any Subsidiary\n     into or with AnnTaylor, so long as AnnTaylor is the\n     surviving corporation.\n\n     SECTION 3.  Net Worth.  Section 7.05(d) of the Agreement is\nhereby amended by deleting such Section in its entirety, and\nsubstituting therefor the following:\n\n     'Permit Net Worth as determined at the end of any fiscal\n     quarter (beginning with the fiscal quarter ending on or\n     about January 28, 1995) to be less than the Net Worth on or\n     about October 30, 1994 plus (a) 50% of Net Income after\n     October 30, 1994 (without deducting from such cumulative\n     amount the amount of any net loss incurred in any fiscal\n     year except extraordinary losses associated with the\n     redemption or repurchase of indebtedness) plus (b) 100% of\n     the net proceeds of any equity issue or conversion of debt\n     to equity subsequent to October 30, 1994 minus (c) any\n     expenses related to the payments for ATSC's share of\n     expenses incurred in connection with any public offering of\n     common stock minus (d) payments by ATSC or AnnTaylor to\n     acquire shares of common stock from employees of ATSC,\n     AnnTaylor or any Restricted Subsidiary in an aggregate\n     amount not exceeding $100,000 in any fiscal year.'\n\n     SECTION 4.  Fixed Charge Coverage Ratio.  Section 7.05(e) of\nthe Agreement is hereby amended by deleting such Section in its\nentirety, and substituting therefor the following:\n\n          'Permit the Fixed Charge Coverage Ratio, as determined\n     at the end of any fiscal quarter for the preceding four\n     fiscal quarters to be less than the ratio set forth opposite\n     the month in which such fiscal quarter ends:\n\n          Quarter Ended                 Minimum Ratio\n\n          October 1994                  1.00 to 1.00\n          January 1995                  1.00 to 1.00\n          April 1995                    1.00 to 1.00\n          July 1995                     1.00 to 1.00\n          October 1995                  1.00 to 1.00\n          January 1996                  1.00 to 1.00\n          April 1996                    1.00 to 1.00\n          July 1996                     1.05 to 1.00\n          October 1996 and thereafter   1.10 to 1.00\n\n     SECTION 5.  Events of Default.  Section 10.01(f) of the\nAgreement is hereby amended deleting the number '0%' where it\nappears therein and substituting therefor the number '-2%'.\nSection 10.01(h) of the Agreement is hereby amended by deleting\nthe number '27%' where it appears therein and substituting\ntherefor the number '22%'.\n\n     SECTION 6.  Certain Definitions.  The following definitions\nthat appear in Appendix A to the Agreement are hereby amended as\nfollows:\n\n          (i)  the definition of 'AnnTaylor Credit Agreement' is\n     hereby amended by (1) deleting the date 'June 28, 1993' and\n     substituting therefor the date 'July 29, 1994'; (2) by\n     deleting the phrase 'Bank of Montreal' where it appears\n     therein and substituting therefor the phrase 'Fleet Bank,\n     National Association'; and (3) by deleting the phrase 'as\n     heretofore amended' where it appears at the end thereof and\n     substituting therefor the phrase 'as amended by the First\n     Amendment to Credit Agreement, dated as of January 27,\n     1995';\n\n          (ii)  the definition of 'Defaulted Receivable' that\n     appears in Appendix A to the Agreement is hereby amended by\n     deleting the number '5' where it appears in the second line\n     thereof and substituting therefor the number '6' and by\n     deleting the number '6' where it appears in the fourth line\n     thereof and substituting therefor the number '7';\n\n          (iii)  the definition of 'EBITDA' is hereby amended by\n     deleting the phrase 'all income tax' where it appears in\n     clause (iii) thereof and substituting therefor the phrase\n     'income tax expense';\n\n          (iv)  the definition of 'Fixed Charge Coverage Ratio'\n     that appears in Appendix A to the Agreement is hereby\n     amended by deleting such definition in its entirety, and\n     substituting therefor the following:\n\n          'Fixed Charge Coverage Ratio' shall mean, for any\n     period, the quotient obtained by dividing (a) EBITDA by (b)\n     the sum of (i) Capital Expenditures paid or accrued during\n     such period excluding any Capital Expenditures made in\n     respect of the Distribution Center, plus (ii) scheduled\n     payments made since July 29, 1994 for principal on\n     Indebtedness excluding any payment made upon termination of\n     the transactions contemplated by this Agreement plus (iii)\n     Cash Interest Expense during such period plus (iv) income\n     tax expense during such period.';\n\n          (v)  the definition of 'Interest Expense' is hereby\n     amended by inserting the word 'ATSC,' before the word\n     'AnnTaylor' in the first line thereof;\n\n          (vi)  the definition of 'Net Income' is hereby amended\n     by adding the word 'ATSC,' before the word 'AnnTaylor' in\n     the second line thereof; and\n\n          (vii)  the definition of 'Net Worth' is hereby amended\n     by adding the following phrase at the end thereof before the\n     period:  ', but excluding, for the purposes of this\n     definition, unrealized foreign exchange translation gains\n     and losses from investments in foreign Subsidiaries'.\n\nThe following definitions are hereby added to Appendix A in the\nappropriate alphabetical order:\n\n     'Restricted Subsidiary' shall mean any Subsidiary of\nAnnTaylor which is not an Unrestricted Subsidiary.  Whether or\nnot a Restricted Subsidiary is a 'wholly-owned Restricted\nSubsidiary' shall be determined without taking into account any\ndirectors' qualifying shares.\n\n     'Unrestricted Subsidiary' shall mean a Subsidiary of\nAnnTaylor which has been designated as such by resolution duly\nadopted by the board of directors of AnnTaylor, which at the time\nof such designation had assets of $1,000 or less and which does\nnot own or hold any securities of, or any Lien on any property\nof, ATSC, AnnTaylor or any Restricted Subsidiary provided no\nSubsidiary of AnnTaylor shall be (or, if already an Unrestricted\nSubsidiary shall immediately cease to be) an Unrestricted\nSubsidiary if, at any time, ATSC, AnnTaylor or any other\nRestricted Subsidiary of AnnTaylor shall create, incur, issue,\nassume, guarantee or in any other manner whatsoever be or become\nliable with respect to any claim against or any contractual\nobligation or indebtedness of, such Subsidiary.\n\n     SECTION 7.  Credit and Collection Policy.  Lender and the\nAdministrator hereby consent to the changes to the Credit and\nCollection Policy described in the letter from the Company to\nLender, dated January 16, 1995, a copy of which is attached\nhereto as Exhibit A.\n\n     SECTION 8.  Miscellaneous.  The Agreement, as amended\nhereby, remains in full force and effect.  Any reference to the\nAgreement from and after the date hereof shall be deemed to refer\nto the Agreement as amended hereby unless otherwise expressly\nstated.  This Amendment may be executed in any number of\ncounterparts and by the different parties hereto on separate\ncounterparts, each of which when so executed shall be deemed to\nbe an original and all of which when taken together shall\nconstitute one and the same agreement.  This Amendment shall be\ngoverned by the laws of the State of New York.  The Company\nhereby agrees to pay, promptly upon demand, all costs and\nexpenses incurred by Lender, the Administrator or the\nRelationship Bank in connection with this Amendment.\n     IN WITNESS WHEREOF, the parties have caused this Amendment\nto be executed by their respective officers thereunto duly\nauthorized, as of the date first above written.\n\n\n                              ANNTAYLOR FUNDING, INC.\n\n\n\n                              By: \/s\/ Walter J. Parks\n                                  ---------------------\n\n\n\n                              ANNTAYLOR, INC.\n\n\n\n                              By: \/s\/ Walter J. Parks\n                                 ------------------------\n\n\n\n                              CLIPPER RECEIVABLES CORPORATION\n\n\n\n                              By: \/s\/ Lannhi Tran\n                                 ----------------------\n\n\n\n                              STATE STREET BOSTON CAPITAL\n                              CORPORATION, as Administrator\n\n\n\n                              By: \/s\/ David B. Coleman\n                                 -------------------------\n\n\n\n                              PNC BANK, NATIONAL ASSOCIATION\n\n\n\n                              By: \/s\/ Mark Williams\n                                 ------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6710,8542,8935],"corporate_contracts_industries":[9415,9494],"corporate_contracts_types":[9561,9560],"class_list":["post-41241","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-anntaylor-stores-corp","corporate_contracts_companies-pnc-financial-services-group-inc","corporate_contracts_companies-state-street-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-retail__clothing","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41241","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41241"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41241"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41241"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41241"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}