FIFTH AMENDMENT (this "Amendment"), dated as of January 28,
2000, to the Revolving Credit Agreement (as amended and modified to the date
hereof, the "Revolving Credit Agreement"), dated as of January 25, 1994, between
The Talbots, Inc. (the "Borrower"), and The Sakura Bank, Limited, New York
Branch (the "Bank").
W I T N E S S E T H:
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WHEREAS, the parties hereto are parties to the Revolving
Credit Agreement;
WHEREAS, by letter dated December 20, 1999, the Borrower has
requested, pursuant to Section 14(j)(i) of the Credit Agreement, that the
Revolving Credit Period be extended for one year so that it expires on January
28, 2002;
WHEREAS, the Bank is willing to agree to such an extension of
the Revolving Credit Period subject to the Borrower's agreement to the amendment
to the Credit Agreement provided for herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Unless otherwise indicated, capitalized terms used herein and
defined in the Revolving Credit Agreement shall have the respective meanings
ascribed thereto in the Revolving Credit Agreement.
ARTICLE II
EXTENSION OF REVOLVING CREDIT PERIOD
The Bank hereby notifies the Borrower of its acceptance of the
Borrower's request to extend the expiration date of the Revolving Credit Period
to January 28, 2002. In accordance with Section 14(j)(iii) of the Credit
Agreement, the Revolving Credit Period is extended to such date.
ARTICLE III
AMENDMENT
Effective on the Amendment Date (as defined in Section 4.01),
the last sentence of Section 5(a) shall be amended by replacing the words
"five-eighths of one percent (0.625%)" with the words "three-quarters of one
percent (0.75%)".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. The Borrower represents and warrants to the Bank
as follows:
(a) the Borrower is a company incorporated with limited
liability duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to make and
perform this Amendment, and to perform the Revolving Credit Agreement as amended
hereby, and any of the certificates, instruments or agreements herein or therein
referred to insofar as they pertain to the Borrower and has taken all necessary
corporate actions to authorize the execution, delivery and performance of this
Amendment and all of the aforesaid documents;
(b) each officer or attorney-in-fact of the Borrower who has
executed and delivered this Amendment and the documents referred to in paragraph
(a) above was duly authorized to execute and deliver the same on behalf of the
Borrower;
(c) this Amendment has been duly executed and delivered by the
Borrower and this Amendment, and the Revolving Credit Agreement as amended
hereby, each constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with its terms (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles);
(d) neither the execution nor delivery of this Amendment, nor
the transactions herein contemplated, nor compliance with the terms, conditions
and stipulations hereof, nor performance or observance of the terms and
conditions of the Revolving Credit Agreement as amended hereby, will:
(i) contravene any provision of any law,
statute, decree, rule or regulation to which
the Borrower is subject, or any judgment,
decree, franchise, order or permit
applicable to either of them; or
(ii) conflict, or be inconsistent with, or result
in any breach of, any of the terms,
covenants, conditions or provisions of, or
constitute a default under, or result in the
creation of imposition of any lien, security
interest, charge or encumbrance upon any of
the property or assets of the Borrower,
pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other
instrument, to which the Borrower is a party
or subject, or by which the Borrower or its
assets may be bound; or
(iii) cause any limit or restriction on the
borrowings or chargings of the Borrower, or
any other limitation or restriction on the
Borrower (whether imposed by statute,
regulation, agreement, or otherwise) to be
exceeded or contravened; or
(iv) violate any provision of the Certificate of
Incorporation or By-Laws of the Borrower;
(e) the Borrower has received or obtained every authorization,
consent and approval of, or exemption by, any governmental or public body or
authority required to authorize, or required in connection with, the execution,
delivery and performance of this Amendment or the taking of any action hereby
contemplated, or the performance of the Revolving Credit Agreement as amended
hereby, and every such authorization, consent and approval, or execution is in
full force and effect;
(f) it is not necessary under the laws of Japan, the United
States of America or any political sub-division or authority thereof or therein
in order to ensure the validity, effectiveness and enforceability of this
Agreement, and the Revolving Credit Agreement as amended hereby, as against all
persons and to make the same enforceable and admissible in evidence in the
courts of competent jurisdiction in Japan, the United States of America or any
political sub-division or authority thereof or therein, that this Agreement or
any other instrument relating thereto be filed, registered or recorded in any
public office or elsewhere in any manner.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendment Date. This Amendment shall become
effective as of the date first written above (the "Amendment Date").
SECTION 5.02. References. Commencing on the Amendment Date
each reference to the Revolving Credit Agreement contained in the Revolving
Credit Agreement and in any related documents shall be deemed to refer to the
Revolving Credit Agreement as amended hereby.
SECTION 5.03. Effectiveness of Revolving Credit Agreement.
Except as expressly amended hereby, the Revolving Credit Agreement shall remain
unmodified and in full force and effect.
SECTION 5.04. Expenses. The Borrower agrees to pay on demand
all out-of-pocket costs and expenses incurred by the Bank in connection with the
administration, modification and amendment of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel to the
Bank with respect thereto and with respect to advising the Bank as to its rights
and responsibilities under this Amendment, and all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment.
SECTION 5.05. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 5.06. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 5.07. Titles and Headings. The titles and headings of
sections of this Amendment are intended for convenience only and shall not in
any way affect the meaning or construction of any provisions of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE TALBOTS, INC.
By: XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Finance
Treasurer and Chief Financial Officer
THE SAKURA BANK, LIMITED, NEW YORK BRANCH
By: XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
