Exhibit 10.12
WAIVER AND CONSENT
WAIVER AND CONSENT, dated as of June 13, 2007, to the Term Loan
Agreement, dated as of July 24, 2006 (the "Loan Agreement"), by and among THE
TALBOTS, INC., a corporation duly organized and validly existing under the laws
of the State of Delaware (the "Borrower"), the lenders from time to time party
thereto (each a "Lender" and collectively, the "Lenders") and MIZUHO CORPORATE
BANK, LTD., a corporation organized and existing under the laws of Japan
("Mizuho"), as arranger and administrative agent for the Lenders (in such
capacities, the "Agent").
The Borrower has advised the Agent and the Lenders that the Borrower
has failed to satisfy the Leverage Ratio covenant set forth in Section 4.2(a) of
the Loan Agreement for the first quarter of 2007, and hereby requests that the
Agent and the Required Lenders waive such default. The Agent and the Required
Lenders have agreed to waive such default, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and agreements
herein, the Borrower, the Agent and the Lenders hereby agree as follows:
1. All terms used herein which are defined in the Loan Agreement and
not otherwise defined herein are used herein as defined therein.
2. Pursuant to the request of the Borrower and in accordance with
Section 9.7 of the Loan Agreement, the Agent and the Required Lenders hereby
consent to, and waive any Event of Default that would otherwise arise under
Section 6.1(c) of the Loan Agreement by reason of, the failure of the Borrower
to comply with the Leverage Ratio covenant set forth in Section 4.2(a) of the
Credit Agreement for the first fiscal quarter of 2007; provided, however, that
this Waiver and Consent is based on the representation and warranty of the
Borrower that the Leverage Ratio as of the last day of the Borrower's first
fiscal quarter of 2007 did not exceed 2.57 to 1.
3. Except as otherwise expressly provided herein, the Borrower hereby
confirms and agrees that (a) each Loan Document to which it is a party is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, and (b) this Waiver and Consent shall not operate as
a waiver of any right, power or remedy of the Agent or the Lenders under the
Loan Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Loan Agreement or any other Loan Document. This Waiver and
Consent (i) shall become effective as of the date set forth above when signed by
the Required Lenders, (ii) shall be effective only in this specific instance and
for the specific purposes set forth herein, and (iii) does not allow for any
other or further departure from the terms and conditions of the Loan Agreement
or any other Loan Document, which terms and conditions shall continue in full
force and effect.
4. This Waiver and Consent (i) shall be governed by, and construed in
accordance with, the law of the State of New York, (ii) shall be binding upon
the parties and their respective successors and assigns, (iii) may be signed in
multiple counterparts, including by telecopy, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument,
and (iv) may be amended or otherwise modified only in a writing signed by the
Required Lenders. If this Waiver and Consent becomes the subject of a dispute,
each of the parties hereto hereby waives trial by jury.
IN WITNESS WHEREOF, the Borrower, the Agent and the Required Lenders
have caused this Waiver and Consent to be executed as of the date first above
written.
THE TALBOTS, INC. MIZUHO CORPORATE BANK, LTD.,
As Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxx
Title: Senior Vice President, Title: Deputy General Manager
Finance, Chief Financial
Officer and Treasurer
Signed in: Hingham, MA Signed in:
-------------------------- -----------------------------
Principal amount of Term Loan held:
$110,500,000.00
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Joint General Manager
Signed in: New York
-----------------------------
Principal amount of Term Loan held:
$76,500,000.00
THE NORINCHUKIN BANK
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: General Manager
Signed in: New York
-----------------------------
Principal amount of Term Loan held:
$25,500,00.00
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP & Manager
Signed in:
-----------------------------
Principal amount of Term Loan held:
$25,500,000.00
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signed in: New York
-----------------------------
Principal amount of Term Loan held:
$17,000,000.00
SHINSEI BANK LIMITED
By: /s/
------------------------------------
Name:
Title:
Signed in:
-----------------------------
Principal amount of Term Loan held:
$10,200,000.00
MITSUBISHI UFJ TRUST AND BANKING
CORPORATION
By: /s/ Tatsuhisa Teshima
------------------------------------
Name: Tatsuhisa Teshima
Title: Deputy General Manager
Signed in: New York
-----------------------------
Principal amount of Term Loan held:
$10,200,000.00
THE CHUO MITSUI TRUST AND BANKING
COMPANY, LIMITED
BY: /s/
------------------------------------
Name:
Title:
Signed in: Tokyo
-----------------------------
Principal amount of Term Loan held:
$10,200,000.00
THE SHIZUOKA BANK, LTD.
BY: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: General Manager of Los
Angeles Branch
Signed in: Los Angeles, U.S.A.
-----------------------------
Principal amount of Term Loan held:
$10,200,000.00
THE CHIBA BANK LIMITED
BY: /s/ Morio Tsumita
------------------------------------
Name: Morio Tsumita
Title: General Manager
Signed in: New York, USA
-----------------------------
Principal amount of Term Loan held:
$10,200,000.00
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
Signed in:
-----------------------------
Principal amount of Term Loan held:
$8,500,000.00
SHINKIN CENTRAL BANK
By:
------------------------------------
Name:
Title:
Signed in:
-----------------------------
Principal amount of Term Loan held:
$7,650,000.00
THE HACHIJUNI BANK, LTD.
By: /s/
------------------------------------
Name:
Title:
Signed in: Tokyo
-----------------------------
Principal amount of Term Loan held:
$5,100,000.00
THE HIROSHIMA BANK, LTD.
By:
------------------------------------
Name:
Title:
Signed in:
-----------------------------
Principal amount of Term Loan held:
$5,100,000.00
THE BANK OF YOKOHAMA, LTD.
By: /s/
------------------------------------
Name:
Title:
Signed in: Tokyo
-----------------------------
Principal amount of Term Loan held:
$4,250,000.00
THE BANK OF IWATE, LTD.
By: /s/
------------------------------------
Name:
Title:
Signed in:
-----------------------------
Principal amount of Term Loan held:
$3,400,000.00
