Exhibit 10.38
THIRD AMENDMENT AGREEMENT
THIS THIRD AMENDMENT AGREEMENT (this "Amendment") is made as
of April 17, 1998 between The Talbots, Inc. (the "Borrower") and The Norinchukin
Bank, New York Branch (the "Bank").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to the Revolving
Credit Agreement, dated as of January 25, 1994, as amended by the First
Amendment, dated as of November 21, 1995, and further amended by the Second
Amendment, dated as of April 18, 1996 (as so amended, the "Revolving Credit
Agreement"; Capitalized terms which are used herein but not otherwise defined
shall have the respective meanings ascribed thereto in the Revolving Credit
Agreement); and
WHEREAS, the parties hereto desire to make certain amendments
to the Revolving Credit Agreement as hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendments to the Revolving Credit Agreement. The Bank and
the Borrower hereby agree to amend the Revolving Credit Agreement as follows:
(a) The following sections of the Revolving Credit Agreement
are hereby amended by deleting each reference contained therein to "Fourteen
Million United States Dollars (U.S. $14,000,000)" and inserting in lieu thereof
a reference to "Twenty-Eight Million United States Dollars (U.S. $28,000,000)":
(i) The recital contained in Page 1;
(ii) The definition of "Commitment" contained in
Page 2; and
(iii) The definition of "Revolving Credit
Facility" contained in Page 4.
(b) The following sections of the Revolving Credit Agreement
are hereby amended by deleting each reference contained therein to "$14,000,000"
and inserting in lieu thereof a reference to $28,000,000":
(i) The definition of "Available Amount"
contained in Page 2; and
(ii) Schedule C.
(c) Section 11 of the Revolving Credit Agreement is hereby
amended as follows:
(i) Subsection (viii) contained in Page 18 is
amended by inserting "; or" to the end
thereof; and
(ii) New Subsections "(ix)" and "(x)" are
inserted in Page 18 immediately following
Subsection (viii), as follows:
"(ix) JUSCO (U.S.A.), Inc. shall not own
directly, beneficially and of record,
51 % or more of the issued and
outstanding capital stock of the
Borrower; or
"(x) the Borrower shall default in the
performance or observance of any
term, covenant, condition or
agreement contained in this Agreement
or in any other agreements, documents
or instruments delivered under, or in
connection with, this Agreement"
2. Revolving Credit Period. The parties hereto agree that the
current Revolving Credit Period shall mean a period to and including April 17,
2000.
3. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.
4. Expenses. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Bank in connection with the preparation
of this Assignment or with any amendments, modifications or waivers of the
provisions hereof or of the Revolving Credit Agreement or incurred by the Bank
in connection with the enforcement or protection of its rights in connection
with this Amendment or the Revolving Credit Agreement or in connection with any
pending or threatened action, proceeding or investigation relating to the
foregoing, including, but not limited to, the reasonable fees and disbursements
of counsel for the Bank.
5. Further Assurances. Each parties hereto shall promptly
execute and deliver all such other agreements, certificates, instruments or
documents and do and perform or cause to be done and performed all such further
acts and things as may be reasonably requested by the other party in order to
carry out the intent and purposes of this Amendment.
6. Full Force and Effect; Ratification. (a) All references to
the Revolving Credit Agreement shall be deemed to refer to the Revolving Credit
Agreement as amended by this Amendment, and the term "this Agreement" and the
words "hereof", "herein", "hereunder" and words of similar import, as used in
the Revolving Credit Agreement, shall mean the Revolving Credit Agreement as
amended hereby.
(b) Except as expressly set forth herein, this Amendment shall
not constitute an amendment, waiver or consent with respect to any provision of
the Revolving Credit Agreement, and the Revolving Credit Agreement, as amended
hereby, remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
7. Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed by the authorized officers.
THE TALBOTS, INC.
By: XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Sr. Vice President, Finance & CFO
THE NORINCHUKIN BANK
NEW YORK BRANCH
By: XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: Joint General Manager
