Exhibit 10.37
FOURTH AMENDMENT (this "Amendment"), dated as of April 17
1998, 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").
WITNESSETH:
WHEREAS, the parties hereto are parties to the Revolving
Credit Agreement and wish to amend the Revolving Credit Agreement;
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
AMENDMENT
Subject to the satisfaction of the conditions set forth in
Article IV, the Revolving Credit Agreement shall be amended as follows:
SECTION 2.01. Amendment to Recital. The Recital is amended by
replacing the words "Ten Million United States Dollars (U.S. $10,000,000)" with
the words "Sixteen Million United States Dollars (U.S. $16,000,000)".
SECTION 2.02. Amendments to Section 1. Section 1 is amended by
(a) replacing the amount "$10,000,000" with the amount "$16,000,000" in the
definition of "Available Amount" and (b) replacing the words "Ten Million United
States Dollars (U.S. $10,000,000)" with the words "Sixteen Million United States
Dollars (U.S. $16,000,000)" in the definitions of Commitment and Revolving
Credit Facility.
SECTION 2.03. Amendment to Schedule C. Schedule C is amended
by replacing the amount "$10,000,000" with the amount "$16,000,000".
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. 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 or 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 IV
CONDITIONS TO EFFECTIVENESS
SECTION 4.01. Conditions. The amendments contemplated by
Article II hereof shall be effective on the date (the "Amendment Date") when the
Bank has received all of the following documents, each of which shall be in form
and substance satisfactory to the Bank:
(a) counterparts of this Amendment duly executed and delivered
by the Borrower;
(b) such evidence (in the form of a resolution, by-law or
otherwise) as is valid under the laws of the State of Delaware to verify the
authority of the Borrower to executed and deliver this Amendment and a power of
attorney, resolutions or other evidence of the authority of the person named
therein to sigh this Amendment and any other document required to be given by
the Borrower pursuant to this Amendment on behalf of the Borrower legally to
bind the Borrower;
(c) specimen signature, certified by an appropriate officer of
the Borrower, of the person referred to in paragraph (b) above;
(d) copies (certified to be true copies and then currently in
full force and effect by an appropriate officer of the Borrower) of all
governmental approvals, authorizations, consents and licenses necessary, if any,
in connection with the execution or performance by the Borrower of this
Amendment or the performance by the Borrower of the Revolving Credit Agreement,
as amended hereby, or in connection with the payment or remittance by the
Borrower of any amounts pursuant thereto;
(e) an opinion of counsel to the Borrower with respect to such
matters as the Bank shall reasonably request;
(f) a certificate, signed by an officer of the Borrower
stating that each of the conditions specified in this Section 4.01 have been
met;
(g) a certificate signed by an officer of the Borrower stating
that (i) immediately after giving effect to this Amendment, no Event of Default,
an no event which with notice or the passing of time or both would constitute an
Event of Default, shall have occurred and be continuing, (ii) the
representations and warranties contained in this Amendment and Section 8 of the
Revolving Credit Agreement are true and correct on and as of the Amendment Date
as if made on and as of the Amendment Date, and (iii) Borrower has paid all
costs, accrued and unpaid fees and expenses referred to in Section 5.03 hereof;
and
(h) such other documents as the Bank shall reasonably request
in writing.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. 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 5.02. Effectiveness of Revolving Credit Agreement.
Except as expressly amended hereby, the Revolving Credit Agreement shall remain
unmodified and in full force and effect.
SECTION 5.03. 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 5.04. 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 5.05. Governing Law, Jurisdiction; Severability. (a)
This Amendment shall be governed by and construed in accordance with the laws of
the State of New York.
(b) The Borrower hereby irrevocably agrees that any legal
action of proceedings arising out of or relating to this Amendment may be
brought against the Borrower in any New York State of Federal court located in
the Borough of Manhattan in New York City. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
in any such court of any such proceedings and hereby irrevocably submits to the
non-exclusive jurisdiction of each such court in any such proceedings. The
Borrower hereby irrevocably designates, appoints and empowers, in connection
with proceedings in any New York State of Federal court located in the Borough
of Manhattan in New York City, CT Corporation System of which address at the
date hereof is 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address in
New York City as the Borrower may hereafter notify the Bank in writing, as its
authorized agent to accept and acknowledge on its behalf service of any and all
process which may be served in any such proceedings in any such court. Nothing
herein shall affect the right of the Bank to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction or to serve
process in any other manner permitted by law.
(c) In case one or more of the provisions contained in this
Amendment shall be deemed to be invalid, illegal or unenforceable in any respect
under any applicable law, the other provisions contained herein shall not in any
way be affected or impaired thereby.
SECTION 5.06. 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: Sr. Vice President, Finance & CFO
THE SAKURA BANK, LIMITED,
NEW YORK BRANCH
By: XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President and
Senior Manager
