SECOND AMENDMENT TO TERM LOAN AGREEMENT
Exhibit 10.3
SECOND AMENDMENT TO TERM
LOAN AGREEMENT
SECOND
AMENDMENT, dated as of December 28, 2009 (this “Amendment”) to the
Term Loan Agreement, dated as of July 16, 2008 (as amended by the First
Amendment to Term Loan Agreement, dated as of March 12, 2009, and as further
amended, supplemented or otherwise modified from time to time, the “Term Loan
Agreement”), between The Talbots, Inc., a Delaware corporation (the
“Borrower”) and
Aeon (U.S.A.), Inc., a Delaware corporation (the “Lender”).
WITNESSETH
WHEREAS,
the parties hereto are parties to the Term Loan Agreement and wish to amend the
Term Loan Agreement;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto agree as follows:
1. Defined Terms. Unless
otherwise defined herein, capitalized terms defined in the Term Loan Agreement
shall have such defined meanings when used herein.
2. Amendment to Section 1 of
the Term Loan Agreement. Section 1 of the Term Loan Agreement
is hereby amended by:
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a.
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deleting
in its entirety the definition of “Maturity Date” and inserting in lieu
thereof the following new definition:
“Maturity Date” shall mean the earliest of (i) January 28,
2012, or, if such day is not a Business Day, the next succeeding Business
Day, (ii) the date of the consummation of a Qualified Transaction and
(iii) such earlier date on which the Term Loans become due and payable and
the commitment of the Lender to make any such Term Loans has been
terminated or otherwise cancelled (whether at stated maturity, by
mandatory prepayment, by acceleration or otherwise) in accordance with the
terms hereof.
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b.
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(i)
deleting the phrase “; and” set forth in clause (f) of the definition of
“Permitted Indebtedness”, (ii) deleting the period at the end of clause
(g) of such definition and inserting in lieu thereof the phrase “; and”
and (iii) inserting the following new clause (h) immediately after clause
(g) of such definition:
“(h) Indebtedness
under the Secured Revolving Loan Agreement in a principal amount not to
exceed $250,000,000 and guaranties of such
Indebtedness.”
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c.
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(i)
deleting the phrase “; and” set forth in clause (f) of the definition of
“Permitted Liens”, (ii) deleting the period at the end of clause (g) of
such definition and inserting in lieu thereof the phrase “; and” and (iii)
inserting the following new clause (h) immediately after clause (g) of
such definition:
“(h) Liens
securing the obligations under the Secured Revolving Loan Agreement and
any guaranties of such obligations.”
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d.
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Adding
the following new definitions in the appropriate alphabetical order in
such Section 1:
“Aeon
Agreement” shall mean the Repurchase, Repayment and Support Agreement,
dated as of December 8, 2009, by and between the Borrower, BPW Acquisition
Corp., a Delaware corporation, Aeon (U.S.A.), Inc., a Delaware
corporation, and the Lender, as amended, supplemented or otherwise
modified from time to time.
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1
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“Qualified
Transaction” shall collectively refer to (i) the merger of BPW Acquisition
Corp. with and into Talbots Acquisition, Inc. pursuant to the terms and
conditions of the BPW Merger Agreement and (ii) the Stock Repurchase and
Debt Repayment (as such terms are defined in, and contemplated by, the
Aeon Agreement); provided, such transactions, together with any concurrent
financing, will result in sufficient net cash proceeds to the Borrower to
enable the Borrower to repay, in full, all of its then outstanding
obligations under the Amended and Restated Secured Revolving Loan
Agreement, dated as of December 28, 2009 between the Borrower and Aeon
Co., Ltd. and all then outstanding Indebtedness described in Schedule 4.17
thereto upon the closing of such transactions.
“Secured
Revolving Loan Agreement” means the Amended and Restated Secured Revolving
Loan Agreement, dated as of December 28, 2009 (as amended, supplemented or
otherwise modified from time to time), between the Borrower and the
Lender.
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3.
Amendment to Section 9 of
the Term Loan Agreement. Section 9 of the Term Loan Agreement
is hereby amended by inserting the following new Section 9.13 immediately after
Section 9.12:
“9.13 Confidentiality. The
Lender agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to
its and its Affiliates’ respective directors, officers, employees, agents,
advisors and representatives, in each case, who have a need to know as a result
of their being involved in the execution or performance of this agreement and
the transactions contemplated hereby (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to a Loan Document,
(e) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any action or proceeding relating to this Credit Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section 9.13, to any Assignee of or participant in, or any
prospective Assignee of or participant in, any of its rights or obligations
under this Credit Agreement or any pledgee referred to in Section 9.3, (g) with
the consent of the Borrower or (h) to the extent such Information becomes
publicly available other than as a result of a breach of this Section or becomes
available to the Lender or any of its Affiliates on a non-confidential basis
from a source other than the Borrower. For purposes of this Section
9.13, “Information” means
all information received from the Borrower relating to the Borrower or any
Subsidiary or their respective businesses, other than any such information that
is available to the Lender on a non-confidential basis prior to disclosure by
the Borrower or any Subsidiary. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
4.
No other Amendments;
Confirmation. On and after the date hereof, each reference in the Credit
Agreement to “this Credit Agreement”, “hereunder”, “hereof’, “herein” or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof’ or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment. Except as
expressly set forth herein, the provisions of the Term Loan Agreement are and
shall remain in full force and effect. The execution, delivery and
performance of this Amendment shall not constitute a waiver of any provision of,
or operate as a waiver of any right, power or remedy of the Lender under the
Credit Agreement or any of the other Loan Documents.
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5.
Governing Law. This
Amendment shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
6.
Counterparts. This
Amendment may be executed by the parties hereto on any number of counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. This Amendment may be delivered by facsimile or
electronic mail transmission of the relevant signature pages
hereof.
[The rest of this page is
intentionally left blank]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
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THE
TALBOTS, INC.
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By:
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/s/
Xxxxxxx X. X’Xxxxxxx, Xx.
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Name:
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Xxxxxxx
X. X’Xxxxxxx, Xx.
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Title:
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Secretary
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Signed
in:
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AEON
(U.S.A.), INC.
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By:
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/s/
Xxxx Xxxxxxx
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Name:
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Xxxx
Xxxxxxx
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Title:
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Executive
Vice President & GM
AEON (U.S.A.), Inc.
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Signed
in: New York, NY
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[Second
Amendment to Term Loan Agreement]
