Exhibit 10.39
THIRD 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 Dai-Ichi Kangyo Bank Limited, 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 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
Section 2.01. Change in Base Interest Rate (a) Section 1 shall be
amended by deleting the definition of "LIBOR Reference Bank"
(b) The definition of "London Interbank Offered Rate" shall be
amended to read as follows:
"London Interbank Offered Rate" applicable to any Term for any
Advance means the rate per annum determined by the Bank in its sole discretion
to be the respective rate in the London interbank market at approximately 11:00
a.m. (London time) on the date two Banking Days in London prior to the first day
of such Term for the offering by the Bank in the London interbank market of
deposits in U.S. Dollars for a period equal to such Term in amounts comparable
to the principal amount of such Advance to which such Term applies, at the time
as of which the Bank makes such determination.
(c) Section 5 shall be amended by deleting paragraph (c)
thereof.
(d) Section 7 shall be amended by deleting paragraph ((c)
thereof.
Section 2.02. Change in Interest Margin On and after the Amendment Date
(as defined in Section 4.01), Section 5(a) of the Revolving Credit Agreement
shall be amended by deleting "one-half of one percent (0.5%)" in the last
sentence and replacing it with "five-eighths of one percent (0.625%)".
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
MISCELLANEOUS
SECTION 4.01. Amendment Date. This Amendment shall become effective as
of the date first written above (the "Amendment Date").
SECTION 4.02. 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 4.03. Effectiveness of Revolving Credit Agreement. Except as
expressly amended hereby, the Revolving Credit Agreement shall remain unmodified
and in full force and effect.
SECTION 4.04. 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 4.05. 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 4.06. 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 or proceedings arising out of or relating to this Amendment may be
brought against the Borrower in any New York State or 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 or 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 4.07. Titles and Headings. The titles and headings of section
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:---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. Vice President, Finance & CFO
THE DAI-ICHI KANGYO BANK, LIMITED
NEW YORK BRANCH
By:---------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President & Department Head
