Common use of The Transaction Clause in Contracts

The Transaction. Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers, severally and not jointly, the Firm Notes which are convertible into the common stock, $0.00001 par value per share, of the Company (the “Common Stock”). In addition, the Company proposes to grant to the Initial Purchasers an option to purchase up to an additional $15,000,000 principal amount of Notes from the Company (the “Option Notes”) pursuant to the terms hereof. The Firm Notes and the Option Notes are collectively referred to herein as the “Notes.” The Notes are to be issued under an Indenture between the Company and The Bank of New York, as trustee (the “Trustee”) (the “Indenture”). The amount of the Notes to be purchased by each of the several Initial Purchasers are set forth opposite their names on Schedule I hereto. In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum, dated May 14, 2008 (the “Preliminary Offering Memorandum”), and has prepared a final offering memorandum, dated the date hereof (the “Offering Memorandum”), each setting forth information regarding the Company, the subsidiaries listed on Schedule II hereto (the “Subsidiaries”), the Notes, the terms of the Offering and the transactions contemplated by the Transaction Documents (as defined below), and any material developments relating to the Company occurring after the date of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and any information and/or documents incorporated by reference therein. The Company hereby confirms that it has authorized the use of the Disclosure Package (as defined below) and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers.

The Transaction. Subject You have also advised the Commitment Parties that you intend to finance the Acquisition and costs and expenses related to the Transaction (as hereinafter defined) solely from (i) a cash equity investment of not less than $84,000,000 by Sponsor and/or its affiliates (such contribution, the “Equity Contribution”) , (ii) the Term Facility (as such term is defined below), and (iii) to the extent the Acquisition and costs and expenses of the Transaction are not funded by the sources in the preceding clauses (i) and (ii), one or more of the following sources: (A) the proceeds of a subordinated secured term loan facility in an aggregate amount equal to $25,000,000 with the Sponsor or an affiliate of Sponsor as lender and on terms and conditions herein contained(including an intercreditor agreement) reasonably satisfactory to the Administrative Agent (the “Sycamore Third Lien Facility”), (B) the net proceeds of the Real Estate Sale transaction contemplated by paragraph 15 on Schedule I hereto and (C) the net proceeds of the Vendor Financing transaction contemplated by paragraph 16 on Schedule I hereto in an amount not to exceed $50 million; it being understood and agreed that (x) no proceeds from the loans or other credit extensions under the Credit Facility shall be used to finance the Acquisition (but, for the avoidance of doubt, the Company proposes Credit Facility may be used to issue pay restructuring and sell to the Initial Purchasers, severally and not jointly, the Firm Notes which are convertible into the common stock, $0.00001 par value per share, operating expenses of the Company (other than any fees and expenses specifically relating to the Transactions) which have accrued as of the Effective Date (“Common StockAccrued Company Expenses”). In addition, the Company proposes to grant ) and (y) solely to the Initial Purchasers an option to purchase up to an additional $15,000,000 principal amount of Notes from extent that the Company (the “Option Notes”) Credit Facility shall be consummated pursuant to the terms hereof. The Firm Notes and the Option Notes are collectively referred to herein as the “Notes.” The Notes are to be issued under an Indenture between the Company and The Bank of a New York, as trustee (the “Trustee”) (the “Indenture”). The amount of the Notes to be purchased by each of the several Initial Purchasers are set forth opposite their names on Schedule I hereto. In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum, dated May 14, 2008 (the “Preliminary Offering Memorandum”), and has prepared a final offering memorandum, dated the date hereof (the “Offering Memorandum”), each setting forth information regarding the Company, the subsidiaries listed on Schedule II hereto (the “Subsidiaries”), the Notes, the terms of the Offering and the transactions contemplated by the Transaction Documents Credit Agreement (as defined below), and any material developments relating proceeds from the loans under the Credit Facility on the Effective Date, may be used solely to refinance outstanding indebtedness under the Company occurring after the date of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and any information and/or documents incorporated by reference therein. The Company hereby confirms that it has authorized the use of the Disclosure Package Existing Credit Agreement (as defined below) and for payment of any Accrued Company Expenses. The Acquisition, the Offering Memorandum entering into and funding of the Credit Facility, the receipt of proceeds from (and the consummation of the transactions related to) the Equity Contribution, the entering into of an amended and restated term loan facility with Xxxxx Fargo Bank, National Association acting as administrative agent in an initial aggregate principal amount of at least $85,000,000 (representing approximately $11 million in incremental financing in addition to the current outstanding principal amount of the Term Facility) and on terms and conditions meeting the requirements of Section 3 of Schedule I hereto (the “Term Facility”), the entering into and funding of the Sycamore Third Lien Facility, the Real Estate Sale and the Vendor Financing referred to above, together with all other transactions related to the financing and consummation of the Acquisition are hereinafter collectively referred to as the “Transaction.” Reference is made to that certain Amended and Restated Credit Agreement dated as of February 16, 2012 entered into by and among The Talbots, Inc., The Talbots Group Limited Partnership and Talbots Classics Finance Company, Inc. as borrowers (collectively the “Existing Borrowers”), certain other credit parties designated therein (together with the Existing Borrowers, the “Credit Parties”), GE Capital, as administrative agent (the “Existing Administrative Agent”) for itself and the other financial institutions from time to time party thereto as lenders (collectively, the “Existing Lenders”) (as amended and in effect on the date hereof, the “Existing Credit Agreement”). Pursuant to the terms and conditions of the Existing Credit Agreement, upon the closing of the Acquisition, a “Change in Control” (as defined in the Existing Credit Agreement) will occur. It is anticipated that the Credit Facility shall take the form of a second amended and restated credit agreement with the Existing Borrowers, the other Credit Parties and Parent (the “Second A&R Credit Agreement”), which shall be on the terms set forth in this Commitment Letter (including those terms described under “Credit Documentation” on Schedule I hereto and the modifications set forth on Schedule II hereto) and the Fee Letter (solely with respect to pricing terms and other matters not affecting the availability of the Credit Facility) and pursuant to which such Change in Control default in respect of the Transaction and any default arising out of (i) the breach of any representation or warranty, or reporting or notice requirement, under the Existing Credit Agreement (solely to the extent made or required to be made under the Existing Credit Agreement and not made or required to be made under the Second A&R Credit Agreement) and (ii) any merger occurring pursuant to the Acquisition Agreement shall be waived (the “Waiver”). The Credit Documentation will provide that all representations and warranties, affirmative and negative covenants and defaults (which term, as used herein, shall include events of default) will apply only from and after the Effective Date after giving effect to the Acquisition and the Merger (notwithstanding the amendment or amendment and restatement of the Existing Credit Agreement) with the effect that no violation or breach of any representation, warranty or covenant or default that existed under the Existing Credit Agreement prior to the Effective Date shall constitute or give rise to a violation, breach or default under the Second A&R Credit Agreement unless such violation, breach or default continues, and constitutes a default under the Credit Documentation, on and after the Effective Date. The Existing Administrative Agent and Existing Lenders shall have received an omnibus release, in form and substance reasonably satisfactory to the Administrative Agent (the “Existing Lender Release”), from each of the Existing Credit Parties in favor of the Existing Administrative Agent and Existing Lenders providing for, among other things, a release of all liabilities and potential liabilities arising under, in connection with or otherwise relating to the offering Existing Credit Agreement, the extensions of credit thereunder or any transaction contemplated thereby. It is understood and resale agreed that GE Capital will use its best efforts to arrange the Credit Facility pursuant to the Second A&R Credit Agreement as set forth above; provided, however, that notwithstanding anything to the contrary contained herein, there is no assurance whatsoever that such arrangement will be successful and that the requisite number of Existing Lenders under the Notes by Existing Credit Agreement (the Initial Purchasers“Required Existing Lenders”) will consent to the Waiver and otherwise consummating the Transaction under the Credit Facility pursuant to a Second A&R Credit Agreement. As such, if the Required Existing Lenders under the Existing Credit Agreement (giving effect to assignments occurring thereunder on or prior to the Effective Date) shall not have approved the Second A&R Credit Agreement, then the Credit Facility shall instead take the form of a new credit agreement (the “New Credit Agreement”) which (along with related guarantee and security documentation) shall refinance the Existing Credit Agreement and shall be on the same terms as the Second A&R Credit Agreement and references herein or on Schedules I and II to the Second A&R Credit Agreement shall (as appropriate) be deemed to be references to the New Credit Agreement.

The Transaction. Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers, severally and not jointly, the Firm Notes which are convertible into the common stock, $0.00001 par value $0.01 per share, of the Company share (the “Common Stock”), of the Company. In addition, the Company proposes to grant to the Initial Purchasers an option to purchase up to an additional $15,000,000 20,000,000 principal amount of Notes from the Company (the “Option Notes”) pursuant to the terms hereof. The Firm Notes and the Option Notes are collectively referred to herein as the “Notes.” The Notes are to be issued under an Indenture between the Company and The Bank of New YorkWxxxx Fargo Bank, National Association, as trustee (the “Trustee”) (the “Indenture”). The amount respective amounts of the Notes to be purchased by each of the several Initial Purchasers are set forth opposite their names on Schedule I hereto. In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum, dated May 14March 19, 2008 2007 (the “Preliminary Offering Memorandum”), and has prepared a final offering memorandum, dated the date hereof (the “Offering Memorandum”), each setting forth information regarding the Company, the subsidiaries listed on Schedule II hereto Subsidiaries (the “Subsidiaries”as defined below), the Notes, the terms of the Offering and the transactions contemplated by the Transaction Documents (as defined below), and any material developments relating to the Company occurring after the date of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and any information and/or documents incorporated by reference therein. The Company hereby confirms that it has authorized the use of the Disclosure Package (as defined below) and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers. The Company understands that the Initial Purchasers propose to make an offering of the Notes (the “Exempt Resales”) only on the terms and in the manner set forth in the Disclosure Package and the Offering Memorandum, as amended or supplemented, and the terms hereof as soon as the Initial Purchasers deem advisable after this Agreement has been executed and delivered, solely to persons in the United States whom the Initial Purchasers reasonably believe to be “qualified institutional buyers” (each, a “QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), as such rule may be amended from time to time (“Rule 144A”), in transactions under Rule 144A. The QIBs are referred to herein from time to time as the “Eligible Purchasers.” The Initial Purchasers will offer the Notes to such Eligible Purchasers initially at a price equal to 100% of the principal amount thereof. Such price may be changed by the Initial Purchasers at any time without notice. Holders of the Notes (including the Initial Purchasers and their direct and indirect transferees) will be entitled to the benefits of a Registration Rights Agreement, to be dated the initial Closing Date (as defined below) and substantially in the form attached hereto as Exhibit A hereto (the “Registration Rights Agreement”), pursuant to which the Company will agree to file one or more registration statements with the Securities and Exchange Commission (the “Commission”), for the purpose of registration under the Securities Act of (i) the Notes and (ii) the Common Stock issuable upon conversion of the Notes or for the purpose of registration of the resale of the Notes and the Common Stock issuable upon conversion of the Notes. This Agreement, the Notes, the Registration Rights Agreement and the Indenture are hereinafter referred to collectively as the “Transaction Documents.” Any references herein to “Exchange Act Reports” herein include all documents filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “Exchange Act”). Unless stated to the contrary, any references herein to the terms “amend”, “amendment” or “supplement” with respect to the Disclosure Package or the Offering Memorandum shall be deemed to refer to all Exchange Act Reports filed subsequent to the date of this Agreement that are incorporated by reference therein. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Disclosure Package, and if not defined therein, in the Indenture.

The Transaction. Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers, severally and not jointly, the Firm Notes which are convertible into the common stock, $0.00001 par value per share, of the Company (the “Common Stock”). In addition, the Company proposes to grant to the Initial Purchasers an option to purchase up to an additional $15,000,000 principal amount of Notes from the Company (the “Option Notes”) pursuant to the terms hereof. The Firm Notes and the Option Notes are collectively referred to herein as the “Notes.” The Notes are to be issued under an Indenture between the Company and The Bank of New YorkYork Mellon, as trustee (the “Trustee”) (the “Indenture”). The amount of the Notes to be purchased by each of the several Initial Purchasers are set forth opposite their names on Schedule I hereto. In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum, dated May 14December 9, 2008 2010 (the “Preliminary Offering Memorandum”), and has prepared a final offering memorandum, dated the date hereof (the “Offering Memorandum”), each setting forth information regarding the Company, the subsidiaries listed on Schedule II hereto (the “Subsidiaries”), the Notes, the terms of the Offering and the transactions contemplated by the Transaction Documents (as defined below), and any material developments relating to the Company occurring after the date of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and any information and/or documents incorporated by reference therein. The Company hereby confirms that it has authorized the use of the Disclosure Package (as defined below) and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers. The Company understands that the Initial Purchasers propose to make an offering of the Notes (the “Exempt Resales”) only on the terms and in the manner set forth in the Disclosure Package and the Offering Memorandum, as amended or supplemented, and the terms hereof as soon as the Initial Purchasers deem advisable after this Agreement has been executed and delivered, solely to persons whom the Initial Purchasers reasonably believe to be “qualified institutional buyers” (each, a “QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), as such rule may be amended from time to time (“Rule 144A”) in transactions under Rule 144A. The Initial Purchasers will offer the Notes to such QIBs initially at a price equal to 100% of the principal amount thereof. Such price may be changed by the Initial Purchasers at any time without notice. The Notes are convertible in accordance with their terms and the terms of the Indenture into Common Stock (except for any cash in lieu of fractional shares) at an initial conversion rate of 164.6904 shares of Common Stock per $1,000 principal amount of Notes. This Agreement, the Notes and the Indenture are hereinafter referred to collectively as the “Transaction Documents.” Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Disclosure Package, and if not defined therein, in the Indenture.

The Transaction. Subject to the terms and conditions herein contained, the Company proposes to issue agrees that it shall: (a) Issue and sell to the Initial Purchasers, severally and not jointly, Purchasers 933,333 shares (the Firm Notes which are convertible into “Securities”) of the Company's common stock, $0.00001 par value $0.001 per share (the "Common Stock"); and (b) Amend the Certificate of Designation of Preferences and Rights of Series A Convertible Preferred Stock as currently on file with the Secretary of State of the State of Nevada (the "Series A Certificate of Designation") to reduce the Conversion Price (as defined in the Series A Certificate of Designation) from $3.75 to $0.75 per share, . The form of the Company amendment of the Series A Certificate of Designation is attached hereto as Exhibit A. The 3,333,333 shares of its Series A Convertible Preferred Stock (the “"Series A Stock") shall continue to be convertible into shares (the "Conversion Shares") of the Common Stock in accordance with the formula set forth in the Series A Certificate of Designation. The number of Conversion Shares that any Purchaser may acquire at any time are subject to limitation in the Series A Certificate of Designation so that the aggregate number of shares of Common Stock of which such Purchaser and all persons affiliated with such Purchaser have beneficial ownership (calculated pursuant to Rule 13d-3 of the Securities Exchange Act of 1934, as amended) does not at any time exceed 9.99% of the Company's then outstanding Common Stock”). In additionThis Agreement, the Company proposes to grant amendment to the Initial Purchasers an option to purchase up to an additional $15,000,000 principal amount Series A Certificate of Notes from Designation, and the Registration Rights Agreement by and among the Company (the “Option Notes”) pursuant to the terms hereof. The Firm Notes and the Option Notes Purchasers, entered into concurrently herewith and attached hereto as Exhibit B, are sometimes herein collectively referred to herein as the “Notes"Transaction Documents.” " The Notes are Securities will be offered and sold to be issued the Purchasers without such offers and sales being registered under an Indenture between the Company and The Bank Securities Act of New York1933, as trustee amended (together with the rules and regulations of the Securities and Exchange Commission (the “Trustee”"SEC") (promulgated thereunder, the “Indenture”"Securities Act"). The amount of the Notes to be purchased by each of the several Initial Purchasers are set forth opposite their names , in reliance on Schedule I heretoexemptions therefrom. In connection with the sale of the NotesSecurities, the Company has prepared a preliminary offering memorandummade available (including electronically via the SEC's XXXXX system) to Purchasers the Company's periodic and current reports, dated May 14forms, 2008 schedules, proxy statements and other documents (including exhibits and all other information incorporated by reference) filed with the SEC under the Securities Exchange Act of 1934, as amended (the “Preliminary Offering Memorandum”"Exchange Act"). The Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005, and has prepared a final offering memorandumall subsequent reports, dated the date hereof (the “Offering Memorandum”)forms, each setting forth information regarding the Companyschedules, the subsidiaries listed on Schedule II hereto (the “Subsidiaries”)statements, the Notesdocuments, the terms of the Offering filings and the transactions contemplated amendments filed by the Transaction Company with the SEC under the Exchange Act, are collectively referred to as the "Disclosure Documents." All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Disclosure Documents (as defined below), and any material developments relating to the Company occurring after the date or other references of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum like import) shall be deemed to includemean and include all such financial statements and schedules, in each casedocuments, all amendments exhibits and supplements thereto and any other information and/or documents which is incorporated by reference therein. The Company hereby confirms that it has authorized the use of in the Disclosure Package (as defined below) and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial PurchasersDocuments.

The Transaction. Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers, severally and not jointly, the Firm Notes which are convertible into the Class A common stock, stock $0.00001 0.01 par value per share, of the Company share (the “Common Stock”)) of the Company. In addition, the Company proposes to grant to the Initial Purchasers an option to purchase up to an additional $15,000,000 13,500,000 principal amount of Notes from the Company (the “Option Notes”) pursuant to the terms hereof. The Firm Notes and the Option Notes are collectively referred to herein as the “Notes.” Securities”. The Notes Securities are to be issued under an Indenture between the Company and The Bank of New YorkYork Mellon, as trustee (the “Trustee”) (the “Indenture”). The amount amounts of the Notes Securities to be purchased by each of the several Initial Purchasers are set forth opposite their names on Schedule I hereto. In connection with the sale of the NotesSecurities, the Company has prepared a preliminary offering memorandum, dated May 14November 9, 2008 2009 (the “Preliminary Offering Memorandum”), and has prepared a final offering memorandum, dated the date hereof (the “Offering Memorandum”), each setting forth information regarding the Company, the subsidiaries listed on Schedule II hereto (the “Subsidiaries”), the NotesSecurities, the terms of the Offering and the transactions contemplated by the Transaction Documents (as defined below), and any material developments relating to the Company occurring after the date of the most recent financial statements included therein. Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and any information and/or documents incorporated by reference therein. The Company hereby confirms that it has authorized the use of the Disclosure Package (as defined below) and the Offering Memorandum in connection with the offering and resale of the Notes Securities by the Initial Purchasers. The Company understands that the Initial Purchasers propose to make an offering of the Securities (the “Exempt Resales”) only on the terms and in the manner set forth in the Disclosure Package and the Offering Memorandum, as amended or supplemented, and the terms hereof as soon as the Initial Purchasers deem advisable after this Agreement has been executed and delivered, solely to persons in the United States whom the Initial Purchasers reasonably believe to be “qualified institutional buyers” (each, a “QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), as such rule may be amended from time to time (“Rule 144A”) in transactions under Rule 144A or pursuant to another exemption from registration requirements of the Securities Act. The QIBs are referred to herein from time to time as the “Eligible Purchasers.” The Initial Purchasers will offer the Securities to such Eligible Purchasers initially at a price equal to 100% of the principal amount thereof. Such price may be changed by the Initial Purchasers at any time without notice. The Securities are convertible in accordance with their terms and the terms of the Indenture into shares of Common Stock (except for any cash in lieu of fractional shares) at an initial conversion rate of 96.637 shares of Common Stock per $1,000 principal amount of Securities. This Agreement, the Securities, and the Indenture are hereinafter referred to collectively as the “Transaction Documents.”