Exhibit 10.35
U.S. $ 18,000,000
REVOLVING CREDIT AGREEMENT
between
THE TALBOTS, INC.
as Borrower
and
THE DAI-ICHI KANGYO BANK, LIMITED
as Lender
TABLE OF CONTENTS
1. DEFINITIONS................................................................1
2. THE FACILITIES.............................................................4
3. UTILIZATIONS OF THE REVOLVING CREDIT FACILITY..............................4
4. REPAYMENT OF ADVANCES......................................................5
5. INTEREST...................................................................5
6. PAYMENTS AND ADVANCES......................................................6
7. CHANGES OF LAW, ETC........................................................7
8. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS...............................9
9. CONDITIONS OF DRAWDOWN....................................................11
10. COVENANTS.................................................................12
11. EVENTS OF DEFAULT.........................................................12
12. EXPENSES AND CHARGES......................................................14
13. ASSIGNMENT AND FACILITY OFFICES...........................................14
14. MISCELLANEOUS.............................................................15
AGREEMENT
(REVOLVING CREDIT FACILITY)
THIS AGREEMENT, made as of the l4th day of April, 1998 by and
among:
(1) THE TALBOTS, INC., a corporation duly organized and
existing under the laws of the State of Delaware, and having its registered
office at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of
New Castle, Delaware, U.S.A. (hereinafter called the "Borrower"), of the first
part;
(2) THE DAI-ICHI KANGYO BANK, LIMITED, a banking corporation
duly organized and existing under the laws of Japan and acting through its New
York Branch at Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
(hereinafter called the "Bank"), of the second part.
WHEREAS, the Bank has agreed to make available to the Borrower
a revolving credit facility in the aggregate principal amount of Eighteen
Million United States Dollars (U.S. $18,000,000), upon the terms and subject to
the conditions set forth below in order to assist the Borrower in its general
corporate requirements:
NOW, IT IS HEREBY AGREED as follows:
1. DEFINITIONS
(a) In addition to the terms defined elsewhere in this
Agreement, the following terms, except where the context otherwise requires,
shall have the following meanings in this Agreement and the Schedules hereto:
"Adjusted London Interbank Offered Rate" applicable to the
Term for any Advance means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100 of 1%) by dividing (i)
the applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage. The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"Advance" means, save as otherwise provided herein, any
drawing (as from time to time reduced by repayment) made or to be made by the
Borrower under the Revolving Credit Facility.
"Advance Request" means a request for Advance made in
accordance with Section 3.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Signatory" in relation to the Borrower and any
communication to be made, or any document to be executed or certified, by the
Borrower means, at any time, any person:
(a) who is duly authorized to act on behalf of the Borrower in
such manner as may be acceptable to the Bank, to make such
communication, or to execute or certify such document, on
behalf of the Borrower; and
(b) in respect of whom the Bank has received a certificate of
another Authorized Signatory of the Borrower setting out the
name and signature of such person.
"Available Amount" for the calculation of the amount to be
available to the Borrower on any proposed Drawdown Date means, at any time
$18,000,000 less the aggregate amount of any outstanding Advances which will
have not fallen due for repayment or have fallen due but remain outstanding on
or before such Drawdown Date.
"Banking Day" means a day on which banks are open for business
and foreign exchange transactions in New York City and the city designated by
the Bank in accordance with Section 6(a)(i) and for interbank deposits in the
London interbank market.
"Commitment" in relation to the Bank means, save as otherwise
provided herein, the amount of Eighteen Million United States Dollars (U.S.
$18,000,000) or, where the context so requires, the obligation of the Bank to
advance up to the amount equivalent to such amount subject to the terms of this
Agreement.
"Drawdown Date" in relation to any Advance means the date for
the making thereof as specified in the Advance Request relating thereto.
"Dollars" and the sign "$" mean lawful currency for the time
being of the United States of America.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"Event of Default" means any of those events specified in
Section 11.
"Facility Office" in relation to the Bank means the branch or
office as may from time to time become its facility office hereunder in
accordance with the provisions of Section 13.
"Jusco" means, Jusco Co., Ltd., a corporation duly organized
and existing under the laws of Japan and having its principle office at 0-0-0
Xxxxxx Xxxxxx-xx, Xxxxx, 000-0000, Xxxxx.
"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.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Repayment Date" in relation to any Advance means the last day
of the Term of such Advance subject to acceleration pursuant to Section 11(a).
"Requested Amount" in relation to an Advance Request means the
principal amount of the Advance therein requested.
"Revolving Credit Facility" means the revolving credit
facility of $18,000,000, as calculated in such manner as set forth herein,
granted to the Borrower by the Bank in this Agreement as the same may be reduced
from time to time in accordance with the provisions of this Agreement.
"Revolving Credit Period" means the period from April 17, 1998
to and including April 17, 2000, which can be extended any number of times for
one year each thereafter pursuant to Section 14(j).
"Term" in relation to any Advance means the period for which
such Advance is or is to be borrowed, as specified in the Advance Request
relating thereto; provided that:
(i) if any Term would otherwise end on a day that is not a Banking
Day, such Term shall be extended to the next succeeding
Banking Day unless such Banking Day falls in another calendar
month, in which case such Interest Period shall end on the
next preceding Banking Day; and
(ii) any Term which begins on the last Banking Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Term) shall end on the last Banking Day of a calendar month.
(iii) in no event shall the Term go beyond the expiry of the
Revolving Credit Period.
(iv) the Term is subject to acceleration pursuant to Section 11(a).
(b) In this Agreement, unless the context otherwise requires,
words denoting the singular shall include the plural and vice versa, words
denoting any gender shall include all other genders and references to a person
shall include a corporation.
(c) The headings in this Agreement are for convenience only
and shall not affect its construction.
(d) Unless provided otherwise, the terms "Section" or
"Sections" shall refer to a Section or Sections of this Agreement.
2. THE FACILITIES
(a) The Bank shall make available to the Borrower upon the
terms and subject to the conditions hereof an amount not exceeding the Available
Amount in Dollars. Within the foregoing limits, the Borrower may borrow
hereunder, repay, or to the extent permitted by Section 7, prepay the Advances
and re-borrow and draw Advances at any time during the Revolving Credit Period
under this Section 2(a).
(b) The Bank will participate through its Facility Office in
each Advance made hereunder.
3. UTILIZATIONS OF THE REVOLVING CREDIT FACILITY
(a) Save as otherwise provided herein, the Borrower may from
time to time request an Advance under the Revolving Credit Facility by delivery
to the Bank by telex not later than 12:00 noon (New York City time) on the fifth
Banking Day before the proposed Drawdown Date for such Advance, of a duly
completed Advance Request therefor signed by an Authorized Signatory
substantially in the form set out in the Schedule "A".
Notwithstanding the above, the Borrower may deliver an Advance
Request on the date of this Agreement for the Advance to be made on April 17,
1998.
(b) Each Advance Request delivered to the Bank pursuant to
subsection (a) above shall be irrevocable and shall specify:
(i) the proposed Drawdown Date, which shall be a
Banking Day falling during the Revolving
Credit Period;
(ii) the amount of the proposed Advance; and
(iii) the Term, which shall be a period of one,
three, or six months.
(c) The Bank shall, promptly after receipt by it of an Advance
Request, confirm whether the proposed Advance shall be not more than the
Available Amount. If the Bank determines that the proposed Advance exceeds the
Available Amount, the amount of the proposed Advance in the Advance Request
shall be deemed to have been reduced by such excess.
(d) The Bank shall, promptly after receipt by it of an Advance
Request and in any event no later than 3:00 p.m. (New York City time) on the
third Banking Day before the proposed Drawdown Date for such Advance notify the
Borrower by telex or cable of its receipt of such Advance Request specifying:
(i) the proposed Drawdown Date;
(ii) the amount of the proposed Advance
determined pursuant to subsection (c) above
and the Term of the proposed Advance; and
(iii) the account of the Borrower to which the
proposed Advance shall be transferred.
(e) The Borrower may not request under this Section 3 more
than one Advance to be made by the Bank on any one day and may not make any
Advance Request between the date of any other Advance Request made hereunder and
the Drawdown Date relating to such Advance Request.
(f) If the Borrower requests an Advance in accordance with
Section 3(a) and, on the proposed Drawdown Date for such Advance:
either:
(i) the representations and warranties set out
in Section 8 are true by reference to the
facts and circumstances then subsisting and
no event has occurred which is or may (with
the passage of time, the giving of notice or
the making of any determination or any of
them) become an Event of Default, or
(ii) the Bank agrees (notwithstanding that any of
the matters referred to in (a) above is not
satisfied) to the making of such Advance,
then, unless the Bank determines that any condition set out in Section 9 has not
been satisfied, the Bank will forthwith transfer the funds into the account of
the Borrower specified for this purpose in such Advance Request,
(iii) any Advance shall be evidenced by the
receipt duly executed on behalf of the
Borrower, substantially in form as set out
in Schedule "C" hereto.
4. REPAYMENT OF ADVANCES
(a) Subject to the provisions hereof, the Borrower shall repay
to the Bank the principal amount of each Advance in full on the Repayment Date
relating thereto.
(b) The Borrower shall not prepay all or any part of any
Advance outstanding hereunder except at the times and in the manner expressly
provided herein but, subject to the terms and conditions hereof, shall be
entitled to re-borrow any amount repaid.
5. INTEREST
(a) The Borrower agrees to pay to the Bank interest on each
Advance outstanding from time to time on the Repayment Date for such Advance in
respect of the Term for such Advance at the rate that is the Margin referred to
below above the Adjusted London Interbank offered Rate applicable for such Term.
Interest shall accrue under this paragraph (a) on the basis of actual number of
days elapsed during such Term and a year of 360 days and shall accrue from and
including the first day of such Term to but not including the last day of such
Term. The Margin shall be five-eighths of one percent (0.625%) per annum.
(b) Any overdue principal of and, to the extent permitted by
law, overdue interest on any Advance or any other overdue amount payable
hereunder shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of actual
payment, at a rate per annum equal to the sum of 2-1/2% plus the quotient
obtained (rounded upwards, if necessary, to the next higher 1/100 of 1%) by
dividing (i) the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which one day (or, if such amount
due remains unpaid more than three Banking Days, then for such other period of
time not longer than six months as the Bank may elect) deposits in Dollars in
which such overdue amount is payable in an amount approximately equal to such
overdue payment due to the Bank is offered to the Bank in the London Interbank
market for the applicable period determined as provided above by (ii) 1.00 minus
the Euro-Dollar Reserve Percentage (or, if the circumstances described in
Section 7(c) shall exist, at a rate per annum equal to the sum of 2-1/2% plus
the rate of interest publicly announced by The Dai-Ichi Kangyo Bank, Limited in
New York City from time to time as its Prime Rate). Interest payable pursuant to
this paragraph (b) shall accrue on the basis of actual number of days elapsed
and a year of 360 days.
(c) The Bank shall determine each interest rate applicable to
each Advance hereunder. The Bank shall give prompt notice to the Borrower by
telex or cable of each interest rate so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
6. PAYMENTS AND ADVANCES
(a) All sums payable to the Bank hereunder or under any
document contemplated hereby, including but not limited to payments of principal
and interest and any costs or expenses, and all sums to be advanced by the Bank
to the Borrower hereunder, shall be payable as follows:
(i) to the Bank, by payment in Federal or other
immediately available funds not later than
11:00 a.m. (New York City time) on the day
in question to such account at such bank as
the Bank may designate; or
(ii) to the Borrower by payment to such account
as the Borrower may direct in writing to the
Bank from time to time.
The Books and records of the Bank with respect to any
repayment of principal of and any payment of interest on any Advance shall be
prima facie evidence of such repayment and payment, except for any manifest
error.
(b) Notwithstanding anything to the contrary in paragraph (a)
hereof, payments described therein may be made in such other manner as shall be
reasonably directed by the Bank with notice to the Borrower prior to the next
payment to which such instructions shall apply unless such other manner would
materially increase the cost to the Borrower of making payments hereunder and
the Borrower shall have given the Bank notice of its reasonable objection to
such manner.
(c) All amounts payable by the Borrower hereunder, whether of
principal or interest or otherwise, shall be paid in fall without set-off or
counterclaim and free and clear of and without any deduction or withholding for
or on account of any taxes, levies, imposts, duties, charges, fees, restrictions
or conditions of any nature now or hereafter imposed by the United States of
America or any other country, or any political subdivision or taxing authority
thereof or therein. The Borrower shall indemnify the Bank against any such
taxes, levies, imposts, duties, charges and fees (other than taxes on the
overall net income imposed by any taxing authority in the jurisdiction in which
the Bank's principal office or then actual Facility Office hereunder is located)
which may be assessed against the Bank or claimed or demanded from the Bank in
respect of any amount payable by the Borrower hereunder (including, without
limitation, all amounts paid pursuant to this paragraph (c) of this Section) or
in respect of the Bank's Commitment or any Advance, and against any costs,
charges, expenses or liability arising out of or in respect of such assessment,
claim or demand. In the event of the Borrower being compelled by the law of the
United States of America or any other country, or any political sub-division or
taxing authority thereof or therein to make any such deduction or withholding
from any payment to or for the account of the Bank, then:
(i) the Bank shall, after consultation with the
Borrower, use reasonable efforts to maintain
its Commitment hereunder, or to make or
maintain any Advance, through the
intervention of an office other than its
then Facility Office in order to avoid the
Borrower's being required to make any
payment of additional amounts under item
(ii) below; and
(ii) the Borrower will pay to the Bank for the
account of the Bank, such additional amount
as will result after such deduction or
withholding (and any further such deduction
or withholding on such additional amounts)
in the receipt by the Bank of the full
amount which it would have been entitled to
receive if the Borrower had not made such
deduction or withholding. In the event that
the Borrower is required as aforesaid to
make a deduction or withholding the Borrower
shall forward to the Bank, within fifteen
(15) days of each such deduction or
withholding, evidence satisfactory to the
Bank (including all relevant tax receipts),
that any amount so deducted or withheld has
been duly remitted to the appropriate
authority.
7. CHANGES OF LAW, ETC.
(a) If any change in any applicable law, regulation, treaty or
official directive of a competent authority (whether or not having the force of
law) or in the interpretation or application thereof by any governmental or
other authority charged with the administration thereof or by any court or if
compliance by the Bank with any applicable direction, request or requirement
(whether or not having the force of law) of any governmental or other authority:
(i) subjects the Bank to any form of duty or tax
(except for taxes on the overall net income
of the Bank imposed by any taxing authority
in the jurisdiction in which the Bank's
principal office or its then actual Facility
office hereunder is located) with respect to
its Commitment or any Advance, or any part
thereof, or
(ii) changes the basis of taxation to the Bank of
payments of principal of or interest on any
Advance or any other payment due or to
become due to it hereunder (except for a
change in the rate of taxes on the overall
net income of the Bank imposed by any taxing
authority in the jurisdiction in which the
Bank's principal office or its then actual
Facility Office hereunder is located), or
(iii) imposes, modifies or deems applicable any
reserve, special deposit or similar
requirement (including, without limitation,
any such requirement imposed by the Board of
Governors of the Federal Reserve System, but
excluding any such requirement included in
an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with
or for the account of, or credit extended
by, the Bank (or its Facility Office) or
shall impose on the Bank (or its Facility
Office) or on the London interbank market
any other condition affecting its Commitment
or its participation of any Advance;
and the result of any of the foregoing shall be directly (1) to increase the
cost to the Bank of maintaining its Commitment hereunder or making or
maintaining an Advance or any part thereof or (2) to reduce the amount of any
payment received or receivable by the Bank or any part thereof or (3) to require
the Bank to make any payment or forego any interest or other return on or
calculated by reference to the gross amount of any sum received or receivable by
it from the Borrower hereunder, in any such case by an amount which the Bank
shall consider to be material, then and in any such case:
(A) the Bank shall notify the Borrower of the happening of such
event promptly after becoming aware thereof and shall use
reasonable efforts to maintain its Commitment hereunder, or to
make or maintain an Advance through the intervention of an
office other than its then Facility Office in order to avoid
the Borrower's being required to make any payment of
additional amounts under item (B) below; and
(B) the Borrower shall pay to the Bank on demand from time to time
by the Bank, such amount as the Bank may certify, on
documentation setting forth the calculation thereof, to be
necessary to compensate the Bank for such increased cost,
reduction in the amount received or receivable, payment or
foregone interest or other return; and
(C) the Borrower shall be at liberty, on giving not less than
thirty (30) days prior written notice to the Bank, either to
prepay to the Bank, the whole (but not part only) of the
relevant Advance, and any other amounts due or payable to the
Bank hereunder together with such additional amounts as may be
necessary to compensate the Bank for any direct costs and
losses referred to in item (B) above or resulting from such
prepayment, or (if the Drawdown has not yet been made) to
cancel the obligation of the Bank to make the relevant Advance
hereunder whereupon such obligation shall cease.
The certificate of the Bank as to any amount payable to or for the account of
the Bank pursuant to item (B) or (C) above shall, save for any manifest error,
be conclusive and binding upon the Borrower.
(b) If, by reason of (i) the adoption of any applicable law,
regulation, treaty or official directive of a competent authority (whether or
not having the force of law) or (ii) any change therein or in the interpretation
or application thereof by any governmental or other authority charged with the
administration thereof or by any court or (iii) compliance by the Bank with any
applicable direction, request or requirement (whether or not having the force of
law) of any governmental or other authority, it becomes (or becomes apparent
that it is or will be) unlawful for the Bank to maintain or give effect to its
obligations as contemplated by this Agreement, the Bank may, by written notice
thereof to the Borrower declare that all of the Bank's obligations hereunder
shall be terminated forthwith, whereupon the obligation of the Bank to make any
Advance hereunder shall forthwith cease or, if any Advance has already been
made, the Borrower shall prepay in full to the Bank the whole (but not part
only) of its portion of any Advance and any other amounts payable hereunder
together with such additional amounts as may be necessary to compensate the Bank
for any costs and losses resulting from such prepayment, on such date on which
any such adoption, change or compliance requires repayment.
8. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
(a) The Borrower hereby represents and warrants for the
benefit of the Bank as of any Drawdown Date, and undertakes with the Bank as
follows:
(i) 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 Agreement and any of the
certificates, instruments or agreements
herein referred to insofar as they pertain
to the Borrower and to borrow hereunder and
has taken all necessary corporate actions to
authorize the execution, delivery and
performance of this Agreement and all of the
aforesaid documents;
(ii) each officer or attorney-in-fact of the
Borrower who has executed and delivered this
Agreement and the documents referred to in
(i) above insofar as they pertain to the
Borrower was duly authorized to execute and
deliver the same on behalf of the Borrower;
(iii) this Agreement constitutes the 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), and the obligations of
the Borrower hereunder rank and will at all
times continue to rank at least pari passu
in right of payment and in all other
respects with all of its other unsecured
unsubordinated obligations;
(iv) save as disclosed in writing to the Bank
prior to the date of this Agreement, the
Borrower has not given or permitted to exist
any specific security on any property or
assets of the Borrower (by way of lien,
pledge, mortgage or other charge) for any
loan, debt, guarantee or other liability or
obligation contracted prior to the date of
this Agreement and now existing;
(v) the Borrower has no outstanding liabilities
or obligations whatsoever for borrowed
money, save as disclosed in writing to the
Bank prior to the date of this Agreement;
(vi) neither the execution nor delivery of this
Agreement, nor the transactions herein
contemplated, nor compliance with the terms,
conditions and stipulations hereof will:
(1) 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
(2) 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
(3) 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
(4) violate any provision of the
Certificate of Incorporation or
By-laws of the Borrower;
(vii) the Borrower has, or will by the date of the
Drawdown have, 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 Agreement
or the taking of any action hereby or
thereby contemplated, and every such
authorization, consent and approval, or
execution is in full force and effect;
(viii) the Borrower is not and would not with the
giving of notice or lapse of time or both be
in material default under any agreement to
which it is a party or subject or by which
it may be bound, and no action, suit,
arbitration proceeding, litigation or
administrative proceeding before any court,
board of arbitration or administrative body
is presently in course or pending, or
threatened, which default, litigation or
proceeding would have a material adverse
effect on the business, assets or financial
condition of the Borrower, or which would
adversely affect its ability to perform its
obligations under this Agreement;
(ix) it is not necessary under the laws of Japan,
the United States of America or any
political subdivision or authority thereof
or therein in order to ensure the validity,
effectiveness and enforceability of this
Agreement 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; and
(x) the Borrower has not incurred any obligation
for payment to any Affiliate, including
Jusco, except for obligations which by their
terms are subordinated to any and all claims
by the Bank for amounts owing from the
Borrower to the Bank under the Agreement.
(b) Fresh representations and warranties shall be deemed to
have been made by the Borrower in the terms of paragraph (a) of this Section as
of each Drawdown Date and also representations and warranties shall be deemed to
have been made as of such date (i) that no event constituting, or which with the
giving of notice or the passing of time or both would constitute, an Event of
Default has occurred, and (ii) that no material adverse change in the assets,
liabilities or financial condition of the Borrower or in the operations of the
Borrower has occurred since the date of such accounts.
9. CONDITIONS OF DRAWDOWN
(a) The obligations of the Bank to make the initial Advance
hereunder is, at the option of the Bank, subject to the fulfillment (as
determined solely by the Bank) of the following conditions prior to the
Drawdown:
(i) the Bank having received evidence
satisfactory to it of good standing of the
Borrower under the laws of the State of
Delaware together with an up-to-date copy of
its Articles of Incorporation and Bylaws (if
any) (certified to be true copies and then
currently in full force and effect by an
appropriate officer of the Borrower);
(ii) the Bank having received (1) a reasonable
number of copies (certified to be true
copies and then currently in full force and
effect by an appropriate officer of the
Borrower) of 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 make the borrowing on the terms
and conditions of this Agreement and the
authority of the Borrower to execute and
deliver this Agreement and (2) a power of
attorney, resolution or other evidence of
the authority of the person named therein to
sign this Agreement and any other document
required to be given by the Borrower
pursuant to this Agreement on behalf of the
Borrower legally to bind the Borrower;
(iii) the Bank having received specimen signature,
certified by an appropriate officer of the
Borrower, of the person referred to in
(ii)(2) above;
(iv) the Bank having received 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 Agreement or in connection
with the payment or remittance by the
Borrower of any amounts pursuant hereto or
thereto;
The obligation of the Bank to make any Advance hereunder is
subject to the further condition that:
(i) no Event of Default (and no event which with
the giving of notice, lapse of time or both
would constitute an Event of Default) has
occurred and is continuing as at the time of
request for and the time of the making of
the relevant Drawdown,
(ii) all of the representations and warranties
given by the Borrower herein are true and
correct in all respects as if made as at the
time of request for and the time of the
making of the relevant Drawdown; and
(iii) all the covenants of the Borrower contained
herein have been fully complied with at the
time of request for and the time of the
making of the relevant Drawdown.
10. COVENANTS
In addition to other covenants and undertakings herein
contained, the Borrower hereby covenants with the Bank that so long as this
Agreement is in effect:
(a) as soon as practicably possible after the end of each of
the fiscal years of the Borrower, the Borrower will furnish the Bank with such
financial statements and the related notes and schedules certified by
independent public accountants, and copies, if any, (certified to be true copies
by the Secretary or other appropriate officer of the Borrower) of the
resolutions of its Board of Directors and/or the resolutions of its
shareholders, if any, approving such financial statements as well as any reports
made available to its Board of Directors or to its shareholders relating to such
financial statements or to the business of the preceding fiscal year. The
Borrower will also furnish the Bank with such additional financial information
as the Bank may from time to time reasonably require;
(b) the Borrower will pay and discharge duly and punctually
all taxes, assessments and governmental charges upon it or against any of its
property prior to the date upon which penalties attach as a result of failure
thereof, except to the extent that such taxes, assessments and governmental
charges are being contested in good faith by appropriate proceedings, and
adequate reserves shall have been set aside for the payment therefor,
(c) the Borrower will not, without the prior written consent
of the Bank, dissolve, merge into or consolidate with any corporation or convey,
transfer, lease or otherwise dispose of any substantial part of its assets to
any other person, firm or corporation;
(d) the Borrower shall not create, assume or suffer to exist
any mortgage, lien, pledge, charge, security interest or encumbrance of any kind
("Lien") on any asset now owned or hereafter acquired by it; other than (i) any
Lien created on property, at the time of purchase thereof, solely as security
for the payment of the purchase price thereof, (ii) any Lien arising merely by
operation of law in the ordinary course of the business currently conducted by
the Borrower and (iii) any Lien securing indebtedness maturity within one year
after the date on which it is originally incurred; and
(e) the Borrower will not incur any obligation to any
Affiliate, including Jusco, except for obligations which by their terms shall be
subordinated to any and all claims by the Bank for amounts owing from the
Borrower to the Bank under the Agreement.
11. EVENTS OF DEFAULT
(a) If any one of the following events shall occur:
(i) the Borrower fails to make payment when due
and payable under this Agreement (whether at
maturity or by acceleration) of any amount
of the principal of or interest on any
Advance or any other amount payable
hereunder or, if such failure is caused
solely by reasons of administrative or
technical difficulties affecting money
transfers and outside the control of the
Borrower, such failure continues for five
(5) days; or
(ii) any representation or warranty of the
Borrower made or deemed to have been made
herein or in any certificate, instrument or
agreement delivered or to be delivered
hereunder proves to have been untrue or
incorrect when made or deemed to have been
made in any material respect; or
(iii) any indebtedness of the Borrower contracted
or incurred otherwise than under this
Agreement is not paid at its stated maturity
(as extended by any allowable grace period),
or by reason of default on the part of the
Borrower becomes due, or capable of being
declared due by the holder or holders
thereof (assuming the giving of notice or
lapse of time or both, if required), prior
to its stated maturity, provided that the
aggregate of any such indebtedness so unpaid
and/or subject to acceleration exceeds
$500,000 or the equivalent thereof, or
(iv) any governmental approval, authorization,
consent or license necessary in connection
with the execution or performance of this
Agreement or any other document required to
be delivered by the Borrower pursuant to
this Agreement is modified, revoked or
withdrawn in a way materially prejudicial to
the rights or remedies of the Bank
hereunder; or
(v) the Borrower suspends or threatens to
suspend its business operation, or the
Borrower transfers or disposes of all or
substantially all its assets; or
(vi) this Agreement ceases to constitute the
legal, valid and binding obligations of the
Borrower enforceable in accordance with its
terms; or
(vii) the Borrower commences any proceedings
relating to any substantial portion of its
property under any reorganization,
arrangement, readjustment of debt,
dissolution, winding up, adjustment,
composition or liquidation law or statute of
any jurisdiction, whether now or hereafter
in effect ("Proceeding"), or there is
commenced against the Borrower any
Proceeding and such Proceeding remains
undismissed for a period of forty-five (45)
days or such longer period as the Bank, or
any receiver, trustee, liquidator or
sequestrator of, or for, the Borrower or any
substantial portion of its property is
appointed and is not discharged within a
period of forty-five (45) days or such
longer period as the Bank may agree, or the
Borrower consents to or acquiesces in any
Proceeding or the appointment of any
receiver, trustee, liquidator or
sequestrator of, or for, the Borrower or any
substantial portion of its property; or
(viii) it becomes unlawful for the Borrower to
perform any of its obligations under this
Agreement
then, and in any such event, and at any time thereafter if any such event shall
then be continuing, the Bank may by written notice to the Borrower, terminate
its obligations under this Agreement and/or declare to be forthwith due and
payable the entire principal amount of the Advances then outstanding, together
with accrued interest thereon, any fees and commissions, and all other amounts
payable hereunder, whereupon the Bank's obligations under this Agreement shall
terminate forthwith and the entire principal amount of the Advances then
outstanding, together with accrued interest thereon, any fees and commissions,
and any other amounts payable hereunder shall become immediately due and payable
without demand or other notice of any kind, all of which are hereby expressly
waived by the Borrower.
(b) Without prejudice to the foregoing provisions of this
Section, the Borrower shall indemnify the Bank against any and all losses or
expenses which the Bank may sustain or incur as a direct consequence of any
default in payment of the principal amount of any Advances or any part thereof
or interest thereon or any other amount due hereunder or as a direct consequence
of the occurrence any Event of Default hereunder, including but not limited to,
any and all losses or expenses sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain the Bank's portion of
any Advances or any part thereof.
12. EXPENSES AND CHARGES
(a) The Borrower shall pay to the Bank a commitment fee in
Dollars computed at the rate of 0.3125% per annum on the daily undrawn Dollar
amount of the Commitment as of the close of business of the day in respect of
the period commencing on the date hereof and up to the last day of the Revolving
Credit Period as amended or extended. The accrued commitment fee shall be
payable in arrears on the last day of March and September in each year, and the
last day of the Revolving Credit Period as amended or extended. The commitment
fee shall accrue from day to day and be calculated on the basis of a year of
three hundred and sixty (360) days and for the actual number of days elapsed.
(b) The Borrower shall upon demand reimburse the Bank, for its
own account, for all reasonable out-of-pocket costs and expenses incurred by the
Bank in connection with the negotiation, preparation and execution of this
Agreement and any other certificate, instrument or agreement delivered or to be
delivered hereunder, including but not limited to, fees, expenses and
disbursements of legal counsel for the Bank incurred in the negotiation and
preparation of this Agreement.
(c) The Borrower shall upon demand also reimburse the Bank,
for its own account, for all reasonable charges and expenses, including but not
limited to, fees, expenses and disbursements of legal counsel for the Bank,
incurred in connection with the enforcement of or the preservation of, any
rights under this Agreement following any default hereunder and any other
certificate, instrument or agreement delivered or to be delivered hereunder.
(d) The Borrower shall pay or indemnify the Bank against any
and all stamp, documentary, registration and other transaction duties, taxes or
charges (if any) imposed by any governmental authorities to which this Agreement
or any other certificate, instrument or agreement delivered or to be delivered
hereunder may be subject or give rise or which may be payable or determined to
be payable in connection with the execution, delivery, performance or
enforcement of this Agreement and any other certificate, instrument or agreement
delivered or to be delivered hereunder. The Borrower shall indemnify the Bank
also against any and all liabilities directly resulting from delay or omission
on the part of the Borrower to pay such duties, taxes or charges.
13. ASSIGNMENT AND FACILITY OFFICES
(a) This Agreement shall be binding upon, and inure to the
benefit of, the Bank, the Borrower and their respective successors and assigns.
(b) The Borrower shall not assign or transfer any of its
rights and/or obligations under this Agreement.
(c) The Bank shall act initially through the branch or office
of the Bank at the address set forth in section 14(b) hereof and subsequently
through any other branch or office of the Bank hereafter selected from time to
time by the Bank and notified to the Borrower as being the branch or office
through which the Bank wishes to act for the purposes of this Agreement;
provided, however, that the Bank shall not, without the prior written consent of
the Borrower, select such other branch or office if the effect of such selection
would be to obligate the Borrower to make any payment under Section 6(c) or
Section 7(a) which it would not otherwise be required to make.
(d) The Bank may at any time transfer all or any part of its
rights, benefits or obligations under this Agreement (including in particular
the rights and benefits provided in Sections 6(c) and (7) by assigning to any
one or more banks or other lending institutions (each of which is hereinafter in
this Section called an "Assignee") all or any part of the Bank's rights and
benefits and/or obligations hereunder. Any such assignment of all or part of the
Bank's obligations may only be effected if the Assignee becomes bound by the
terms of this Agreement.
(e) If the Bank transfers its rights, benefits or obligations
in accordance with paragraph (d) of this Section and so notifies the Borrower in
writing, all relevant references in this Agreement to the Bank shall thereafter
be construed as references to the Bank and/or its Assignee(s) to the extent of
their respective assignment interests as so notified by the Bank and, in the
case of any assignment of all or part of the Bank's obligations, the Borrower
shall thereafter look only to such Assignee in respect of that proportion of the
Bank's obligations hereunder as corresponds to the assignment interests assumed
by such Assignee.
14. MISCELLANEOUS
(a) No failure to exercise and no delay in exercising on the
part of the parties hereto any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege hereunder. The rights and
remedies of the parties herein provided are cumulative and not exclusive of any
rights or remedies as provided by law.
(b) All notices, requests, demands or other communications to
or upon the respective parties hereto (unless otherwise expressly stipulated in
this Agreement and without prejudice to the provisions of paragraph (i) of this
Section) shall be deemed to have been duly given or made if addressed as
follows:
(i) if to the Bank, to The Dai-Ichi Kangyo Bank,
Limited, New York Branch at One World Trade
Center, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. (Telex Number: 420720;
Answerback: DKB UI; Facsimile: (212)
524-0579);
(ii) if to the Borrower, at the address set forth
above (Telex Number: 948059; Answerback:
TALBOTS HIHM; Facsimile: (000) 000-0000);
or to such other address or such other person as any of the parties hereto may
from time to time hereafter specify to the others in the manner provided herein.
(c) Any notice, request, demand or other communication to be
given or made hereunder shall be given or made by registered mail (if overseas
mail, by registered airmail, postage prepaid), telex, cable or facsimile
(confirmed by registered mail (if overseas mail, by registered airmail, postage
prepaid) within twenty-four (24) hours of the dispatch of such telex, cable or
facsimile) and shall be deemed to have been given or made, in the case of notice
by domestic mail, three (3) days after posting, in the case of notice by
overseas mail, seven (7) days after posting, in the case of notice by telex,
when dispatched (provided the answerback relating thereto has been received), in
the case of notice by cable, twenty-four (24) hours after dispatch and in the
case of notice by facsimile, upon receipt at the facsimile number specified
herein.
(d) Except as otherwise agreed by the Bank, all documents,
instruments, statements or reports to be delivered or disclosed under this
Agreement shall be in the English language or accompanied with certified English
translations thereof.
(e) If for the purpose of obtaining judgment in any court in
any country it becomes necessary to convert into any other currency any amount
of Dollars (the "Specified Currency") due hereunder, then the conversion shall
be made at the rate of exchange prevailing either on the date of default or on
the Banking Day before the day on which the judgment is given, whichever shall
be more favorable to the Bank. For this purpose "rate of exchange" means the
spot rate at which the Bank is, in accordance with its normal practice, able on
the relevant date to purchase the Specified Currency for the currency in which
judgment is given. In the event that there is a change in the rate of exchange
prevailing between the Banking Day before the day on which the judgment is given
and the date of payment of the amount due, or in the event that there is a
change between the rate of exchange used for obtaining such judgment and the
rate of exchange prevailing on the date of payment, the Borrower will pay such
additional amounts, if any, as may be necessary to ensure that the amount paid
on such date is the amount in the currency in which the judgment was given
which, when converted at the rate of exchange prevailing on the date of payment,
is the amount then due under this Agreement in the Specified Currency.
(f) In case one or more of the provisions contained in this
Agreement 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.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(h) The Borrower hereby irrevocably agrees that any legal
action or proceedings arising out of or relating to this Agreement 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. The Borrower agrees that so long
as this Agreement is in effect, it will maintain an agent for service of process
in New York City and give prompt notice to the Bank of any change of address of
such agent and of the name and address of any new agent appointed by it, as
appropriate. The Borrower further agrees that the failure of its agent for
service of process to give to it notice of any service of process will not
impair or affect the validity of such service or of any judgment based thereon.
(i) This Agreement may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument. Any provision of this
Agreement may be amended or waived it but only if, such amendment or waiver is
in writing and is duly signed on behalf of the Borrower, and the Bank.
(j) The Revolving Credit Period may be extended any number of
times in the following manner:
(i) If the Borrower desires to extend the
Revolving Credit Period then effective, the
Borrower shall give the Bank an irrevocable
written request for extension in the form of
Schedule "B" attached hereto at least one
year and 30 days before each date on which
the Revolving Credit Period then effective
expires.
(ii) Upon receipt of such request the Bank will
consider and decide whether the aforesaid
request will be accepted and will give a
written notice as to whether such request
has been accepted or not on or prior to the
day one year before the expiration of the
Revolving Credit Period then effective.
(iii) When the Bank gives the Borrower a written
notice of the acceptance for such request
pursuant to the preceding item (ii), the
Revolving Credit Period then effective will
be extended for one year from the last day
of such Revolving Credit Period. Otherwise,
the Revolving Credit Period will expire on
the last day of the Revolving Credit Period
then effective.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers or attorney-in-fact
thereunto duly authorized as of the day and year first above written.
BORROWER: THE TALBOTS, INC.
By: XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
Finance and CFO
THE BANK: THE DAI-ICHI KANGYO BANK, LIMITED
By: XXXXXXXX XXXXXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President &
Department Head
SCHEDULE A
FORM OF ADVANCE REQUEST
To: The Dai-Ichi Kangyo Bank, Limited
From: The Talbots, Inc.
Dear Sirs,
1. We refer to the Revolving Credit Agreement dated April 14,
1998 (the "Facility Agreement") and made between The Talbots, Inc. as borrower,
and The Dai-Ichi Kangyo Bank, Limited. Terms defined in the Facility Agreement
shall bear the same meaning herein.
2. We hereby give you notice that we wish an Advance to be
made to the account in our name with (account number: under Section 3 of the
Facility Agreement as follows:
(i) Amount in Dollars
(ii) Drawdown Date
(iii) Term
3. We confirm that the borrowing to be effected by the
aforesaid Drawdown Date will be within our corporate powers and will not cause
any limit on our borrowings (whether imposed by our laws, regulations, agreement
or otherwise) to be exceeded and that the representations and warranties, set
out in Section 8 of the Facility Agreement are true as of the date hereof and
will be true as of the Drawdown Date by reference to the facts and circumstances
now subsisting and no event which is or may (with the passage of time, the
giving of notice and the making of any determination under the Facility
Agreement or any of them) become an Event of Default has occurred.
Yours faithfully,
THE TALBOTS, INC.
By:
--------------------------------------
Name:
Title:
SCHEDULE B
(Date)
FORM OF REQUEST FOR EXTENSION
To: The Dai-Ichi Kangyo Bank, Limited
New York Branch
Re: Revolving Credit Agreement dated as of April 14, 1998
among The Talbots, Inc. as borrower, and The Dai-Ichi
Kangyo Bark Limited (the "Agreement")
--------------------------------------------------------
Dear Sirs:
Pursuant to Section 146)(i) of Agreement, we hereby
irrevocably request to you the one year extension of the Revolving Credit Period
(as defined in the Agreement) so that the Revolving Credit Period if extended
pursuant to this request would expire on April 17, .
We would appreciate it if such extension would be accepted.
Very truly yours,
THE TALBOTS, INC.
By:
--------------------------------------
SCHEDULE C
(Date)
To: The Dai-Ichi Kangyo Bank, Limited
New York Branch
One World Trade Center
Suite 0000
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Dear Sirs:
U.S. $18,000,000
Revolving Credit Agreement dated April 14, 1998
We hereby acknowledge receipt of made available by the Bank
pursuant to Section 3 of the Revolving Credit Agreement dated April 14, 1998
(the "Facility Agreement") by and among ourselves as Borrower and The Dai-Ichi
Kangyo Bank, Limited, New York Branch.
Terms defined in the Facility Agreement are used herein as
therein defined.
THE TALBOTS, INC.
By:
--------------------------------------
Name:
Title:
THE TALBOTS, INC.
PROMISSORY NOTE
U.S. $18,000,000.00 April 17, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, The Talbots, Inc., a Delaware corporation
(the "Company") hereby promises to pay to the order of The Dai-Ichi Kangyo Bank
Limited, a banking corporation duly organized and existing under the laws of
Japan and acting through its New York Branch (the "Bank") the principal amount
of Eighteen Million United States Dollars (U.S. $18,000,000.00) or, if less, the
unpaid principal amount of the Loans of the Bank outstanding under the Credit
Agreement referred to below (the "Loans") on the dates and in the amounts, and
to pay interest thereon on the dates and at the rates, specified in the Credit
Agreement. All payments due to the Bank hereunder shall be made to the Bank at
the place, in the type of funds and in the manner specified in the Credit
Agreement.
Each holder hereof is authorized to endorse on the grid
attached hereto, or on a continuation thereto the Loans and each payment or
prepayment with respect thereto.
Presentation, demand, protest, notice of dishonor and notice
of intent to accelerate are hereby waived by the Borrower. No delay or omission
by the bank in exercising its rights under this Note shall operate as a waiver
of such rights, nor shall the exercise of any right with respect to this Note
waive or preclude the later exercise of such right or any other right.
This Note evidences the Loans made under, and is entitled to
the benefits of, the Revolving Credit Agreement dated April 14, 1998 as the same
may be amended from time to time (the "Credit Agreement"). Reference is made to
the Credit Agreement for provisions relating to the prepayment and the
acceleration of the maturity hereof.
This Note shall be governed by and construed in accordance
with the law of the State of New York.
THE TALBOTS, INC.
By: XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
Finance and CFO
