exv10w1



 





Exhibit 10.1




Date: January 28, 2008




AMENDED AND RESTATED PROMISSORY NOTE




U.S.$75,000,000.00




FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to the order of MIZUHO
CORPORATE BANK, LTD. and its successors and assigns (the “Bank”), at its offices at 1251 Avenue of
the Americas, New York, New York, 10020, or at such other place as may be designated in writing by
the Bank to the Borrower, the principal sum of $75,000,000.00 United States dollars only
(SEVENTY-FIVE MILLION UNITED STATES DOLLARS) or, if less, the aggregate unpaid principal amount of
all Loans (as defined below) made by the Bank (in its sole and absolute discretion), together with
interest on the unpaid principal of each Loan made by the Bank to the Borrower from and including
the date such Loan is made until such principal amount is paid in full, on such date or dates and
at such rate(s) as are mutually agreed at the time of each Loan.



Interest will be calculated on the exact number of days elapsed on the basis of a 360-day year.
Interest on any past due amounts, whether at the due date thereof or by acceleration, shall be paid
at the Default Rate but in no event in excess of the maximum legal rate of interest permitted under
applicable New York law. Whenever any payment to be made hereunder shall be stated to be due on a
Saturday, Sunday or a banking holiday under the laws of the State of New York, such payment shall
(unless otherwise agreed at the time by the Bank) be made on the next succeeding business day, and
such extension of time shall in such case be included in the computation of interest hereunder,
provided, however, that if the next succeeding business day would occur in the next calendar month,
such payment shall be made on the next preceding business day. All payments of principal and
interest on this Note shall be payable in immediately available funds in the applicable currency
without set-off or counterclaim.



This Note evidences loans (the “Loans”) that the Bank (in its sole and absolute discretion) may
make to the Borrower from time to time. The procedures relating to the requesting and making of
Loans shall be as set forth below, unless the Bank provides prior written notice to the Borrower as
to any modifications thereto, which modifications shall thereafter be binding. Requests for Loans
may be made telephonically only by an officer (“Authorized Officer”) of the Borrower who has been
authorized in writing by another officer of the Borrower. Such requests shall specify the amount,
the term and the proposed date of disbursement. The Bank will endeavor to respond promptly by
telephone as to whether it is willing to offer to make the Loan and the proposed interest rate. If
the Bank offers the Loan and an Authorized Officer accepts, the Borrower shall send by telecopy to
the Bank a confirmation (the “Confirmation”), signed by an officer of the Borrower authorized in
writing to do so (which may, unless the Borrower specifies in writing otherwise, include the
Authorized Officer who requested and accepted the Loan). Such Confirmation received by the Bank
shall be evidence presumptively deemed correct as to all terms, unless the Bank otherwise notifies
the Borrower by telecopy within three business days of receipt. The Borrower agrees that notices
sent to the telecopier number provided in writing by the Borrower to the Bank shall be deemed to
have been received by the Borrower



 









 







when the Bank’s telecopier indicates that the transmission was completed. Loan proceeds shall be
wire transferred to an account of the Borrower at the Bank or an affiliate of the Bank (including,
without limitation, Mizuho Corporate Bank (USA) or any successor thereto, by merger or otherwise
(“MCBUSA”)) or, to the extent permitted by law, such other account as designated in writing
purportedly by an officer of the Borrower at least one business day in advance, and upon the
depositing of such proceeds to such account such Loan shall conclusively be deemed to have been
made by the Bank to the Borrower and to be an obligation evidenced by this Note, irrespective of
whether or not (i) any Confirmation was sent by the Borrower, (ii) the Loan was in fact duly
authorized by the Borrower, or (iii) individuals who are not authorized to borrow or authorized to
draw upon or otherwise access such account sent the Confirmation or accessed the account. The Bank
may conclusively rely on the borrowing resolutions of the Borrower’s Board of Directors heretofore
delivered to the Bank, as such resolutions may be amended or superseded from time to time, provided
that any such amending or superseding resolutions shall have been certified by the Secretary or an
Assistant Secretary of the Borrower, and a copy thereof, so certified, shall have been delivered to
the Bank. Furthermore the Bank may conclusively rely on any original or telecopy document which
purports to be signed by any officer of the Borrower, and on any telephonic request purportedly
made by an Authorized Officer, and the Bank shall be fully protected in doing so without any duty
to make any further inquiry, provided the Bank believes in good faith that such document or request
is genuine.



The Bank shall be entitled to and may, at its option, record all telephonic conversations with the
Borrower, and in the event of any dispute regarding the terms of any Loan including a dispute at
any time regarding the accuracy of any Confirmation, any such recordings and the Bank’s internal
accounts and records shall be conclusive and binding on the Borrower, absent manifest error.



The obligations under this Note constitute Obligations as defined in, and are secured and
guarantied as provided in, the General Financing Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the “GFA”) between the undersigned and the
Bank. This Note is a Credit Document as defined in the GFA. This Note is also subject to the
terms and conditions of the GFA, including, without limitation, the acceleration provisions
thereof. Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to
such terms in the GFA.



The Borrower hereby represents and warrants that no proceeds of any Loan may be used to acquire or
carry any equity security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended and as in effect from time to time, or any “Margin Stock”, as
defined in Federal Reserve Board Regulation U or otherwise be used in a manner which would violate
or be inconsistent with Section 7 of the Securities Exchange Act of 1934, as amended and as in
effect from time to time, or any regulations issued pursuant thereto or the provisions of the
regulations of the Federal Reserve Board or any Governmental Authority.



In addition to the terms of the GFA, if any one or more of the following events shall occur (a
“Default”): (a) nonpayment of principal of any Loan when due, or nonpayment of interest upon any
Loan or of any fees or other obligations under this Note within three days after the same becomes
due; (b) any event or condition shall occur which results in the acceleration of the maturity of
any indebtedness of the Borrower or of any guarantor of this Note (collectively the “Obligor”) in
an amount equal to or greater than $10,000,000.00 (or the foreign currency



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equivalent) or which enables (or with the giving of notice or lapse of time or both, would enable)
the holder of such indebtedness or any person acting on such holder’s behalf to accelerate the
maturity thereof; (c) the Obligor shall (i) announce its intention to cease its operations or
liquidate or commence a voluntary case under the U.S. Federal bankruptcy laws as now or here after
in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for or consent
to, the appointment of a receiver, custodian, trustee, liquidator or similar official of it or any
substantial part of its property, (iv) institute any proceeding seeking to take advantage of any
other law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such proceeding filed against
it, or (v) take any action to authorize or effect any of the foregoing actions set forth in this
clause (c); (d) without the application, approval or consent of the Obligor, a receiver, trustee,
liquidator or similar official shall be appointed for the Obligor or any substantial part of its
property, or a proceeding described in clause (c) shall be instituted against the Obligor and such
appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of 30 consecutive days; (e) any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of all or any substantial portion of the
property of the Obligor; or (f) the Obligor shall fail within 30 days to pay, bond or otherwise
discharge any judgment or order for the payment of money in excess of $10,000,000.00 (or the
foreign currency equivalent) which is not stayed on appeal or otherwise being appropriately
contested in good faith;



then, if any Default described in clauses (c) or (d) occurs, this Note shall immediately become due
and payable without any election or action on the part of the Bank, and if any other Default
described above occurs, the Bank, by notice to the Borrower, may declare this Note to be due and
payable, whereupon this Note shall become immediately due and payable.



Upon the occurrence and during the continuance of a Default, the Bank is hereby authorized, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing by
the Bank or MCBUSA to or for the credit or the account of the Borrower against any and all of the
obligations under this Note irrespective of whether or not the Bank shall have made any demand
under this Note and although such obligations may be unmatured.



The undersigned hereby waives presentment, protest, all notices (whether of dishonor or otherwise)
with respect to this Note and all demands whatsoever. Failure or delay of the holder to enforce
any provision of this Note shall not be deemed a waiver of any such provision, nor shall the holder
be estopped from enforcing any such provision at a later time. Any waiver of any provision hereof
must be in writing.



It is expressly understood and agreed by the Borrower that this Note restates and is given in
substitution for, and not in payment of, the Promissory Note, dated August, 24 2007, payable to the
order of the Bank (the “Existing Promissory Note”) and is in no way intended to constitute a
novation of the Existing Promissory Note. All loans and other amount due and owing under, or
arising out of, the Existing Promissory Note shall be deemed to be due and owing hereunder and
shall be subject to the terms and conditions of, and be evidenced by, this Note.



The Borrower hereby acknowledges and agrees that this Note is a “Credit Document” as contemplated
by Section 2.1 of the GFA. Accordingly, the Borrower hereby certifies to the



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Bank that (a) all of the Borrower’s representations and warranties contained in Section 3 of the
GFA are true, correct and complete as if made on and as of the date hereof, and (b) no Default or
Event of Default under the GFA or the Existing Promissory Note has occurred and is continuing on
the date hereof.



As required under Section 2.2(a) of the GFA, the Borrower has delivered, or herewith delivers, to
the Bank (a) certified resolutions of the Borrower’s Board of Directors authorizing the issuance of
this Note to the Bank, and (b) a certificate of incumbency containing the names, titles and
signatures of any persons specified in such resolutions. This Note shall be governed by and
construed in accordance with the laws of the State of New York.



The Talbots, Inc.




	 	 	 	 	 
	By: 

	 	 /s/ Edward L. Larsen	 	 
	Name:

	 	 

Edward L. Larsen
	 	 
	Title:

	 	Senior Vice President of Finance

Chief Financial Officer and Treasurer	 	 







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