**Exhibit 10.31**

 

EXECUTION COPY 

 

RESTATED FIRST AMENDMENT AND WAIVER, dated as of February 1, 2005 (this “Restated Amendment and Waiver”), to the Credit Agreement,dated as of June 28, 2002 (as the same may further be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Tommy Hilfiger Corporation, a British Virgin Islands corporation(“Holdings”), Tommy Hilfiger U.S.A., Inc., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto (collectively, the“Lenders”; individually, a “Lender”), and JPMorgan Chase Bank, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). 

 

WITNESSETH : 

 

WHEREAS, the Borrower, the Lenders and theAdministrative Agent are parties to the Credit Agreement; 

 

WHEREAS, the Borrower, the Administrative Agent and the Lenders party thereto entered into a First Amendment and Waiver, dated as of November 16, 2004 (the “Existing First Amendment”), to the Credit Agreement;

 

WHEREAS, the Borrower has requested that the Lenders restatethe Existing First Amendment in its entirety as set forth herein; and 

 

WHEREAS, the Administrative Agent and the Lenders party hereto are willing to so restate the Existing First Amendment on the terms and conditions provided for herein; 

 

NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree that the Existing FirstAmendment is hereby restated in its entirety as follows: 

 

1.Defined Terms. Unless otherwise defined herein, terms which are defined in the Credit Agreement and used herein (and in the recitals hereto) as defined terms are so used as so defined. 

 

2. Amendments to Section 1.1 (Definitions). Section 1.1 ofthe Credit Agreement is hereby amended as follows: 

 

(a) by adding a new proviso to the end of the definition of “Available Basket” as follows: 

 

“; provided, however, that, notwithstanding anything to the contrary in this Agreement, during the period from the First Amendment andWaiver Effective Date until the Borrower and its Subsidiaries and Holdings and the Holdings Subsidiaries are in compliance with Sections 6.1(b), 6.2(c) and 6.2(d) (other than any requirement that any report, certificate or other item be deliveredwithin 45 days after the end of the fiscal quarters ended September 30, 2004 and December 31, 2004) and Section 6.2(b), the Available Basket may only be used for acquisition investments pursuant to Section 7.7(g), and theaggregate acquisition investments made pursuant to 7.7(f) and (g) during such period may not exceed $50,000,000 unless otherwise agreed by the Required Lenders (provided, that such acquisition investments shall not be made in or with anyUnrestricted Subsidiary); provided, that any such acquisition investments shall not be made in or with any Unrestricted Subsidiary and provided, further, that any such Investments made prior to the First Amendment and WaiverEffective Date shall not be so limited.” 

(b) by adding thereto the following definitions in the appropriate alphabetical order:

 

“Adjusted Current Assets”: any and all cash,Cash Equivalents, accounts receivable and inventory of Holdings and the Holdings Subsidiaries. 

 

“Adjusted Current Liabilities”: all current liabilities of Holdings and the Holdings Subsidiaries determined on a consolidated basis inaccordance with GAAP, all outstanding Indebtedness under the Senior Note Indenture and all outstanding Obligations. 

 

“First Amendment and Waiver Effective Date”: November 15, 2004. 

 

“Liquidity”: Adjusted Current Assets minus Adjusted Current Liabilities. 

 

3. Amendment to Section 7.7(j). Section 7.7(j) of the CreditAgreement is hereby amended by adding a new proviso to the end thereof as follows: 

 

“; provided, however, that, notwithstanding anything to the contrary in this Agreement, no Investments may be made pursuant to this paragraph (j) during the period from the First Amendment andWaiver Effective Date until the Borrower and its Subsidiaries and Holdings and the Holdings Subsidiaries are in compliance with Sections 6.1(b), 6.2(c) and 6.2(d) (other than any requirement that any report, certificate or other item be deliveredwithin 45 days after the end of the fiscal quarters ended September 30, 2004 and December 31, 2004) and Section 6.2(b)” 

 

4. Waiver of Section 8(d). The Lenders hereby waive compliance with Section 8(d) of the Credit Agreement until March 15, 2005 solelyto the extent that a Default or Event of Default is caused by the failure of Holdings and the Borrower to comply with the requirements of Section 6.1(b) of the Credit Agreement with respect to the fiscal quarters of Holdings endedSeptember 30, 2004 and December 31, 2004. 

 

5.Waiver of Section 8(e). The Lenders hereby waive compliance, until March 15, 2005, by Holdings and any of its Subsidiaries with Section 8(e)(iii) of the Credit Agreement solely with respect to Section 704 of the SeniorNote Indenture, provided, that such waiver shall automatically expire if any Indebtedness under the Senior Note Indenture is declared due and payable as a result of any failure to comply with said Section 704. 

 

6. Amendment to Section 6.2. Section 6.2 of the CreditAgreement is hereby amended by: 

 

(a) insertingat the end of paragraph (b) the following new proviso: 

 

“provided, that, during the period from the First Amendment and Waiver Effective Date until March 15, 2005, each of Holdings and the Borrower shall comply with this paragraph (b) to the extent information is availableas limited solely by the failure to comply with Section 6.1(b);” 

 

(b) inserting at the end of paragraph (c) the following new proviso: 

 

“provided, that, during the period from the First Amendment and Waiver Effective Date until March 15, 2005, each of Holdings and theBorrower shall comply with this paragraph (c) to the extent information is available as limited solely by the failure to comply with Section 6.1(b);” 

 

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(c) inserting at the end of paragraph (d) the following new proviso: 

 

“provided, that, during the period from the First Amendment andWaiver Effective Date until March 15, 2005, each of Holdings and the Borrower shall comply with this paragraph (d) to the extent information is available as limited solely by the failure to comply with Section 6.1(b);”

 

7. Amendment of Section 7.1 (Financial ConditionCovenants). Section 7.1 of the Credit Agreement is hereby amended by inserting the following new paragraph (d) immediately following paragraph (c): 

 

“(d) Permit Liquidity at any time to be less than $1.00, during the period from the First Amendment and WaiverEffective Date until the Borrower and its Subsidiaries and Holdings and the Holdings Subsidiaries are in compliance with Section 6.1(b) of this Agreement (other than any requirement that any report, certificate or other item be deliveredwithin 45 days after the end of the fiscal quarters ended September 30, 2004 and December 31, 2004). 

 

8. Representations and Warranties. On and as of the date hereof after giving effect hereto, Holdings and the Borrower hereby confirm, reaffirm andrestate the representations and warranties set forth in Section 4 of the Credit Agreement, except to the extent that such representations and warranties expressly relate to a specific earlier date in which case Holdings and the Borrower herebyconfirm, reaffirm and restate such representations and warranties as of such earlier date. 

 

9. Conditions to Effectiveness. This Restated Amendment and Waiver shall become effective as of the date hereof upon receipt by the Administrative Agent of counterparts to this Restated Amendment and Waiverduly executed by Holdings, the Borrower and the Required Lenders. Nothing herein shall limit the full force and effect of the Existing First Amendment for the period from the First Amendment and Waiver Effective Date to the effective date of thisRestated Amendment and Waiver. 

 

10. Continuing Effect; NoOther Waivers. Except as expressly provided herein, all of the terms and provisions of the Credit Agreement are and shall remain in full force and effect. The waiver provided for herein is limited to the specific sections of the Credit Agreementspecified herein and shall not constitute a consent, waiver or amendment of, or an indication of the Administrative Agent’s or the Lenders’ willingness to consent to any action requiring consent under or to waive or amend, any otherprovisions of the Credit Agreement or the same sections for any other date or time period (whether or not such other provisions or compliance with such sections for another date or time period are affected by the circumstances addressed in thisRestated Amendment and Waiver). 

 

11. Expenses. Holdingsand the Borrower agree to pay and reimburse the Administrative Agent for all its reasonable costs and out-of-pocket expenses incurred in connection with the preparation and delivery of this Restated Amendment and Waiver, including, withoutlimitation, the reasonable fees and disbursements of counsel to the Administrative Agent. 

 

12. Counterparts. This Restated Amendment and Waiver may be executed in any number of counterparts by the parties hereto (including by facsimile transmission), each of which counterparts when so executed shallbe an original, but all the counterparts shall together constitute one and the same instrument. 

 

13. GOVERNING LAW. THIS RESTATED AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATEOF NEW YORK. 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Restated Amendment and Waiver to be executed anddelivered by their respective duly authorized officers as of the date first above written. 

 
TOMMY HILFIGER CORPORATIONBy: 
/s/ Joseph Scirocco

Name:
 
Joseph Scirocco

Title:
 
CFO
TOMMY HILFIGER U.S.A., INC.By: 
/s/ Joseph Scirocco

Name:
 
Joseph Scirocco

Title:
 
CFO

JPMORGAN CHASE BANK,

as Administrative Agentand as a Lender
By: 
/s/ Paul V. Phelan

Name:
 
Paul V. Phelan

Title:
 
Vice President
FLEET NATIONAL BANKBy:  
Name:
  
Title:
  WACHOVIA BANK, NATIONAL ASSOCIATIONBy: 
/s/ Aaron H. Headley

Name:
 
Aaron H. Headley

Title:
 
Associate
HSBC BANK USA, N.A.By: 
/s/ Anne Serewicz

Name:
 
Anne Serewicz

Title:
 
Managing Director

CITIBANK, N.A.By: 
/s/ Marc C. Merlino

Name:
 
Marc C. Merlino

Title:
 
Vice President
SUNTRUST BANKBy: 
/s/ E. Donald Besch, Jr.

Name:
 
E. Donald Besch, Jr.

Title:
 
Managing Director
BANK LEUMI USABy: 
/s/ John Koenigsberg

Name:
 
John Koenigsberg

Title:
 
First VP
By: 
/s/ Iris Steinhardt

Name:
 
Iris Steinhardt

Title:
 
Vice President
ISRAEL DISCOUNT BANK OF NEW YORKBy:  
Name:
  
Title:
  By:  
Name:
  
Title:
  MORGAN STANLEY BANKBy:  
Name:
  
Title:
  PNC BANK, N.A.By: 
/s/ Michael Nardo

Name:
 
Michael Nardo

Title:
 
Senior Vice President