Exhibit 10.65


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


This First Amendment to Credit Agreement (this “First Amendment”)
is made as of this 11th day of March, 2009 by and among:


 


THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation, for itself and as agent (in such
capacity, the “Lead Borrower”) for the other Borrowers party hereto;


 


the BORROWERS party hereto;


 


the GUARANTORS party hereto;


 


the LENDERS party hereto; and


 


WELLS FARGO RETAIL FINANCE, LLC, as Administrative
Agent, Collateral Agent and Swing Line Lender;


 


in consideration of the mutual
covenants herein contained and benefits to be derived herefrom.


 


W I T N E S S E T H:


 


WHEREAS, reference is made to that certain Credit Agreement, dated as
of July 31, 2008 (as amended, modified, supplemented or restated and in
effect from time to time, the “Credit Agreement”), by and among (i) the
Borrowers, (ii) the Guarantors, (iii) the Lenders, and (iv) Wells
Fargo Retail Finance, LLC, as Administrative Agent, Collateral Agent and Swing
Line Lender;


 


WHEREAS, the Borrowers have notified the Agents and the Lenders that
Services Company intends to enter into that certain Lease Agreement, dated as
of March 11, 2009 (as amended, modified, supplemented, restated or
extended and in effect from time to time, the “New Headquarters Lease”),
by and between 500 Plaza Drive Corp., as the landlord, and Services Company, as
the tenant, for the leased premises located at 500 Plaza Drive, Secaucus, New
Jersey (the “New Headquarters”);


 


WHEREAS, the Borrowers have further notified the Agents and the Lenders
that the Lead Borrower intends to guaranty the payment and performance of all obligations
of Services Company under the New Headquarters Lease (the “New Headquarters
Lease Guaranty”);


 


WHEREAS, the Borrowers have further notified the Agents and the Lenders
that they intend to terminate certain existing Leases and make certain payments
in connection therewith;


 


WHEREAS, the Borrowers have requested that the Agents and the Required Lenders
consent to the execution and delivery of the New Headquarters Lease Guaranty and
certain related transactions and amend certain terms and conditions of the
Credit Agreement; and


 

















 


WHEREAS, the Agents and the Required Lenders hereby consent to the
execution and delivery of the New Headquarters Lease Guaranty and certain
related transactions and agree to amend certain terms and conditions of the
Credit Agreement as set forth herein.


 


NOW, THEREFORE, it is hereby agreed as follows:


 


1.                                       Definitions.  All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Credit
Agreement.


 


2.                                       Amendments
to Article I.  The provisions of
Article I of the Credit Agreement are hereby amended as follows:


 


(a)                                  Clause
(h) of the definition of “Permitted Encumbrances” in Article I of the
Credit Agreement is hereby amended by deleting the reference to “clause (c) of
the definition of Permitted Indebtedness” in its entirety and replacing it with
a reference to “clause (d) of the definition of Permitted Indebtedness”.


 


(b)                                 The
definition of “Permitted Indebtedness” in Article I of the Credit
Agreement is hereby amended by relettering clause (l) as clause (o),
deleting the word “and” at the end of clause (k) and inserting new clauses
(l), (m) and (n) as follows:


 


“(l)          the
New Headquarters Lease Guaranty;


 


(m)          Indebtedness
arising from the obligation to pay a portion of the Emerson Road Lease
Termination Payment on a deferred basis pursuant to Section 6 of the Emerson
Road Lease Termination Agreement;


 


(n)           Indebtedness
arising from the obligation to pay a portion of the Secaucus Road Lease
Termination Payment on a deferred basis pursuant to Section 6 of the
Secaucus Road Lease Termination Agreement; and”


 


(c)                                  The
following new definitions are hereby added to Article I of the Credit
Agreement in appropriate alphabetical order:


 


(i)                                     “Emerson
Road Lease” means the Agreement of Lease dated May 3, 2006, as amended
by Lease Modification Agreement dated November 27, 2006, Letter Agreement
dated January 17, 2007, and Consent to License dated January 1, 2008,
pursuant to which Hartz Mountain Associates, a New Jersey general partnership,
as landlord, leased certain premises at Two Emerson Lane, Secaucus, New Jersey
to Services Company, as tenant.


 


(ii)                                  “Emerson Road Lease Termination Agreement” means the Lease Termination Agreement,
dated as of March 11, 2009, between Hartz Mountain Metropolitan, a New
Jersey general partnership, as landlord, and 


 


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Services Company, as tenant, pursuant to which the Emerson Road Lease
is terminated prior to the expiration of its stated term.


 


(iii)                               “Emerson
Road Lease Termination Payment” means the fee payable by Services Company
pursuant to Section 6 of the Emerson Road Lease Termination Agreement in order
to terminate the Emerson Road Lease prior to the expiration of its stated term.


 


(iv)                              “New
Headquarters Lease” means that certain Lease Agreement, dated as of March 11,
2009, by and between 500 Plaza Drive Corp., as the landlord, and Services
Company, as the tenant, for the leased premises located at 500 Plaza Drive,
Secaucus, New Jersey (as modified pursuant to the terms of the New Headquarters
Lease Side Letter), as amended, modified, supplemented, restated or extended
and in effect from time to time.


 


(v)                                 “New
Headquarters Lease Guaranty” means that certain Guaranty, dated as of March 11,
2009, made by the Lead Borrower in favor of 500 Plaza Drive Corp. (as modified
pursuant to the terms of the New Headquarters Lease Side Letter), pursuant to
which the Lead Borrower guarantees the payment and performance of all
obligations of Services Company under the New Headquarters Lease, in the form
attached hereto as Schedule 1.04.


 


(vi)                              “New
Headquarters Lease Side Letter” means that certain letter agreement, dated
as of March 11, 2009, by and among the Lead Borrower, Services Company and
500 Plaza Drive Corp., in the form attached hereto as Schedule 1.05.


 


(vii)                           “Secaucus
Road Lease” means the Agreement of Lease dated June 30, 1998, as
amended by Letter Agreement dated June 30, 1998, Lease Modification
Agreement dated November 20, 1998, Second Lease Modification Agreement
dated November 19, 2004, Consent to Assignment and Assumption of Lease
Agreement dated October 30, 2004, Lease Termination Agreement dated May 3,
2006, and Agreement dated November 27, 2006, pursuant to which Hartz
Mountain Associates, a New Jersey general partnership, as landlord, leased
certain premises at 915 Secaucus Road, Secaucus, New Jersey to Services
Company, as tenant.


 


(viii)                        “Secaucus
Road Lease Termination Agreement” means the Lease Termination Agreement,
dated as of March 11, 2009, between Hartz Mountain Associates, a New
Jersey general partnership, as landlord, and Services Company, as tenant,
pursuant to which the Secaucus Road Lease is terminated prior to the expiration
of its stated term.


 


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(ix)                                “Secaucus
Road Lease Termination Payment” means the fee payable by Services Company
pursuant to Section 6 of the Secaucus Road Lease Termination Agreement in
order to terminate the Secaucus Road Lease prior to the expiration of its stated
term.


 


3.                                       Amendment
to Article V.  The second
sentence of Section 5.12(a) of the Credit Agreement is hereby amended
by deleting the phrase “a favorable determination letter” in its entirety and
replacing it with the phrase “a favorable determination or opinion letter”.


 


4.                                       Amendment
to Article VI.  Section 6.18
(Compliance with Terms of Leaseholds) of the Credit Agreement is hereby
amended by adding a proviso at the end of the first sentence thereof as
follows:


 


“; provided that Services
Company (i) may terminate the Emerson Road Lease and make the Emerson Road
Lease Termination Payment in connection therewith and (ii) may terminate
the Secaucus Road Lease and make the Secaucus Road Lease Termination Payment in
connection therewith, provided that, in each case, Services Company shall,
simultaneously with such terminations, enter into the New Headquarters Lease.”


 


5.                                       Amendment
to Article VII.  Section 7.10
(Burdensome Agreements) of the Credit Agreement is hereby amended by deleting
the parenthetical clause in the second line thereof in its entirety and
replacing it with the following:


 


“(other than the Note Documents, this
Agreement, any other Loan Document or the New Headquarters Lease Guaranty)”


 


6.                                       Amendments
to Schedules.  New Schedule 1.04
and Schedule 1.05 are hereby added to the Credit Agreement in the form
of Schedule 1.04 and Schedule 1.05 attached hereto.  Schedules 5.06, 5.13, 5.17,
5.18(c) and 5.24 are hereby amended in the manner indicated
on Schedules 5.06, 5.13, 5.17, 5.18(c) and
5.24, respectively, attached hereto.


 


7.                                       Ratification
of Loan Documents.  Except as otherwise
expressly provided herein, all terms and conditions of the Credit Agreement and
the other Loan Documents remain in full force and effect.  The Loan Parties hereby ratify, confirm, and
reaffirm that all representations and warranties of the Loan Parties contained
in the Credit Agreement or any other Loan Document are true and correct in all
material respects on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date.


 


8.                                       Conditions
to Effectiveness.  This First
Amendment shall not be effective until each of the following conditions
precedent has been fulfilled to the reasonable satisfaction of the
Administrative Agent:


 


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(a)                                  The
Administrative Agent shall have received counterparts of this First Amendment
duly executed and delivered by each of the parties hereto.


 


(b)                                 The
Administrative Agent shall have received a copy of the First Amendment to Note
Purchase Agreement duly executed by each of the parties thereto.


 


(c)                                  The
Administrative Agent shall have received and be satisfied with the Secaucus
Road Lease Termination Agreement and the Emerson Road Lease Termination
Agreement.


 


(d)                                 All
corporate and shareholder action on the part of the Loan Parties necessary for
the valid execution, delivery and performance by the Loan Parties of this First
Amendment shall have been duly and effectively taken and evidence thereof reasonably
satisfactory to the Administrative Agent shall have been provided to the
Administrative Agent.


 


(e)                                  The
Loan Parties shall have paid in full all reasonable costs and expenses of the
Agents (including, without limitation, reasonable attorneys’ fees) in
connection with the preparation, negotiation, execution and delivery of this
First Amendment and related documents.


 


(f)                                    After
giving effect to this First Amendment, no Default or Event of Default shall have
occurred and be continuing.


 


9.                                       Miscellaneous.


 


(a)                                  This
First Amendment may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument.  Delivery of an executed counterpart of a
signature page to this First Amendment by telecopy or other electronic
transmission shall be effective as delivery of a manually executed counterpart
of this First Amendment.


 


(b)                                 This
First Amendment expresses the entire understanding of the parties with respect
to the transactions contemplated hereby. 
No prior negotiations or discussions shall limit, modify, or otherwise
affect the provisions hereof.


 


(c)                                  Any
determination that any provision of this First Amendment or any application
hereof is invalid, illegal or unenforceable in any respect and in any instance
shall not effect the validity, legality, or enforceability of such provision in
any other instance, or the validity, legality or enforceability of any other
provisions of this First Amendment.


 


(d)                                 The
Loan Parties represent and warrant that they have consulted with independent
legal counsel of their selection in connection with this First Amendment and
are 


 


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not relying on any
representations or warranties of the Agents or the Lenders or their counsel in
entering into this First Amendment.


 


(e)                                  THIS
FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


 


[SIGNATURE PAGES FOLLOW]


 


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IN WITNESS WHEREOF, the parties have hereunto caused this First
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.


 


	
   

  	
  THE
  CHILDREN’S PLACE RETAIL STORES, INC., as Lead Borrower and as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan J.
  Riley

  
	
   

  	
  Name:

  	
  Susan J.
  Riley

  
	
   

  	
  Title:

  	
  Executive
  Vice President, Finance & Administration

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  CHILDREN’S PLACE SERVICES COMPANY, LLC, as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan J.
  Riley

  
	
   

  	
  Name:

  	
  Susan J.
  Riley

  
	
   

  	
  Title:

  	
  Executive
  Vice President, Finance & Administration

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  CHILDRENSPLACE.COM, INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adrienne
  Urban

  
	
   

  	
  Name:

  	
  Adrienne
  Urban

  
	
   

  	
  Title:

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE CHILDREN’S
  PLACE (VIRGINIA), LLC, as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan J.
  Riley

  
	
   

  	
  Name:

  	
  Susan J.
  Riley

  
	
   

  	
  Title:

  	
  Senior Vice
  President and Treasurer

  
				



 


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  THE
  CHILDREN’S PLACE CANADA HOLDINGS, INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: :

  	
  /s/ Susan J.
  Riley

  
	
   

  	
  Name:

  	
  Susan J.
  Riley

  
	
   

  	
  Title:

  	
  Senior Vice President
  and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TWIN BROOK
  INSURANCE COMPANY, INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: :

  	
  /s/ Susan J.
  Riley

  
	
   

  	
  Name:

  	
  Susan J.
  Riley

  
	
   

  	
  Title:

  	
  Senior Vice
  President and Treasurer

  
				



 


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  WELLS FARGO
  RETAIL FINANCE, LLC, as Administrative Agent, Collateral Agent, Swingline
  Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer
  Blanchette

  
	
   

  	
  Name:

  	
  Jennifer
  Blanchette

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff
  Ryan

  
	
   

  	
  Name:

  	
  Jeff Ryan

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HSBC
  BUSINESS CREDIT (USA) INC., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  J. Williams

  
	
   

  	
  Name:

  	
  Daniel J.
  William

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Donna DiFiori

  
	
   

  	
  Name:

  	
  Donna
  DiFiori

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


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