Unassociated Document


    THIRD
      AMENDMENT TO    

    FOURTH
      AMENDED AND RESTATED 

    
      	
              LOAN
                AND SECURITY AGREEMENT

            	
                
                    WELLS
                FARGO RETAIL FINANCE, LLC,
                Agent

            


    

    
      

    

    
      

    

    July
      29,
      2005

     

    THIS
      THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
      (this
“Third
      Amendment”)
      is
      made in consideration of the mutual covenants contained herein and benefits
      to
      be derived herefrom to the Fourth Amended and Restated Loan and Security
      Agreement (the “Loan
      Agreement”)
      dated
      October 30, 2004 and effective as of October 31, 2004 among The Children’s Place
      Retail Stores, Inc. (the “Parent”)
      and
      each of the Parent’s Subsidiaries identified on the signature pages thereto
      (such Subsidiaries, together with Parent, are referred to hereinafter
      individually and collectively, jointly and severally, as the “Borrowers”),
      with
      each of their chief executive offices located at 915 Secaucus Road, Secaucus,
      New Jersey 07094, on the one hand, and the financial institutions listed
      on
      the signature pages thereto (such financial institutions, together with their
      respective successors and assigns, are referred to hereinafter each individually
      as a "Lender"
      and
      collectively as the "Lenders"),
      and
      Wells Fargo Retail Finance, LLC, as Agent, Wachovia Capital Finance Corporation
      (New England) formerly known as Congress Financial Corporation (New England),
      as
      Documentation Agent, and LaSalle Retail Finance, a Division of LaSalle Business
      Credit, LLC, as Co-Agent, on the other hand.

     

    Background:

     

    The
      Borrowers and the Lenders previously amended the Loan Agreement pursuant to
      a
      certain First Amendment dated December 31, 2004 and a Second Amendment dated
      April 12, 2005. At this time, the Borrowers and the Lenders desire to further
      amend the Loan Agreement. Accordingly, it is hereby agreed by and between the
      Borrowers and the Lenders, as follows:

     

    1. Amendment
      to Article 1 of Loan Agreement:
      The
      following definitions are hereby amended to read as follows:

     

    “Overadvance
      Amount”
      means
      up to $20,000,000.00 at any one time outstanding.

     

    "Temporary
      Overadvance Facility"
      means a
      temporary revolving credit facility to be maintained by the Lenders listed
      on
      Schedule 2.1(b) hereto for the benefit of the Borrowers in an amount up to
      the
      Overadvance Amount, as set forth in Section 2.1(b). 

     

    2. Amendment
      to Article 2 of Loan Agreement:
      Section
      2.1(b) of the Loan Agreement is amended to read as follows:

     

    (b) Temporary
      Overadvance.
      Subject
      to the terms and conditions of this Agreement, in addition to the Advances
      to be
      made pursuant to Section 2.1(a), above, the Lenders listed on Schedule 2.1(b)
      hereto agree to make Advances (based on the percentages for each Lender listed
      on Schedule 2.1(b)), to Borrowers in an amount at any one time outstanding
      not
      to exceed an amount equal to the Overadvance Amount less
      the
      aggregate amount of all Advances outstanding under the Temporary Overadvance
      Facility. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (i) The
      Temporary Overadvance Facility shall be in place, effective, and available
      to
      the Borrower for the making of Advances thereunder commencing upon the execution
      of this Agreement through October 31, 2005. 

     

    (ii) Advances
      under the Temporary Overadvance Facility shall be made upon request by the
      Borrowers, in accordance with Section 2.1(e), below, and shall be available
      in
      up to three (3) tranches, the first two (2) in the amount of $7,000,000.00
      each,
      and the last in the amount of $6,000,000.00.

     

    (iii) Advances
      under the Temporary Overadvance Facility shall be secured by the Collateral
      and
      shall constitute Advances and Obligations hereunder. During the time that
      advances are outstanding under the Temporary Overadvance Facility, interest
      shall accrue on the aggregate outstanding balance of the Temporary Overadvance
      Facility at the LIBOR Rate plus 4.00 percent per annum. 

     

    (iv) The
      Borrowers shall pay to the Agent, for the pro rata benefit of each of the
      Lenders listed on Schedule 2.1(b), a fee in connection with the Temporary
      Overadvance Facility in the amounts, and at the times set forth in that certain
      Fee Letter of even date entered into by and between the Agent and the
      Borrowers.

     

    (v) At
      all
      times that the Temporary Overadvance Facility is outstanding, the Borrowers
      shall submit to the Agent by 11:00 a.m. (Boston time) on Tuesday of each week,
      an updated Borrowing Base Certificate as of the close of business on the prior
      Saturday. 

     

    (vi) All
      Obligations outstanding under the Temporary Overadvance Facility shall be paid
      in full in immediately available funds, without demand, notice, or protest,
      on
      or before 5:00 p.m. (Boston time) on October 31, 2005.

     

    3. Ratification
      of Loan Documents. No Claims against the Lenders:

     

    (a) Except
      as
      provided herein, all terms and conditions of the Loan Agreement and of each
      of
      the other Loan Documents remain in full force and effect. The Borrowers hereby
      ratify, confirm, and re-affirm all terms and provisions of the Loan
      Documents.

     

    (b) The
      Borrowers acknowledge and agree that there is no basis nor set of facts on
      which
      any amount (or any portion thereof) owed by the Borrowers under any Loan
      Document could be reduced, offset, waived, or forgiven, by rescission or
      otherwise; nor is there any claim, counterclaim, off set, or defense (or other
      right, remedy, or basis having a similar effect) available to the Borrowers
      with
      regard thereto; nor is there any basis on which the terms and conditions of
      any
      of the Obligations could be claimed to be other than as stated on the written
      instruments which evidence such Obligations.

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    (c) The
      Borrowers hereby acknowledge and agree that the Borrowers have no offsets,
      defenses, claims, or counterclaims against the Lenders, or their respective
      officers, directors, employees, attorneys, representatives, predecessors,
      successors, or assigns with respect to the Obligations, or otherwise, and that
      if the Borrowers now have, or ever did have, any offsets, defenses, claims,
      or
      counterclaims against the Lenders, or their respective officers, directors,
      employees, attorneys, representatives, predecessors, successors, and assigns,
      whether known or unknown, at law or in equity, from the beginning of the world
      through this date and through the time of execution of this Third Amendment,
      all
      of them are hereby expressly WAIVED,
      and the
      Borrowers hereby RELEASE
      the
      Lenders, and their respective officers, directors, employees, attorneys,
      representatives, predecessors, successors, and assigns from any liability
      therefor. 

     

    4. Miscellaneous:

     

    (a) Terms
      used in this Third Amendment which are defined in the Loan Agreement are used
      as
      so defined.

     

    (b) This
      Third Amendment may be executed in counterparts, each of which when so executed
      and delivered shall be an original, and all of which together shall constitute
      one agreement.

     

    (c) This
      Third 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.

     

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

     

    (e) The
      Borrowers shall pay on demand all costs and expenses of the Lenders, including,
      without limitation, attorneys’ fees incurred by the Lenders in connection with
      the preparation, negotiation, execution, and delivery of this Third
      Amendment.

     

    (f) In
      connection with the interpretation of this Third Amendment and all other
      documents, instruments, and agreements incidental hereto:

     

    (i) All
      rights and obligations hereunder and thereunder, including matters of
      construction, validity, and performance, shall be governed by and construed
      in
      accordance with the law of the State of California and are intended to take
      effect as sealed instruments.

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

    (ii) The
      captions of this Third Amendment are for convenience purposes only, and shall
      not be used in construing the intent of the Lenders and the Borrowers under
      this
      Third Amendment.

     

    (iii) In
      the
      event of any inconsistency between the provisions of this Third Amendment and
      any of the other Loan Documents or other agreements entered into by and between
      the Lenders and the Borrowers, the provisions of this Third Amendment shall
      govern and control.

     

    (g) The
      Lenders and the Borrowers have prepared this Third Amendment and all documents,
      instruments, and agreements incidental hereto with the aid and assistance of
      their respective counsel. Accordingly, all of them shall be deemed to have
      been
      drafted by the Lenders and the Borrowers and shall not be construed against
      either party.

     

    [Signatures
      Follow]

     


    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    


    THE
      CHILDREN’S PLACE RETAIL STORES, INC.,
      a
      Delaware corporation

    


    


    By: /s/
      Hiten Patel    

    Name: Hiten
      Patel

    Title: Senior
      Vice President,

    Chief
      Financial Officer

    


    THE
      CHILDREN’S PLACE SERVICES COMPANY LLC,
      a
      Delaware limited liability company

    By:  /s/
      Hiten Patel    

    Name: Hiten
      Patel

    Title: Senior
      Vice President,

    Chief
      Financial Officer

    


    WELLS
      FARGO RETAIL FINANCE, LLC, a
      Delaware limited liability company,

    as
      Agent
      and as a Lender

    


    By: /s/
      Erika Pfeifer   

    Name: Erika
      Pfeifer

    Title: Account
      Executive,

    Assistant
      Vice President

     

    WACHOVIA
      CAPITAL FINANCE CORPORATION (NEW ENGLAND), a
      Massachusetts corporation, as Documentation Agent and as a Lender

    


    By: /s/
      Willis A. Williams   

    Name:
      Willis A. Williams

    Title:
      Vice President    

    


    LASALLE
      RETAIL FINANCE,
      

    a
      Division of LaSalle Business Credit, LLC, as Agent for Standard Federal Bank
      National Association

    as
      Co-Agent and as a Lender

    


    By: /s/
      Matthew Potter    

    Name:
      Matthew Potter

    Title:
      Assistant Vice President

    


    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

    WEBSTER
      BUSINESS CREDIT CORP.,

    


    By: /s/
      Evan Israelson   

    Name:
      Evan Israelson  

    Title:
      Vice President

    


    THE
      CIT GROUP/BUSINESS CREDIT, INC.,

    


    By: /s/
      Manuel Borges   

    Name:
      Manuel Borges

    Title:
      Vice President

    



    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

        
        

      

    



    Schedule
      2.1(b)

    


    


    


    
      	
              Lender

            	 	
              Overadvance
                Commitment

            	 	
              Percentage

            
	
              Wells
                Fargo Retail Finance, LLC

            	 	
              $7,000,000

            	 	
              35.0%

            
	
              Wachovia
                Capital Finance Corporation

            	 	
              $5,200,000

            	 	
              26.0%

            
	
              LaSalle
                Retail Finance

            	 	
              $4,000,000

            	 	
              20.0%

            
	
              Webster
                Business Credit Corp.

            	 	
              $1,500,000

            	 	
              7.5%

            
	
              The
                CIT Group/Business Credit, Inc.

            	 	
              $2,300,000

            	 	
              11.5%

            
	
              Total

            	 	
              $20,000,000

            	 	
              100.0%

            


    

    


    


    
      
        
        

      

      
        -7-