EXHIBIT 10.2


 


THIRD AMENDMENT TO CREDIT AGREEMENT


 


This Third Amendment to Credit Agreement (this “Third Amendment”)
is made as of this 29th day
of July, 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; and


 


WHEREAS, the Lead Borrower has informed the Agent that it intends to
prepay certain Indebtedness and repurchase certain of its capital stock and has
requested that the Agents and the Required Lenders waive certain provisions of
the Credit Agreement with respect to such prepayment and repurchase, and the
Agents and the Required Lenders are willing to waive such provisions subject to
the terms and conditions set forth herein; and


 


WHEREAS, the Loan Parties, the Agents and the Lenders have
agreed 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 by
adding the following new definitions thereto in appropriate alphabetical order as
follows:


 


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“2009 Capital Stock Repurchase” means that certain repurchase by
the Lead Borrower of 2,451,315 shares of common stock of the Lead Borrower from
Ezra Dabah and the other Sellers party to the 2009 Capital Stock Repurchase
Agreement.


 


“2009 Capital Stock Repurchase Agreement” means that certain
Securities Purchase Agreement dated as of July 29, 2009 by and between the
Lead Borrower, Ezra Dabah and the other Sellers party thereto.


 


“Applicable Commitment Fee Percentage” means the applicable
percentage set forth in the grid below:


 


	
  Average daily Total

  Outstandings for the

  immediately preceding month

  	
   

  	
  Applicable Commitment Fee

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to $100,000,000

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than $100,000,000

  	
   

  	
  0.75

  	
  %

  



 


3.                                       Amendment to Article II. 
The provisions of Section 2.09(a) of the Credit Agreement are
hereby amended by deleting “0.25%” on the third line thereof and by adding “the
Applicable Commitment Fee Percentage” in its stead.


 


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


 


(a)                                  Section 7.06 of the Credit Agreement
is hereby amended by deleting “and” at the end of clause (c) thereof, by
relettering clause (d) as clause (e), and by adding the following new
clause (d) thereto:


 


“(d)         the Lead Borrower may make the 2009
Capital Stock Repurchase consummated in accordance with the terms and
conditions of the 2009 Capital Stock Repurchase Agreement; provided that,
no proceeds received from any Credit Extensions shall be used to make the 2009
Capital Stock Repurchase; and provided further that all shares of stock
repurchased by the Lead Borrower pursuant to the 2009 Capital Stock Repurchase
Agreement shall be permanently retired by the Lead Borrower.  As a result of the foregoing consent, the
Agents and the Lenders hereby confirm that no Event of Default shall have
occurred under Section 8.01(s) of the Credit Agreement as a result of
the occurrence of any “Event of Default” under the Note Documents due to the
Lead Borrower’s entering into the 2009 Capital Stock Repurchase Agreement and
performing its 


 


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obligations thereunder,
so long as the 2009 Capital Stock Repurchase is consummated and the Note
Obligations are prepaid in full on or before August 3, 2009.”


 


(b)                                 Section 7.18 of the Credit Agreement
is hereby amended by deleting “and” at the end of clause (a) thereof, by
deleting the period at the end of clause (b) thereof and by substituting “;
and” in its stead, and by adding the following new clause (c) thereto:


 


“(c)         the
Lead Borrower may receive intercompany transfers outside the ordinary course of
business from its Affiliates in Canada, Asia and/or Puerto Rico in an amount
not to exceed $80,000,000 and may apply the proceeds of such transfers to make
the 2009 Capital Stock Repurchase in accordance with Section 7.06(d) hereof.”


 


5.                                       Consent to Prepayment of Note Obligations.  Section 7.07(b) of
the Credit Agreement provides, among other things, that (a) as long as the
Payment Conditions are satisfied, the Borrowers may make repayments or
prepayments of the Note Obligations in an aggregate amount not to exceed
$20,000,000.00 in any Fiscal Year, and (b) as long as (i) the Payment
Conditions are satisfied and (ii) no proceeds of any Credit Extension are
being used to finance all or any portion of such repayment or prepayment, the
Borrowers may make other repayments or prepayments of the Note Obligations in
an aggregate amount in excess of $20,000,000.00 in any Fiscal Year.  The Borrowers have requested that,
notwithstanding the provisions of Section 7.07(b) of the Credit
Agreement to the contrary, the Agent and the Lenders permit the Borrowers to
use the proceeds from Credit Extensions in an amount not to exceed $15,000,000
to prepay the entire outstanding amount of the Note Obligations.  The Borrowers hereby represent and warrant to
the Agents and the Lenders that the Borrowers have met all other conditions (including,
without limitation, the Payment Conditions) set forth in Section 7.07(b) of
the Credit Agreement for the prepayment of the entire outstanding amount of the
Note Obligations (other than the condition requiring that the certificate
required by such Section 7.07(b) be delivered five (5) days
prior to the making of such payment, which five (5) day period is hereby
waived).  Pursuant to the foregoing
representation and warranty of the Borrowers, subject to the conditions set
forth in Section 7 of this Third Amendment, the Agents and the Required
Lenders hereby consent to the prepayment in full of the Note Obligations, and
hereby agree that, notwithstanding anything to the contrary set forth in Section 7.07(b) of
the Credit Agreement, as long as the Payment Conditions have been satisfied,
the Borrowers may use the proceeds from Credit Extensions in an amount not to
exceed $15,000,000 to prepay the entire outstanding amount of the Note
Obligations;   provided that such prepayment shall be
made on or before August 3, 2009; and provided further that the
Administrative Agent shall have received a payoff letter from the Note
Purchasers acknowledging and agreeing that upon such prepayment, the Note
Obligations and all other obligations of the Loan Parties under the Note
Purchase Agreement shall be paid and satisfied in full, the Note Purchase 


 


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Agreement, and all
documents and agreements executed in connection therewith, shall be terminated
and of no further force and effect, the Lien of the Note Purchasers on, and
security interest in, the assets of the Loan Parties’ shall be released and the
Note Purchasers shall have delivered to the Collateral Agent stock
certificates, stock powers and other Note Purchasers Priority Collateral in the
possession of the Note Purchasers.


 


6.                                       Ratification of Loan Documents; Waiver of
Claims.


 


(a)                                  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, as modified by the revised schedules to the Credit
Agreement to be delivered within ten (10) Business Days after the date
hereof, 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.


 


(b)                                 Each of the Loan Parties hereby
acknowledges and agrees that there is no basis or set of facts on the basis of which
any amount (or any portion thereof) owed by the Loan Parties under the Loan
Documents could be reduced, offset, waived, or forgiven, by rescission or
otherwise; nor is there any claim, counterclaim, offset, or defense (or other
right, remedy, or basis having a similar effect) available to the Loan Parties
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.


 


(c)                                  Each of the Loan Parties hereby
acknowledges and agrees that it has no offsets, defenses, claims, or
counterclaims against the Agents or any Lender, or any of their respective
affiliates, predecessors, successors, or assigns, or any of their respective
officers, directors, employees, attorneys, or representatives, with respect to
the Obligations, or otherwise, and that if the any Loan Party now has, or ever
did have, any offsets, defenses, claims, or counterclaims against the Agents or
any Lender, or their respective affiliates, predecessors, successors, or
assigns, or their respective officers, directors, employees, attorneys, or representatives,
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 each of the Loan Parties hereby RELEASES
the Agents and each Lender and their respective officers, directors, employees,
attorneys, representatives, affiliates, predecessors, successors, and assigns
from any liability therefor.


 


7.                                       Conditions to Effectiveness.  This
Third Amendment and the consent of the Administrative Agent and the Required
Lenders set forth in Section 5 above shall not be 


 


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effective until
each of the following conditions precedent has been fulfilled to the reasonable
satisfaction of the Administrative Agent:


 


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


 


(b)                                 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 Third 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.


 


(c)                                  The Administrative Agent shall have
received evidence satisfactory to the Administrative Agent that the Loan
Parties have met the Payment Conditions required to prepay the Note Obligations
pursuant to Section 7.07(b) of the Credit Agreement.


 


(d)                                 The Administrative Agent shall have
reviewed and be satisfied with the 2009 Capital Stock Repurchase Agreement.


 


(e)                                  The Loan Parties shall have paid to the
Administrative Agent, for the account of the Lenders entering into this Third
Amendment, an amendment fee equal to 0.50% of the amount of the Commitment of
each such Lender.


 


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


 


8.                                       Post Closing Obligation.  Contemporaneously
with the closing of the 2009 Capital Stock Repurchase, but in any event on or
before August 3, 2009, the Loan Parties shall deliver to the
Administrative Agent an opinion of counsel to the Loan Parties reasonably
acceptable to the Administrative Agent covering the representations and
warranties of the Lead Borrower set forth in Section 2.2(a), (b) and (c) of
the 2009 Capital Stock Repurchase Agreement in all material respects.


 


9.                                       Miscellaneous.


 


(a)                                  This Third 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 Third
Amendment by telecopy or other electronic transmission shall be effective as
delivery of a manually executed counterpart of this Third Amendment.


 


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(b)                                 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.


 


(c)                                  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 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 Third Amendment.


 


(d)                                 The Loan Parties represent and warrant
that they have consulted with independent legal counsel of their selection in
connection with this Third Amendment and are not relying on any representations
or warranties of the Agents or the Lenders or their counsel in entering into
this Third Amendment.


 


(e)                                  The Loan Parties shall pay 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 Third Amendment and related documents.  The Loan Parties hereby acknowledge and agree
that the Administrative Agent may charge the Loan Account to pay such costs and
expenses.


 


(f)                                    THIS THIRD 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 Third
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

  



 


S-1

















 


	
   

  	
  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

  



 


S-2

















 


	
   

  	
  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/ Kathleen DiMock

  
	
   

  	
  Name: Kathleen DiMock

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel J. Williams

  
	
   

  	
  Name: Daniel J. Williams

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Larry Favre

  
	
   

  	
  Name: Larry Favre

  
	
   

  	
  Title: Senior Vice
  President

  



 


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