Exhibit 10.46
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") dated as of
August 9, 2007 among:
Wells Fargo Retail Finance, LLC (in such capacity, herein the "Agent"), a
Delaware limited liability company with offices at One Boston Place -
19th Floor, Boston, Massachusetts 02109, as agent for the ratable benefit of the
"Revolving Credit Lenders", who are, at present, those financial institutions
identified on the signature pages of this Amendment and who in the future are
those Persons (if any) who become "Revolving Credit Lenders" in accordance with
the provisions of Article 17 of the Loan Agreement described below;
and
The Revolving Credit Lenders;
and
Hoop Retail Stores, LLC, a Delaware limited liability company with its principal
executive offices at c/o The Children's Place Retail Stores, Inc., 915 Secaucus
Road, Secaucus, New Jersey 07094 (as successor in interest to The Disney Store,
LLC, a California limited liability company) (the "Borrower"),
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
BACKGROUND:
The Borrower, the Revolving Credit Lenders, and the Agent, among others, have
entered into a certain Loan and Security Agreement dated as of November 21, 2004
as amended by that certain First Amendment to Loan and Security Agreement dated
as of April 11, 2006 and by that Second Amendment to Loan and Security Agreement
dated as of June 28, 2007 (as amended and in effect, the "Loan Agreement").
At
this time, the Borrower and the Revolving Credit Lenders desire to amend and
modify certain terms and provisions of the Loan Agreement.
NOW THEREFORE, in consideration of the mutual promises and agreements herein
contained, the parties hereto hereby agree that subject to the satisfaction of
the Conditions Precedent set forth in Section 3 hereof, the Loan Agreement is
hereby amended as follows:
1.
INCORPORATION OF TERMS AND CONDITIONS OF
LOAN AGREEMENT.
ALL OF THE TERMS AND CONDITIONS OF THE LOAN AGREEMENT
(INCLUDING, WITHOUT LIMITATION, ALL DEFINITIONS SET FORTH THEREIN) ARE
SPECIFICALLY INCORPORATED HEREIN BY REFERENCE.
ALL CAPITALIZED TERMS NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE SAME MEANING AS IN THE LOAN AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES.
THE
BORROWER HEREBY REPRESENTS AND WARRANTS THAT, (I) EXCEPT AS THE AGENT MAY HAVE
EXPRESSLY WAIVED IN WRITING PRIOR TO THE DATE OF THIS AMENDMENT, THE BORROWER IS
NOT IN DEFAULT UNDER THE LOAN AGREEMENT OR UNDER ANY OTHER LOAN DOCUMENT, AND
(II) EXCEPT WITH RESPECT TO THOSE REPRESENTATIONS AND WARRANTIES WHICH ARE BASED
UPON WRITTEN DISCLOSURE SCHEDULES (WHICH HAVE NOT BEEN UPDATED AS OF THE DATE OF
THIS AMENDMENT), ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, ARE TRUE AND CORRECT
AS OF THE DATE HEREOF.
3.
CONDITIONS PRECEDENT.
IT SHALL BE A
CONDITION TO THE EFFECTIVENESS OF THIS AMENDMENT THAT THE FOLLOWING SHALL BE
SATISFIED TO THE SATISFACTION OF THE AGENT:
A.
THE AGENT SHALL HAVE RECEIVED
COUNTERPARTS OF THIS AMENDMENT DULY EXECUTED BY EACH OF THE PARTIES HERETO;