LOAN AND SECURITY AGREEMENT WELLS FARGO RETAIL FINANCE, LLC, Agent
THIRD
AMENDMENT TO
FOURTH
AMENDED AND RESTATED
|
XXXXX
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 000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxxxx 00000, 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
Xxxxx 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.
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(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/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: Senior
Vice President,
Chief
Financial Officer
THE
CHILDREN’S PLACE SERVICES COMPANY LLC,
a
Delaware limited liability company
By: /s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: Senior
Vice President,
Chief
Financial Officer
XXXXX
FARGO RETAIL FINANCE, LLC, a
Delaware limited liability company,
as
Agent
and as a Lender
By: /s/
Xxxxx Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: Account
Executive,
Assistant
Vice President
WACHOVIA
CAPITAL FINANCE CORPORATION (NEW ENGLAND), a
Massachusetts corporation, as Documentation Agent and as a Lender
By: /s/
Xxxxxx X. Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
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/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Assistant Vice President
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XXXXXXX
BUSINESS CREDIT CORP.,
By: /s/
Xxxx Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title:
Vice President
THE
CIT GROUP/BUSINESS CREDIT, INC.,
By: /s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
-6-
Schedule
2.1(b)
|
Lender
|
Overadvance
Commitment
|
Percentage
|
||
|
Xxxxx
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%
|
||
|
Xxxxxxx
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%
|
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