Exhibit 10.75
SECOND AMENDMENT TO NOTE PURCHASE
AGREEMENT
This SECOND AMENDMENT TO NOTE
PURCHASE AGREEMENT (this “ Amendment ”),
dated as of March 31, 2009 (the “ Effective Date
”), is by and among The Children’s Place Retail
Stores, Inc. (the “ Issuer ”), a
corporation incorporated under the laws of Delaware, the parties
listed as Guarantors on the signature pages to the Note
Purchase Agreement (as defined below) (the “
Guarantors ”, collectively with the Issuer, the
“ Note Parties ”, and each such Person a “
Note Party ”), Sankaty Advisors, LLC as collateral
agent (the “ Agent ”), Crystal Capital Fund
Management, L.P. as syndication agent, and each Note Purchaser
listed on Schedule I attached to the Note Purchase Agreement,
relating to the Note Purchase Agreement (collectively, the “
Note Purchasers ”), dated as of July 31, 2008 (as
amended, restated, supplemented or otherwise modified and in effect
from time to time, the “ Note Purchase
Agreement ”), among the Note Parties, the Note
Purchasers from time to time party thereto, and the Agent.
Terms used but not defined herein shall have the meanings ascribed
to such terms in the Note Purchase Agreement.
WHEREAS , under the Issuer’s Amended and Restated
2005 Equity Incentive Plan, associates of the Issuer, including
executive officers, and directors are awarded, as part of their
compensation, deferred shares and in certain limited circumstances,
restricted shares.
WHEREAS , when these deferred shares vest, or (absent an
election to be taxed at the time of grant under
Section 83(b) of the Code) the restrictions lapse, the
associate recognizes ordinary income which is subject to income and
employment withholding taxes.
WHEREAS , if the associate is not able, either by reason
of a restriction against trading imposed on the associate by the
federal securities laws or (in certain limited circumstances by
reason of restrictions imposed by contract), to sell those shares
to cover his or her tax withholding obligations, the Issuer may
withhold a number of the shares that would otherwise be delivered
or for which the restrictions would lapse having a value equivalent
to the amount of the required tax withholding.
WHEREAS , the Issuer retires the shares withheld and
remits a cash amount to the government in an amount equivalent to
the fair market value, as determined by the board of directors of
the Issuer, of the shares withheld in respect of the applicable
withholding amount;
WHEREAS , the Agent considers each such payment to be a
Restricted Payment under Section 8.6.3 of the Note Purchase
Agreement and wishes to amend the Note Purchase Agreement permit
certain payments of such type, to the extent hereinafter set
forth;
NOW THEREFORE
, in consideration of the mutual
agreements contained in the Note Purchase Agreement and herein and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
§1.
Amendment. Effective as of July 31, 2008, upon
satisfaction of the conditions precedent set forth in §2
hereof, and in reliance upon the representations and warranties of
the Note Parties set forth in the Note Purchase Agreement and in
this Waiver, the Agent and the Note Purchasers hereby :
(i)
amend Section 8.6.3 of the Note
Purchase Agreement by adding a new subsection 8.6.3.5 to read in
its entirety as follows:
8.6.5.
The Issuer may make Withholding Tax
Payments in Fiscal Year 2008 in an amount not to exceed $650,000 in
connection with the Withholding Share Retirement of Plan
Shares.
(ii)
add, in appropriate alphabetical
position, the following new definitions to Annex I of the Note
Purchase Agreement:
“ Deferred Shares
” means shares of capital stock of the Issuer awarded to a
Plan Participant pursuant to the Equity Incentive Plan with respect
to which the interest of such Plan Participant vests over
time.
“ Equity Incentive Plan
” means the Issuer’s Amended and Restated 2005 Equity
Incentive Plan, as amended from time to time.
“ Incentive Plan Tax
Event ” means the recognition by a Plan Participant of
ordinary income which is subject to income and employment
withholding taxes by reason of either (i) the lapse of
restrictions on Restricted Shares with respect to which the Plan
Participant has not made an election to be taxed at the time of
grant under Section 83(b) of the Code or (ii) the
vesting of Deferred Shares.
“ Incentive Plan Tax
Liability ” means the amount of income and employment
withholding taxes due and payable in connection with an Incentive
Plan Tax Event.
“ Plan Participant
” means employees of the Issuer, including executive
officers, and directors of the Issuer.
“ Plan Shares ”
means Deferred Shares and/or Restricted Shares.
“ Restricted Shares
” means shares of capital stock of the Issuer awarded to a
Plan Participant pursuant to the Equity Incentive Plan which are
subject to restrictions on their sale by the Plan Participant and
which are not Deferred Shares.
“ Trading Prohibition
” means a prohibition in effect at the time of an Incentive
Plan Tax Event preventing the sale by a Plan Participant of Plan
Shares in order to enable such Plan Participant to discharge
Incentive Plan Tax Liability, which prohibition arises from a
restriction against trading imposed by either the federal
securities laws or by contract.
2
“ Withholding Tax
Payment ” means a cash payment by the Issuer to the
appropriate Governmental Authority in an amount equal to the
Incentive Plan Tax Liability of a Plan Participant made at a time
when a Trading Prohibition affecting such Plan Participant is in
effect.
“ Withholding Share
Retirement ” means the retirement of Plan Shares of a
Plan Participant havi
