Exhibit 10.2
EXECUTION COPY
FIRST AMENDMENT AND WAIVER, dated as
of November 16, 2004 (this “ Amendment and Waiver
”), to the Credit Agreement, dated as of June 28, 2002
(as the same may further be amended, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”), among Tommy Hilfiger Corporation, a British Virgin
Islands corporation (“ Holdings ”), Tommy
Hilfiger U.S.A., Inc., a Delaware corporation (the “
Borrower ”), the several banks and other financial
institutions or entities from time to time parties thereto
(collectively, the “ Lenders ”; individually, a
“ Lender ”), and JPMorgan Chase Bank, as
administrative agent for the Lenders (in such capacity, the “
Administrative Agent ”).
W I T N E S
S E T H :
WHEREAS, the Borrower, the Lenders
and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS, the Borrower has requested
that the Lenders waive and amend certain terms in the Credit
Agreement in the manner provided for herein; and
WHEREAS, the Administrative Agent
and the Lenders are willing to agree to the requested waiver and
amendment, on the terms and conditions provided for
herein;
NOW, THEREFORE, in consideration of
the premises contained herein, the parties hereto agree as
follows:
1. Defined Terms . Unless
otherwise defined herein, terms which are defined in the Credit
Agreement and used herein (and in the recitals hereto) as defined
terms are so used as so defined.
2. Amendments of Section 1.1
(Definitions) . Section 1.1 of the Credit Agreement is
hereby amended as follows:
(a) by adding a new proviso to the
end of the definition of “Available Basket” as
follows:
“; provided ,
however , that, notwithstanding anything to the contrary in
this Agreement, during the period from the First Amendment and
Waiver Effective Date until the Borrower and its Subsidiaries and
Holdings and the Holdings Subsidiaries are in compliance with
Sections 6.1(b), 6.2(c) and 6.2(d) (other then any requirement that
any report, certificate or other item be delivered within 45 days
after the end of the fiscal quarter ended September 30, 2004)
and Section 6.2(b), the Available Basket may only be used for
acquisition investments pursuant to Section 7.7(g), and the
aggregate acquisition investments made pursuant to 7.7(f) and
(g) during such period may not exceed $50,000,000 unless
otherwise agreed by the Required Lenders ( provided , that
such acquisition investments shall not be made in or with any
Unrestricted Subsidiary); provided , that any such
acquisition investments shall not be made in or with any
Unrestricted Subsidiary and provided , further , that
any Investments made prior to the First Amendment and Waiver
Effective Date shall not be so limited.”
(b) by adding thereto the following
definitions in the appropriate alphabetical order:
“ Adjusted Current
Assets ”: any and all cash, Cash Equivalents, accounts
receivable and inventory of Holdings and the Holdings
Subsidiaries.
“ Adjusted Current
Liabilities ”: all current liabilities of Holdings and
the Holdings Subsidiaries determined on a consolidated basis in
accordance with GAAP, all outstanding Indebtedness under the Senior
Note Indenture and all outstanding Obligations.
“ First Amendment and
Waiver ”: the First Amendment and Waiver, dated as of
November 16, 2004, to this Agreement.
“ First Amendment and
Waiver Effective Date ”: November 15,
2004.
“ Liquidity ”:
Adjusted Current Assets minus Adjusted Current
Liabilities.
3. Waiver of
Section 8(d). The Lenders hereby waive compliance with
Section 8(d) of the Credit Agreement until March 15, 2005
solely to the extent that a Default or Event of Default is caused
by the failure of Holdings and the Borrower to comply with the
requirements of Section 6.1(b) of the Credit Agreement with
respect to the fiscal quarter of Holdings ended
September 30,2004.
4. Waiver of
Section 8(e). The Lenders hereby waive compliance, until
March 15, 2005, by Holdings and any of its Subsidiaries with
Section 8(e)(iii) of the Credit Agreement solely with respect
to Section 704 of the Senior Note Indenture, provided,
that such waiver shall automatically expire if any Indebtedness
under the Senior Note Indenture is declared due and payable as a
result of any failure to comply with said
Section 704.
5. Amendment to
Section 6.2. Section 6.2 of the Credit Agreement is
hereby amended by:
(a) inserting at the end of
paragraph (b) the following new proviso:
“ provided , that,
during the period from the First Amendment and Waiver Effective
Date until March 15, 2005, each of Holdings and
