TWELFTH AMENDMENT TO CREDIT AGREEMENT
TWELFTH
AMENDMENT TO CREDIT AGREEMENT
This
TWELFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as
of June 4, 2010, is entered into by and among THE GYMBOREE CORPORATION, a
Delaware corporation (the “Company”), each other
Borrower named in the signature pages hereof (together with the Company, each a
“Borrower” and,
collectively, the “Borrowers”), and BANK
OF AMERICA, N.A. (the “Lender”).
RECITALS
A. The
Borrowers and the Lender are parties to a Credit Agreement, dated as of August
11, 2003 as amended by (i) that certain Waiver and First Amendment to Credit
Agreement dated as of December 6, 2004, (ii) that certain Second Amendment to
Credit Agreement dated as of July 25, 2005, (iii) that certain Third Amendment
to Credit Agreement dated as of March 30, 2006, (iv) that certain Fourth
Amendment to Credit Agreement dated as of July 5, 2006, (v) that certain Fifth
Amendment to Credit Agreement dated as of February 7, 2007, (vi) that certain
Sixth Amendment to Credit Agreement dated as of April 24, 2007, (vii) that
certain Seventh Amendment to Credit Agreement dated as of June 12, 2007, (viii)
that certain Eighth Amendment to Credit Agreement dated as of July 31, 2007,
(ix) that certain Ninth Amendment to Credit Agreement dated as of November 21,
2007, (x) that certain Tenth Amendment to Credit Agreement dated as of August 8,
2008 and (xi) that certain Eleventh Amendment to Credit Agreement dated as of
July 31, 2009 (collectively, and as the same may be further amended, restated,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
pursuant to which the Lender has extended certain credit facilities to the
Borrowers.
B. The
Borrowers have requested that the Lender agree to certain amendments to the
Credit Agreement, and the Lender has agreed to such request, subject to the
terms and conditions of this Amendment.
NOW,
THEREFORE, for valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings,
if any, assigned to such terms in the Credit Agreement (as amended hereby). As
used herein, “Amendment Documents”
means this Amendment, the Credit Agreement (as amended by this Amendment), and
each certificate and other document executed and delivered by the Borrowers
pursuant
to
Section 5 hereof.
2. Interpretation. The
rules of interpretation set forth in Sections 1.02, 1.03, 1.04, 1.05, and 1.06
of the Credit Agreement shall be applicable to this Amendment and are
incorporated herein by this reference.
3. Amendments to Credit
Agreement. Subject to the terms and conditions hereof, and with effect
from and after the Effective Date,
(i)
A new definition of “Twelfth Amendment Date” is hereby added to Section
1.01 of the Credit Agreement in the appropriate alphabetical order to read as
follows:
“Twelfth Amendment
Date” means the “Effective Date” as defined in that Twelfth Amendment to
Credit Agreement dated as of June 4, 2010 among the Borrowers and the
Lender.
(ii) Section
7.06(e) of the Credit Agreement shall be amended and restated to read in full as
follows:
(e) the
Company may purchase, redeem or otherwise acquire shares of its capital stock
for cash, in an aggregate amount not to exceed, (i) for all such purchases,
redemptions and other acquisitions together occurring from and after the Second
Amendment Date until the Fifth Amendment Date, the amount of $110,000,000, (ii)
for all such purchases, redemptions and other acquisitions together occurring
from and after the Fifth Amendment Date until the Eleventh Amendment Date, the
amount of $175,000,000, (iii) for all such purchases, redemptions and other
acquisitions together occurring from and after the Eleventh Amendment Date until
the Twelfth Amendment Date, the amount of $75,000,000and (iv) for all such
purchases, redemptions and other acquisitions together occurring from and after
the Twelfth Amendment Date, the amount of $190,000,000; provided, in each
case that after giving effect to such proposed action, no Default would
exist.
4. Representations
and Warranties. Each
Borrower hereby represents and warrants to the Lender as
follows:
(a) No
Default has occurred and is continuing.
(b)
The execution, delivery and performance by the
Borrowers of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, or notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable.
(c)
The Amendment Documents constitute the legal, valid and binding obligations of
the Borrowers party thereto, enforceable against each such Borrower in
accordance with their respective terms, without defense, counterclaim or
offset.
(d)
All representations and warranties of the Borrowers contained in Article V
of the Credit Agreement are true and correct on and as of the Effective Date,
except to the extent that any such representation and warranty specifically
relates to an earlier date, in which case they are true and correct as of such
earlier date.
(e)
Each Borrower is entering into this Amendment on the basis of its own
investigation and for its own reasons, without reliance upon the Lender or any
other Person.
(f)
There has occurred since January 30, 2010 no event or circumstance that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.
(g)
The Obligations of each Borrower under the Credit Agreement and each other Loan
Document are not subject to any defense, counterclaim, set-off, right of
recoupment, abatement or other claim.
5. Effective
Date.
(a)
This Amendment will become effective as of the date shown first above (the
“Effective
Date”), provided each of the conditions precedent set forth in this
Section 5 has been satisfied:
(i)
The Lender shall have received from each Borrower a duly executed original (or,
if elected by the Lender, an executed facsimile copy) counterpart to this
Amendment.
(ii)
The Borrowers shall have paid to the Lender’s counsel, all reasonable attorneys’
fees and expenses incurred by the Lender in connection with the development,
preparation, negotiation and delivery of this Amendment and the other Amendment
Documents.
(b)
From and after the Effective Date, the Credit Agreement is amended as set forth,
herein. Except as expressly amended pursuant hereto, the Credit Agreement shall
remain unchanged and in full force and effect and is hereby ratified and
confirmed in all respects.
6.
Reservation of
Rights. Each Borrower acknowledges and agrees that neither the execution
nor the delivery by the Lender of this Amendment shall (a) be deemed to create a
course of dealing or otherwise obligate the Lender to execute similar amendments
under the same or similar circumstances in the future or (b) be deemed to create
any implied waiver of any right or remedy of the Lender with respect to any term
or provision of any Loan Document (including any term or provision relating to
the occurrence of a Material Adverse Effect).
7.
Miscellaneous.
(a)
Except as herein expressly amended, all terms, covenants and provisions of the
Credit Agreement are and shall remain in full force and effect and all
references therein to such Credit Agreement shall henceforth refer to the Credit
Agreement as amended by this Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Credit Agreement.
(b)
This Amendment shall be binding upon and inure to the benefit of the parties
hereto and thereto and their respective successors and assigns. No third party
beneficiaries are intended in connection with this Amendment.
(c)
THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 9.19, 9.20 and 9.23 OF
THE CREDIT AGREEMENT RELATING TO GOVERNING LAW, VENUE, WAIVER OF RIGHT TO TRIAL
BY JURY AND JUDICIAL REFERENCE, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE
INCORPORATED HEREIN IN FULL.
(d)
This Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument. Each of the parties hereto understands and
agrees that this document (and any other document required herein) may be
delivered by any party hereto or thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and the receipt by the Lender of a
facsimile transmitted document purportedly bearing the signature of a Borrower
shall bind such Borrower with the same force and effect as the delivery of a
hard copy original. Any failure by the Lender to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Lender.
(e)
This Amendment, together with the Credit Agreement, contains the entire and
exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment may not be amended except in
accordance with the provisions of Section 9.01 of the Credit
Agreement. If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(f)
Each Borrower covenants to pay to or reimburse the Lender, upon demand, for all
reasonable fees and expenses incurred in connection with the development,
preparation, negotiation, execution and delivery of this Amendment and the other
Amendment Documents.
(g)
This Amendment shall constitute a “Loan Document” under and as defined in the
Credit Agreement.
[Remainder of page intentionally left
blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
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THE
GYMBOREE CORPORATION,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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GYMBOREE
MANUFACTURING, INC.,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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GYM-XXXX,
INC.,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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GYMBOREE
RETAIL STORES, INC.,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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GYMBOREE
PLAY PROGRAMS, INC.,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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THE
GYMBOREE CORPORATION
TWELFTH
AMENDMENT TO CREDIT AGREEMENT
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GYMBOREE
OPERATIONS, INC.,
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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GYMBOREE,
INC. (CANADA)
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as
a Borrower
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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LENDER:
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BANK
OF AMERICA, N.A., as the Lender
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By:
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Xxxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxxx
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Title:
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Vice
President
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THE
GYMBOREE CORPORATION
TWELFTH
AMENDMENT TO CREDIT AGREEMENT
