THIRTEENTH AMENDMENT TO CREDIT AGREEMENT
THIRTEENTH
AMENDMENT TO CREDIT AGREEMENT
This
THIRTEENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as
of August 24, 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, (xi) that certain Eleventh Amendment to Credit Agreement dated as of July
31, 2009 and (xii) that certain Twelfth Amendment to Credit Agreement dated as
of June 4, 2010 (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,
(a) Section 1.01 of the
Credit Agreement shall be amended by amending and restating the definition
“Applicable Rate” to read in full as follows:
“Applicable Rate”
means, (a) prior to the Thirteenth Amendment Date, the following percentages per
annum, based upon the Consolidated Adjusted Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Lender pursuant to Section 6.02(a) in
conjunction with financial statements provided pursuant to Section 6.01(a) or
(b):
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Pricing
Level
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Consolidated Adjusted
Leverage Ratio
|
Unused Line
Fee (%)
|
Eurodollar Rate Loans/
Letters of Credit (%)
|
Base Rate
Loans (%)
|
||||||||||
|
1
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> 3.00:1.00
|
0.650 | 3.00 | 0.750 | ||||||||||
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2
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> 2.50:1.00 but < 3.00:1.00
|
0.550 | 2.50 | 0.500 | ||||||||||
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3
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> 2.00:1.00 but < 2.50:1.00
|
0.450 | 2.25 | 0.250 | ||||||||||
|
4
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< 2.00:1.00
|
0.350 | 2.00 | 0.000 | ||||||||||
and (b)
at all times from and after the Thirteenth Amendment Date, the following
percentages per annum, based upon the Consolidated Adjusted Leverage Ratio as
set forth in the most recent Compliance Certificate received by the Lender
pursuant to Section
6.02(a) in conjunction with financial statements provided pursuant to
Section 6.01(a)
or (b):
|
Pricing
Level
|
Consolidated Adjusted
Leverage Ratio
|
Unused Line
Fee (%)
|
Eurodollar Rate Loans
(%)
|
Base Rate
Loans (%)
|
Letters of
Credit (%)
|
||||||||||||||
|
1
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> 3.00:1.00
|
0.60 | 3.00 | 0.750 | 1.500 | ||||||||||||||
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2
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> 2.50:1.00 but < 3.00:1.00
|
0.50 | 2.25 | 0.250 | 1.250 | ||||||||||||||
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3
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> 2.00:1.00 but < 2.50:1.00
|
0.40 | 2.00 | 0.000 | 1.125 | ||||||||||||||
|
4
|
< 2.00:1.00
|
0.30 | 1.75 | 0.000 | 1.000 | ||||||||||||||
Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Adjusted Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(a) in
conjunction with financial statements provided pursuant to Section 6.01(a) or
(b); provided, however,
that if a Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level 1 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered.
(b) The
definition of “Applicable SLC Rate” is hereby deleted in its entirety from Section 1.01 of the
Credit Agreement.
(c) Section 1.01 of the
Credit Agreement shall be amended by amending and restating the definition
“Scheduled Maturity Date” to read in full as follows:
“Scheduled Maturity
Date” means September 1, 2011.
(c) A
new definition of “Thirteenth Amendment Date” is hereby added to Section 1.01 of the
Credit Agreement in the appropriate alphabetical order to read as
follows:
“Thirteenth Amendment
Date” means the “Effective Date” as defined in that Thirteenth Amendment
to Credit Agreement dated as of August 24, 2010 among the Borrowers and the
Lender.
(e) Section 2.03(h)(i) of
the Credit Agreement shall be amended to read as follows:
(i) Standby Letters of
Credit. The applicable Borrower shall pay to the Lender a
letter of credit fee for each Standby Letter of Credit equal to the Applicable
Rate times the daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter
of Credit). Such letter of credit fees shall be computed on a quarterly basis in
arrears, and shall be due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Maturity Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Such fees shall be fully earned when
paid and are non-refundable.
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
Lender shall have received from the Company a certificate signed by the
assistant secretary of each Borrower in form and substance satisfactory to the
Lender, and certifying evidence of the authorization of the execution, delivery
and performance by each Borrower of the Amendment Documents to which it is
party.
(iii) The
Lender shall have received such documents and certifications as the Lender may
reasonably require to evidence that each Borrower is duly organized or formed,
validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(iv) The
Borrowers shall have paid (A) to the Lender an upfront fee of 0.10% times the
Commitment, and (B) 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.
(v) The
Lender shall have received, in form and substance satisfactory to it, such
additional approvals, consents, opinions, documents and other information as the
Lender shall request.
(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:
|
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:
|
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:
|
Chief
Financial Officer
|
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GYMBOREE
PLAY PROGRAMS, INC.,
|
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as
a Borrower
|
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By:
|
/s/ Xxxxxxx X. Xxxxxx
|
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Name:
|
Xxxxxxx
X. Xxxxxx
|
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|
Title:
|
Chief
Financial Officer
|
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THE
GYMBOREE CORPORATION
THIRTEENTH
AMENDMENT TO CREDIT AGREEMENT
|
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:
|
Xxxxxxx
X. Xxxxxx
|
||
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Title:
|
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:
|
Xxxxxxx
X. Xxxxxx
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Title:
|
Chief
Financial Officer
|
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LENDER:
|
BANK
OF AMERICA, N.A., as the Lender
|
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By:
|
Xxxxxxx X. Xxxxxxxxx
|
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Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
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Title:
|
Vice
President
|
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THE
GYMBOREE CORPORATION
THIRTEENTH
AMENDMENT TO CREDIT AGREEMENT
