ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
This ELEVENTH AMENDMENT TO CREDIT AGREEMENT
(this “ Amendment ”), dated as of July 31, 2009,
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,
and (x) that certain Tenth Amendment to Credit Agreement dated as
of August 8, 2008 (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, the Credit Agreement
shall be amended as follows:
(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 Tenth 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/ Letters of
Credit (%)
|
Base Rate Loans (%)
|
|
1
|
> 3.00:1.00
|
0.500
|
1.500
|
0.250
|
|
2
|
> 2.50:1.00 but <
3.00:1.00
|
0.400
|
1.250
|
0.000
|
|
3
|
> 2.00:1.00 but <
2.50:1.00
|
0.300
|
1.000
|
0.000
|
|
4
|
< 2.00:1.00
|
0.200
|
0.750
|
0.000
|
and (b) at all
times from and after the Tenth Amendment Date until the Eleventh
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/ Letters of
Credit (%)
|
Base Rate Loans (%)
|
|
1
|
> 3.00:1.00
|
0.600
|
1.750
|
0.250
|
|
2
|
> 2.50:1.00 but <
3.00:1.00
|
0.500
|
1.500
|
0.000
|
|
3
|
> 2.00:1.00 but <
2.50:1.00
|
0.400
|
1.250
|
0.000
|
|
4
|
< 2.00:1.00
|
0.300
|
1.000
|
0.000
|
and (c) at all
times from and after the Eleventh 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/ Letters of
Credit (%)
|
Base Rate Loans (%)
|
|
1
|
> 3.00:1.00
|
0.650
|
3.000
|
0.750
|
|
2
|
> 2.50:1.00 but <
3.00:1.00
|
0.550
|
2.500
|
0.500
|
|
3
|
> 2.00:1.00 but <
2.50:1.00
|
0.450
|
2.250
|
0.250
|
|
4
|
< 2.00:1.00
|
0.350
|
2.000
|
0.000
|
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) Section 1.01 shall be further
amended by adding the following definition, in appropriate
alphabetical order:
“ Applicable SLC Rate ” means
one-half the Applicable Rate for Letters of Credit.
(c) Section 1.01 of the Credit Agreement
shall be amended by amending and restating “Consolidated
Adjusted Leverage Ratio” to read in full as
follows:
“ Consolidated Adjusted Leverage
Ratio ” means, (a) as determined as of any date
prior to August 1, 2009, the ratio of (i) Consolidated Funded
Indebtedness as of such date plus six (6) times the amount
of Lease Expenses for the Subject Period to
(ii) Consolidated Adjusted EBITDAR for the Subject Period and
(b) as determined as of August 1, 2009 or thereafter, the
ratio of (i) Consolidated Funded Indebtedness as of such date
plus eight (8) times the amount of Lease Expenses for the
Subject Period to (ii) Consolidated Adjusted EBITDAR for the
Subject Period.
(d) Section 1.01 of the Credit Agreement
shall be further amended by adding the definition “Eleventh
Amendment Date”, in appropriate alphabetical order, to read
as follows:
“ Eleventh Amendment Date ”
means the “Effective Date” as defined in that Eleventh
Amendment to Credit Agreement dated as of July 31, 2009 among the
Borrowers and the Lender.
(e) Section 1.01 of the Credit Agreement
shall be further amended by amending and restating “Scheduled
Maturity Date” to read in full as follows:
“ Scheduled Maturity Date ”
means September 1, 2010.
(f) Section 1.01 of the Credit Agreement
shall be further amended by placing the following definitions in
appropriate alphabetical order: “ Consolidated EBITDA
”, “ Guarantee ”, “
Standby L/C Obligations ” and “ Subject
Period ”.
(g) Section 2.03(a)(ii)(B) and (E)
of the Credit Agreement shall each be amended by replacing the
words “90 days” with “180 days”.
(h) Section 2.03(h)(i) of the Credit
Agreement shall be amended and restated to read in full
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 SLC 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 SLC Rate during any quarter, the daily maximum amount of
each Letter of Credit shall be computed and multiplied by the
Applicable SLC Rate separately for each period during such quarter
that such Applicable SLC Rate was in effect. Such fees
shall be fully earned when paid and are non-refundable.
(i) Section 2.12 of the Credit Agreement
shall be amended and restated to read in full as
follows:
2.12 Option to Increase Commitment
. From and after the
Tenth Amendment Date, the Company may, upon written notice to the
Lender, on not more than two occasions, request an increase in the
Commitment by up to $20,000,000 in the aggregate. Upon
approval of such request by the Lender, in its sole discretion, the
Commitment shall be increased by the amount specified in such
notice, not to exceed $20,000,000 in the aggregate for all such
requests together, effective as of the date specified in such
request (not to be earlier than three Business Days after the
date
