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FIFTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
Fleet Retail Finance Inc.
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
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As of January 1, 2002
THIS FIFTH AMENDMENT is made in consideration of the mutual covenants
contained herein and benefits to be derived herefrom to the August 24, 2000 Loan
and Security Agreement (the "Loan Agreement") between
Fleet Retail Finance Inc., a Delaware corporation with its
principal executive offices at 40 Broad Street, Boston, Massachusetts,
as Administrative Agent and as Collateral Agent for the ratable
benefit of (i) a syndicate of lenders (defined therein as the
"Revolving Credit Lenders") and (ii) Back Bay Capital Funding LLC
(defined therein as the "Term Lender") a Delaware limited liability
company,
and
The Revolving Credit Lenders
and
The Term Lender
On the one hand
and
The Gymboree Corporation, a Delaware corporation with its principal
executive offices at 700 Airport Boulevard, Burlingame, California
94010, as agent for the following and as agent for any other Person
which becomes a Borrower as provided in Section 2: 2-23 of the Loan
Agreement:
The Gymboree Corporation (a Delaware corporation); and Gymboree
Manufacturing, Inc., Gymboree Operations, Inc., Gymboree Play
Programs, Inc., Gymboree Retail Stores, Inc., The Gymboree Stores,
Inc., and Gym-Mark, Inc. (each a California corporation with its
principal executive offices at 700 Airport Boulevard, Burlingame,
California 94010);
on the other,
WITNESSETH:
SECTION 1. AMENDMENT OF LOAN AGREEMENT:
The Loan Agreement is amended as follows:
Section 3-3(b) of the Loan Agreement is amended to read as follows:
(b) At any time after January 1, 2001, the Borrowers may repay all or
a part of the unpaid principal balance of the Term Note provided that each of
the following conditions is satisfied:
(i) Such prepayment is not less than $1 Million.
(ii) All accrued and unpaid interest (other than PIK Interest
which has been capitalized as provided in Section 3: 3-4(a)(ii)) shall be
paid with such prepayment.
(iii) On each of the 30 days prior to the date of such
prepayment, Excess Availability was not less than $20 Million.
(iv) The Borrower shall have provided the Agent with a forecast
for the 12 months next following such prepayment, prepared using a
methodology which is consistent with that used in the preparation of
forecasts provided to FRFI and Term Lender prior to July 31, 2000, which
forecast reflects Availability during the then next following 12 months
which is reasonably acceptable to the Administrative Agent.
(v) No Event of Default shall have occurred.
Section 16-7 of the Loan Agreement is amended to read as follows:
16-7. ACTIONS REQUIRING TERM LENDER CONSENT None of the following may be
made without the Consent of the Term Lender:
(a) Any amendment, modification, or waiver of any provision of Article
3: (entitled "The Term Loan").
(b) Subject to Section 16: 16-7(c), any of the following:
(i) Any amendment, modification, or waiver of any of the
following provisions of this Agreement:
Section Relates To:
------- -----------
6: 6-12(a) : Minimum Excess Availability
16: 16-12 : The BuyOut
(ii) Any amendment to this Agreement which increases any interest
rate which is or which may be applicable to the unpaid principal balance of
the Revolving Credit such that that interest rate is more than one percent
per annum or 150 basis points higher than that rate as provided in this
Agreement as originally executed.
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(iii) Any release of any Term Loan Priority Collateral.
(c) The provisions of Section 16: 16-7(b) shall not be operative (and
the Consent of the Term Lender shall not be required with respect to any action
described in that Section) following the repayment in full of the then entire
unpaid principal balance of the term loan, all accrued and unpaid interest
thereon, and any fees which arise on account of such repayment.
SECTION 2. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST ANY LENDER:
(a) Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect. The
Lead Borrower and each Borrower hereby ratifies, confirms, and re-affirms all
and singular the terms and conditions, including execution and delivery, of the
Loan Documents.
(b) There is no basis nor set of facts on which any amount (or any
portion thereof) owed by any Borrower under the Loan Agreement could be reduced,
offset, waived, or forgiven, by rescission or otherwise; nor is there any claim,
counterclaim, off set, or defense (or other right, remedy, or basis having a
similar effect) available to any Borrower with regard to thereto; nor is there
any basis on which the terms and conditions of any of the Liabilities could be
claimed to be other than as stated on the written instruments which evidence
such Liabilities. To the extent that any Borrower or any such guarantor has (or
ever had) any such claims against the Agent or any Lender, each hereby
affirmatively WAIVES and RELEASES the same.
Section 3. MISCELLANEOUS:
(a) Terms used in the Fifth Amendment which are defined in the Loan
Agreement are used as so defined.
(b) This Fifth Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument.
(c) This Fifth Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.
(d) Any determination that any provision of this Fifth Amendment or
any application hereof is invalid, illegal, or unenforceable in any respect and
in any instance shall not affect the validity, legality, or enforce ability of
such provision in any other instance, or the validity, legality, or enforce
ability of any other provisions of this Fifth Amendment.
(e) The Borrower shall pay on demand all reasonable costs and expenses
of the Agents, including, without limitation, reasonable attorneys'fees in
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connection with the preparation, negotiation, execution, and delivery of this
Fifth Amendment.
(f) This Fifth Amendment shall be construed, governed, and enforced
pursuant to the laws of The Commonwealth of Massachusetts and shall take effect
as sealed instrument.
Except as amended hereby and by the First, Second, Third and Fourth
Amendments, all terms and conditions of the Loan Agreement, as previously
amended to date, shall remain in full force and effect.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT:
FLEET RETAIL FINANCE INC.
By /s/ Sally A. Sheehan
.......................................
Name: Sally A. Sheehan
Title: Director Fleet Retail Finance
THE REVOLVING CREDIT LENDERS:
FLEET RETAIL FINANCE INC.
By /s/ Sally A. Sheehan
.......................................
Name: Sally A. Sheehan
Title: Director Fleet Retail Finance
THE CIT GROUP /BUSINESS CREDIT, INC.
By /s/ Michael Gardner
.......................................
Name: Michael Gardner
Title: Vice President
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FOOTHILL CAPITAL CORPORATION
By /s/ Eileen Quinn
.......................................
Name: Eileen Quinn
Title: Vice President
THE TERM LENDER:
BACK BAY CAPITAL FUNDING LLC
By /s/ Michael L. Pizette
.......................................
Name: Michael L. Pizette
Title: Managing Director
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THE GYMBOREE CORPORATION
(" LEAD BORROWER")
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
"BORROWERS":
GYMBOREE MANUFACTURING, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
GYMBOREE OPERATIONS, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
GYMBOREE PLAY PROGRAMS, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
GYMBOREE RETAIL STORES, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
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THE GYMBOREE STORES, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
GYM-MARK, INC.
By /s/ Alison L. May
--------------------------------------
Print Name: Alison L. May
Title: COO EVP
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