EXHIBIT 10.74
EXECUTION VERSION
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of February 7, 2007, 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, restated, extended,
supplemented or otherwise modified from time to time, including as amended
pursuant to that certain Waiver and First Amendment to Credit Agreement dated as
of December 6, 2004 among the Borrowers and the Lender, that certain Second
Amendment to Credit Agreement dated as of July 27, 2005, that certain Third
Amendment to Credit Agreement dated as of March 30, 2006, and that certain
Fourth Amendment to Credit Agreement dated as of July 5, 2006, 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 amend
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 adding the following definition to such Section in the appropriate
alphabetical order:
"`Fifth Amendment Date'" means the `Effective
Date' as defined in that Fifth Amendment to Credit Agreement
dated as of February 7, 2007 among the Borrowers and the
Lender."
(b) Section 7.06(e) of the Credit Agreement shall be
amended by amending and restating such subsection to read in its entirety 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, and (ii) for all such
purchases, redemptions and other acquisitions together
occurring from and after the Fifth Amendment Date, the amount
of $50,000,000; 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 (or would
result from the amendment to the Credit Agreement contemplated hereby).
(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 28, 2006 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 when
each of the conditions precedent set forth in this Section 5 has been satisfied
(the "Effective Date"):
(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, dated the Effective Date, 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, 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.
(f) 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.
(g) Each Borrower covenants to pay to or reimburse the
Lender, upon demand, for all costs and expenses (including Attorney Costs and
the non-duplicative allocated costs of in-house counsel) incurred in connection
with the development, preparation, negotiation, execution and delivery of this
Amendment.
(h) 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.
THE GYMBOREE CORPORATION,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
GYMBOREE MANUFACTURING, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
GYM-MARK, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
Signature Page Two to Fifth Amendment to Credit Agreement
GYMBOREE RETAIL STORES, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
THE GYMBOREE STORES, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
GYMBOREE LOGISTICS PARTNERSHIP,
as a Borrower
By: GYMBOREE RETAIL STORES, INC.
as General Partner
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
GYMBOREE PLAY PROGRAMS, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
Signature Page Three to Fifth Amendment to Credit Agreement
GYMBOREE OPERATIONS, INC.,
as a Borrower
By: /s/ BLAIR W. LAMBERT
------------------------------
Name: Blair W. Lambert
Title: COO - CFO
GYMBOREE, INC. (CANADA),
as a Borrower
By: /s/ BLAIR W. LAMBERT
-----------------------------
Name: Blair W. Lambert
Title: COO - CFO
LENDER
BANK OF AMERICA, N.A., as the Lender
By: /s/ MAILE DOUGLAS
-----------------------------
Name: Maile Douglas
Title: Vice President
Signature Page Three to Fifth Amendment to Credit Agreement