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EXHIBIT 10.21
AMENDMENT NO. 6 TO
AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
This Amendment No. 6 (the "Amendment") dated as of March 9, 1998,
is among Bank of America National Trust and Savings Association (the "Bank"),
The Gymboree Corporation ("TGC"), Gymboree Manufacturing, Inc. ("GMI"),
Gymboree, Inc. ("GI"), Gymboree Industries Limited ("GIL"), Gymboree U.K.,
Limited ("GUKL"), Gymboree U.K. Leasing Limited ("GUKLL"), Gymboree Ireland
Leasing Limited ("XXXX"), Gymboree of Ireland, Limited ("GOIL"), Gymboree
Industries Holdings Limited ("GIHL"), Gymboree Hong Kong Limited ("GHKL"), and
Gymboree Japan K.K ("GJKK"). (TGC, GMI, GI, GIL, GUKL, GUKLL, GILL, GOIL, GIHL,
GHKL, and GJKK are hereinafter referred to collectively as the "Borrowers" and
individually as a "Borrower").
RECITALS
A. The Bank, TGC, and GMI entered into a certain Amended and
Restated Line of Credit Agreement dated as of October 27, 1995, as previously
amended (the "Agreement").
Pursuant to Amendment No. 1 to Amended and Restated Line of Credit Agreement
dated as of July 17, 1997, GI and GIL were added as Borrowers.
Pursuant to Amendment No. 2 to Amended and Restated Line of Credit Agreement
dated as of August 11, 1997 ("Amendment No. 2"), GUKL was added as a Borrower
for the limited purpose of making available to GUKL the new foreign exchange
facility added to the Agreement by Amendment No. 2.
Pursuant to Amendment No. 3 to Amended and Restated Line of Credit Agreement
and Waiver dated as of January 9, 1998 ("Amendment No. 3 and Waiver"), GUKLL
was added as a Borrower for the limited purpose of making standby letters of
credit available to GUKLL. Standby letters of credit were also made available
to GUKL pursuant to Amendment No. 3 and Waiver.
Pursuant to Amendment No. 4 to Amended and Restated Line of Credit Agreement
dated as of January 30, 1993, TGC's liquidity covenant was amended for and only
for TGC's fiscal year ending as of January 31, 1998.
Pursuant to Amendment No. 5 to Amended and Restated Line of Credit Agreement
dated as of March 9, 1998, cash advances for use by TGC were made available
under the Agreement, TGC's tangible net worth covenant was amended, TGC's
liquidity covenant was further amended, and a requirement for certain
additional guaranties was added to the Agreement.
B. TGC has three wholly-owned Irish subsidiaries, GILL, GOIL, and
GIHL, and a wholly-owned Japanese subsidiary,
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GJKK, GIHL, in turn, has a wholly-owned Chinese subsidiary, GHKL, in addition
to GIHL's wholly-owned Irish subsidiary, GIL.
C. TGC, GMI, GI, GIL, GUKL, and GUKLL have requested the Bank to
add GILL, GOIL, GIHL, GHKL, and GJKK as Borrowers under the Agreement for the
limited purpose of making available to GILL, GOIL, GIHL, GHKL, and GJKK the
foreign exchange facility added to the Agreement by Amendment No. 2. They have
also requested the Bank to make the foreign exchange facility available to the
existing Borrower, GUKLL. The Bank is willing to grant these requests subject
to the additional terms and conditions set forth in this Amendment.
D. The Bank and the Borrowers desire to amend the Agreement in
order to memorialize the terms and conditions under which GILL, GOIL, GIHL,
GHKL, and GJKK are added as Borrowers under the Agreement.
E. The Bank and the Borrowers also desire to amend the Agreement in
order to adjust the contract limit, the settlement limit, and the revaluation
limit applicable to the foreign exchange facility.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 The second sentence of Paragraph 1.4 (a) is amended to read
in its entirety as follows:
The foreign exchange contract limit will be Fifty Million U.S.
Dollars ($50,000,000), and the settlement limit will be Fifty Million
U.S. Dollars ($50,000,000).
2.2 In Paragraph 1.4 (k), the amount "Seven Million Five Hundred
Thousand Dollars ($7,500,000)" is substituted for the amount "One Million
Dollars ($1,000,000)" as the Revaluation Limit.
2.3 The final sentence of the definition of "Subsidiary" in
Paragraph 5.1 is amended to read in its entirety as follows:
The term "Subsidiary" shall include GMI, GI, GIL, GUKL, GUKLL,
GILL, GOIL, GIHL, GHKL, or GJKK in the event that GMI, GI, GIL,
GUKL, GUKLL, GILL, GOIL, GIHL, GHKL, or GJKK is no longer a
"Borrower" under this Agreement.
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2.4 Paragraph 9.2(e) is amended to read in its entirety as
follows:
(e) GI, GIL, GUKL, GUKLL, GILL, GOIL, GIHL, GHKL, and
GJKK irrevocably appoint TGC and GMI as their process agents
to receive, for them and on their behalf, service of process
in any legal action or proceeding with respect to this
Agreement. If TGC's or GMI's chief executive office is no
longer located in the State of California, GI, GIL, GUKL,
GUKLL, GILL, GOIL, GIHL, GHKL, and GJKK also appoint the
Secretary of State of the State of California as their
process agent to receive, for them and on their behalf,
service of process in any legal action or proceeding with
respect to this Agreement. If for any reason GI's, GIL's,
GUKL's, GUKLL's, GILL's, GOIL's, GIHL's, and GHKL's, and
GJKK's process agents are unable to act as such GI, GIL,
GUKL, GUKLL, GILL, GOIL, GIHL, GHKL, and GJKK shall promptly
notify the Bank and within thirty (30) days appoint a
substitute process agent or agents acceptable to the Bank.
Nothing in this Agreement will affect the right of the Bank
to serve process in any manner permitted by law.
3. GILL's, GOIL's, GIHL's, GHKL's, and GJKK's Acknowledgment.
GILL, GOIL, GIHL, GHKL, and GJKK hereby acknowledge that by executing this
Amendment and thereby becoming Borrowers under the Agreement for the limited
purpose of entering into spot and forward foreign exchange contracts with the
Bank, GILL, GOIL, GIHL, and GJKK promise and agree to perform or to be subject
to, as applicable, each and every covenant, agreement, term, and obligation of
the Agreement including without limitation, those which pertain to the joint
and several liability of each Borrower to the Bank for the payment of all
obligations under the Agreement and under any instrument or agreement required
under the Agreement.
4. Representations and Warranties. When the Borrowers sign this
Amendment, the Borrowers represent and Warrant to the Bank that: (a) there is no
event which is, or with notice or lapse of time or both would be, a default
under the Agreement, except those events, if any, that have been disclosed in
writing to the Bank or waived in writing by the Bank, (b) the representations
and warranties in the Agreement are true as of the date of this Amendment as if
made on the date of this Amendment, (c) this Amendment is within each Borrowers'
powers, has been duly authorized, and does not conflict with any Borrower's
organizational papers, (d) this Amendment does not conflict with any law,
agreement, or obligation by which any Borrower is bound, and (e) the Borrowers
are entering into this Amendment on the basis of their own investigation and for
their
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own reasons, without reliance upon the Bank or any other entity or individual.
5. Conditions Precedent. This Amendment will be effective when the Bank
receives, in form and content acceptable to the Bank, evidence that the
execution, delivery, and performance by GILL, GOIL, GIHL, GHKL, GJKK and GUKLL
of this Amendment and any instrument or agreement required under the Agreement,
as amended by this Amendment, have been duly authorized.
6. Condition Subsequent and Additional Acknowledgments. This Amendment
will remain effective only if the Bank receives, in form and content acceptable
to the Bank, by no later than June 15, 1998, a fully signed Foreign Exchange
Master Agreement entered into by GILL, GOIL, GIHL, GHKL, GJKK, GUKLL, and the
Bank (as amended, modified or renewed, the "1998 FEMA"). Each such Borrower
acknowledges and agrees that all foreign exchange transactions entered into
between such Borrower and the Bank shall be subject to the provisions of the
Agreement and the 1998 FEMA. In the event of any conflict or inconsistency
between the provisions of the Agreement and the provisions of the 1998 FEMA, the
provisions of the 1998 FEMA shall control. The occurrence of an Event of Default
under the FEMA shall also constitute a event of default under the Agreement.
Further, the Bank and the Borrowers acknowledge and agree that failure to
satisfy the above condition subsequent by June 15, 1998, shall constitute an
event of default under the Agreement.
7. Effect of Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
Further, nothing in this Amendment shall release TGC, GMI, GI, GIL, GJKL, or
GUKLL from any of its obligations under the Agreement.
This Amendment is executed as of the date stated at the beginning of this
Amendment.
Bank of America National Trust
and Savings Association
By /s/ [ILLEGIBLE]
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Title
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By
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Title
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The Gymboree Corporation
By /s/ XXXX XXXXX
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Title President and CEO
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By /s/ XXXXXXXX X. GOLD
---------------------------------
Title Assistant Secretary
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Gymboree Manufacturing, Inc.
By /s/ XXXX XXXXX
---------------------------------
Title President and CEO
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By /s/ XXXXXXXX X. GOLD
---------------------------------
Title Assistant Secretary
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Gymboree, Inc.
By /s/ XXXX XXXXX
---------------------------------
Title President and CEO/Director
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By /s/ XXXXXXXX X. GOLD
---------------------------------
Title Assistant Secretary
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Gymboree Industries Limited
By /s/ XXXX XXXXX
---------------------------------
Title President and CEO/Director
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By /s/ XXXXXXXX X. GOLD
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Title Director
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The Gymboree U.K. Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Assistant Secretary
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Gymboree U.K. Leasing Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Assistant Secretary
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Gymboree Ireland Leasing Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Director/Assistant Secretary
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Gymboree of Ireland, Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Director/Assistant Secretary
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Gymboree Industries Holdings Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Director/Asst. Sec.
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Gymboree Hong Kong Limited
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Director/Asst. Sec.
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Gymboree Japan K.K.
By /s/ XXXX XXXXX
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Title Director/President and CEO
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By /s/ XXXXXXXX X. GOLD
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Title Director/Asst. Sec.
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