<PAGE> 1
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT FLEET RETAIL FINANCE INC.
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
November 14, 2000
THIS THIRD 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
BankBoston 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
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94010);
on the other,
WITNESSETH:
SECTION 1. AMENDMENT OF LOAN AGREEMENT:
Subject to the satisfaction of the Conditions to Effectiveness of
Amendment set forth in Section 2, below, the Loan Agreement is amended as
follows:
ARTICLE 1 of the Loan Agreement is amended so that the following
Definition, included therein, reads as follows:
""REVOLVING CREDIT LOAN CEILING":
<TABLE>
<CAPTION>
From To Ceiling ($Millions)
--------------- ---------------- -------------------
<S> <C> <C>
Closing October 8, 2000 75.0
October 9, 2000 October 15, 2000 87.5
October 16, 2000 October 22, 2000 86.5
October 23, 2000 October 29, 2000 84.5
October 30, 2000 November 5, 2000 81.5
November 6, 2000 November 12, 2000 77.5
November 13, 2000 November 24, 2000 84.0
November 25, 2000 Maturity Date 75.0
</TABLE>
EXHIBIT 2:2-24 of the Loan Agreement is amended to read as Schedule
2:2-24 annexed hereto.
SECTION 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT:
The effectiveness of this Amendment is conditioned on the
satisfaction of each of the following:
(a) The delivery to the Administrative Agent of Certificates
executed respectively by the President and by the Chief Financial Officer of the
Lead Borrower and stating that at the delivery of such Certificates, no Borrower
is InDefault.
(b) The delivery of an opinion of counsel to the Borrowers which
<PAGE> 3
confirms the due execution, binding effect, and enforceability of this Third
Amendment and absence of conflict of this Third Amendment with any agreement to
which the Borrowers' Representative or any Borrower is a party or by which any
is bound (which opinion may be subject to the same qualifications as had been
included in such counsel's opinion rendered in connection with the execution of
the Loan Agreement).
SECTION 3. 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 4. MISCELLANEOUS:
(a) Terms used in the Third Amendment which are defined in the
Loan Agreement are used as so defined.
(b) This Third 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 Third 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 Third Amendment
or any application hereof is invalid, illegal, or unenforceable in any respect
and in any instance shall not affect the validity, legality, or enforceability
of such provision in any other instance, or the validity, legality, or
enforceability of any other provisions of this Third Amendment.
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(e) The Borrower shall pay on demand all reasonable costs and
expenses of the Agents, including, without limitation, reasonable attorneys'
fees in connection with the preparation, negotiation, execution, and delivery of
this Third Amendment.
(f) This Third 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 and Second 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/ DANIEL J. WILLIAMS
-------------------------------
Name DANIEL J. WILLIAMS
-----------------------------
Title VICE PRESIDENT
----------------------------
THE REVOLVING CREDIT LENDERS:
FLEET RETAIL FINANCE INC.
By /s/ DANIEL J. WILLIAMS
-------------------------------
Name DANIEL J. WILLIAMS
-----------------------------
Title VICE PRESIDENT
----------------------------
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/ ROBERT J. CAMBORA
-------------------------------
Name ROBERT J. CAMBORA
-----------------------------
Title SENIOR VICE PRESIDENT
----------------------------
THE TERM LENDER:
BACK BAY CAPITAL FUNDING LLC
By /s/ KRISTAN M. O'CONNOR
-------------------------------
Name KRISTAN M. O'CONNOR
-----------------------------
Title VICE PRESIDENT
----------------------------
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THE GYMBOREE CORPORATION
(" LEAD BORROWER")
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
"BORROWERS":
GYMBOREE MANUFACTURING, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
GYMBOREE OPERATIONS, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
GYMBOREE PLAY PROGRAMS, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
GYMBOREE RETAIL STORES, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
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THE GYMBOREE STORES, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
GYM-MARK, INC.
By /s/ LAWRENCE H. MEYER
-------------------------------
Print Name: LAWRENCE H. MEYER
-----------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
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