Ninth Amendment to Credit Agreement



 Exhibit 10.85 
 EXECUTION VERSION 
 NINTH AMENDMENT TO CREDIT AGREEMENT 
 This NINTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of November 21, 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 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, and (viii) that certain Eighth Amendment to Credit Agreement dated as of July 31, 2007 (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 Restated Note, 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) The first recital of the Credit Agreement shall be amended and
restated to read in full as follows: 
 “WHEREAS, the Company has requested the Lender to make available to the Borrowers
a revolving line of credit for loans and letters of credit.” 
  

 1 








 (b) Section 1.01 of the Credit Agreement shall be amended by amending and
restating the definition “Commitment” to read as follows: 
 “Commitment” means the obligation of
the Lender to make Loans and other Credit Extensions hereunder in an aggregate principal amount at any time not to exceed (i) at any time prior to April 1, 2008, $120,000,000, and (ii) from and after April 2, 2008, $100,000,000;
as such amount may be adjusted from time to time in accordance with Section 2.05 of this Agreement. 
 (c)
Section 1.01 of the Credit Agreement shall be further amended by deleting the definition “Increase Effective Date”. 
 (d) Section 2.12 of the Credit Agreement shall be amended by deleting such section in full. 
 (e) Section 7.06 of the Credit Agreement shall be amended at subsection (e) thereof, by deleting “$150,000,000” and inserting its place “175,000,000”. 
 (f) The Credit Agreement shall be further amended by deleting Exhibit B thereof and replacing it with the Exhibit B attached
hereto as Annex I (the “Restated Note”). 
 (g) The Credit Agreement shall be further amended by
deleting Exhibit F thereof. 
 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 and the Restated Note
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. 
  

 2 








 (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
February 3, 2007 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 (A) this Amendment, and (B) the Restated Note. 
 (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 Company shall have paid to the Lender a supplemental upfront fee of $10,000. 
 (iv)
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. 
  

 3 








 (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]

  

 4 








 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/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	Chairman and Chief Executive Officer


  

			
	GYMBOREE MANUFACTURING, INC.,
	as a Borrower
		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer


  

			
	GYM-MARK, INC.,
	as a Borrower
		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer


 Signature Page One to Ninth Amendment to Credit Agreement 








			
	 GYMBOREE RETAIL STORES, INC.,
 as a
Borrower

		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer
	
	 THE GYMBOREE STORES, INC.,
 as a
Borrower

		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer
	
	 GYMBOREE LOGISTICS PARTNERSHIP,
 as a
Borrower

		
	By:	 	 GYMBOREE RETAIL STORES, INC.
 as General Partner


		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer
	
	 GYMBOREE PLAY PROGRAMS, INC.,
 as a
Borrower

		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer


 Signature Page Two to Ninth Amendment to Credit Agreement 








			
	 GYMBOREE OPERATIONS, INC.,
 as a
Borrower

		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer
	  
 GYMBOREE, INC. (CANADA),
 as a Borrower

		
	By:	 	/s/ Matthew McCauley
	Name:	 	Matthew McCauley
	Title:	 	President and Chief Executive Officer
	  
 LENDER
  
 BANK OF AMERICA, N.A., as the Lender

		
	By:	 	/s/ Alex J. McCombs
	Name:	 	Alex J. McCombs
	Title:	 	Senior Vice President


 Signature Page Three to Ninth Amendment to Credit Agreement