EXHIBIT 10.32. First Amendment and Waiver to Amended and Restated Revolving
Credit Agreement by and between the Registrant and BankBoston,
NA, F/K/A The First National Bank of Boston, Sanwa Bank
California and the Financial Institutions Party hereto.
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FIRST AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BY AND BETWEEN
GUESS ?, INC.
AND
BANKBOSTON, N.A.
F/K/A THE FIRST NATIONAL BANK OF BOSTON,
SANWA BANK CALIFORNIA
AND
THE FINANCIAL INSTITUTIONS PARTY HERETO
Dated as of April 30, 1997
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FIRST AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This First Amendment and Waiver to Amended and Restated Revolving Credit
Agreement (this "Waiver") is entered into as of April 30, 1997, by and between
GUESS ?, INC., a Delaware corporation having its chief executive office at 1444
S. Alameda Street, Los Angeles, California, 90021 (the "Company") and
BankBoston, N.A. formerly THE FIRST NATIONAL BANK OF BOSTON, a bank with its
head offices at 100 Federal Street, Boston, Massachusetts, 02110 (the "Agent"),
SANWA BANK CALIFORNIA, a bank with its head offices at 601 South Figueroa
Street, Los Angeles, California 90017 (the "Co-Agent"), and THE FINANCIAL
INSTITUTIONS PARTIES HERETO (the Lenders").
RECITALS
A. The parties hereto have previously entered into that certain Amended and
Restated Revolving Credit Agreement, dated as of March 28, 1997 (the "Credit
Agreement");
B. The Company desires to implement a share repurchase program pursuant to
which the Company may repurchase shares of its common stock as approved by the
Company's board of directors and further subject to the limitation contained in
this First Amendment and Waiver (the "Program");
C. The Company has requested that the Lenders agree to amend the Credit
Agreement to permit the implementation of the Program; and
D. The Lenders have agreed to amend and modify the Credit Agreement to permit
the Program and to waive the restrictions on the repurchase of common stock
under Section 6.7 of the Credit Agreement, but only upon the terms and
conditions set forth in this Amendment and Waiver.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Waiver and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree to the above Recitals and as follows:
1. Definitions. All defined terms used herein without definition shall have
the meanings assigned to them in the Credit Agreement.
2. Amendments to the Credit Agreement. From and after the date hereof the
Credit Agreement is hereby amended as follows:
a. The Credit Agreement is amended by the addition of the following definition:
Stock Repurchase Program. Repurchase by the Company of its common
stock on the public markets or otherwise; provided that the aggregate
purchase price for such shares shall be authorized by
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the Company's board of directors and shall not exceed the amount
provided in Section 5.13 of this Agreement.
b. Section 2.1 (c) of the Credit Agreement is deleted in its entirety and is
amended to read as follows:
(c) The proceeds of the Revolving Loans shall be used by the Company
exclusively for working capital purposes, except that, up to $76,000,000
(reduced as provided in Section 5.13) of the Commitment Amount may be used,
in the aggregate, to repurchase some of all of the Senior Subordinated
Notes and fund the Stock Repurchase Program, provided that the Company
shall demonstrate that it will comply with provisions of Sections 5.13 and
6.8 (xiv) of this Agreement.
c. Section 4.10 of the Credit Agreement is deleted in its entirety and
amended to read as follows:
4.10 Use of proceeds. No portion of any Loan is to be used for the
"purpose of purchasing or carrying" any "margin stock" as such terms
are used in Regulations U and X of the Board of Governors of any
Federal Reserve System, 12 C.F.R. 221 and 224, as amended, except for
funds used under the Stock Repurchase Program. After any purchase
under the Stock Repurchase Program the Company shall deliver
certificates demonstrating continued compliance of the Obligations
with applicable regulations.
d. Section 5.13 of the Credit Agreement is delete in its entirety and amended
to read as follows:
5.13 Use of proceeds. The Company will use the proceeds of the
Revolving Loans for the ongoing working capital needs of the Company.
Notwithstanding the foregoing, the Company may use up to $75,000,000,
in the aggregate of the Commitment Amount, reduced by all purchases of
Senior Subordinated Notes prior to the date of this Agreement as set
forth on Exhibit C and further reduced by all purchases of Senior
Subordinated Notes and common stock under the Stock Repurchase Program
made on and after the date hereof, to repurchase a portion of the
Senior Subordinated Notes or any of the Company's common stock under
the Stock Repurchase Program, provided, (i) that the Company shall
satisfy on a pro forma basis, all of the convenants made herein for the
next four (4) fiscal quarters from the date thereof, (ii) that the
Company's repurchase of the Senior Subordinated Notes and common stock
under the Stock Repurchase Program in any fiscal quarter shall be
limited to the amount of the Company's positive net income based on the
average of net income for the preceding four fiscal quarters, as
previously reported to the Agent and using the current quarter as the
fourth quarter for the purposes of the calculation and (iii) that such
repurchase complies with the provisions of Section 6.8 (xiv) hereof.
e. Section 6.7 of the Credit Agreement is deleted in its entirety and amended
to read as follows:
6.7 Equity Distributions. The Company shall not pay any dividends on
any class of its Capital Stock or make any other distribution or
payment on account of or in redemption, retirement
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or purchase of such Capital Stock without the prior written consent of
the Majority Lenders; provided that this Section shall not apply to (i)
the issuance, delivery or distribution by the Company of shares of its
common stock pro rata to its existing shareholders and (ii) the
purchase or redemption by the Company of its Capital stock with the
proceeds of the issuance of additional shares of Capital Stock.
Notwithstanding the forgoing, the Company may repurchase its common
stock under the Stock Repurchase Program, subject to the limitation
provided under Section 5.13 hereof. If an Event of Default or Default
has occurred and is continuing, then the Company shall not pay any
dividends on any class of its Capital Stock or make any repurchases
under the Stock Repurchase Program.
3. Consent and Waiver. Subject to the terms of the Amendment and Waiver, the
Lenders hereby consent to the implementation of the Program and waive any
Default, event of Default, breach or any other claim which could or would now or
hereafter arise pursuant to Section 6.7 of the Credit Agreement as a result of
the implementation of the Program but for such consent.
4. Conditions to First Amendment.
a. The agreements of Agent and the Lenders as set forth in this First
Amendment are subject to the fulfillment of the following conditions:
(1) Receipt by Agent of a fully executed copy of this First Amendment and
Waiver Agreement;
(2) Receipt by the Agent of a certificate signed by the Secretary or Assistant
Secretary of the Company certifying, among other things: (a) that the Articles
of Incorporation of the Company have not been amended since the date of the
certified Articles of Incorporation delivered to Lender and attached thereto as
an exhibit, (b) the By-laws of the Company attached thereto as an exhibit and
that there have been no amendments thereto, (c) the attached resolution of the
Company's Board of Directors authorizing the execution, delivery and performance
of the First Amendment to the Credit Agreement and authorizing the Program as
described to the Lenders, and (d) the names, incumbency and signatures of the
officers of the Company executing the First Amendment to Credit Agreement and
the other loan documents executed by it; and
(3) Such other documents, instruments and agreements as Agent may
reasonably request in connection herewith or in order to effectuate the matters
described herein.
5. Credit Agreement Remains in Full Force and Effect. Except for the
amendments set forth in Section 2 hereof, no other amendment to the Credit
Agreement are being given and all provision of the Credit Agreement shall remain
in full force and effect.
6. Representation and Warranties; No Default or Event of Default. The Company
hereby confirms that the representations and warranties contained in Section 4
of the Credit Agreement are true and correct as of the date hereof (except to
the extent that such representations and warranties relate to a
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prior date) and that no Default or Event of Default has occurred and is
continuing on the date hereof.
7. Limitation of Waiver. Any waiver contained herein by the Agent and/or the
Lenders, shall apply to the occurrence specifically described herein and then
only to the extent set forth herein and shall not in any way be construed as a
bar to a waiver of any right or remedy of the Agent and the Lenders as to any
other occurrence or event.
8. Governing Law. This Waiver shall be construed in accordance with and
governed by the laws of the Commonwealth of Massachusetts (without giving effect
to any conflicts of laws provisions contained therein).
9. Feed and Expenses. The Company shall pay the Lenders' reasonable attorneys'
fees and out-of-pocket expenses not to exceed $5000.00 incurred in connection
with this Waiver as of and through the date hereof.
10. Counterparts. This First Amendment and Waiver may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed an
original, but all of which together shall constitute one instrument. In making
proof of this Amendment, it shall not be necessary to account for more than one
counterpart hereof signed by each of the parties hereto. Except to the extent
specifically amended or supplemented hereby, all of the items, conditions and
provisions of the Credit Agreement shall remain unmodified, and the Credit
Agreement, as amended and supplemented by this Amendment, is confirmed as being
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the day and the year first written.
GUESS ?, INC.
By:
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LENDERS AND AGENTS SIGNATURES ON NEXT PAGE
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BANKBOSTON, N.A. FORMERLY
THE FIRST NATIONAL BANK OF BOSTON
(AS AGENT AND LENDER)
By:
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SANWA BANK CALIFORNIA (AS CO-AGENT AND LENDER)
By:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED (AS LENDER)
By:
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CREDIT LYONNAIS LOS ANGELES BRANCH (AS LENDER)
By:
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SUMITOMO BANK OF CALIFORNIA (AS LENDER)
By:
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