10.35.* Fourth Amendment and Consent to the 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.
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FOURTH AMENDMENT
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 August 14, 1998
FOURTH AMENDMENT
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Revolving Credit Agreement
(this "Agreement") is entered into as of August 14, 1998, 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
The parties hereto have previously entered into that certain Amended and
Restated Revolving Credit Agreement, dated as of March 28, 1997 as amended by
the First Amendment and Waiver to the Amended and Restated Revolving Credit
Agreement dated as of April 30, 1997, the Second Amendment and Consent to the
Amended and Restated Revolving Credit Agreement dated as of January 30, 1998 and
the Third Amendment and Consent to Amended and Restated Revolving Credit
Agreement dated as of March 29, 1998 (collectively the "Credit Agreement");
A. By this Fourth Amendment, HSBC Business Loans, Inc. (AHSBC@) is added
as a Lender and the Lenders and the Lender=s Percentage has been revised as
provided on revised Schedule J to the Fourth Amendment;
B. By an Assumption and Assignment Agreement of even date (the
AAssignment and Assumption Agreement@), Sumitomo Bank of California has assigned
its entire Commitment to HSBC as reflected in Schedule J to the Fourth
Amendment; and
C. The Company, the Agent and the Lenders have agreed to modify the
Credit Agreement as provided below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Amendment 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 deleting the definition of
ACommitment Amount@ and substituting the following definition to read as
follows:
Commitment Amount . $100,000,000 or any lesser amount, including zero,
resulting from a termination or reduction of such amount in accordance with
Section 2.5 or Section 7.2 .
b. Exhibit J is amended in its entirety as provided in Exhibit J to this
Fourth Amendment.
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c. The Borrower shall execute and deliver to the Agent the Revolving Credit
Notes in the form appended hereto as Exhibits A-1 through A-5 and shall receive
from the Agent marked cancelled the Revolving Credit Notes dated March 31, 1998.
3. Conditions to Fourth Amendment.
a. The agreements of the Agent and the Lenders as set forth in this Fourth
Amendment are subject to the fulfillment of the following conditions:
(1) Receipt by Agent of a copy of this Fourth Amendment Agreement
executed by the Company, Retail, Licensing and the Lenders;
(2) Receipt by the Agent of (i) the opinion of counsel to the Company in
form reasonably satisfactory to the counsel to the Agent; (ii) 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 has not
been amended since the certificate delivered on , 1998, (b) that the
By-laws of the Company has not been amended since the certificate delivered on
December 31, 1997, (c) that the appended resolutions of the Company's Board of
Directors authorizing the execution, delivery and performance of the Fourth
Amendment to the Credit Agreement is in full force and effect, and
(d)affirmation as to the names, incumbency and signatures of the officers of the
Company, Retail and Licensing executing the Fourth Amendment to Credit Agreement
and the other Loan Documents executed pursuant thereto;
(3) The occurrence of the Effective Date as defined under the Assignment
and Assumption Agreement; and
(4) Such other documents, instruments and agreements as Agent may
reasonably request in connection herewith or in order to effectuate the matters
described herein.
4. 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 is being made or implied by this Fourth Amendment and all provisions
of the Credit Agreement shall remain in full force and effect, except as
specifically amended by this Fourth Amendment.
5. Representations and Warranties; No Default or Event of Default.
a. 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 prior date) and that no Default or Event of Default has occurred and
is continuing on the date hereof.
b. The Guarantors, which have consented to this Fourth Amendment, hereby
confirm that each of them is a Subsidiary for all purposes under the Credit
Agreement and that all of the representations and warranties contained in
Section 4 of the Credit Agreement are true and correct as of the date hereof as
to each of the Guarantors.
6. Governing Law. This Amendment 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).
7. Fees and Expenses. The Company shall pay the Lenders' reasonable
attorneys' fees and out-of-pocket expenses including, without limitation, other
normal and customary charges for photocopying, facsimile transmission, overnight
delivery, postage, long distance telephone calls and similar charges actually
incurred in connection with this Fourth Amendment as of and through the date
hereof.
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8. Counterparts. This Fourth Amendment 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 Fourth 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 Fourth Amendment, is confirmed as
being in full force and effect.
SIGNATURES ON NEXT PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be
duly executed as of the day and the year first written above by their duly
authorized officers.
GUESS ?, INC.
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
BANKBOSTON, N.A.
formerly known as
THE FIRST NATIONAL BANK OF BOSTON (AS AGENT
AND LENDER)
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
SANWA BANK CALIFORNIA (AS CO-AGENT
AND LENDER)
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
CREDIT LYONNAIS LOS ANGELES
BRANCH (AS LENDER)
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
HSBC BUSINESS LOANS, INC.
(AS LENDER)
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
Acknowledged and Consented to:
GUESS ? RETAIL, INC.
By:
-----------------------
Print Name:
---------------------
Title:
-----------------------
GUESS? LICENSING, INC.
By:
-----------------------
Print Name:
---------------------
Title:
-----------------------
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EXHIBIT J
LENDER'S PERCENTAGES
Lender Maximum
Total Lender's
Commitment Percentages
BankBoston, N.A. $30,000,000 30.000%
100 Federal Street
Mail Stop 01-09-05
Boston, Massachusetts 02110
Attention: Nancy Fuller, Director
Telecopier: (617)434-6685
Sanwa Bank California $26,875,000 26.875%
Sanwa Bank Plaza
601 South Figueroa Street
10th Floor
Los Angeles, California 90017
Attention: Nicole Garnier, Vice President
Telecopier: (213)896-7090
Credit Lyonnais $20,000,000 20.000%
Los Angeles Branch
515 South Flower Street
Suite 2200
Los Angeles, CA 90071
Attention: Dianne Scott, Vice President
Telecopier: (213) 623-3437
HSBC Business Loans, Inc. $23,125,000 23.125%
45 Milk Street
Boston, MA 02109-5105
Attention: Paul Przybylski, Vice President
Telecopier: (617) 695-2328
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