Exhibit 10.33
10.33. Third 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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THIRD AMENDMENT AND CONSENT
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 March 29, 1998
THIRD AMENDMENT AND CONSENT
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Third Amendment and Consent to Amended and Restated Revolving Credit
Agreement (this "Agreement") is entered into as of March 29, 1998, by and
between GUESS ?, INC., a Delaware corporation having its chief executive office
at 0000 X. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 00000 (the "Company") and
BankBoston, N.A. formerly THE FIRST NATIONAL BANK OF BOSTON, a bank with its
head offices at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (the "Agent"),
SANWA BANK CALIFORNIA, a bank with its head offices at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Co-Agent"), and THE FINANCIAL
INSTITUTIONS PARTIES HERETO (the "Lenders").
RECITALS
I. 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 and the Second Amendment and Consent to the
Amended and Restated Revolving Credit Agreement dated as of January 30, 1998
(collectively the "Credit Agreement");
A. As a condition of the Waiver Agreement dated as of March 6, 1998 (the "Waiver
Agreement"), the Company agreed to enter into this Third Amendment to the
Amended and Restated Revolving Credit Agreement (the "Third Amendment") ;
A. By this Third Amendment, The Industrial Bank of Japan, Limited, Los Angeles
Agency is removed as a Lender and the Lenders and the Lender's Percentage has
been revised as provided on revised Schedule J to the Third Amendment; and
A. 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 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.
1. 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 deletion of the definition of the
Eurodollar Spread and the addition of the following definition of "Applicable
Margin" to read as follows:
Applicable Margin. Shall equal the following percentage margins as to
each of the interest rates or percentages as to Letters of Credit for
each and every quarter in which the Company falls within the following
range of ratios for the fiscal quarter then
2
most recently ended, as certified by the chief financial officer of
the Company to the Agent pursuant
3
to Section 5.1(c), of both Indebtedness for Money Borrowed less the Fair Market
Value (as hereinafter defined) of the Senior Subordinated Notes held by the
Company or any of its Wholly Owned Subsidiaries (to the extent such Senior
Subordinated Notes are included in the calculation of Indebtedness for Money
Borrowed; but only so long as the Fair Market Value of such Senior Subordinated
Notes so held is not less than 80% of the principal amount of such Senior
Subordinated Notes), as of the fiscal quarter then ended to Consolidated Cash
Flow ("Leverage") for the prior four fiscal quarters and Consolidated EBITDA
less Capital Expenditures to Consolidated Total Interest Expense ("Coverage")
for the prior four fiscal quarters:
Level Leverage Coverage Adjusted Base Standby Documentary
Eurodollar Rate + Letters of Letter of
Rate + Credit Fee Credit Fee
per Annum
1 greater greater 1.75% 0 1.75% .875%
than than or
4:00 to 1 equal to
2.75 to 1
2 greater greater 1.50% 0 1.50% .750%
than than or
3:00 to equal to
1, but 3.00 to 1
less
than or
equal to
4:00 to 1
3 greater greater 1.25% (.50%) 1.25% .625%
than than or
2.25 to equal to
1, but 3.50 to 1
less
than or
equal to
3:00 to 1
4 greater greater 1.00% (.50%) 1.00% .50%
than than or
1.75 to equal to
1, but 4.00 to 1
less
than or
equal to
2.25 to 1
5 less greater .75% (.50%) .75% .50%
than or than or
equal to equal to
1.75 to 1 4.50 to 1
4
provided, that (i) for the fiscal year ending December 31, 1998, regardless of
the actual Leverage and Coverage, the Applicable Margin shall not be reduced
below Xxxxx 0, xxx xxxxx xxxxx, (xx) any change in pricing shall be effective on
and after receipt by the Agent of the financial statement showing such ratio,
(iii) if financial statements are not received as provided in Section 5.1, the
Applicable Margin shall be at Level 1 until such compliance statement is
received. The term "Fair Market Value" as used herein with respect to the Senior
Subordinated Notes shall mean the price for such notes quoted by PaineWebber,
Inc. on the date of such calculation of the Applicable Margin.
a. The Credit Agreement is amended by deleting the definition of "Commitment
Amount" and substituting the following definition to read as follows:
Commitment Amount . $86,875,000 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 .
a. The Credit Agreement is amended by deleting the definition "Letter of Credit
Sublimit" and substituting the following definition to read as follows:
Letter of Credit Sublimit. The sum of the outstanding amount of all
Letters of Credit, which shall not exceed $25,000,000 at any time.
a. Section 2.1(a) of the Credit Agreement is deleted in its entirety and amended
to read as follows:
(a) Subject to the terms and conditions hereof, the Lenders will make
Revolving Loans to the Company, from time to time until the close of
business on the Revolving Credit Termination Date, in such sums as the
Company may request, provided that the aggregate principal amount of all
Loans plus the outstanding amount of all Letters of Credit at any one time
outstanding hereunder shall not exceed the Commitment Amount; that the
aggregate Revolving Loans may not exceed $20,000,000 for a period of 30
consecutive days during each 12 month period commencing April 1, 1998 . The
Company may borrow, prepay pursuant to Section 2.12 and reborrow, from the
date of this Agreement until the Revolving Credit Termination Date, the
full amount of the Commitment Amount, (other than a 30 day period in each
12 months as provided in the prior sentence) or any lesser sum that is at
least $100,000 and an integral multiple of $100,000. Any Revolving Loan not
repaid by the Revolving Credit Termination Date shall be due and payable on
the Revolving Credit Termination Date.
a. Section 2.1(c) of the Credit Agreement is deleted in its entirety and 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 $75,000,000
(reduced as provided in Section 5.13) of the Commitment Amount may be used,
in the aggregate, to repurchase some or 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 and the Company may not
5
repurchase any additional Senior Subordinated Notes or fund the Stock
Repurchase Program prior to October 1, 1998 and shall only make such
purchases or do such funding thereafter with the consent of the Majority
Lenders.
a. Section 2.4 of the Credit Agreement is deleted in its entirety and amended to
read as follows:
2.4 Commitment Fee. The Company shall pay to the Agent for the benefit of
the Lenders during the Revolving Credit Period a commitment fee (the
"Commitment Fee") computed at the rate of 0.25% per annum on the average
daily amount of the unborrowed portion of the Commitment Amount less the
average daily amount of the outstanding amount of all Letters of Credit
during each quarter or portion thereof. Commitment fees shall be payable
quarterly in arrears, on the last Business Day of each of March, June,
September and December of each year and on the last day of the Revolving
Credit Period.
a. Sections 2.8 (a) and 2.8 (b) of the Credit Agreement are deleted in their
entirety and amended to read as follows:
(a) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to the Base Rate plus the
Applicable Margin, which rate shall change contemporaneously with any
change in the Base Rate. Such interest shall be payable on the last day of
each month, and when such Loan is due (whether at maturity, by reason of
acceleration or otherwise).
(b) Each Eurodollar Loan shall bear interest on the outstanding principal
amount thereof, for each Interest Period applicable thereto, at a rate per
annum equal to the Adjusted Eurodollar Rate plus the Applicable Margin.
Such interest shall be payable for such Interest Period on the last day
thereof and when such Eurodollar Loan is due (whether at maturity, by
reason of acceleration or otherwise) and, if such Interest Period is longer
than three months, at intervals of three months after the first day
thereof.
a. Section 2.16 and 2.17 of the Credit Agreement are deleted in their entirety
and amended to read as follows:
2.16 Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.1, as long as any Event of
Default or Default has not occurred and is not continuing, the Company may
request the issuance of Letters of Credit for its own account by the Agent,
in a form reasonably acceptable to the Agent, at any time and from time to
time during the Revolving Credit Period. Letters of Credit issued hereunder
shall constitute utilization of the Commitment. In the event of any
inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Company to, or entered into by the Company with,
the Agent relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
6
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Company shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Agent) to the Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension,
the date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section 2.16), the amount of such Letter of
Credit, the name and address of the beneficiary thereof, and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. As required by the Agent, the Company also shall submit a
letter of credit application on the Agent's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Company shall be deemed
to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate Letter of Credit exposure
of the Agent, including unpaid drawings under Letters of Credit (determined
for these purposes without giving effect to the participations therein of
the Lenders pursuant to paragraph (d) of this Section 2.16) shall not
exceed the Letter of Credit Sublimit, and (ii) the total of all outstanding
Loans and Letters of Credit exposure of the Agent shall not exceed the
total Commitment..
(c) Expiration Date. Each Letter of Credit shall expire (without
giving effect to any extension thereof by reason of an interruption of
business) at or prior to the close of business on the earlier of (i) the
date 365 days after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, 365 days after such
renewal or extension) provided that any such Letter of Credit may provide
for automatic extensions thereof to a date not later than 365 days beyond
its current expiration date, and (ii) the date that is fifteen Business
Days prior to the Revolving Credit Termination Date. No Letter of Credit
may be extended beyond the date that is fifteen Business Days prior to the
Revolving Credit Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the
Agent, and without any further action on the part of the Agent, the Agent
hereby grants to each Lender, and each Lender hereby acquires from the
Agent, a participation in such Letter of Credit equal to such Lender's
Percentage of the aggregate amount available to be drawn under such Letter
of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Agent
such Lender's Percentage of each disbursement made by the Agent under such
Letter of Credit and not reimbursed by the Company on the date due as
provided in paragraph (e) of this Section 2.16, or of any reimbursement
payment required to be refunded to the Company for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations
pursuant
7
to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of
the Commitment, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Agent shall make any disbursement in respect
of a Letter of Credit, the Company shall reimburse the Agent in respect of
such disbursement by paying to the Agent an amount equal to such
disbursement not later than 1:30 p.m., Boston, Massachusetts time, on (i)
the Business Day that the Company receives notice of such disbursement, if
such notice is received prior to 12:00 noon, Boston, Massachusetts time, or
(ii) the Business Day immediately following the day that the Company
receives such notice, if such notice is not received prior to such time,
provided that the Company may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.1 that such payment be
financed with a Revolving Loan in an equivalent amount and, to the extent
so financed, the Company's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Credit Base Rate
Borrowing.
(f) Failure to Pay. If the Company fails to make payment when due
under any Letter of Credit, the Agent shall notify each Lender of the
applicable disbursement under the Letter of Credit, the payment then due
from the Company in respect thereof and such Lender's Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Agent its Percentage of the payment then due from the Company, in the same
manner as with respect to Revolving Loans made by such Lender. Promptly
following receipt by the Administrative Agent of any payment from the
Company, the Agent shall distribute such payment, to the extent that the
Lenders have made payments pursuant to this paragraph to reimburse the
Agent, as their interests may appear. Any payment made by a Lender pursuant
to this paragraph to reimburse the Agent for any disbursement under a
Letter of Credit shall not constitute a Revolving Loan and shall not
relieve the Company of its obligation to reimburse such disbursement.
a. (g) Obligations Absolute. The Company's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section 2.16 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (A) any lack of validity or enforceability
of any Letter of Credit, or any term or provision therein, (B) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue
or inaccurate in any respect, (C) payment by the Agent under a Letter of
Credit against presentation of a draft or other document that does not
comply strictly with the terms of such Letter of Credit and (D) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.16,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
8
(h) Neither the Agent nor the Lenders shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit by the Agent or any payment or failure to make any
payment thereunder, or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of the Agent;
provided that the foregoing shall not be construed to excuse the Agent from
liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company
that are caused by the Agent's gross negligence or willful misconduct when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof.
(i) Interim Interest. All amounts drawn under Letters of Credit are
Obligations hereunder and if not paid when due by the Company shall bear
interest at the rate provided in Section 2.14 for overdue payments.
2.17 Letter of Credit Fees . The Company shall pay to the Agent (in
each case, a "Letter of Credit Fee") (a) for the accounts of the Lenders in
accordance with their respective Lender's Percentage, a commission on the
average daily face amount of each outstanding Letter of Credit (i) with
respect to each documentary Letter of Credit, at the Applicable Margin per
annum for documentary letters of credit and (ii) with respect to each
standby Letter of Credit, at the Applicable Margin per annum for standby
letters of credit, payable in either such case quarterly in arrears on the
last Business Day of each quarter for the immediately preceding quarter in
which any Letters of Credit shall have been or remain outstanding, and on
the Revolving Credit Termination Date, and (b) for the Agent's own account,
such customary commissions, issuance fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as the Company and the Agent shall agree.
a. Section 5.8 of the Credit Agreement is deleted in its entirety and amended to
read as follows:
5.8 Leverage Ratio. The Company shall maintain at the end of each fiscal
quarter, as provided below, a ratio of Indebtedness for Money Borrowed at
the end of such fiscal quarter to Consolidated Cash Flow less dividends
permitted hereunder all calculated for the four fiscal quarters then ended
in amount no greater than the ratio provided below as follows:
Fiscal Quarter Ending Ratio
March 31, 1998 less than or equal to
4.40 to 1
June 30, 1998 less than or equal to
4.20 to 1
9
September 30, 1998 less than or equal to
3.25 to 1
December 31, 1998 less than or equal to
2.75 to 1
March 31, 1999 and each less than or equal to
fiscal quarter 2.75 to 1
thereafter
a. Section 5.9 of the Credit Agreement is deleted in its entirety and amended to
read as follows:
5.9 Total Interest Coverage. The Company shall maintain, at the end of each
fiscal quarter, as provided below, for the four fiscal quarters then ended,
a ratio of Consolidated EBITDA less Capital Expenditures for the period to
Consolidated Total Interest Expense for the period as follows:
Fiscal Quarter Ending Ratio
March 31, 1998 greater than or equal
to 2.35 to 1
June 30, 1998 greater than or equal
to 2.40 to 1
September 30, 1998 greater than or equal
to 2.75 to 1
December 31, 1998 and each greater than or equal
quarter to 3.00 to 1
thereafter
a. Section 5.10 of the Credit Agreement is deleted in its entirety and amended
to read as follows:
5.10 Total Fixed Charge Coverage. The Company shall maintain, at the end of
each fiscal quarter, as provided below, for the four fiscal quarters then
ended, a ratio of Consolidated Cash Flow plus payments on Operating Leases
for the period to Consolidated Total Debt Service plus payments on
Operating Leases for the period as follows:
Fiscal Quarter Ending Ratio
March 31, 1998 greater than or equal
to 1.35 to 1
June 30, 1998 greater than or equal
to 1.35 to 1
September 30, 1998 greater than or equal
to 1.60 to 1
December 31, 1998 greater than or equal
to 1.65 to 1
March 31, 1999 and each greater than or equal
fiscal quarter to 2.00 to 1
thereafter
a. Section 5.11 of the Credit Agreement, Profitability, is deleted in its
entirety and amended to read as follows:
5.11 Profitability . The Company shall have Consolidated Net Income at the
end of each fiscal quarter of a least $1.00.
10
a. Section 5.13 of the Credit Agreement, Use of Proceeds, is deleted 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
and the Guarantors. 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
covenants 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 purposes of
the calculation and (iii) that such repurchase complies with the
provisions of Section 6.8 (xiv) hereof. Notwithstanding the forgoing,
the Company shall not repurchase any additional Senior Subordinated
Note or common stock under the Stock Repurchase Program prior to
October 1, 1998 and shall only make such repurchases after October 1,
1998 with the prior consent of the Majority Lenders.
a. Section 5.16 is added to the Credit Agreement to read as follows:
5.16 Capital Expenditures. The Company shall not make Capital Expenditures
(i) in the fiscal year ending December 31, 1998 which exceed $20,000,000
and (ii) in the fiscal year ending December 31, 1999 which exceed
$30,000,000.
a. Section 6.1 (i) of the Credit Agreement is deleted in its entirety.
b. Exhibit F is amended in its entirety as provided in Exhibit F to this
Third Amendment.
c. Exhibit J is amended in its entirety as provided in Exhibit J to this
Third Amendment.
1. Consent and Waiver. Subject to the terms of this Agreement and the Consent
Agreement, the Lenders hereby reaffirm the waiver contained in the Waiver
Agreement.
1. Conditions to Third Amendment.
a. The agreements of the Agent and the Lenders as set forth in this Third
Amendment are subject to the fulfillment of the following conditions:
11
(1) Receipt by Agent of a copy of this Third Amendment and Consent Agreement
executed by the Company, Retail, Licensing and the Majority Lenders;
(1) Receipt by each of the Lenders of a one time amendment fee equal to 10 basis
points of each such Lender's Commitment.
(1) Evidence of Termination of the Guess Letter of Credit;
(a) 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: that appended is a Certified Articles of Incorporation of the Company,
that the By-laws of the Company has not been amended since the certificate
delivered on December 31, 1997, that the appended resolutions of the Company's
Boards of Directors authorizing the execution, delivery and performance of the
Third Amendment to the Credit Agreement are in full force and effect, and
affirmation as to the names, incumbency and signatures of the officers of the
Company, Retail and Licensing executing the Third Amendment to Credit Agreement
and the other Loan Documents executed pursuant thereto;
(1) Current certificates of foreign qualification for the Company.
(1) Such other documents, instruments and agreements as Agent may reasonably
request in connection herewith or in order to effectuate the matters described
herein.
1. Credit Agreement Remains in Full Force an 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 Third Amendment and all provisions of the Credit
Agreement shall remain in full force and effect, except as specifically amended
by this Third Amendment.
1. 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 which was not waived under the Waiver Agreement.
a. The Guarantors, which have consented to this Third 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.
1. 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).
1. 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 Third Amendment as of and through the date hereof.
12
1. Counterparts. This Third 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 Third 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 Third Amendment, is confirmed as
being in full force and effect.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
GUESS ?, INC.
By:
Print Name:
Title:
BANKBOSTON, N.A. FORMERLY 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:
SUMITOMO BANK OF CALIFORNIA
(AS LENDER)
By:
Print Name:
Title:
Acknowledged and Consented to:
GUESS ? RETAIL, INC.
By:___________________
Print Name:_________________
Title:_____________________
GUESS? LICENSING, INC.
By:
Print Name:
Title:____________________
14
EXHIBIT F
GUESS ?, INC.
REPORT OF CHIEF FINANCIAL OFFICER
GUESS ?, INC. (the "Company") HEREBY CERTIFIES that:
This Report is furnished pursuant to Section 5.1(c) of the Amended and
Restated Revolving Credit Agreement dated as of March 28, 1997, as amended from
time to time, by and between the Company and BankBoston, N.A. formerly known as
The First National Bank of Boston (the "Bank of Boston"), as Agent, Sanwa Bank
California, as Co-Agent, and the other Lenders party thereto (the "Agreement").
Unless otherwise defined herein, the terms used in this Report have the meanings
given to them in the Agreement.
As required by Section 5.1(a) and (b) of the Agreement, consolidated
financial statements of the Company and its Subsidiaries for the
[year/month/quarter] ended , 19 (the "Financial Statements") prepared in
accordance with GAAP consistently applied accompany this Report. The Financial
Statements present fairly the consolidated financial position of the Company and
its Subsidiaries as at the date thereof and the consolidated results of
operations of the Company and its Subsidiaries for the period covered thereby
(subject only to normal recurring year-end adjustments).
The figures set forth in Schedule A for determining compliance by the
Company with the financial covenants contained in the Agreement are true and
complete as of the date hereof.
The activities of the Company and its Subsidiaries during the period
covered by the Financial Statements have been reviewed by the Chief Financial
Officer or by employees or agents under his immediate supervision. Based on such
review, to the best knowledge and belief of the Chief Financial Officer, and as
of the date of this Report, no Default has occurred and is continuing.
WITNESS my hand this day of , 19 .
GUESS ?, INC.
By:
Title:
------------------
1 If a Default has occurred, this paragraph is to be modified with an
appropriate statement as to the nature thereof, the period of existence
thereof and what action the Company has taken, is taking, or proposes to
take with respect thereto.
SCHEDULE A
to
EXHIBIT F
FINANCIAL COVENANTS
Current Ratio (Section 5.7)
REQUIRED for fiscal quarter ending:
:1.00
ACTUAL for fiscal quarter ending:
(i) Consolidated Current Assets $
(ii) Consolidated Current Liabilities
(iii) Current portion of Indebtedness for $
Money Borrowed
(iv) Line (ii) less line (iii) $
(v) Line (i) divided by line (iv) :1.00
Leverage Ratio (Section 5.8)
MAXIMUM for fiscal quarter ending: :1.00
ACTUAL for fiscal quarter ending:
(i) Indebtedness for Money Borrowed $
(ii) Consolidated Cash Flow $
(iii) Excess Dividends $
(iv) Line (ii) less line (iii) $
(vi) Line (i) divided by line (iv) :1.00
Total Interest Coverage (Section 5.9)
REQUIRED for fiscal quarter ending: :1.00
ACTUAL for fiscal quarter ending: $
(i) Consolidated EBITDA
(ii) Capital Expenditures $
(iii) Line (i) less Line (ii) $
2
(iv) Consolidated Total Interest Expense $
(v) Line (iii) divided by line (iv) :1.00
Total Fixed Charge Coverage (Section 5.10)
REQUIRED for fiscal quarter ending: :1.00
ACTUAL for fiscal quarter ending:
(i) Consolidated Cash Flow $
(ii) Payments on Operating Leases $
(iii) Sum Total of Line (i) plus Line (ii) $
(iv) Consolidated Total Debt Service $
(v) Payments on Operating Leases
(vi) Sum Total of Line (iv) plus Line (v)
(vii) Line (iii) divided by Line (iv) :1.00
Profitability (Section 5.11)
REQUIRED at the end of each fiscal quarter: $ 1.00
ACTUAL for fiscal quarter ending:
Consolidated net income $
Inventory Turnover (Section 5.12)
MINIMUM: 2.25 Turns
ACTUAL:
(i) Total cost of sales for the Company $
for the four fiscal quarters ended
(ii) Book Value of inventory at end of $
current fiscal quarter
(iii) Book value of inventory at beginning $
of measurement period
(iv) Line (ii) plus line (iii) $
(v) Line (iv) divided by 2
(vi) Line (i) divided by line (v) ____ Turns
3
CAPITAL EXPENDITURES (SECTION 5.16)
MAXIMUM for fiscal year ending:
ACTUAL through the fiscal quarter ending:
WITNESS my hand this ______ day of ____________, 19__.
GUESS ?, INC.
By:
Title:
4
EXHIBIT J
LENDER'S PERCENTAGES
Lender Maximum
Total Lender's
Commitment Percentages
BankBoston, N.A. $30,000,000 34.5324%
000 Xxxxxxx Xxxxxx
Mail Stop 01-09-05
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Director
Telecopier: (000)000-0000
Sanwa Bank California $26,875,000 30.9353%
Sanwa Bank Plaza
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000)000-0000
Credit Lyonnais $20,000,000 23.0216%
Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Vice President
Telecopier: (000) 000-0000
Sumitomo Bank of California $10,000,000 11.5108%
000 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx Xxxxxxxxxx,
Vice President
Telecopier: (000) 000-0000
