Exhibit 10.65


 


THIRD AMENDMENT 


TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


 


This Third Amendment To Amended and Restated Loan And
Security Agreement (the “Amendment”)
dated as of April 4, 2005, is entered into by and among CONGRESS FINANCIAL
CORPORATION (WESTERN), a California corporation (“Lender”),
and GUESS ?, INC., a Delaware corporation (“Guess”),
GUESS? RETAIL, INC., a Delaware corporation, and GUESS.COM, INC., a Delaware
corporation, jointly and severally as co-borrowers (each a “Borrower” and collectively, the “Borrowers”), with reference to the
following facts:


 


RECITALS


 


A.            Lender
is extending various secured financial accommodations to the Borrowers upon the
terms of that certain Amended and Restated Loan and Security Agreement dated as
of December 20, 2002, as previously amended by that certain First
Amendment to Amended and Restated Loan and Security Agreement, dated as of February 25,
2003 and that certain Second Amendment to Amended and Restated Loan and
Security Agreement dated as of December 30, 2004 (as the same now exists
or may hereafter be amended, modified, supplement, extended, renewed or
replaced, the “Loan Agreement”).


 


B.            Each
of the Borrowers and the Lender desires to amend the Loan Agreement upon the
terms and conditions set forth herein.


 


C.            Each
of the Borrowers is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of the rights or
remedies of the Lender as set forth in the Loan Agreement are being waived or
modified by the terms of this Amendment.


 


AMENDMENT


 


NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged by each party hereto, the parties hereto hereby agree
as follows:


 


SECTION 1.  Amendment.  Section 1.31 of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:


 


“1.31       ‘Cash Equivalents’ shall mean, at
any time, (a) any evidence of Indebtedness with a maturity date of ninety
(90) days or less issued or directly and fully guaranteed or insured by the
United States of America of any agency or instrumentality thereof; provided,
that the full faith and credit of the United States of America is pledged in
support thereof; (b) certificates of deposit or bankers’ acceptances with
a maturity of ninety (90) days or less of any financial institution that is a
member of the Federal Reserve System having combined capital and surplus and
undivided profits of not less than Two Hundred Fifty Million Dollars
($250,000,000); (c) commercial paper (including variable rate demand
notes) with a maturity of ninety (90) days or less issued by a corporation
(except an Affiliate of any Borrower) organized under the laws of any State of
the United States of America or the District of Columbia and rated at least A-1
by


 





















 


Standard & Poor’s Ratings Service, a
division of The McGraw-Hill Companies, Inc.  or at least P-1 by Moody’s Investors
Service, Inc.; (d) repurchase obligations with a term of not more
than thirty (30) days for underlying securities of the types described in
clause (a) above entered into with any financial institution having
combined capital and surplus and undivided profits of not less than Two Hundred
Fifty Million Dollars ($250,000,000); (e) repurchase agreements and
reverse repurchase agreements relating to marketable direct obligations issued
or unconditionally guaranteed by the United States of America or issued by any
governmental agency thereof and backed by the full faith and credit to the
United States of America, in each case maturing within ninety (90) days or less
from the date of acquisition; provided, that the terms of such agreements
comply with the guidelines set forth in the Federal Financial Agreements of
Depository Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985; (f) any evidence of
Indebtedness issued by a state, city, town, county or their agencies and paying
interest which is exempt from federal tax, provided that the maturity is ninety
(90) days or less and the Indebtedness is rated at least A-1, SP-1
or AAA by Standard & Poor’s Ratings Service, a division of The McGraw-Hill
Companies, Inc. or at least P-1, MIG-1 or Aaa by Moody’s
Investors Services, Inc.; and (g) investments in money market funds
and mutual funds which invest substantially all of their assets in securities
of the types described in clauses (a) through (f) above.”


 


SECTION 2.  Conditions to Effectiveness.  The effectiveness of this Amendment is
subject to the receipt by Lender of the following:


 


(a)           Counterparts of this Amendment, duly
executed and delivered by each of the parties hereto.


 


(b)           Such other documents related hereto
or in furtherance hereof as Lender may require.


 


SECTION 3.  No Other Changes.  Except as explicitly amended by this
Amendment, all of the terms and conditions of the Loan Agreement shall remain
in full force and effect and shall apply to any Loan or Letter of Credit
Accommodation thereunder.


 


SECTION 4.  Defined Terms.  Unless otherwise defined herein, terms used
in this Amendment that are defined in the Loan Agreement shall have the same
meanings herein as in the Loan Agreement. 
In addition, it is expressly understood that the term Financing
Agreements as used herein or in any other Financing Agreement includes this
Amendment for all purposes, including for the purposes of Section 5
hereof.


 


SECTION 5.  Representations and Warranties.  Each Borrower reaffirms that the
representations and warranties made to Lender in the Loan Agreement and other
Financing Agreements are true and correct in all material respects as of the
date of this Amendment as though made as of such date and after giving effect
to this Amendment.  In addition, each
Borrower makes the following representations and warranties to Lender, which
shall survive the execution of this Amendment.


 


(a)           The execution, delivery and
performance of this Amendment are within each Borrower’s powers, have been duly
authorized by all necessary actions, have received all necessary governmental
approvals, if any, and do not (i) contravene any other contractual
restriction, law or governmental regulation or court decree or order binding on
or affecting any


 


2





















 


Borrower or its assets, (ii) violate any Borrower’s
organizational documents or instruments, or (iii) result in, or require
the creation or imposition of, any security interest, mortgage, pledge, lien,
charge or other encumbrance of any nature whatsoever on any of any Obligor’s
assets or properties, including the Collateral, except for liens, security
interests and other encumbrances granted under the Financing Agreements.


 


(b)           This Amendment is the legal, valid
and binding obligation of each Borrower enforceable against each Borrower in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium and other similar laws affecting the rights of creditors
generally.


 


(c)           Since the dates of the financial
statements most recently provided by Borrowers to Lender pursuant to Sections
9.6(a)(i) and 9.6(a)(iii) of the Loan Agreement, there has been no
Material Adverse Change.


 


(d)           No event has occurred and is
continuing, after giving effect to this Amendment, which constitutes a Default
or an Event of Default under the Loan Agreement or any other of the Financing
Agreements, or would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.


 


SECTION 6.  Continuing Effect of Financing Agreements.  To the extent of any inconsistencies between
the terms of this Amendment and the Loan Agreement, this Amendment shall
govern.  In all other respects, the Loan
Agreement and other Financing Agreements shall remain in full force and effect
and are hereby ratified and confirmed.


 


SECTION 7.  Governing Laws.  This Amendment, upon becoming effective,
shall be deemed to be a contract made under, governed by, and subject to, and
shall be construed in accordance with, the internal laws of the State of
California.


 


SECTION 8.  No Waiver.  The execution of this Amendment and
acceptance of any other documents related hereto shall not be deemed to be a
waiver of any Event of Default under the Loan Agreement or breach, default or
event of default under any other Financing Agreement, whether or not known to
Lender and whether or not existing on the date of this Amendment.


 


SECTION 9.  Integration.  The Loan Agreement as amended by this
Amendment, together with the other Financing Agreements, incorporates all
negotiations of the parties hereto with respect to the subject matter hereof
and is the final expression and agreement of the parties hereto with respect to
the subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties; there are no oral
agreements between the parties.  Without
limiting the foregoing, in the event this Amendment conflicts with the terms of
any letter agreement between Borrowers and Lender, the terms of this Amendment
shall control.


 


SECTION 10.  Reference to and Effect on the Financing
Agreements.


 


(a)           Upon and after the effectiveness of
this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”,
“herein”, “hereof” or words of like import referring to the Loan Agreement, and
each reference in all other documents or agreements


 


3





















 


related thereto, including the other Financing
Agreements, to “the Loan Agreement”, “thereof” or words of like import referring
to the Loan Agreement, shall mean and be a reference to the Loan Agreement as
modified and amended hereby.


 


(b)           To the extent that any terms and
conditions in any of the Financing Agreements or any documents or agreements
related thereto shall contradict or be in conflict with any terms or conditions
of the Loan Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Loan Agreement as modified or amended hereby.


 


SECTION 11.  Severability.  Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Amendment affecting the validity or enforceability of such provision in any
other jurisdiction.


 


SECTION 12.  Execution in Counterparts.  This Amendment may be executed by facsimile
and in any number of counterparts, each of which when so executed and delivered
shall be deemed an original and all of which counterparts, taken together,
shall constitute one and the same instrument.


 


SECTION 13.  Section Captions.  The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.


 


SECTION 14.  Successors and Assigns.  This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.


 


[Remainder of this page intentionally
left blank]


 


4





















 


IN WITNESS WHEREOF, the parties hereto, intending to
be legally bound hereby, have executed this Amendment as of the date first set
forth above, to become effective in the manner set forth above.


 


	
   

  	
  GUESS ?, INC.,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Frederick G. Silny

  	
   

  
	
   

  	
  Name:

  	
  Frederick G. Silny

  
	
   

  	
  Title:

  	
  Senior Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUESS? RETAIL, INC.,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Frederick G. Silny

  	
   

  
	
   

  	
  Name:

  	
  Frederick G. Silny

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUESS.COM, INC.

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Frederick G. Silny

  	
   

  
	
   

  	
  Name:

  	
  Frederick G. Silny

  
	
   

  	
  Title:

  	
  Chief Financial Officer 

  
					



 





















 


	
   

  	
  CONGRESS FINANCIAL CORPORATION

  (WESTERN), as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Whitaker

  	
   

  
	
   

  	
  Name:

  	
  Gary Whitaker

  
	
   

  	
  Title:

  	
  Vice President