LEVI ▇▇▇▇▇▇▇ & CO.
THIRD AMENDMENT
TO AMENDED AND RESTATED 1997 364 DAY CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED 1997 364 DAY
CREDIT AGREEMENT (this "AMENDMENT") is dated as of October 13, 2000 and entered
into by and among Levi ▇▇▇▇▇▇▇ & Co., a Delaware corporation ("Company"); the
financial institutions party hereto ("BANKS"); Bank of America, N.A. as Agent
for Banks ("Agent"); and Bank of America, N.A. as Collateral Agent for Banks
("COLLATERAL AGENT"), and is made with reference to that certain Amended and
Restated 1997 364 Day Credit Agreement dated as of January 31, 2000, as amended
by First Amendment to Amended and Restated 1997 364 Day Credit Agreement and
Limited Waiver dated as of July 31, 2000 and Second Amendment to Amended and
Restated 1997 364 Day Credit Agreement and Limited Waiver dated as of September
29, 2000 (the "CREDIT AGREEMENT"), by and among Company; Banks; the several
financial institutions party thereto as Senior Managing Agents; the several
financial institutions party thereto as Managing Agents; the several financial
institutions party thereto as Co-Agents; Agent; and Collateral Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Banks desire to amend the Credit
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO ARTICLE II: THE CREDITS
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A. Section 2.5(a) of the Credit Agreement is hereby
amended by adding the following as the final sentence thereof:
"Company may, if so specified in the applicable notice of
prepayment, request that any prepayment of Loans pursuant to this Section 2.5 be
applied to reduce the principal amounts payable and corresponding Commitment
reductions under Section 2.7 in forward chronological order; PROVIDED that (A)
the amount of such voluntary prepayment is equal to the Three Facility
Commitment Reduction Fraction TIMES the aggregate amount of prepayments and
commitment reductions made pursuant to subclauses (A), (B) and (C) of this
paragraph, (B) Company simultaneously makes a voluntary prepayment of loans
outstanding under the 1997 Second Amended and Restated Credit Agreement in an
amount equal to the Three Facility Commitment Reduction Fraction (as defined
therein) TIMES the aggregate amount of prepayments and commitment reductions
made pursuant to subclauses (A), (B) and (C) of this paragraph, and
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(C) Company simultaneously makes a voluntary commitment reduction under the
Amended and Restated 1999 180 Day Credit Agreement in an amount equal to the
Three Facility Commitment Reduction Fraction (as defined therein) TIMES the
aggregate amount of prepayments and commitment reductions made pursuant to
subclauses (A), (B) and (C) of this paragraph; PROVIDED FURTHER that the
prepayments and commitment reductions set forth in subclauses (B) and (C) above
are applied to reduce scheduled principal payments and commitment reductions
under the applicable credit agreements in forward chronological order."
SECTION 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Banks to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company represents and
warrants to each Bank that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Company has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and
delivery of this Amendment and the performance of the Amended Agreement have
been duly authorized by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company
of this Amendment and the performance by Company of the Amended Agreement do not
and will not (i) violate any of its Organization Documents or any order,
judgment or decree of any court or other Governmental Authority binding on
Company, (ii) conflict with, result in a breach of, constitute a default under,
or require the termination of, any Contractual Obligation of Company, except
where such conflicts, breaches, defaults and terminations, in the aggregate,
would not have a Material Adverse Effect, (iii) result in or require the
creation or imposition of any Lien of any nature whatsoever upon any of the
properties or assets of Company (other than pursuant to the Collateral
Documents) or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company except where
the failure to obtain such approvals and consents would not, in the aggregate,
have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
Company of this Amendment and the performance by Company of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any Governmental Authority.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and are the legally
valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability, whether enforcement is sought in a proceeding at law or in
equity.
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SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement
shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Agent, Collateral Agent or any Bank under, the Credit
Agreement or any of the other Loan Documents.
B. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
C. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company and Majority
Banks and receipt by Company and Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
LEVI ▇▇▇▇▇▇▇ & CO.
By:
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Name:
Title:
ABN AMRO BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
AIMCO CDO SERIES 2000-A
By:
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Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By:____________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA LOS ANGELES
FOREIGN BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
BANK ONE, N.A.
By:
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Name:
Title:
BANKERS TRUST COMPANY
By:
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Name:
Title:
BNP PARIBAS (formerly BANQUE NATIONALE DE
PARIS)
By:
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Name:
Title:
By:
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Name:
Title:
CARIPLO - CASSA DI RISPARMIO DELLE PROVINCIE
LOMBARDE SPA
By:
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Name:
Title:
By:
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Name:
Title:
CITICORP U.S.A. INCORPORATED
By:
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Name:
Title:
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
DEUTSCHE BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
FIRST HAWAIIAN BANK
By:
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Name:
Title:
FRANKLIN CLO I LIMITED
By:
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Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY
By:___________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA LIMITED
By:
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Name:
Title:
KBC BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
ML CLO XV PILGRIM AMERICA
By:
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Name:
Title:
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By:_____________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
PIMCO HIGH YIELD FUND
By:
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Name:
Title:
SEQUILS-PILGRIM I LTD.
By:____________________________
Name:
Title:
SOCIETE GENERALE NEW YORK BRANCH
By:
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Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
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Name:
Title:
UNICREDITO ITALIANO S.P.A.
By:
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Name:
Title:
By:
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Name:
Title:
WACHOVIA BANK N.A.
By:
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Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
BANK OF AMERICA, N.A., as Agent
By:
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Name:
Title:
BANK OF AMERICA, N.A., as Collateral Agent
By:
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Name:
Title:
ACKNOWLEDGED:
BATTERY STREET ENTERPRISES, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ FINANCIAL CENTER
CORPORATION
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ FUNDING, LLC
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ GLOBAL FULFILLMENT
SERVICES, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ GLOBAL OPERATIONS, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ INTERNATIONAL
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ LATIN AMERICA, INC.
By:
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Title:
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LEVI'S ONLY STORES, INC.
By:
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Title:
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NF INDUSTRIES, INC.
By:
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Title:
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