LEVI XXXXXXX & CO.
THIRD AMENDMENT
TO 1997 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO 1997 SECOND AMENDED AND RESTATED
CREDIT AGREEMENT (this "AMENDMENT") is dated as of October 13, 2000 and entered
into by and among Levi Xxxxxxx & 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 1997 Second
Amended and Restated Credit Agreement dated as of January 31, 2000, as amended
by First Amendment to 1997 Second Amended and Restated Credit Agreement and
Limited Waiver dated as of July 31, 2000 and Second Amendment to 1997 Second
Amended and Restated 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
A. Section 2.8(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 2.8 be
applied to reduce the principal amounts payable and corresponding Commitment
reductions under Section 2.10 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 Amended and Restated 1997 364 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, 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 XXXXXXX & 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:
ARCHIMEDES FUNDING III LTD.
By:___________________________
Name:
Title:
ARCHIMEDES FUNDING LLC
By:___________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA LOS ANGELES
FOREIGN BRANCH
By:
-----------------------------------------
Name:
Title:
By:
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Name:
Title:
BANCA MONTE DEI PASCHI DI SIENA SPA
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
-----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
-----------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
-----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
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Name:
Title:
BNP PARIBAS
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
CAPTIVA III FINANCE LTD.
By:____________________________
Name:
Title:
CAPTIVA IV FINANCE LTD.
By:_____________________________
Name:
Title:
CARIPLO - CASSA DI RISPARMIO DELLE PROVINCIE
LOMBARDE SPA
By:
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Name:
Title:
By:
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Name:
Title:
CIBC INC.
By:
-----------------------------------------
Name:
Title:
CITICORP U.S.A. INCORPORATED
By:
-----------------------------------------
Name:
Title:
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
-----------------------------------------
Name:
Title:
By:
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Name:
Title:
CYPRESS MANAGEMENT PARTNERSHIP
By:_____________________________
Name:
Title:
DEUTSCHE BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
FERNWOOD ASSOCIATES L.P.
By:____________________________
Name:
Title:
FIRST HAWAIIAN BANK
By:
-----------------------------------------
Name:
Title:
FLEET NATIONAL BANK (f/k/a BANKBOSTON, N.A.)
By:
-----------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:____________________________
Name:
Title:
GALAXY CLO 1999-1, LTD.
By:____________________________
Name:
Title:
XXXXXXX XXXXX & COMPANY
By:___________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-----------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III LIMITED,
BY INDOSUEZ CAPITAL AS PORTFOLIO ADVISOR
By:_____________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV L.P.,
BY INDOSUEZ CAPITAL AS PORTFOLIO ADVISOR
By:_____________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING VI LIMITED
By:
-----------------------------------------
Name:
Title:
KZH SOLEIL LLC
By:
-----------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-----------------------------------------
Name:
Title:
NEMEAN CLO, LTD.
By:
-----------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:
-----------------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY INC.
By:______________________________
Name:
Title:
THE SANWA BANK, LIMITED
By:
-----------------------------------------
Name:
Title:
SOCIETE GENERALE NEW YORK BRANCH
By:
-----------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
-----------------------------------------
Name:
Title:
THE TOKAI BANK LIMITED
By:
-----------------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH
By:
-----------------------------------------
Name:
Title:
UNICREDITO ITALIANO S.P.A.
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
WACHOVIA BANK N.A.
By:
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Agent
By:
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Collateral Agent
By:
-----------------------------------------
Name:
Title:
ACKNOWLEDGED:
BATTERY STREET ENTERPRISES, INC.
By:
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Title:
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LEVI XXXXXXX FINANCIAL CENTER
CORPORATION
By:
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Title:
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LEVI XXXXXXX FUNDING, LLC
By:
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Title:
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LEVI XXXXXXX GLOBAL FULFILLMENT
SERVICES, INC.
By:
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Title:
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LEVI XXXXXXX GLOBAL OPERATIONS, INC.
By:
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Title:
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LEVI XXXXXXX INTERNATIONAL
By:
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Title:
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LEVI XXXXXXX 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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