LEVI STRAUSS & CO.
FIRST AMENDMENT
TO AMENDED AND RESTATED 1999 180 DAY CREDIT AGREEMENT AND
LIMITED WAIVER
This FIRST AMENDMENT TO AMENDED AND RESTATED 1999 180 DAY CREDIT AGREEMENT
AND LIMITED WAIVER (this "AMENDMENT") is dated as of July 31, 2000 and entered
into by and among Levi Strauss & Co., a Delaware corporation ("COMPANY"); the
financial institutions party hereto ("BANKS"); Bank of America, N.A. as
Administrative Agent for Banks ("ADMINISTRATIVE 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 1999 180 Day Credit Agreement
dated as of January 31, 2000 (the "CREDIT AGREEMENT"), by and among Company;
Banks; the several financial institutions party thereto as Co-Documentation
Agents; Administrative 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; and
WHEREAS, Company has requested Banks to waive certain provisions of 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. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO ARTICLE I: DEFINITIONS
Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "TOTAL AMOUNT OF UNSECURED DEBT" contained therein
and substituting the following therefor:
"TOTAL AMOUNT OF UNSECURED DEBT' means, as of any date of
determination, the sum, without duplication, of (a) the Unsecured Derivative/FX
Usage, (b) the Unsecured Letter of Credit Usage, and (c) the aggregate amount of
all unsecured Indebtedness of Company and its Subsidiaries (other than
Indebtedness permitted under Sections 7.1(a), 7.1(b), 7.1(c), 7.1(d), 7.1(e),
7.1(f), 7.1(g), 7.1(h), 7.1(i), 7.1(j), 7.1(k), 7.1(l), 7.1(m), 7.1(n), 7.1(o),
7.1(p), 7.1(q), 7.1(s), 7.1(t), and 7.1(u))."
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1.2 AMENDMENTS TO ARTICLE VI: AFFIRMATIVE COVENANTS
A. Section 6.1(a)(vii) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(A) As soon as practicable and in any event no later than 10
Business Days after the end of each fiscal month, or more frequently if
requested by Administrative Agent, a report setting forth (w) the aggregate
Termination Value of all Derivative/FX Contracts to which Company or FinServ is
a party, (x) the aggregate Termination Value for each Derivative/FX Lender of
all Lender Derivative/FX Contracts to which such Derivative/FX Lender and
Company or FinServ is a party, (y) all Derivative/FX Contracts to which Company
or FinServ is a party, and (z) all other outstanding unsecured Indebtedness of
Company or any of its Subsidiaries (including any letters of credit (other than
Lender Bridge Letters of Credit and Lender 180 Day Letters of Credit) issued for
the benefit of Company and its Subsidiaries) incurred in accordance with Section
7.1(r), and (B) promptly upon request, any other information concerning such
Derivative/FX Contracts reasonably requested by Administrative Agent."
B. Section 6.11(c) of the Credit Agreement is hereby amended by
deleting the phrase "the date that is 60 days after the Closing Date" contained
therein and substituting the phrase "August 31, 2000" therefor.
1.3 AMENDMENTS TO ARTICLE VII: NEGATIVE COVENANTS
A. Section 7.1(r) of the Credit Agreement is hereby amended by
deleting the phrase "Derivative/FX Usage" contained in clause (iii)(B) thereof
and substituting the phrase "Lender Derivative/FX Usage" therefor.
B. Section 7.1 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of Section 7.1(s) thereof, (ii) renumbering
Section 7.1(t) thereof as Section 7.1(u) and (iii) adding a new Section 7.1(t)
thereto as follows:
"Indebtedness between Company and any of its Subsidiaries
or between any of Company's Subsidiaries arising from purchases of inventory
or raw materials in the ordinary course of business; and"
C. Section 7.3(m) of the Credit Agreement is hereby amended to read
in its entirety as follows:
"Dispositions of accounts receivable to collection agencies or,
in the case of accounts receivable of Foreign Subsidiaries, to collection
agencies or other third parties, provided the aggregate face amount of all such
accounts receivable does not exceed $2,000,000."
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SECTION 2. WAIVERS
2.1 WAIVER OF SECTION 6.1(A)(VII)
The undersigned Banks, constituting Majority Banks under the
Credit Agreement, hereby waive compliance with the provisions of Section
6.1(a)(vii) of the Credit Agreement to the extent, and only to the extent, that
such provisions require Company to deliver the information described in Section
6.1(a)(vii) from the period commencing on the Closing Date to and including the
date of this Amendment.
2.2 WAIVER OF SECTION 6.11(A)(II)
The undersigned Banks, constituting Majority Banks under the
Credit Agreement, hereby waive compliance with the provisions of Section
6.11(a)(ii) of the Credit Agreement to the extent, and only to the extent,
necessary to permit the sale of the Property located at 501 Conestoga Way,
Henderson, NV to be consummated on or prior to August 31, 2000 without causing
Company to be required to deliver the documents described in Section 6.11(a)(ii)
promptly following the date that is 90 days after the Closing Date; PROVIDED
that, if the sale of such Property is not consummated on or prior to August 31,
2000, Company shall deliver the documents described in Section 6.11(a)(ii) on or
prior to September 30, 2000.
2.3 WAIVER OF SECTION 6.11(A)(III)
The undersigned Banks, constituting Majority Banks under the
Credit Agreement, hereby waive compliance with the provisions of Section
6.11(a)(iii) of the Credit Agreement to the extent, and only to the extent,
necessary to permit the sale of each of the Properties located at (i) 2101
Cypress Avenue, El Paso, TX, (ii) 1800 Stirman Avenue, Fayetteville, AR, (iii)
7950 U.S. Highway 25, Florence, KY and (iv) 1001 East Broadway, Morrilton, AR to
be consummated on or prior to August 31, 2000 without causing Company to be
required to deliver the documents described in Section 6.11(a)(iii) (a) promptly
following the date that is 120 days after the Closing Date for any such Property
with respect to which no contract of sale has been entered into prior to that
date or (b) promptly following the date that is 60 days after the execution of
any contract of sale for any such Property if the sale has not been consummated
on or prior to that date; PROVIDED that, if the sale of any such Property is not
consummated on or prior to August 31, 2000, Company shall deliver the documents
described in Section 6.11(a)(iii) on or prior to September 30, 2000 with respect
to such Property.
2.4 LIMITATION OF WAIVER
Without limiting the generality of the provisions of Section
10.1 of the Credit Agreement, the waiver set forth herein shall be limited
precisely as written and relates solely to a waiver of compliance by Company
with the provisions of Sections 6.1(a)(vii), 6.11(a)(ii) and 6.11(a)(iii) of the
Credit Agreement in the manner and to the extent described above, and nothing in
this Amendment shall be deemed to (a) constitute a waiver of compliance by
Company with respect to (i) Section 6.1(a)(vii), 6.11(a)(ii) or 6.11(a)(iii) of
the Credit Agreement in any other instance or (ii) any other term, provision or
condition of the Credit Agreement or any other instrument or agreement referred
to therein or (b) prejudice any right or remedy that Administrative Agent,
Collateral Agent or any Bank may now have or may have in the future
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under or in connection with the Credit Agreement or any other instrument or
agreement referred to therein.
SECTION 3. 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 Amend-
ment 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 4. 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 Agree-
ment 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 Administrative
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
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof, except for Section 2.1 hereof which shall
become effective as of January 31, 2000, Section 2.2 hereof which shall become
effective as of April 30, 2000 and Section 2.3 hereof which shall become
effective as of May 30, 2000, each upon the happening of the same events.
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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 STRAUSS & CO.
By:
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Title:
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BANK OF AMERICA, N.A., as a Bank
By:
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Title:
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THE BANK OF NOVA SCOTIA, as a
Co-Documentation Agent and as a Bank
By:
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Title:
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CITICORP U.S.A. INCORPORATED, as a
Co-Documentation Agent and as a Bank
By:
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Title:
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Documentation Agent
and as a Bank
By:
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Title:
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BANK OF AMERICA, N.A., as Administrative Agent
By:
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Title:
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BANK OF AMERICA, N.A., as Collateral Agent
By:
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Title:
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ACKNOWLEDGED:
BATTERY STREET ENTERPRISES, INC.
By:
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Title:
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LEVI STRAUSS FINANCIAL CENTER
CORPORATION
By:
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Title:
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LEVI STRAUSS FUNDING, LLC
By:
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Title:
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LEVI STRAUSS GLOBAL FULFILLMENT
SERVICES, INC.
By:
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Title:
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LEVI STRAUSS GLOBAL OPERATIONS, INC.
By:
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Title:
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LEVI STRAUSS INTERNATIONAL
By:
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Title:
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LEVI STRAUSS 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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