LEVI STRAUSS & CO.
FIRST AMENDMENT
TO 1997 SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
LIMITED WAIVER
This FIRST AMENDMENT TO 1997 SECOND AMENDED AND RESTATED 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 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 (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; 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 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
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
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credit (other than Lender 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 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.
1.2 AMENDMENTS TO ARTICLE VII: NEGATIVE COVENANTS
A. 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"
B. 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."
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.
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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 Agent, Collateral Agent or
any Bank may now have or may have in the future 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
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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.
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 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
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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, 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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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:
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ARCHIMEDES FUNDING III LTD.
By:___________________________
Name:
Title:
ARCHIMEDES FUNDING LLC
By:___________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA LOS ANGELES
FOREIGN BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
BANCA MONTE DEI PASCHI DI SIENA SPA
By:
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Name:
Title:
By:
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Name:
Title:
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BANK OF AMERICA, N.A., as a Bank
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:
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BANQUE NATIONALE DE PARIS
By:
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Name:
Title:
By:
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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:
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CIBC INC.
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:
CYPRESS MANAGEMENT PARTNERSHIP
By:_____________________________
Name:
Title:
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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:
FERNWOOD ASSOCIATES L.P.
By:____________________________
Name:
Title:
FIRST HAWAIIAN BANK
By:
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Name:
Title:
BANKBOSTON N.A.
By:
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Name:
Title:
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FRANKLIN FLOATING RATE TRUST
By:____________________________
Name:
Title:
GALAXY CLO 1999-1, LTD.
By:____________________________
Name:
Title:
GOLDMAN SACHS & COMPANY
By:___________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Name:
Title:
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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:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
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MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
SALOMON BROTHERS HOLDING COMPANY INC.
By:______________________________
Name:
Title:
THE SANWA BANK, LIMITED
By:
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Name:
Title:
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SOCIETE GENERALE NEW YORK BRANCH
By:
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Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
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Name:
Title:
THE TOKAI BANK LIMITED
By:
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Name:
Title:
UBS AG, STAMFORD BRANCH
By:
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Name:
Title:
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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:
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:
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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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