LEVI XXXXXXX & CO.
THIRD AMENDMENT
TO AMENDED AND RESTATED 1999 180 DAY CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED 1999 180 DAY
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
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, as amended by First Amendment to Amended and
Restated 1999 180 Day Credit Agreement and Limited Waiver dated as of July 31,
2000 and Second Amendment to Amended and Restated 1999 180 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
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.
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 2.6(a) of the Credit Agreement is hereby
amended by adding the following as the penultimate sentence thereof:
"Company may, if so specified in the applicable
notice of Commitment reduction, request that any reduction of
Commitments pursuant to this Section 2.6 be applied to reduce the
Commitment reductions under Section 2.8(b) in forward chronological
order; PROVIDED that (A) the amount of such voluntary Commitment
reduction 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,
1
and (C) 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; 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.
2
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 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.
[Remainder of page intentionally left blank]
3
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:_________________________________________________
Title:______________________________________________
BANK OF AMERICA, N.A., as a Bank
By:_________________________________________________
Title:______________________________________________
THE BANK OF NOVA SCOTIA, as a Co-Documentation Agent
and as a Bank
By:_________________________________________________
Title:______________________________________________
CITICORP U.S.A. INCORPORATED, as a Co-Documentation
Agent and as a Bank
By:_________________________________________________
Title:______________________________________________
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Co-Documentation Agent and as a Bank
By:_________________________________________________
Title:______________________________________________
S-1
BANK OF AMERICA, N.A., as Administrative Agent
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA, N.A., as Collateral Agent
By:_________________________________________________
Title:______________________________________________
ACKNOWLEDGED:
BATTERY STREET ENTERPRISES, INC.
By:___________________________________________________
Title:________________________________________________
LEVI XXXXXXX FINANCIAL CENTER
CORPORATION
By:___________________________________________________
Title:________________________________________________
LEVI XXXXXXX FUNDING, LLC
By:___________________________________________________
Title:________________________________________________
LEVI XXXXXXX GLOBAL FULFILLMENT
SERVICES, INC.
By:___________________________________________________
Title:________________________________________________
LEVI XXXXXXX GLOBAL OPERATIONS, INC.
By:___________________________________________________
Title:________________________________________________
X-0
XXXX XXXXXXX INTERNATIONAL
By:___________________________________________________
Title:________________________________________________
LEVI XXXXXXX LATIN AMERICA, INC.
By:___________________________________________________
Title:________________________________________________
LEVI'S ONLY STORES, INC.
By:___________________________________________________
Title:________________________________________________
NF INDUSTRIES, INC.
By:___________________________________________________
Title:________________________________________________
S-3
