EXHIBIT 10.5
EXECUTION COPY
LEVI XXXXXXX & CO.
LIMITED WAIVER
This LIMITED WAIVER (this "Waiver") is dated as of February
------
29, 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 Bridge Credit Agreement dated as of
January 31, 2000 (the "Credit Agreement"), by and among Company; Banks; the
----------------
several financial institutions party thereto as Co-Syndication Agents; the
financial institution party thereto as Documentation Agent; 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, Banks desire 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. WAIVER
Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Company contained herein,
Banks hereby waive compliance with the provisions of Section 7.1(o) of the
Credit Agreement to the extent, and only to the extent, necessary to permit
Company to become and remain liable with respect to unsecured Guaranty
Obligations under (i) the Permitted Foreign Receivables Purchase Facilities to
be entered into by Company and certain of its Subsidiaries and ABN AMRO Bank N.V
or its Affiliates on or about February 29, 2000 and (ii) additional Permitted
Foreign Receivables Purchase Facilities to be entered into by the above parties
with respect to Permitted Foreign Receivables generated by Levi Xxxxxxx
Nederland B.V., Dockers Europe B.V. and Levi Xxxxxxx Japan K.K.; provided that
--------
the aggregate amount of such Guaranty Obligations (including those related to
defaulted and diluted Permitted Foreign Receivables but excluding those related
to servicing Permitted Foreign Receivables) shall not exceed $15,000,000.
Without limiting the generality of the provisions of Section
10.1 of the Credit Agreement, the waiver set forth above shall be limited
precisely as written and relates solely to the noncompliance by Company with the
provisions of Section 7.1(o) of the Credit Agreement in the manner and to the
extent described above, and nothing in this waiver shall be deemed to:
(a) constitute a waiver of compliance by Company with respect to
Section 7.1(o) of the Credit Agreement in any other instance or 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 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.
Except as expressly set forth herein, the terms, provisions and conditions
of the Credit Agreement and the other Loan Documents shall remain in full force
and effect and in all other respects are hereby ratified and confirmed.
Section 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Banks to enter into this Waiver, Company hereby
represents and warrants that after giving effect to this Waiver:
(a) as of the date hereof, there exists no Event of Default under
the Credit Agreement;
(b) all representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects on and as of the date hereof except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true and correct in all material respects on and as of such earlier date; and
(c) as of the date hereof, Company has performed all agreements to
be performed on its part as set forth in the Credit Agreement.
Section 3. GOVERNING LAW
THIS WAIVER 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.
Section 4. COUNTERPARTS; EFFECTIVENESS
This Waiver 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 Waiver shall
become effective upon the execution of a counterpart hereof by Company and
Majority Banks.
2
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
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-Syndication Agent
and as a Bank
By:
-----------------------------------------------
Title:
-------------------------------------------
CITICORP U.S.A. INCORPORATED, as a Co-Syndication
Agent and as a Bank
By:
-----------------------------------------------
Title:
--------------------------------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent and as a Bank
By:
-----------------------------------------------
Title:
--------------------------------------------
3
BANK ONE, N.A., as a Bank
By:
-----------------------------------------------
Title:
--------------------------------------------
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:
--------------------------
4
LEVI XXXXXXX GLOBAL OPERATIONS, INC.
By:
-----------------------------
Title:
--------------------------
LEVI XXXXXXX INTERNATIONAL
By:
-----------------------------
Title:
--------------------------
LEVI XXXXXXX LATIN AMERICA, INC.
By:
-----------------------------
Title:
--------------------------
LEVI'S ONLY STORES, INC.
By:
-----------------------------
Title:
--------------------------
NF INDUSTRIES, INC.
By:
-----------------------------
Title:
--------------------------
5
