EXHIBIT 10.1
LEVI ▇▇▇▇▇▇▇ & CO.
FIRST AMENDMENT
TO BRIDGE CREDIT AGREEMENT AND LIMITED WAIVER
This FIRST AMENDMENT TO BRIDGE CREDIT AGREEMENT AND LIMITED WAIVER (this
"Amendment") is dated as of July 31, 2000 and entered into by and among Levi
▇▇▇▇▇▇▇ & 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, 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 I: DEFINITIONS
A. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "NOTICE OF LENDER DERIVATIVE/FX CONTRACT" contained therein.
B. Section 1.1 of the Credit Agreement is hereby further 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 determi-
nation, 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 AMENDMENT TO ARTICLE II: THE CREDITS
Section 2.6(b) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"ORDINARY COURSE DERIVATIVE/FX CONTRACTS DEEMED LENDER DERIVATIVE FX/
CONTRACTS. On and after the Closing Date, the Ordinary Course Derivative/FX
Contracts listed on SCHEDULE 1.1(a) shall be automatically deemed for all
purposes to be Lender Derivative/FX Contracts."
1.3 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.
1.4 AMENDMENTS TO ARTICLE VII: NEGATIVE COVENANTS
A. Section 7.1(r) of the Credit Agreement is hereby amended by delet-
ing 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 Subsidi-
aries or between any of Company's Subsidiaries arising from purchases of inven-
tory 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:
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"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."
1.5 AMENDMENT TO EXHIBITS
Exhibit II to the Credit Agreement is hereby deleted.
Section 2. WAIVERS
2.1 WAIVER OF SECTION 2.6(b)
The undersigned Banks, constituting Majority Banks under the
Credit Agreement, hereby waive compliance with the provisions of Section 2.6(b)
of the Credit Agreement to the extent, and only to the extent, that such
provisions require Company to deliver Notices of Lender Derivative/FX Contracts
from the period commencing on the Closing Date to and including the date of this
Amendment.
2.2 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.
2.3 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ 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.
2.4 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) ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, (▇▇▇)
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇ and (iv) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ 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
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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.
2.5 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 2.6(b), 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 2.6(b), 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 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.
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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 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 Sections 2.1 and 2.2 hereof which
shall become effective as of January 31, 2000, Section 2.3 hereof which shall
become effective as of April 30, 2000 and
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Section 2.4 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 Amend-
ment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
LEVI ▇▇▇▇▇▇▇ & CO.
By: _________________________________
Title: ______________________________
BANK OF AMERICA, N.A., as a Bank
By: _________________________________
Title: ______________________________
THE BANK OF NOVA SCOTIA, as a
Co-Syndication Agent and a Bank
By: _________________________________
Title: ______________________________
CITICORP U.S.A. INCORPORATED, as a
Co-Syndication Agent and as a Bank
By: _________________________________
Title: ______________________________
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent and as
a Bank
By: _________________________________
Title: ______________________________
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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 ▇▇▇▇▇▇▇ FINANCIAL CENTER
CORPORATION
By: ___________________________________
Title: ________________________________
LEVI ▇▇▇▇▇▇▇ FUNDING, LLC
By:_____________________________________
Title: ________________________________
LEVI ▇▇▇▇▇▇▇ GLOBAL FULFILLMENT
SERVICES, INC.
By: ___________________________________
Title: ________________________________
▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇ GLOBAL OPERATIONS, INC.
By:_____________________________________
Title: ________________________________
LEVI ▇▇▇▇▇▇▇ INTERNATIONAL
By: ___________________________________
Title: ________________________________
LEVI ▇▇▇▇▇▇▇ LATIN AMERICA, INC.
By: ___________________________________
Title: ________________________________
LEVI'S ONLY STORES, INC.
By: ___________________________________
Title: ________________________________
NF INDUSTRIES, INC.
By: ___________________________________
Title: ________________________________
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