EXHIBIT 10.1
EXECUTION COPY
LEVI STRAUSS & CO.
THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT
This THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this
"Amendment") is dated as of July 26, 2002 and entered into by and among LEVI
STRAUSS & CO., a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof (the "Lenders"), BANK OF AMERICA, N.A. ("Bank of America"), as the
provider of Swing Line Advances (the "Swing Line Bank"), BANC OF AMERICA
SECURITIES LLC and SALOMON SMITH BARNEY INC., as co-lead arrangers and joint
book managers (the "Co-Lead Arrangers"), CITICORP USA, INC., as the syndication
agent (the "Syndication Agent"), THE BANK OF NOVA SCOTIA, as the documentation
agent (the "Documentation Agent"), and BANK OF AMERICA, N.A., as the
administrative and collateral agent (the "Administrative Agent"), and is made
with reference to that certain Credit Agreement dated as of February 1, 2001, as
amended by First Amendment to Credit Agreement dated as of July 11, 2001, and
Second Amendment to Credit Agreement dated as of January 28, 2002 (as so
amended, and as otherwise amended, modified or supplemented from time to time,
the "Credit Agreement"), by and among the Borrower, the Lenders, Swing Line
Bank, Syndication Agent, Documentation Agent and Administrative Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
R E C I T A L S
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WHEREAS, the Borrower intends to adopt a deferred compensation
plan to be effective in 2003, pursuant to which the Borrower would from time to
time transfer employee compensation amounts deferred by employees and contribute
other funds (the "Trust Funds") to a grantor trust adopted and maintained by the
Borrower (the "LS&Co. Trust");
WHEREAS, the purpose of the LS&Co. Trust would be to provide
specified, tax-deferred benefits to a select group of management and employees
of the Borrower;
WHEREAS, the Borrower and the Lenders desire to amend the
Credit Agreement in order to permit the transfer and contribution by the
Borrower of the Trust Funds to the LS&Co. Trust and to clarify the applicability
of certain covenants, conditions and restrictions contained in the Credit
Agreement to the LS&Co. Trust.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
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Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Article 1: Definitions and Accounting Terms
---------------------------------------------------------
A. Section 1.01 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"`LS&Co. Deferred Compensation Plan' has the meaning specified
in Section 5.02(e)."
"`LS&Co. Trust' has the meaning specified in Section 5.02(e)."
"`LS&Co. Trust Agreement' has the meaning specified in Section
5.02(e)."
B. Section 1.01 of the Credit Agreement is hereby amended by
amending the definition of "Hedge Bank" contained therein its entirety to read
as follows:
"`Hedge Bank' means, at any time, any Lender holding at least
2% of the Revolving Credit Commitments at such time or any of its
Affiliates, in any such Lender's or any such Affiliate's capacity as a
party to a Hedge Agreement."
C. Section 1.01 of the Credit Agreement is hereby amended by
adding the following at the end of the definition of "Subsidiary" contained
therein:
"; provided, however, in no event shall the LS&Co. Trust be
considered to be a Subsidiary of the Borrower"
1.2 Amendments to Article 5: Covenants of the Borrower
---------------------------------------------------
A. Section 5.02(a) of the Credit Agreement is hereby amended
by inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries" each
time it appears in the first paragraph thereof.
B. Section 5.02(b) of the Credit Agreement is hereby amended
by (i) inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries"
each time it appears in the first paragraph thereof; (ii) deleting the word
"and" at the end of clause (i)(B) thereof; (iii) adding the word "and" at the
end of clause (i)(C) thereof; and (iv) adding the following as new clause (i)(D)
thereof:
"(D) Contingent Obligations of the Borrower under the LS&Co.
Trust Agreement;"
C. Section 5.02(d) of the Credit Agreement is hereby amended
by (i) inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries"
each time it appears in the first paragraph thereof; (ii) deleting the word
"and" at the end of clause (ii) thereof; (iii) deleting the period at the end of
clause (iii) thereof and substituting the phrase ", and " therefor; and (iv)
adding the following as new clause (iv) thereof:
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"(iv) the LS&Co. Trust may merge into or consolidate with any
other trust adopted and maintained by the Borrower for a similar
purpose pursuant to a trust agreement in form and substance
satisfactory to the Administrative Agent."
D. Section 5.02(e) of the Credit Agreement is hereby amended
by (i) inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries"
each time it appears in the first paragraph thereof; (ii) deleting the word
"and" at the end of clause (xiii) thereof; (iii) deleting the period at the end
of clause (xiv) thereof and substituting the phrase ", and " therefor; and (iv)
adding the following as new clause (xv) thereof:
"(xv) transfers and contributions of funds from time to time
(i) by the Borrower to that certain grantor trust adopted and
maintained by the Borrower in connection with the deferred compensation
plan adopted by the Borrower to be effective as of January, 2003 (the
"LS&Co. Deferred Compensation Plan") for the purpose of contributing
funds to be held until paid to participants in the LS&Co. Deferred
Compensation Plan and their beneficiaries (the "LS&Co. Trust") pursuant
to that certain trust agreement in form and substance satisfactory to
the Administrative Agent (the "LS&Co. Trust Agreement") and (ii) by the
LS&Co. Trust to plan participants or the Borrower in accordance with
the LS&Co. Trust Agreement."
E. Section 5.02(f) of the Credit Agreement is hereby amended
by (i) inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries"
each time it appears in the first paragraph thereof; (ii) deleting the word
"and" at the end of clause (xiv) thereof; (iii) deleting the period at the end
of clause (xv) thereof and substituting the phrase ", and " therefor; and (iv)
adding the following as new clause (xvi) thereof:
"(xvi) Investments, if any, by the Borrower into the LS&Co.
Trust and by the LS&Co. Trust permitted by the LS&Co. Trust Agreement."
F. Section 5.02(i) of the Credit Agreement is hereby amended
by inserting the phrase "or the LS&Co. Trust" after the word "Subsidiaries" each
time it appears in the first paragraph thereof.
Section 2. CONSENT
Lenders hereby agree that upon the transfer or contribution
of funds by the Borrower to the LS&Co. Trust in accordance with Section
---------------------
5.02(e)(xv) of the Credit Agreement, any Lien acquired by the Administrative
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Agent or any Lender in such funds shall automatically and without further action
cease and be released and the Administrative Agent and the Lenders shall have no
Lien therein; provided, however, that nothing in this Section 2 shall be deemed
to constitute any release of the Lien of the Administrative Agent or any Lender
on any such funds distributed to the Borrower.
Section 3. AMENDMENTS TO PLEDGE AND SECURITY
AGREEMENT AND SUBSIDIARY GUARANTY
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The parties agree that, as of the Third Amendment Effective
Date (as defined below), the Pledge and Security Agreement and the Subsidiary
Guaranty shall be amended or supplemented as set forth in the forms thereof
provided to the Lenders.
Section 4. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Third Amendment
Effective Date"):
A. On or before the Third Amendment Effective Date, the
Borrower shall deliver to the Lenders (or to the Administrative Agent for the
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted, dated the
Third Amendment Effective Date:
1. Secretary's Certificate dated as of the Third
Amendment Effective Date, certifying that there have been no changes to
its Articles of Incorporation or Bylaws since July 11, 2001 and that
the adoption of the Amended Plan and the formation of the Trust has
been approved and authorized by all necessary corporate action,
together with a good standing certificate from the Secretary of State
of the State of Delaware dated a recent date prior to the Third
Amendment Effective Date;
2. Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the Third Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment; and
3. Signature and incumbency certificates of its
officers executing this Amendment.
B. On or before the Third Amendment Effective Date, the
Borrower and each other Loan Party shall execute the Second Amendment to Pledge
and Security Agreement in form and substance satisfactory to the Lenders.
C. On or before the Third Amendment Effective Date, the
Borrower and each other Loan Party shall execute the Second Amendment to
Subsidiary Guaranty in form and substance satisfactory to the Lenders.
Section 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Amendment
and to amend the Credit Agreement in the manner provided herein, the Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete:
A. Organization and Powers. The Borrower (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good standing
as a foreign corporation in each other jurisdiction in which it
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owns or leases property or in which the conduct of its business requires it to
so qualify or be licensed except where the failure to so qualify or be licensed
would not be reasonably likely to have a Material Adverse Effect and (iii) has
all requisite corporate power and authority (including, without limitation, all
Governmental Authorizations) 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. No Conflict. The execution and delivery of this Amendment
and performance by the Borrower of the Amended Agreement are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene the Borrower's Constitutive
Documents, (ii) violate any Requirements of Law, (iii) conflict with or result
in the breach of, or constitute a default or require any payment to be made
under, any contract, loan agreement, indenture, mortgage, deed of trust, lease
or other instrument binding on or affecting the Borrower, any of its
Subsidiaries or any of their properties or (iv) except for the Liens created or
permitted under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of the
Borrower or any of its Subsidiaries. Neither the Borrower nor any of its
Subsidiaries are in violation of any such Requirements of Law or in breach of
any such contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be reasonably likely to
have a Material Adverse Effect.
C. Governmental Consents. No Governmental Authorization, and
no other authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or any other third party is required for
the due execution, delivery, recordation or filing of this Amendment or the
performance by the Borrower of the Amended Agreement.
D. Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by the Borrower, and are the
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms.
E. Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained in Article IV of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Third Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
F. Absence of Default. No event has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Amendment that would constitute an Event of Default or a Potential Event
of Default.
Section 6. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the
Other Loan Documents.
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(i) On and after the Third Amendment Effective Date, 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 the
Administrative Agent or any Lender under, the Credit Agreement or any of the
other Loan Documents.
B. Fees and Expenses. The Borrower acknowledges that all
costs, fees and expenses as described in Section 2.08 of the Credit Agreement
incurred by the Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of the Borrower.
C. Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. 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 LAWS PRINCIPLES THAT WOULD REQUIRE
APPLICATION OF ANOTHER LAW.
E. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Amendment shall be as effective as delivery of an original executed counterpart
of this Amendment. This Amendment shall become effective upon the execution of a
counterpart hereof by the Borrower and Required Lenders and receipt by the
Borrower and the Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
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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:__________________________________
Joseph M. Maurer
Vice President and Treasurer
BANK OF AMERICA, N.A. as
Administrative Agent
By:__________________________________
Kathleen M. Carry
Vice President
BANK OF AMERICA, N.A. as an Issuing
Bank, Swing Line Bank and a Lender
By:__________________________________
Managing Director
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:__________________________________
Joseph M. Maurer
Vice President and Treasurer
BANK OF AMERICA, N.A. as
Administrative Agent
By:__________________________________
Title: ______________________________
BANK OF AMERICA, N.A. as an Issuing
Bank, Swing Line Bank and a Lender
By:__________________________________
Title: ______________________________
THE BANK OF NOVA SCOTIA, as
Documentation Agent, an Issuing Bank
and a Lender
By:__________________________________
Title: Director
CITICORP USA, INC., as Syndication
Agent and a Lender
By:__________________________________
Title: ______________________________
S-1
CITIBANK, N.A., as an Issuing Bank
By:__________________________________
David L. Harris
Vice President
ARCHIMEDES FUNDING II, LTD., as a
Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
John J. D'Angelo
Vice President
ARCHIMEDES FUNDING III, LTD., as
a Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
John J. D'Angelo
Vice President
ARCHIMEDES FUNDING IV
(CAYMAN), LTD, as a Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
John J. D'Angelo
Vice President
THE BANK OF NOVA SCOTIA, as
Documentation Agent, an Issuing Bank
and a Lender
By:__________________________________
Title: Director
BANK ONE, NA, as an Issuing Bank and
a Lender
By:__________________________________
Joseph R. Perdenza
Director
BANK OF SCOTLAND, as a Lender
By:__________________________________
Joseph Fratus
First Vice President
BILL & MELINDA GATES
FOUNDATION, as a Lender
By: David L. Babson & Company, Inc.
as Investment Advisor
By:__________________________________
Managing Director
BLACK DIAMOND CLO 2000-1 LTD.,
as a Lender
By:__________________________________
Director
CITICORP USA, INC., as a Syndication
Agent and a Lender
By:__________________________________
Vice President
C SQUARED CDO LTD., as a Lender
By: TCW Advisors, Inc., as Portfolio
Manager
By:__________________________________
Richard F. Kurth
Vice President
DENALI CAPITAL LLC, managing
member of DC Funding Partners LLC,
portfolio manager for DENALI
CAPITAL CLO I, LTD., as a Lender
By:__________________________________
Chief Credit Officer
EASTMAN HILL FUNDING I,
LIMITED, as a Lender
By: TCW Asset Management Co., as its
Collateral Manager
By:__________________________________
Mark L. Gold
Managing Director
FARALLON APPAREL INVESTORS,
L.L.C., as a Lender
By: Farallon Capital Management,
L.L.C., as Manager
By:__________________________________
David Cohen
Managing Member
FIDELITY ADVISOR SERIES II:
FIDELITY ADVISOR FLOATING
RATE HIGH INCOME FUND, as a
Lender
By:__________________________________
John H. Costello
Assistant Treasurer
FLEET NATIONAL BANK, as an
Issuing Bank and a Lender
By:__________________________________
Director
HAMPDEN CBO LTD., as a Lender
By: David L. Babson & Company Inc.,
as Investment Advisor
By:__________________________________
Managing Director
INDOSUEZ CAPITAL FUNDING IV, L.P.,
By: RBC Leveraged Capital as Portfolio
Advisor
By:__________________________________
Melissa Marano
Director
ING-ORYX CLO LTD., as a Lender
By: ING Capital Advisor LLC, as
Collateral Manager
By:__________________________________
John J. D'Angelo
Vice President
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By:__________________________________
Brian S. Horton
Vice President
JPMORGAN CHASE BANK (f/k/a/
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK), as an
Initial Lender
By:__________________________________
Marina Flindell
Vice President
KZH CRESCENT LLC, as a Lender
By:__________________________________
Susan Lee
Authorized Agent
KZH CRESCENT-2 LLC, as a Lender
By:__________________________________
Susan Lee
Authorized Agent
KZH CRESCENT-3 LLC, as a Lender
By:__________________________________
Joyce Fraser-Bryant
Authorized Agent
KZH PONDVIEW LLC, as a Lender
By:__________________________________
Joyce Fraser-Bryant
Authorized Agent
KZH WATERSIDE LLC, as a Lender
By:__________________________________
Joyce Fraser-Bryant
Authorized Agent
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: David L. Babson & Company, Inc.,
as Investment Advisor
By:__________________________________
Managing Director
MASS MUTUAL HIGH YIELD
PARTNERS II LLC, as a Lender
By: HYP Management Inc., as
Managing Member
By:__________________________________
Managing Director
ML CLO XY PILGRIM AMERICA
(CAYMAN) LTD.
By: ING Investments, LLC
as its investment manager
By:__________________________________
Brian S. Horton
Vice President
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By: ING Investments, LLC
as its investment manager
By:__________________________________
Brian S. Horton
Vice President
NEMEAN CLO, LTD., as a Lender
By: ING Capital Advisors LLC, as
Investment Manager
By:__________________________________
John J. D'Angelo
Vice President
OAK BROOK BANK, as a Lender
By: _________________________________
Vice President
SEQUILS I, LTD., as a Lender
By: TCW Advisors, Inc., as Collateral
Manager
By:__________________________________
Richard F. Kurth
Vice President
By:__________________________________
Mark L. Gold
Managing Director
SEQUILS ING I (HBDGM), LTD., as a
Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
John J. D'Angelo
Vice President
SEQUILS IV, LTD., as a Lender
By: TCW Advisors, Inc., as Collateral
Manager
By:__________________________________
Mark L. Gold
Managing Director
By:__________________________________
Richard F. Kurth
Vice President
SPECIAL SITUATIONS INVESTING
GROUP, INC., as a Lender
By:__________________________________
Robert S. Fanelli
Authorized Signature
STRONG SHORT TERM HIGH YIELD
BOND FUND, a Series of Strong Income
Funds, Inc., as a Lender
By:__________________________________
Gilbert L. Southwell III
Assistant Secretary
SUFFIELD CLO, LIMITED, as a Lender
By: David L. Babson & Company Inc.,
as Collateral Manager
By:____________________________________
Managing Director
SUNTRUST BANKS, INC., as a Lender
By:____________________________________
David W. Penter
Director Senior Relationship Manager
TCW SELECT LOAN FUND, LIMITED,
as a Lender
By: TCW Advisors, Inc., as Collateral
Manager
By:____________________________________
Richard F. Kurth
Vice President
By:____________________________________
Mark L. Gold
Managing Director
TEXTRON FINANCIAL
CORPORATION, as a Lender
By:____________________________________
Title:Director
TRS1 LLC, as a Lender
By:____________________________________
Rosemary F. Dunne
Attorney-in-Fact
ACKNOWLEDGED:
BATTERY STREET ENTERPRISES,
INC.
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI STRAUSS FINANCIAL CENTER
CORPORATION
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI STRAUSS GLOBAL
FULFILLMENT SERVICES, INC.
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI STRAUSS GLOBAL
OPERATIONS, INC.
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI STRAUSS INTERNATIONAL
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI'S ONLY STORES, INC.
By:__________________________________
Joseph M. Maurer
Treasurer
NF INDUSTRIES, INC.
By:__________________________________
Joseph M. Maurer
Treasurer
LEVI STRAUSS INTERNATIONAL, INC.
By:__________________________________
Joseph M. Maurer
Treasurer