Exhibit 4.6
BANK LEUMI USA BANK HAPOALIM B.M.
000 Xxxxx Xxxxxx 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
As of January 26, 2007
Delta Galil USA Inc.
000 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
and Security Agreement, dated as of December 9, 2004, among Delta Galil USA
Inc., a Delaware corporation having an office at 000 Xxxxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Borrower"), Bank Leumi USA, a New York banking
corporation as agent for the Banks party thereto (in such capacity, the
"Agent"), having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
Bank Hapoalim B.M., having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and Bank Leumi USA (in such capacity, a "Bank") (each of Bank
Leumi USA and Bank Hapoalim B.M., a "Bank" and collectively, the "Banks"), as
amended by Amendment No. 1 thereto, dated as of January 12, 2006, Amendment No.
2 thereto, dated as of May 9, 2006 and Amendment No. 3 thereto, dated as of July
31, 2006, (as so amended and as further amended by the terms of this Amendment
No. 4, the "Credit Agreement").
Pursuant to the Credit Agreement, the Borrower executed a Term Note in
favor of the Agent, as agent for the Banks, in the principal sum of $70,000,000
and a Third Amended and Restated Revolving Note in favor of the Agent, as agent
for the Banks, in the principal sum of $60,000,000. The Borrower has requested,
and the Banks have agreed, to amend the Credit Agreement on the terms set forth
herein.
Accordingly, the parties hereby agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used in this letter agreement
(this "Amendment No. 4") and not otherwise defined herein, shall have the
meanings defined in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. Upon fulfillment of the
conditions specified in Paragraph 12 hereof (the "Effective Date"), the Credit
Agreement is hereby amended as follows:
(a) The definitions of "Eligible Inventory," "Loan Documents,"
"Maturity Date," "Revolving Facility Amount," "Revolving LIBOR Loan Rate," and
"Revolving Loan Commitment" contained in the Credit Agreement are hereby deleted
in their entirety and amended to read as
follows:
""ELIGIBLE INVENTORY" shall mean all Inventory, other than
work-in-progress and raw materials, which is part of a Loan Party's current line
of goods and not seconds or returns, and in which the Agent, as agent for the
Banks, has a valid Lien perfected within the United States and which is free of
all Liens or claims of other Persons (other than Permitted Encumbrances) and
which is not, in the Agent's opinion, unmerchantable, and which the Agent in its
sole judgment, shall deem Eligible Inventory based on such considerations as the
Banks may from time to time give the Agent by notice.
"LOAN DOCUMENTS" shall mean, this Agreement, the Revolving Note, the
Term Note, the Pledge Agreement, the Borrower Pledge Agreement, the Real Estate
Collateralization Documents, the Security Agreements, the Trademark Security
Agreements, the guarantees and any other agreements executed and delivered by
each Guarantor, the Subordination Agreement and all other agreements,
instruments and documents, including, without limitation, security agreements,
loan agreements, notes, mortgages, deeds of trust, intercreditor agreements,
assignment of leases, pledges, powers of attorney, consents, assignments,
collateral assignments, letter agreements, contracts, notices, financing
statements, account opening documents, and all other writings, all of which must
be in form and substance satisfactory to the Agent, heretofore, now, or
hereafter executed by or on behalf of the Borrower or any Guarantor and
delivered to the Agent or any Bank pursuant to or in furtherance of this
Agreement, together with all agreements, instruments and documents referred to
therein or contemplated thereby and as now in effect or as at any time amended,
modified or changed.
"MATURITY DATE" shall mean the earlier to occur of (i) January 31,
2008 or (ii) the date of acceleration pursuant to Section 10.1 of this
Agreement.
"REVOLVING FACILITY AMOUNT" shall mean at any time at which same is to
be determined, the lesser of (i) the Borrowing Base, or (ii) $90,000,000; in
either case minus the face amount of all Letters of Credit and Acceptances then
outstanding.
"REVOLVING LIBOR LOAN RATE" shall mean the LIBOR Rate plus one and
five-tenths of one (1.50%) percent.
"REVOLVING LOAN COMMITMENT" shall mean the sum of $90,000,000."
(b) A new definition captioned "Subordination Agreement" is hereby
added to Section 1.1 of the Credit Agreement in its proper alphabetical order
and shall read as follows:
""SUBORDINATION AGREEMENT" shall mean the Subordination Agreement,
dated as of January 26, 2007, by the Borrower and Delta Galil, as amended,
modified or supplemented from time to time."
(c) The first sentence of Section 2.11.1 is hereby deleted in its
entirety and replaced as
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follows:
"Subject to the terms and conditions hereof, the Agent, as a Bank,
shall issue, or cause one or more of the other Banks to issue, letters of credit
("Letters of Credit") on behalf of the Borrower; provided, however, that the
Agent will not issue or cause to be issued any Letters of Credit: (i) to the
extent that the face amount of such Letters of Credit would then cause the
Outstanding Revolving Loan Balance plus the outstanding Letters of Credit and
Acceptances to exceed the lesser of (a) the Revolving Loan Commitment or (b) the
Borrowing Base; provided, further, that the Agent will not issue or cause to be
issued any Letters of Credit which would then cause the sum of (x) the aggregate
face amount of all outstanding Letters of Credit plus (y) Acceptances to exceed
$30,000,000 or (ii) which have an expiration date which is more than sixty (60)
days after the Maturity Date."
(d) Section 2.12.1 is hereby deleted in its entirety and replaced as
follows:
"2.12.1 ACCEPTANCE AVAILABILITY. The aggregate amount available to the
Borrower for Acceptances ("Acceptance Availability") shall be the lesser of: (i)
the Borrowing Base, or (ii) $90,000,000, in either case minus the outstanding
(a) Revolving Loans, (b) Letters of Credit, and (c) Acceptances; provided,
however, that in no event shall the sum of (x) the aggregate face amount of all
outstanding Letters of Credit plus (y) Acceptances exceed $30,000,000."
(e) Section 8.18 is hereby deleted in its entirety and replaced as
follows:
"SECTION 8.18 NET WORTH RATIO. The Borrower shall not permit the ratio
of its (i) Net Worth consolidated (without duplication) with the Net Worth of
the other Loan Parties, to (ii) its Total Assets consolidated (without
duplication) with the Total Assets of the other Loan Parties for each date set
forth below, to be less than the ratio set forth below for the corresponding
date set forth below. Compliance with this covenant shall be measured on a
quarterly basis as of the following dates.
DATE RATIO
---- -----
December 31, 2006 0.28 to 1.0
March 31, 2007 0.28 to 1.0
June 30, 2007 0.28 to 1.0
September 30, 2007 0.28 to 1.0
December 31, 2007 0.3 to 1.0"
(f) Section 8.19 is hereby deleted in its entirety and replaced as follows:
"SECTION 8.19 NET WORTH. The Borrower shall not permit its Net Worth,
consolidated (without duplication) with the Net Worth of the other Loan Parties,
for each date set forth below, to
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be less than the Net Worth set forth next to each corresponding date. Compliance
with this covenant shall be measured on a quarterly basis as of the following
dates.
DATE NET WORTH
---- ---------
December 31, 2006 $60,000,000
March 31, 2007 $60,000,000
June 30, 2007 $60,000,000
September 30, 2007 $60,000,000
December 31, 2007 $65,000,000"
(g) Section 8.20 is hereby deleted in its entirety and replaced as
follows:
"Section 8.20 NET PROFIT. For the twelve (12) month period ending
December 31, 2006, and for the rolling twelve (12) month period ending on each
subsequent fiscal quarter thereafter, the Borrower, consolidated (without
duplication) with the other Loan Parties, shall have a profit of at least $1.00,
determined according to GAAP, except that gains or losses from the sale of
disposition of assets, other than in the ordinary course of business, shall not
be treated as gross revenues or an expense (as the case may be)."
3. PREPAYMENT OF TERM NOTE. Concurrently with the execution and delivery
of this Amendment No. 4, Borrower shall prepay the principal sum outstanding and
accrued interest thereon of the Term Loan (including all fees, penalties (if
applicable) and all other sums due and payable) in the amount equal to
$22,500,000. Accordingly, following the application of such prepayment, the Term
Note shall be deemed paid in full and cancelled by the Agent. Upon such
prepayment and cancellation of the Term Note, the definitions of "Term Loan,"
"Term Loan Rate," and "Term Note" shall be deleted from the Credit Agreement and
Sections 2.4 and 2.5.2 shall be deleted in their entirety and replaced as
"Reserved" and Sections 2.5.3, 2.5.6, 2.7.3, 4.5, 8.21 and 12.13 and the
recitals to Article IV shall be amended to delete all references to the Term
Loan, Term Note and Term Loan Rate, as applicable. In addition, Exhibit C shall
be deleted and replaced as "Reserved." Furthermore, the definitions of "Bank
Commitment," "Interest Period," "Loan and Loans," "Loan Documents," and "Notes"
shall be amended to read as follows:
""BANK COMMITMENT" shall mean the Commitment of each Bank.
"INTEREST PERIOD" shall mean with respect to any LIBOR Rate Loan (A)
initially, the period commencing on the Advance Date with respect to such LIBOR
Rate Loan and ending one (1), two (2) or three (3) months thereafter (or such
other period as shall be agreed to by the Agent, but in no event shall such
period be greater than eleven (11) months), as selected by the Borrower in its
Notice of Advance, given with respect thereto; and (B) thereafter, each period
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commencing on the last day of the next preceding Interest Period applicable to
such LIBOR Rate Loan, and ending one (1), two (2) or three (3) months thereafter
(or such other period as shall be agreed to by the Agent, but in no event shall
such period be greater than eleven (11) months), as selected by the Borrower by
a notice of continuation with respect thereto (or if no notice of continuation
is given, the Interest Period shall be the same as the prior Interest Period).
All of the foregoing provisions relating to Interest Periods are subject to the
following: (i) if any Interest Period would otherwise end on a day that is not a
LIBOR Business Day, such Interest Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding LIBOR Business Day; (ii)
if any Interest Period would otherwise extend beyond the Maturity Date in the
case of a LIBOR Rate Loan, it shall end on the Maturity Date; (iii) any Interest
Period that begins on the last LIBOR Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of a
calendar month; and (iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any LIBOR Rate Loan as the case may be,
during an Interest Period applicable thereto.
"LOAN" AND "LOANS" shall mean any Revolving Loan.
"LOAN DOCUMENTS" shall mean, this Agreement, the Revolving Note, the
Pledge Agreement, the Borrower Pledge Agreement, the Real Estate
Collateralization Documents, the Security Agreements, the Trademark Security
Agreements, the guarantees and any other agreements executed and delivered by
each Guarantor, the Subordination Agreement and all other agreements,
instruments and documents, including, without limitation, security agreements,
loan agreements, notes, mortgages, deeds of trust, intercreditor agreements,
assignment of leases, pledges, powers of attorney, consents, assignments,
collateral assignments, letter agreements, contracts, notices, financing
statements, account opening documents, and all other writings, all of which must
be in form and substance satisfactory to the Agent, heretofore, now, or
hereafter executed by or on behalf of the Borrower or any Guarantor and
delivered to the Agent or any Bank pursuant to or in furtherance of this
Agreement, together with all agreements, instruments and documents referred to
therein or contemplated thereby and as now in effect or as at any time amended,
modified or changed.
"NOTE" shall mean the Revolving Note."
4. REVOLVING CREDIT NOTE. Concurrently with its execution and delivery
of this Amendment No. 4, the Borrower shall execute and deliver to the Agent an
amended and restated Revolving Credit Note in favor of the Agent, as agent for
the Banks, in the principal sum of $90,000,000 and substantially in the form
attached hereto as Exhibit A (the "Revolving Credit Note"). Upon the execution
and delivery of the Revolving Credit Note to the Agent, the Agent shall cancel
the Third Amended and Restated Revolving Note.
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5. RELEASE OF BORROWER'S DEPOSIT. Concurrently with the execution and
delivery of this Amendment No. 4, the Agent shall release to the Borrower
$4,000,000 plus all interest accrued thereon, which amount represents the
Borrower's deposit, currently being held by the Agent and has been pledged to
the Bank in accordance with the terms and conditions of the Borrower Pledge
Agreement, which Agreement shall be terminated and cancelled.
6. CONVERSION OF INDEBTEDNESS TO DELTA GALIL. On or before the date
hereof, Delta Galil shall convert $5,000,000 of the outstanding Indebtedness
owed by the Borrower to Delta Galil into equity of the Borrower and shall
provide the Agent with evidence satisfactory to the Agent, in its sole
discretion, of such equity conversion. Concurrently with the execution and
delivery of this Amendment No. 4, Delta Galil shall subordinate Indebtedness of
the Borrower in an amount not less than $20,000,000 and each of the Borrower and
Delta Galil shall execute and deliver on the date hereof a Subordination
Agreement, substantially in the form attached hereto as Exhibit B (the
"Subordination Agreement"). Such subordinated Indebtedness is and shall be
expressly junior and subordinated in right of payment to all amounts due and
owing upon all Obligations of the Borrower outstanding from time to time under
the Credit Agreement and shall have a maturity date no earlier than one (1) day
after the Maturity Date. Delta Galil shall make no distribution on such
subordinated Indebtedness until such time as the Obligations shall have been
paid in full.
7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
as follows (which representations and warranties shall survive the execution and
delivery of this Amendment No. 4):
(a) The Borrower has taken all necessary action to authorize
the execution, delivery and performance of this Amendment No. 4.
(b) This Amendment No. 4 has been duly executed and delivered by the
Borrower and the consent attached hereto has been duly executed and delivered by
each Guarantor. This Amendment No. 4 and the Credit Agreement (as amended by
this Amendment No. 4) constitute the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with their respective terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles.
(c) No consent or approval of any person, firm, corporation or entity,
and no consent, license, approval or authorization of any governmental authority
is or will be required in connection with the execution, delivery, performance,
validity or enforcement of this Amendment No. 4 other than any such consent,
approval, license or authorization which has been obtained and remains in full
force and effect or where the failure to obtain such consent, approval, license
or authorization will not have a Material Adverse Effect on the business,
operations, property or assets, or in the condition (financial or otherwise), of
the Borrower or any of the Guarantors.
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(d) After giving effect to this Amendment No. 4, the Borrower is in
compliance with all of the various covenants and agreements set forth in the
Credit Agreement and each of the other Loan Documents.
(e) After giving effect to this Amendment No. 4, no event has occurred
and is continuing which constitutes a Default or an Event of Default.
(f) All representations and warranties contained in the Credit
Agreement and each of the other Loan Documents are true and correct in all
material respects as of the date hereof, except to the extent that any
representation or warranty relates to a specified date, in which case such are
true and correct in all material respects as of the specific date to which such
representations and warranties relate.
8. CONTINUANCE. The Credit Agreement and the other Loan Documents are,
and shall continue to be, in full force and effect and are hereby ratified and
confirmed in all respects, except that after giving effect to this Amendment No.
4, all references in the Credit Agreement to "this Agreement," "hereto,"
"hereof," "hereunder" or words of like import referring to the Credit Agreement
shall mean the Credit Agreement as amended by this Amendment No. 4.
9. PAYMENT OF COSTS. Concurrently with its execution and delivery of
this Amendment No. 4, the Borrower shall pay to the Agent (i) all costs and
expenses (including attorneys' fees and disbursements) incurred by the Banks in
connection with the preparation, execution and delivery of this Amendment No. 4
and related documents and (ii) an amendment fee in the principal sum of $90,000
(the "Amendment Fee"). The Amendment Fee shall be for the account of the Banks
in accordance with their Pro Rata Share.
10. OPINIONS OF LEGAL COUNSEL. On the date hereof, the Banks shall have
received (i) a written opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, in form and
substance satisfactory to the Banks and their counsel, relating to such matters
as the Banks may reasonably request, and (ii) an opinion from I. Xxxxxx
Xxx-Xxxxxx, Hamou & Co. Israeli counsel, in form and substance satisfactory to
the Banks and their counsel, relating to such matters as the Banks may
reasonably request.
11. COUNTERPARTS. This Amendment No. 4 may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment No. 4 by facsimile shall be
effective as delivery of a manually executed signature page hereto.
12. CONDITIONS PRECEDENT. The obligation of the Banks to execute and
deliver this Amendment No. 4 is conditioned upon receipt by the Banks of (i)
this Amendment No. 4 executed by all of the parties hereto, (ii) the Consent
attached hereto executed by each Guarantor, (iii) the payment to the Agent in
favor of the Banks of $22,500,000 from the Borrower, which amount shall then be
applied as a prepayment of the entire principal amount and accrued interest
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thereon outstanding under the Term Loan (including all fees, penalties (if
applicable) and all other sums due and payable), (iv) each of the opinions of
counsel referenced in Paragraph 10 above, (v) an executed copy of the Revolving
Credit Note, (vi) evidence satisfactory to the Agent, in its sole discretion,
that $5,000,000 of the Borrower's Indebtedness owed to Delta Galil has been
converted into equity of the Borrower, (vii) payment of the Amendment Fee,
(viii) officers' certificates from the Borrower and Guarantors covering such
matters as the Agent may reasonably request, (ix) the Subordination Agreement
executed by the Borrower and Delta Galil, and (x) payment of all outstanding
legal fees and disbursements of Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh, LLP in
connection with the preparation of this Amendment No. 4.
13. GOVERNING LAW/ENTIRE AGREEMENT. This Amendment No. 4 shall be
construed in accordance with and governed by the laws of the State of New York
(other than the conflicts of laws principles thereof). This Amendment No. 4
contains the entire agreement of the parties with respect to the subject matter
contained herein.
14. MODIFICATIONS. This Amendment No. 4 cannot be amended, terminated or
modified, except pursuant to a writing executed by all parties to this Amendment
No. 4.
[SIGNATURE PAGE TO FOLLOW]
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If the foregoing correctly sets forth our understanding and agreement,
kindly indicate your acceptance thereof by signing below.
Very truly yours,
BANK LEUMI USA, AS AGENT
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
BANK LEUMI USA, AS A BANK
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
BANK HAPOALIM, B.M.
By: /s/ Gabi Hamanai
--------------------------------
Name: Gabi Hamanai
Title: First Vice President
By: /s/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
AGREED TO:
DELTA GALIL USA INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President for Finance and Secretary
AGREED TO AS TO PARAGRAPH 6 ONLY:
DELTA GALIL INDUSTRIES LTD.
By:/s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
By:/s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
CONSENT
Each of the undersigned hereby confirms that:
It is fully informed as to the amendment, dated as of even date
herewith ("Amendment No. 4") to the Second Amended and Restated Credit and
Security Agreement, dated as of December 9, 2004, as amended by Amendment No. 1
thereto, dated as of January 12, 2006, Amendment No. 2 thereto, dated as of May
9, 2006 and Amendment No. 3 thereto, dated as of July 31, 2006 (as so amended
and as further amended by the terms of Amendment No. 4, the "Credit Agreement").
Capitalized terms used herein and not defined shall have the meanings defined in
the Credit Agreement.
Each is a Guarantor and has executed and delivered a guarantee in favor
of the Banks, wherein and whereby, the undersigned, among other things,
unconditionally guaranteed to the Banks payment when due, whether by
acceleration or otherwise, of any and all Obligations of the Borrower to the
Banks, including interest and attorneys' fees, costs and expenses of collection
incurred by the Banks in enforcing any of the Obligations (individually a
"Guarantee" and collectively, the "Guarantees"). The Delta Galil Guarantees are
part of the Guarantees.
Notwithstanding Amendment No. 4 and the effectiveness of the agreements
contained therein, each Guarantee is in full force and effect, has not been
terminated, rescinded, amended or modified, and the undersigned has no defenses
or offsets with respect to its obligations to the Banks under its Guarantee.
Each Bank shall have the right to proceed under any or all of such
Guarantees at any time or from time to time.
Dated as of: January 26, 2007
AUBURN HOSIERY XXXXX, INC. BURLEN CORP.
By: /s/ XXXXXX XXXXXXXX By: /s/ Xxxxxx Xxxxxxxx
-------------------- ---------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Treasurer and Secretary Title: Vice President, Treasurer
and Assistant Secretary
DELTA GALIL INDUSTRIES LTD.
By:/s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
By:/s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
