Exhibit 4.5
BANK LEUMI USA BANK HAPOALIM B.M.
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As of July 31, 2006
Delta Galil USA Inc.
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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 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"), Bank Leumi USA, a New York banking
corporation as agent for the Banks party thereto (the "Agent"), having an office
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and each of the Persons named in
Schedule 1.1 annexed thereto (each a "Bank" and collectively, the "Banks"), as
amended by Amendment No. 1 thereto, dated as of January 12, 2006 and Amendment
No. 2 thereto, dated as of May 9, 2006 (as so amended and as further amended by
the terms of this Amendment No. 3, 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. 3") 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 8 hereof (the "Effective Date"), the Credit
Agreement is hereby amended as follows:
(a) The third and fourth sentences of Section 2.4.2 of the Credit
Agreement are hereby deleted in their entirety and are replaced as follows:
"The principal amount of the Term Loan shall be repaid by the Borrower
to the Agent, as agent for the Banks, in twenty (20) consecutive quarterly
installments due and payable on
the first day of each March, June, September and December commencing March 2005.
Each such installment shall be in the principal amount of $1,937,500, except for
the last installment due on December 1, 2009, when the entire unpaid balance and
interest accrued thereon shall be due and payable."
(b) Section 7.1.2 of the Credit Agreement is hereby amended by adding
the following proviso to the end of such Section:
"PROVIDED, HOWEVER, within sixty (60) days after the end of the
Borrower's fiscal six (6) month period ending as of June 30, 2006, the Borrower
shall provide (i) consolidated and consolidating statements of income, profits
and losses, and retained earnings of the Loan Parties for such period (as
detailed above), (ii) consolidated and consolidating balance sheets of the Loan
Parties for such period (as detailed above), (iii) consolidated and
consolidating operating statements for the Loan Parties for such period (as
detailed above) and (iv) a letter from the independent accountants of Delta
Galil certifying that the financial information referenced in (i) through (iii)
above have been consolidated into Delta Galil's financial statements for such
time period without any reservations and such action has been confirmed by Delta
Galil;"
(c) The last clause (beginning after the phrase "Seventy Million
($70,000,000) Dollars,") of the first paragraph of the form of Term Note annexed
to the Credit Agreement as EXHIBIT C is hereby deleted in its entirety and
amended to read as follows:
"in twenty (20) equal consecutive quarterly installments, each in the
principal amount of One Million Nine Hundred Thirty-Seven Thousand Five Hundred
($1,937,500) Dollars, commencing on the first day of March 2005, and thereafter
on the first day of June, September, December and March, except for the last
installment due on December 1, 2009, when the entire unpaid balance and interest
accrued thereon shall be due and payable."
3. PREPAYMENT. Concurrently with the execution and delivery of this
Amendment No. 3, Borrower shall prepay a portion of the principal sum of the
Term Loan then outstanding in the amount equal to $750,000, such prepayment to
be applied to the final installment due on the Term Note. Accordingly, following
the application of such prepayment, the Term Note is hereby deemed amended to
read consistent with the amendments to the form of Term Note annexed to the
Credit Agreement as EXHIBIT C effectuated pursuant to this Amendment No. 3.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
as follows (which representations and warranties shall survive the execution and
delivery of this Amendment No. 3):
(a) The Borrower has taken all necessary action to authorize the
execution, delivery and performance of this Amendment No. 3.
(b) This Amendment No. 3 has been duly executed and delivered by the
Borrower and the consent attached hereto has been duly executed and delivered by
each
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Guarantor. This Amendment No. 3 and the Credit Agreement (as amended by this
Amendment No. 3) hereby 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. 3 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 which has been obtained and remains in full force and effect.
(d) After giving effect to this Amendment No. 3, 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. 3, 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.
5. CONTINUANCE. The Credit Agreement and the other Loan Documents
(including the Term Note) 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. 3, 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. 3.
6. PAYMENT OF COSTS. Concurrently with its execution and delivery of
this Amendment No. 3, the Borrower shall pay to the Bank all costs and expenses
(including attorneys' fees and disbursements) incurred by the Bank in connection
with the preparation, execution and delivery of this Amendment No. 3 and related
documents.
7. COUNTERPARTS. This Amendment No. 3 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. 3 by facsimile shall be
effective as delivery of a manually executed signature page hereto.
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8. CONDITIONS PRECEDENT. The obligation of the Banks to execute and
deliver this Amendment No. 3 is conditioned upon receipt by the Banks of (i)
this Amendment No. 3 executed by all of the parties hereto, (ii) the Consent
attached hereto executed by each Guarantor, (iii) $750,000 from the Borrower,
which amount shall then be applied as a prepayment of the amount outstanding
under the Term Loan, and (iv) payment of all outstanding legal fees and
disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Kuh, LLP in connection
with the preparation of this Amendment No. 3.
9. GOVERNING LAW/ENTIRE AGREEMENT. This Amendment No. 3 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. 3
contains the entire agreement of the parties with respect to the subject matter
contained herein and may not be amended or modified except pursuant to a written
instrument executed by the party sought to be bound thereby.
10. MODIFICATIONS. This Amendment No. 3 cannot be amended, terminated or
modified, except pursuant to a writing executed by all parties to this Amendment
No. 3.
[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
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
BANK HAPOALIM, B.M.
By: /s/ Gabi Hamanai
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Name: Gabi Hamanai
Title: First Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
AGREED TO:
DELTA GALIL USA INC.
By: /s/ Poincia ▇▇▇▇▇▇▇▇
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Name: Poincia ▇▇▇▇▇▇▇▇
Title: Controller
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President for Finance and Secretary
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AGREED TO AS TO PARAGRAPH 2(b) ONLY:
DELTA GALIL INDUSTRIES LTD.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
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CONSENT
Each of the undersigned hereby confirms that:
It is fully informed as to the amendment, dated as of even date
herewith ("Amendment No. 3") to the Second Amended and Restated Credit and
Security Agreement, dated as of December 9, 2004 (the "Credit Agreement"), as
amended by Amendment No. 1 thereto, dated as of January 12, 2006 and Amendment
No. 2 thereto, dated as of May 9, 2006. 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. 3 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: July 31, 2006
AUBURN HOSIERY ▇▇▇▇▇, INC. BURLEN CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer and Secretary Title: Vice President, Treasurer
and Assistant Secretary
DELTA GALIL INDUSTRIES LTD.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer