EXHIBIT 10.2.2
THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of January 6, 2005, among DELTA APPAREL,
INC., a Georgia corporation ("Borrower"), Lenders signatory hereto, and WACHOVIA
BANK, NATIONAL ASSOCIATION (successor by merger to Congress Financial
Corporation (Southern)), as Agent ("Agent").
W I T N E S S E T H:
WHEREAS, Borrower, Agent, Guarantors and the Lenders are parties to that
certain Amended and Restated Loan and Security Agreement dated as of October 3,
2003, as amended by that certain First Amendment to Amended and Restated Loan
and Security Agreement ("First Amendment") dated August 30, 2004, and as further
amended by that certain Second Amendment to Amended and Restated Loan and
Security Agreement ("Second Amendment") dated November 8, 2004 (as so amended,
the "Loan Agreement"; capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Loan Agreement), pursuant
to which Agent and Lenders have agreed to make Advances, issue or arrange for
the issuance of Letters of Credit and make other extensions of credit to
Borrower from time to time pursuant to the terms and conditions thereof and the
other Financing Agreements;
WHEREAS, Congress Financial Corporation (Southern) merged with and into
Wachovia Bank, National Association, as of December 31, 2004;
WHEREAS, Borrower has sold to Parkdale America, LLC ("Parkdale") certain
assets associated with its yarn-spinning facility in Edgefield, South Carolina,
pursuant to that certain Asset Purchase Agreement between Borrower and Parkdale
dated as of November 18, 2004, as amended by that First Amendment to Asset
Purchase Agreement between Borrower and Parkdale dated as of December 31, 2004;
WHEREAS, Borrower has requested that certain terms and conditions of the
Loan Agreement be amended; and
WHEREAS, Agent, Lenders and, by their respective acknowledgments hereof,
Guarantors have agreed to the requested amendments on the terms and conditions
provided herein;
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENTS TO THE LOAN AGREEMENT.
(a) Section 1 of the Loan Agreement, Definitions, is hereby
amended by amending and restating the definitions of "Agent" and "Fixed Asset
Loan Limit" in their entirety to read as follows:
"Agent" shall mean Wachovia Bank, National Association (successor by
merger to Congress Financial Corporation (Southern)), in its capacity as
agent on behalf of Lenders pursuant to the terms hereof, and any
replacement or successor agent hereunder.
"Fixed Asset Loan Limit" shall mean $5,000,000.
(b) Section 1 of the Loan Agreement, Definitions, is further
amended by deleting the definition of "Congress" and by adding in lieu thereof
the following new definition:
"Wachovia" shall mean Wachovia Bank, National Association (successor
by merger to Congress Financial Corporation (Southern)).
(c) The Loan Agreement is further amended by deleting all
references to "Congress" and by inserting "Wachovia" in lieu thereof.
2. ACKNOWLEDGMENTS OF WACHOVIA AS SUCCESSOR TO CONGRESS. Each of the
undersigned hereby acknowledges and agrees as follows: (a) all references in the
Loan Agreement and each of the other Financing Agreements to Congress Financial
Corporation (Southern), as Agent, shall be deemed to be references to Wachovia
Bank, National Association, as Agent, (b) all references in the Loan Agreement
and each of the other Financing Agreements to Congress Financial Corporation
(Southern), individually as a Lender, shall be deemed to be references to
Wachovia Bank, National Association, individually as a Lender, and (c) Wachovia
as successor to Congress Financial Corporation (Southern) shall be the successor
Agent under the Financing Agreements and shall be endowed with all of the
rights, powers and duties of Agent under the Financing Agreements.
3. NO OTHER AMENDMENTS OR WAIVERS. Except for the amendments set forth
above, the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver or amendment of any right, power or remedy of Agent or
Lenders under the Loan Agreement or any of the other Financing Agreements, nor
constitute a waiver or amendment of any provision of the Loan Agreement or any
of the other Financing Agreements. Except for the amendments set forth above,
the text of the Loan Agreement and all other Financing Agreements shall remain
unchanged and in full force and effect and Borrower hereby ratifies and confirms
its obligations thereunder. Borrower acknowledges and expressly agrees that
Agent and Lenders reserve the
right to, and do in fact, require strict compliance with all terms and
provisions of the Loan Agreement and the other Financing Agreements, as amended
herein. Borrower has no knowledge of any challenge to Agent's or any Lender's
claims arising under the Financing Agreements or to the effectiveness of the
Financing Agreements.
4. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment shall become
effective when, and only when, Agent shall have received:
(a) counterparts of this Amendment duly executed and delivered by
Borrower, Agent and the Lenders; and
(b) such other information, documents, instructions or approvals
as Agent or Agent's counsel may reasonably require.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. In consideration of the
execution and delivery of this Amendment by Agent and Lenders, Borrower hereby
represents and warrants in favor of Agent and Lenders as follows:
(a) the execution, delivery and performance of this Amendment and
the transactions contemplated hereunder are (i) all within Borrower's corporate
powers, (ii) have been duly authorized, (iii) are not in contravention of law or
the terms of Borrower's certificate of incorporation, by-laws, or other
organizational documentation, or any indenture, agreement or undertaking to
which Borrower is a party or by which Borrower or its property are bound and
(iv) do not result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of Borrower or any of its Subsidiaries
(other than Liens in favor of Agent);
(b) this Amendment has been duly authorized, validly executed and
delivered by one or more authorized signatories of Borrower and constitutes the
legal, valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms;
(c) the execution, delivery and performance of this Amendment does
not and will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over Borrower that has not
already been obtained;
(d) no Default or Event of Default exists under the Loan Agreement
or the other Financing Agreements;
(e) as of the date hereof and after giving effect to this
Amendment, all representations and warranties of Borrower and Guarantors set
forth in the Loan Agreement and the other Financing Agreements are true, correct
and complete in all material respects; and
(f) all Financing Agreements to which Borrower is a party,
including, without limitation, the Loan Agreement, constitute valid and legally
binding obligations of Borrower and
are enforceable against Borrower in accordance with the terms thereof.
6. REAFFIRMATION OF FINANCING AGREEMENTS AND PRIOR AMENDMENTS. Borrower
hereby ratifies and reaffirms the Obligations, the Liens granted in favor of
Agent, for the benefit of Lenders, in all of the Collateral, the First
Amendment, the Second Amendment, each of the Financing Agreements and all of
Borrower's covenants, duties, indebtedness and liabilities under the Financing
Agreements.
7. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement. In proving this
Amendment in any judicial proceedings, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile
transmission or by e-mail transmission of an adobe file format document (also
known as a PDF file) shall be deemed an original signature hereto.
8. REFERENCE TO AND EFFECT ON FINANCING AGREEMENTS. Upon the
effectiveness of this Amendment, on and after the date hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Loan Agreement, and each reference in the other
Financing Agreements to "the Loan Agreement" "thereunder," "thereof" or words of
like import referring to the Loan Agreement, shall mean and be a reference to
the Loan Agreement as amended hereby.
9. AFFIRMATION OF GUARANTY. By executing this Amendment, each Guarantor
hereby acknowledges, consents and agrees that all of its obligations and
liability under the Loan Agreement remain in full force and effect, and that the
execution and delivery of this Amendment and any and all documents executed in
connection herewith shall not alter, amend, reduce or modify its obligations and
liability under the Loan Agreement or any of the other Financing Agreements to
which it is a party.
10. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses in connection with the preparation, execution, and delivery
of this Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, the fees and out-of-pocket expenses of
counsel for Agent with respect thereto and with respect to advising Agent as to
its rights and responsibilities hereunder and thereunder. In addition, Borrower
agrees to pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, and agree to save
Agent and Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes. Borrower
hereby acknowledges and agrees that Agent may, without prior notice to Borrower,
charge such costs and fees to Borrower's loan account pursuant to the Loan
Agreement, which amounts shall constitute Loans under the Loan Agreement.
11. SECTION TITLES. The section titles contained in this Amendment are
included for the sake of convenience only, shall be without substantive meaning
or content of any kind
whatsoever, and are not a part of the agreement between the parties.
12. ENTIRE AGREEMENT. This Amendment and the other Financing Agreements
constitute the entire agreement and understanding between the parties hereto
with respect to the transactions contemplated hereby and supersede all prior
negotiations, understandings and agreements between such parties with respect to
such transactions.
13. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF GEORGIA.
14. FINANCING AGREEMENT. This Amendment shall be deemed to be a
Financing Agreement for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the day and year first written above.
BORROWER:
DELTA APPAREL, INC., a Georgia corporation
By: __________________________
Title:_______________________
AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, AS AGENT AND A LENDER
By: __________________________
Title: ______________________
ING CAPITAL LLC, AS A LENDER
By: __________________________
Title: ______________________
SIEMENS FINANCIAL SERVICES, INC., AS A
LENDER
By: __________________________
Title: ______________________
[Signatures continue on following page]
Acknowledged And Agreed:
GUARANTORS:
M.J. SOFFE CO., a North Carolina corporation
By: __________________________
Title: _______________________
SAIM, LLC, a North Carolina limited liability
company
By: __________________________
Title: _______________________