EXHIBIT 10.28
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into this 28th day of October, 1999, by and
between TROPICAL SPORSTWEAR INT'L CORPORATION, a Florida corporation
("Tropical"), TROPICAL SPORTSWEAR COMPANY, INC., a Delaware corporation
("TSCI"), SAVANE INTERNATIONAL CORP., a Texas corporation (formerly known as
Farah Incorporated) ("Savane"), and APPAREL NETWORK CORPORATION, a Florida
corporation ("Apparel") (Tropical, TSCI, Savane and Apparel collectively
referred to hereinafter as "Borrowers" and individually as a "Borrower") each
with its chief executive office and principal place of business at 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000; the various financial institutions
listed on the signature pages hereof and their respective successors and
permitted assigns which become "Lenders" as provided in the Loan Agreement (as
defined below); and FLEET CAPITAL CORPORATION, a Rhode Island corporation, in
its capacity as collateral and administrative agent for the Lenders (together
with its successors in such capacity, "Agent") with an office at 000 Xxxxxxxx
Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
Recitals:
Borrowers, Agent and Lenders, are parties to a certain Loan and
Security Agreement dated June 10, 1998, as amended by that certain First
Amendment to Loan and Security Agreement dated July 9, 1998, that certain Second
Amendment to Loan and Security Agreement dated August 27, 1998, that certain
Third Amendment to Loan and Security Agreement dated December 31, 1998, that
certain Fourth Amendment to Loan and Security Agreement dated May 21, 1999, and
that certain Fifth Amendment to Loan and Security Agreement dated July 16, 1999
(as at any time amended, the "Loan Agreement"), pursuant to which Lenders have
made certain revolving credit loans and letter of credit accommodations to
Borrowers.
Borrower's have requested that Agent and Lenders increase the amount
of documentary letters of credit available to Borrowers under the Loan
Agreement.
Agent and Lenders are willing to amend the Loan Agreement on the
terms and conditions as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. Amendment to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) By deleting the definition of "LC Conditions" in Section 1
of the Loan Agreement and by substituting the following definition in lieu
thereof:
LC Conditions - the following conditions, the
satisfaction of each of which is required before Fleet shall
be obligated to join in the execution of an LC Application in
connection with a request to Bank for the issuance of a Letter
of Credit: (i) each of the conditions set forth in Section 11
of this Agreement has been and continues to be satisfied,
including the absence of any Default or Event of Default; (ii)
after giving effect to the issuance of the requested Letter of
Credit and all other unissued Letters of Credit for which an
LC Application has been signed by Fleet, the LC Outstandings
would not exceed in the aggregate $30,000,000 with respect to
documentary Letters of Credit or $5,000,000 with respect to
standby Letters of Credit and no Out-of-Formula Condition
would exist, and, if no Revolver Loans are outstanding, the LC
Outstandings do not exceed the Borrowing Base; (iii) the
expiry date of the Letter of Credit does not extend beyond the
earlier to occur of 365 days from the date of issuance or the
30th day prior to the last Business Day of the Committed Term;
and (iv) the currency in which payment is to be made under the
Letter of Credit is Dollars.
(b) By deleting the definition of "LC Facility" in Section 1
of the Loan Agreement and by substituting the following definition in lieu
thereof:
LC Facility - a subfacility of the Revolver Facility
consisting of LC Outstandings in an aggregate amount not to
exceed $35,000,000.
3. Acknowledgments and Stipulations. Each Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by such
Borrower are legal, valid and binding obligations of such Borrower that are
enforceable against such Borrower in accordance with the terms thereof; all of
the Obligations are owing and payable without defense, offset or counterclaim
(and to the extent there exists any such defense, offset or counterclaim on the
date hereof, the same is hereby waived by each Borrower); the security interests
and liens granted by each Borrower in favor of Agent are duly perfected, first
priority security interests and liens.
4. Representations and Warranties. Each Borrower represents and
warrants to Agent and Lenders, to induce Agent and Lenders to enter into this
Amendment, that no Default or Event of Default exists on the date hereof; the
execution, delivery and performance of this Amendment have been duly authorized
by all requisite corporate action on the part of such Borrower and this
Amendment has been duly executed and delivered by such Borrowers; and all of the
representations and warranties made by Borrowers in the Loan Agreement are true
and correct on and as of the date hereof, except to the extent any
representation or warranty specifically relates to an earlier date.
5. Expenses of Agent. Borrowers jointly and severally agree to pay,
on demand, all costs and expenses incurred by Agent in connection with the
preparation, negotiation and execution of this Amendment and any other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the reasonable costs and
fees of Agent's legal counsel and any taxes or expenses associated with or
incurred in connection with any instrument or agreement referred to herein or
contemplated hereby.
6. Effectiveness; Governing Law. This Amendment shall be effective
upon acceptance by Agent and Lenders in Atlanta, Georgia (notice of which
acceptance is hereby waived), whereupon the same shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
7. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. No Novation, etc.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
9. Counterparts; Telecopied Signatures. This Amendment may be
executed in any number of counterparts and by different parties to this
Agreement on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
10. Further Assurances. Each Borrower agrees to take such further
actions as Agent and Lenders shall reasonably request from time to time in
connection herewith to evidence or give effect to the amendments set forth
herein or any of the transactions contemplated hereby.
11. Section Titles. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
12. Release of Claims. To induce Agent and Lenders to enter into this
Amendment, each Borrower hereby release, acquits and forever discharges Agent
and Lenders, and all officers, directors, agents, employees, successors and
assigns of Agent and Lenders, from any and all liabilities, claims, demands,
actions or causes or actions of any kind or nature (if there be any), whether
absolute or contingent, disputed or undisputed, at law or in equity, or known or
unknown, that such Borrower now has or ever had against Agent and Lenders
arising under or in connection with any of the Loan Documents or otherwise.
13. Waiver of Jury Trial. To the fullest extent permitted by
applicable law, the parties hereto each hereby waives the right to trial by jury
in any action, suit, counterclaim or proceeding arising out of or related to
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L CORPORATION
/s/ Xxxxxx Xxxxxx
Assistant Secretary By: /s/ N. Xxxxx XxXxxxxxx
[CORPORATE SEAL] Title: Executive Vice President Finance
& Administration
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
/s/ Xxxxxx Xxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Assistant Secretary
[CORPORATE SEAL] Title: Executive Vice President Finance
& Administration
ATTEST: SAVANE INTERNATIONAL CORP.
(f/k/a Farah Incorporated)
/s/ Xxxxxx Xxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Assistant Secretary
[CORPORATE SEAL] Title: Executive Vice President Finance
& Administration
ATTEST: APPAREL NETWORK CORPORATION
/s/ Xxxxxx Xxxxxx
Assistant Secretary By: /s/ N. Xxxxx XxXxxxxxx
[CORPORATE SEAL] Title: Executive Vice President Finance
& Administration
LENDERS:
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
NATIONSBANC COMMERCIAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
AGENT:
FLEET CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
