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EXHIBIT 4.2
FIRST AMENDMENT TO LOAN AGREEMENT AND
REVOLVING CREDIT NOTE
This First Amendment to Loan Agreement and Revolving Credit Note, dated
as of October 16, 2000 ("Amendment"), is entered into by and between SUPERIOR
UNIFORM GROUP, INC., a Florida corporation (together with all Subsidiaries and
all Affiliates, as herein defined, "Borrower"), and FIRST UNION NATIONAL BANK, a
national banking association ("Lender").
RECITALS
A. Borrower and Lender are parties to that certain Loan Agreement
dated as of March 26, 1999 ("Loan Agreement") pursuant to which Lender has made
a revolving credit loan to Borrower in the maximum principal amount of
$15,000,000.00 and a term loan to Borrower in the original principal amount of
$12,000,000.00. Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Loan Agreement.
B. Borrower has requested that Lender make an additional term
loan to Borrower, and Lender has agreed to make an additional term loan to
Borrower, in accordance with the terms of this Amendment.
AGREEMENT
In consideration of the foregoing and the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be bound hereby, agree as follows:
1. Modification of Loan Agreement. The Loan Agreement is amended
as follows:
a. the following definitions are hereby added to Section
1 of the Loan Agreement:
(i) Term Loan B Maturity Date: means November 1,
2005.
(ii) Term Loan A: as defined in Section 3.1.
(iii) Term Loan B: as defined in Section 3.1.
(iv) Term Notes: means Term Note A and Term Note
B, each substantially in the form as attached as Exhibits B-1 and B-2
respectively, together with any and all amendments, modifications, extensions,
substitutions and renewals therefor.
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b. the definition of the term "Notes" is hereby deleted
in its entirety and replaced with the following:
"Notes: collectively, Term Note A, Term Note B, and the
Revolving Credit Note, together with any and all amendments,
modifications, extensions, substitutions and renewals
thereof."
c. the term "Term Promissory Note" as used in the Loan
Agreement is hereby revised to refer and mean the Term Notes.
d. The definition of "Term Loan Maturity Date" is hereby
deleted in its entirety and replaced with the following:
"Term Loan A Maturity Date": April 1, 2009, subject to the
provisions of Section 5.7."
e. The definition of "Term Loan" is hereby revised to
mean and refer to "Term Loans."
f. Section 3 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
3. TERM LOANS.
3.1 Term Loans; Maximum Amount; Use of Proceeds. Subject
to the terms and conditions hereof and in reliance of any
representations and warranties set forth herein, and in the
Financials heretofore delivered to Lender, Lender agrees to
make a term loan to Borrower in the principal amount of TWELVE
MILLION DOLLARS AND NO/100THS ($12,000,000.00) ("Term Loan A")
and a term loan to Borrower in the principal amount of FIVE
MILLION DOLLARS AND NO/100THS ($5,000,000.00) ("Term Loan B;"
together with Term Loan A, the "Term Loans"). The proceeds of
the Term Loans shall be used by Borrower to fund asset
acquisitions and to refinance existing debt.
3.2 Term Notes. The Term Loans are to be evidenced by
that certain $12,000,000.00 Term Promissory Note dated as of
March 26, 1999 ("Term Note A") and that certain $5,000,000.00
Term Promissory Note dated as of October 16, 2000 ("Term Note
B").
3.3 General Interest Rate. The Term Loans shall bear
interest on the daily outstanding balance of principal at the
rate specified in each of the Term Notes.
"3.4 Payment of Term Loans. The Term Loans and interest
accrued thereon shall be due and payable as set forth in the
respective Term Notes. Notwithstanding any term herein to the
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contrary or any term of any Other Agreements, upon the
occurrence of an Event of Default, Lender shall have the right
to demand immediate payment of the entire Indebtedness
relating to the Term Loans."
g. Section 5.7(a) is hereby deleted in its entirety and
replaced with the following:
"(a) Borrower prepays Term Loan A in full or Term Loan A
is terminated pursuant to the terms of this Agreement or the
other Agreements; or"
h. Section 7.1(d)(ii) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"(ii) at all times after December 31, 1999, not less than
the sum of $60,000,000.00 plus fifty percent (50%) of
Borrower's net income after March 31, 1999, less the aggregate
price paid by Borrower to purchase Treasury Stock after
February 1, 2000."
i. The following is hereby added as new Section 7.2(g)
of the Loan Agreement:
"pay more than $10,000,000.00 in the aggregate for stock of
Borrower acquired after February 1, 2000."
j. Section 7.2 of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"7.2 Negative Covenants. Without Lender's prior written
consent, Borrower shall not:
(a) create, assume, or permit to exist any mortgage,
security deed, deed of trust, pledge, lien, charge or other
encumbrance on any of its assets, whether now owned or
hereafter acquired, other than (i) liens for taxes contested
in good faith, (ii) liens accruing by law for employee
benefits, or (iii) liens identified on Exhibit C attached
hereto."
k. Exhibit B of the Loan Agreement is hereby deleted and
replaced with Composite Exhibit B-1 and B-2 attached to this Amendment.
l. The Loan Agreement is hereby deemed to include Exhibit C
attached to this Amendment.
2. Modification Revolving Credit Note. The term "Term Loan" as
used in the Revolving Promissory Note shall refer to and mean Term Note A.
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3. Tax Indemnity. Borrower and Lender have concluded that Florida
document excise taxes are not due in connection with this Amendment or any of
the other Loan Documents because the Loan Documents have been executed by
Borrower and the other signatories, and delivered to Lender, outside the State
of Florida. Nevertheless, Borrower shall pay to Lender in full, on demand, the
amount of all document excise taxes, including interest and penalties, that
either Lender or the Florida Department of Revenue later deem to be due and
applicable with respect to the Notes or any of the other Loan Documents, or any
other agreement between or among Borrower the Subsidiaries and Lender. In
addition, Borrower shall reimburse Lender for any document excise taxes,
including penalties and interest, paid by Lender and all costs and attorney's
fees that Lender incurs in defending against an imposition of such taxes on any
of the Notes, this Amendment, the other Loan Documents and any other agreement
between or among Borrower, the Subsidiaries and Lender.
4. Representations and Warranties. Borrower represents and
warrants to Lender that:
c. all of Borrower's representations and warranties to
Lender in the Loan Documents are true and correct on this date, as if made on
this date, except to the extent any of them expressly relate to an earlier date;
d. since the date of the most recent financial
statements delivered to Lender, there has not been any material adverse change
in the financial conditions of Borrower or any Guarantor;
e. Borrower has the full corporate power and authority
to enter into and perform its obligations hereunder and each transaction
contemplated hereby; and
f. the execution and delivery by Borrower of this
Amendment and each other document contemplated hereby and its performance of its
obligations hereunder and thereunder have been duly authorized by all necessary
corporate proceedings on the part of Borrower.
5. Counterparts. The parties may execute this Amendment and any
other agreement executed pursuant to it in counterparts. Each executed
counterpart will be deemed to be an original, and all of them, together, will
constitute the same agreement. This Amendment will become effective as of its
stated date of execution, when each party has signed a counterpart and all the
executed counterparts have been delivered to Lender.
6. WAIVER OF CLAIMS. BORROWER HEREBY KNOWINGLY, VOLUNTARILY,
IRREVOCABLY, AND INTENTIONALLY WAIVES AND RELEASES LENDER (AND ITS OFFICERS,
DIRECTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS) FROM: (a) ALL CLAIMS,
DEMANDS, SUITS, AND CAUSES OF ACTION, WHETHER AT LAW OR IN EQUITY, THAT BORROWER
EVER HAD, HAS NOW, OR MIGHT HAVE IN THE FUTURE, BY REASON OF ANY MATTER, CAUSE,
OR THING WHATSOEVER ARISING BEFORE THE DATE AND TIME OF EXECUTION OF THIS
AMENDMENT, WITH RESPECT TO: (i) ANY BREACH BY LENDER (OR AN OFFICER, DIRECTOR,
SHAREHOLDER, REPRESENTATIVE, OR AGENT OF LENDER) OF ITS OBLIGATIONS OR PROMISES
UNDER THE LOAN DOCUMENTS OR OTHERWISE;
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AND (ii) ANY ACTION OR INACTION BY LENDER (OR AN OFFICER, DIRECTOR, SHAREHOLDER,
REPRESENTATIVE, OR AGENT OF LENDER) THAT IS ALLEGED TO HAVE HAD AN INJURIOUS
EFFECT ON THE BUSINESS, OPERATION OR MANAGEMENT OF BORROWER; AND (b) ANY
DEFENSE, COUNTERCLAIM, SETOFF, RIGHT OF RECOUPMENT OR ABATEMENT, OR OTHER CLAIM
AGAINST LENDER (OR AN OFFICER, DIRECTOR, SHAREHOLDER, REPRESENTATIVE, OR AGENT
OF LENDER) RELATING TO ANY MATTER, CAUSE, OR THING WHATSOEVER ARISING BEFORE THE
DATE AND TIME OF EXECUTION OF THIS AMENDMENT.
7. Ratification of Loan Documents. The parties acknowledge that
(except as expressly amended in this Amendment) the Loan Documents are
unaffected, unchanged, and unimpaired and all such documents and agreements
remain enforceable in accordance with their respective terms. Further, the
parties ratify and confirm all their obligations under the Loan Documents,
except as modified in this Amendment. Neither this Amendment nor any earlier
waiver or amendment of any of the Loan Documents will constitute a novation or
have the effect of discharging any liability or obligation evidenced or secured
by the Loan Documents.
8. Transaction Expenses; Taxes. Borrower shall pay all costs and
expenses of Lender (including filing fees, recording fees, document excise and
intangible tax, and reasonable attorney's fees and expenses) in connection with
this Amendment and any related documents.
9. Miscellaneous. This Amendment contains the final, complete,
and exclusive expression of the understanding of Borrower and Lender with
respect to the obligations created under it and supersedes any prior or
contemporaneous agreement, understanding, or representation, oral or written, by
either of them. Except as expressly provided herein, this Amendment does not
constitute a waiver of any rights of Lender or obligations of Borrower under the
Loan Documents, and no waiver herein will constitute a continuing waiver or a
waiver of any other or future rights or obligations. A waiver or modification of
any provision of this Amendment is valid only if the waiver or modification is
in writing and signed by each party. The titles and headings preceding the text
of the sections of this Amendment have been inserted solely for convenience of
reference and do not affect this Amendment's meaning or effect. This Amendment
is binding on each heir, assignee, and personal representative of the Borrower,
and inures to the benefit of each assignee and successor of Lender. This
Amendment is not assignable by Borrower, and any attempted assignment by
Borrower will not be valid or effective against Lender. Lender may assign this
Amendment, and its assignee will succeed to all the rights of Lender under it.
Words of the neuter gender in this Amendment are to be construed to include
words of the masculine and feminine genders. This Amendment is a Florida
contract, and the parties intend that it is to be construed according to the
laws of the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
FIRST UNION NATIONAL BANK, a national
banking association
By: /s/
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
SUPERIOR UNIFORM GROUP, INC., a Florida
corporation
By: /s/
--------------------------------
Xxxxxxx Xxxxxxxx
Co-President
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