EXHIBIT 10(I)
THIRD AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
THIS THIRD AMENDMENT, dated as of July 31st, 1999, amends and modifies
a certain Credit and Security Agreement, dated as of February 4, 1997 as amended
by a First Amendment to Credit and Security Agreement dated as of July 21, 1997
and by a Second Amendment to Credit and Security Agreement dated as of November
1, 1998 (as amended, the "Credit Agreement"), between U.S. BANK NATIONAL
ASSOCIATION, as assignee of FBS BUSINESS FINANCE CORPORATION, (the "Lender"),
PREMIUMWEAR, INC., a Delaware corporation (the "Borrower"). Terms not otherwise
expressly defined herein shall have the meanings set forth in the Credit
Agreement.
PRELIMINARY STATEMENT
WHEREAS, the Borrower and the Lender desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, for value received, the Borrower and the Lender agree
as follows:
ARTICLE I - AMENDMENTS
1.1 Supplement A. Supplement A to the Credit Agreement is deleted and
Supplement A attached hereto is substituted in its place.
1.2 Year 2000. A new Section 4.26 is hereby added following Section
4.25 of the Credit Agreement to read as follows:
4.26 Year 2000. Borrower has reviewed and assessed its
business operations and computer systems and applications to address
the "year 2000 problem" (that is, that computer applications and
equipment used by Borrower, directly or indirectly through third
parties, may be unable to properly perform date-sensitive functions
before, during and after January 1, 2000). Borrower reasonably believes
that the year 2000 problem will not result in a material adverse change
in the Borrower's business condition (financial or otherwise)
operations, properties or prospects or ability to repay Lender.
Borrower agrees that this representation will be true and correct on
and shall be deemed made by Borrower on each date Borrower requests any
advance under this Agreement or Note or delivers any information to
Lender. Borrower will promptly deliver to Lender such information
relating to this representation as Lender requests from time to time.
1.3 Construction. All references in the Credit Agreement to "this
Agreement," "herein" and similar references shall be deemed to refer to the
Credit Agreement as amended by this Amendment.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
2.1 Authorization; Validity and Binding Effect. To induce the Lender to
enter into this Amendment and to make and maintain the Loans under the Credit
Agreement as amended hereby, the Borrower hereby warrants and represents to the
Lender that it is duly authorized to execute and deliver this Amendment and each
other document delivered in connection herewith, and to perform its obligations
under the Credit Agreement as amended hereby and each other document delivered
in connection herewith, that this Amendment and the other documents delivered in
connection herewith constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, and that the
Borrower has taken all action necessary under its Articles of Incorporation,
Bylaws and applicable law regarding the transactions contemplated herein.
2.2 Affirmation of Representations and Warranties. The Borrower hereby
restates all the representations and warranties in Article V of the Credit
Agreement and affirms to the Lender that such representations and warranties are
true and correct as though made on the date hereof the same as if made on the
date hereof and fully set forth herein, except for changes that are permitted by
the terms of the Credit Agreement.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth
above; provided, however, that the effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
3.1 Warranties. Before and after giving effect to this Amendment, the
representations and warranties in Article V of the Credit Agreement shall be
true and correct as though made on the date hereof, except for changes that are
permitted by the terms of the Credit Agreement.
3.2 Defaults. Before and after giving effect to this Amendment, no
Event of Default and no Unmatured Event of Default shall have occurred and be
continuing under the Credit Agreement except as waived herein. The execution by
the Borrower of this Amendment shall be deemed a representation that the
Borrower has complied with the foregoing condition.
3.3 Documents. The following shall have been delivered to the Lender,
each duly executed and dated, or certified, as of the date hereof, as the case
may be:
(a) Secretary's Certificate. The certificate of the Secretary
or an Assistant Secretary of the Borrower certifying that the
resolutions authorizing any Designated Person to, among other
things, execute amendments to the Credit Agreement are still
in full force and effect and that the list of Designated
Persons set forth in that Secretary's Certificate of February
4, 1997 has not changed.
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(b) Confirmation of Security Agreement. A confirmation of the
Third Party Security Agreement in the form of Exhibit A
attached to this Amendment, duly executed by Xxxxxx-Xxxx.
ARTICLE IV - GENERAL
4.1 Expenses. The Borrower agrees to reimburse the Lender upon demand
for all reasonable expenses (including reasonable attorneys' fees and legal
expenses of Xxxxxx & Whitney LLP, counsel for the Lender) incurred by the Lender
in connection with the preparation of this Amendment and in enforcing the
obligations of the Borrower hereunder, and to pay and save the Lender harmless
from all liability for any stamp or other taxes which may be payable with
respect to the execution or delivery of this Amendment, which obligations of the
Borrower shall survive any termination of the Credit Agreement.
4.2 Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same instrument.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 Law. This Amendment shall be a contract made under the laws of the
State of Minnesota, which laws shall govern all the rights and duties hereunder.
4.5 Successors; Enforceability. This Amendment shall be binding upon
the Borrower and the Lender and their respective successors and assigns, and
shall inure to the benefit of the Borrower and the Lender and the successors and
assigns of the Lender. Except as hereby amended, the Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Its VP
PREMIUMWEAR, INC.
By /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
Its VP of Finance
Signature Page to Third Amendment
SUPPLEMENT A
(AMENDED JULY 31ST, 1999)
TO
CREDIT AND SECURITY AGREEMENT
DATED AS OF FEBRUARY 4, 1997 BETWEEN
U.S. BANK NATIONAL ASSOCIATION, AS ASSIGNEE OF
FBS BUSINESS FINANCE CORPORATION (THE "LENDER")
AND
PREMIUMWEAR, INC. (THE "BORROWER")
1. CREDIT AGREEMENT REFERENCE. This Supplement A, as it may be amended
or modified from time to time, is a part of the Credit and Security Agreement,
dated as of February 4, 1997, between the Borrower and the Lender (together with
all amendments, modifications and supplements thereto, the "Credit Agreement").
Capitalized terms used herein which are defined in the Credit Agreement shall
have the meanings given such terms in the Credit Agreement unless the context
otherwise requires.
2. DEFINITIONS.
2.1 CREDIT AMOUNT. The term "Credit Amount" shall mean the
maximum amount of Loans which the Lender will make available to the
Borrower which amount shall not exceed Six Million Dollars
($6,000,000); provided, however, that the aggregate outstanding
principal balance of the Loans plus the Letter of Credit Obligations
shall not exceed the Credit Amount.
2.2 BORROWING BASE.
(a) DEFINITION. The term "Borrowing Base" shall mean:
(i) an amount (the "Accounts Receivable
Availability") of up to 80% of the net amount (as
determined by the Lender after deduction of such
reserves and allowances as the Lender deems proper
and necessary) of the Borrower's Eligible Accounts
Receivable; plus
(ii) an amount (the "Inventory
Availability") of up to 50% of the net value (the
lower of the cost, determined on a first in first out
basis, or market value of such Inventory, as
determined by the Lender after deduction of such
reserves and allowances as the Lender deems proper
and necessary) of the Borrower's Eligible Inventory.
2.3 LETTER OF CREDIT SUBLIMIT. The term "Letter of Credit
Sublimit" shall mean $2,000,000.
2.4 TERMINATION DATE. The term "Termination Date" shall mean
February 3, 2002.
2.5 ADDITIONAL DEFINITIONS. As used herein, the following
terms shall have the following respective meanings:
"Adjusted Eurodollar Rate": With respect to each
Interest Period applicable to a Eurodollar Rate Advance, the
rate (rounded upward, if necessary, to the next one hundredth
of one percent) determined by dividing the Eurodollar Rate for
such Interest Period by 1.00 minus the Eurodollar Reserve
Percentage.
"Advance": Any portion of the outstanding principal
balance under the Credit Agreement as to which the Borrower
elected one of the available interest rate options and, if
applicable, an Interest Period. An Advance may be a Eurodollar
Rate Advance or a Reference Rate Advance.
"Applicable Margin": With respect to:
(a) Reference Rate Advances -- 0%.
(b) Eurodollar Rate Advances -- 2.25%.
"Board": The Board of Governors of the Federal
Reserve System or any successor thereto.
"Eurodollar Business Day": A Business Day which is
also a day for trading by and between Lenders in United States
dollar deposits in the interbank Eurodollar market and a day
on which banks are open for business in New York City.
"Eurodollar Rate": With respect to each Interest
Period applicable to a Eurodollar Rate Advance, the interest
rate per annum (rounded upward, if necessary, to the next
one-sixteenth of one percent) at which United States dollar
deposits are offered to the Lender in the interbank Eurodollar
market two Eurodollar Business Days prior to the first day of
such Interest Period for delivery in Immediately Available
Funds on the first day of such Interest Period and in an
amount approximately equal to the Advance to which such
Interest Period is to apply as determined by the Lender and
for a maturity comparable to the Interest Period; provided,
that in lieu of determining the rate in the foregoing manner,
the Lender may substitute the per annum Eurodollar interest
rate (LIBOR) for United States dollars displayed on the
Reuters Screen LIBO Page two Eurodollar Business Days prior to
the first day of the Interest Period. "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the
Reuter Monitor Money Rates Screen (or such other page as may
replace the LIBO page on that service) for the purpose of
displaying London Interbank offered rates of major Lenders for
United States dollar deposits.
"Eurodollar Rate Advance": An Advance with respect to
which the interest rate is determined by reference to the
Adjusted Eurodollar Rate.
"Eurodollar Reserve Percentage": As of any day, that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board for determining the maximum
reserve requirement (including any basic, supplemental or
emergency reserves) for a member Lender of the Federal Reserve
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System, with deposits comparable in amount to those held by
the Lender, in respect of "Eurocurrency Liabilities" as such
term is defined in Regulation D of the Board. The rate of
interest applicable to any outstanding Eurodollar Rate
Advances shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"Interest Period": With respect to each Eurodollar
Rate Advance, the period commencing on the date of such
Advance or on the last day of the immediately preceding
Interest Period, if any, applicable to an outstanding Advance
and ending one, two or three months thereafter, as the
Borrower may elect in the applicable notice of borrowing,
continuation or conversion; provided that:
(1) Any Interest Period that would otherwise
end on a day which is not a Eurodollar Business Day
shall be extended to the next succeeding Eurodollar
Business Day unless such Eurodollar Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Eurodollar Business Day;
(2) Any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or
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 Eurodollar Business Day
of a calendar month; and
(3) Any Interest Period that would otherwise
end after the Termination Date shall end on the
Termination Date.
"Reference Rate": The rate of interest from time to
time publicly announced by Lender as its "reference rate." The
Lender may lend to its customers at rates that are at, above
or below the Reference Rate. For purposes of determining any
interest rate hereunder or under any Note which is based on
the Reference Rate, such interest rate shall change as and
when the Reference Rate shall change.
"Reference Rate Advance": An Advance with respect to
which the interest rate is determined by reference to the
Reference Rate.
"Regulatory Change": Any change after the date of the
Credit Agreement in federal, state or foreign laws or
regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of
Lenders including the Lender under any federal, state or
foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
3. INTEREST; FEES.
3.1 PROCEDURE FOR ADVANCES. Any request for an Advance must be
given so as to be received by the Lender not later than 1:00 p.m.
(Minneapolis time) two Eurodollar
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Business Days prior to the date of the requested Advance if the Advance
is requested as a Eurodollar Rate Advance and not later than 1:00 p.m.
on the date of the requested Advance if the Advance is requested as a
Reference Rate Advance. Each request for an Advance shall specify (i)
the date of the Advance, (ii) the amount of the Advance to be made on
such date which shall be in a minimum amount of $1,000 for Reference
Rate Advances, or $500,000 for Eurodollar Rate Advances or, if more in
either case, an integral multiple thereof, (iii) whether such Advance
is to be funded as a Reference Rate Advance or a Eurodollar Rate
Advance, and (iv) in the case of a Eurodollar Rate Advance, the
duration of the initial Interest Period applicable thereto.
3.2 CONVERSIONS AND CONTINUATIONS. On the terms and subject to
the limitations hereof, the Borrower shall have the option at any time
and from time to time to convert all or any portion of the Advances
into Reference Rate Advances or Eurodollar Rate Advances, or to
continue a Eurodollar Rate Advance as such; provided, however that a
Eurodollar Rate Advance may be converted or continued only on the last
day of the Interest Period applicable thereto and no Advance may be
converted or continued as a Eurodollar Rate Advance if a Default or
Event of Default has occurred and is continuing on the proposed date of
continuation or conversion. Advances may be converted to, or continued
as, Eurodollar Rate Advances only in amounts of $500,000 or an integral
multiple thereof. The Borrower shall give the Lender written notice of
any continuation or conversion of any Advance and such notice must be
given so as to be received by the Lender not later than 3:00 p.m.
(Minneapolis time) two Eurodollar Business Days prior to requested date
of conversion or continuation in the case of the continuation of, or
conversion to, a Eurodollar Rate Advance. Each such notice shall
specify (a) the amount to be continued or converted, (b) the date for
the continuation or conversion (which must be (i) the last day of the
preceding Interest Period for any continuation or conversion of
Eurodollar Rate Advances, and (ii) a Eurodollar Business Day), and (c)
in the case of conversions to or continuations as Eurodollar Rate
Advances, the Interest Period applicable thereto. Any notice given by
the Borrower under this Section shall be irrevocable. If the Borrower
shall fail to notify the Lender of the continuation of any Eurodollar
Rate Advance within the time required by this Section, such Advance
shall, on the last day of the Interest Period applicable thereto,
automatically be converted into a Reference Rate Advance of the same
principal amount.
3.3 INTEREST RATES, INTEREST PAYMENTS AND DEFAULT INTEREST.
Interest shall accrue and be payable on the Advances as follows:
3.3 (a) Each Eurodollar Rate Advance shall bear
interest on the unpaid principal amount thereof during the
Interest Period applicable thereto at a rate per annum equal
to the sum of (i) the Adjusted Eurodollar Rate for such
Interest Period, plus (ii) the Applicable Margin.
3.3(b) Each Reference Rate Advance shall bear
interest on the unpaid principal amount thereof at a varying
rate per annum equal to the sum of (i) the Reference Rate,
plus (ii) the Applicable Margin.
3.3 (c) Any Advance not paid when due, whether at the
date scheduled therefor or earlier upon acceleration, shall
bear interest until paid in full at the
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Default Rate, which shall be (i) during the balance of any
Interest Period applicable to such Advance, at a rate per
annum equal to the sum of the rate applicable to such Advance
during such Interest Period plus 2.0%, and (ii) otherwise, at
a rate per annum equal to the sum of (A) the Reference Rate,
plus (B) the Applicable Margin for Reference Rate Advances,
plus (C) 2.0%.
3.3 (d) Interest shall be payable (i) with respect to
each Eurodollar Rate Advance having an Interest Period of
three months or less, on the last day of the Interest Period
applicable thereto; (ii) with respect to any Eurodollar Rate
Advance having an Interest Period greater than three months,
on the last day of the Interest Period applicable thereto and
on each day that would have been the last day of the Interest
Period for such Advance had successive Interest Periods of
three months duration been applicable to such Advance; (iii)
with respect to any Reference Rate Advance, on the last day of
each month; (iv) with respect to all Advances, upon any
permitted prepayment (on the amount prepaid); and (v) with
respect to all Advances, on the Termination Date; provided
that interest under Section 3.3 (c) shall be payable on
demand.
3.4 OPTIONAL PREPAYMENTS. The Borrower may prepay Reference
Rate Advances, in whole or in part, at any time, without premium or
penalty. Any such prepayment must be accompanied by accrued and unpaid
interest on the amount prepaid. Each partial prepayment shall be in a
minimum amount of $10,000 or, if more, an integral multiple thereof.
Except upon an acceleration following an Event of Default or upon
termination of the Credit in whole, the Borrower may pay Eurodollar
Rate Advances only on the last day of the Interest Period applicable
thereto. Amounts paid (unless following an acceleration or upon
termination of the Credit in whole) or prepaid on Advances under this
Section 3.4 may be reborrowed upon the terms and subject to the
conditions and limitations of the Credit Agreement.
3.5 INTEREST RATE NOT ASCERTAINABLE, ETC. If, on or prior to
the date for determining the Adjusted Eurodollar Rate in respect of the
Interest Period for any Eurodollar Rate Advance, the Lender determines
(which determination shall be conclusive and binding, absent error)
that:
(a) deposits in dollars (in the applicable amount)
are not being made available to the Lender in the relevant
market for such Interest Period, or
(b) the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Lender of funding or
maintaining Eurodollar Rate Advances for such Interest Period,
the Lender shall forthwith give notice to the Borrower of such
determination, whereupon the obligation of the Lender to make or
continue, or to convert any Advances to, Eurodollar Rate Advances, as
the case may be, shall be suspended until the Lender notifies the
Borrower that the circumstances giving rise to such suspension no
longer exist. While any such suspension continues, all further Advances
by the Lender shall be made as Reference Rate Advances. No such
suspension shall affect the interest rate then in effect during the
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applicable Interest Period for any Eurodollar Rate Advance outstanding
at the time such suspension is imposed.
3.6 INCREASED COST. If any Regulatory Change:
(a) shall subject the Lender to any tax, duty or
other charge with respect to its Eurodollar Rate Advances, its
obligation to make Eurodollar Rate Advances or shall change
the basis of taxation of payment to the Lender of the
principal of or interest on Eurodollar Rate Advances or any
other amounts due under this Agreement in respect of
Eurodollar Rate Advances or its obligation to make Eurodollar
Rate Advances (except for changes in the rate of tax on the
overall net income of the Lender imposed by the jurisdiction
in which the Lender's principal office is located); or
(b) shall impose, modify or deem applicable any
reserve, special deposit, capital requirement or similar
requirement (including, without limitation, any such
requirement imposed by the Board, but excluding with respect
to any Eurodollar Rate Advance any such requirement to the
extent included in calculating the applicable Adjusted
Eurodollar Rate) against assets of, deposits with or for the
account of, or credit extended by, the Lender or shall impose
on the Lender or on the interbank Eurodollar market any other
condition affecting its Eurodollar Rate Advances or its
obligation to make Eurodollar Rate Advances;
and the result of any of the foregoing is to increase the cost to the
Lender of making or maintaining any Eurodollar Rate Advance, or to
reduce the amount of any sum received or receivable by the Lender under
this Agreement or under the Note, then, within 30 days after demand by
the Lender, the Borrower shall pay to the Lender such additional amount
or amounts as will compensate the Lender for such increased cost or
reduction. The Lender will promptly notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will
entitle the Lender to compensation pursuant to this Section. A
certificate of the Lender claiming compensation under this Section,
setting forth the additional amount or amounts to be paid to it
hereunder and stating in reasonable detail the basis for the charge and
the method of computation, shall be conclusive in the absence of error.
In determining such amount, the Lender may use any reasonable averaging
and attribution methods. Failure on the part of the Lender to demand
compensation for any increased costs or reduction in amounts received
or receivable with respect to any Interest Period shall not constitute
a waiver of the Lender's rights to demand compensation for any
increased costs or reduction in amounts received or receivable in any
subsequent Interest Period.
3.7 ILLEGALITY. If any Regulatory Change shall make it
unlawful or impossible for the Lender to make, maintain or fund any
Eurodollar Rate Advances, the Lender shall notify the Borrower,
whereupon the obligation of the Lender to make or continue, or to
convert any Advances to, Eurodollar Rate Advances shall be suspended
until the Lender notifies the Borrower that the circumstances giving
rise to such suspension no longer exist. If the Lender determines that
it may not lawfully continue to maintain any Eurodollar Rate Advances
to the end of the applicable Interest Periods, all of the affected
Advances shall
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be automatically converted to Reference Rate Advances as of the date of
the Lender's notice, and upon such conversion the Borrower shall
indemnify the Lender in accordance with Section 3.8.
3.8 FUNDING LOSSES; EURODOLLAR RATE ADVANCES. The Borrower
shall compensate the Lender, upon its written request, for all losses,
expenses and liabilities (including any interest paid by the Lender to
lenders of funds borrowed by it to make or carry Eurodollar Rate
Advances to the extent not recovered by the Lender in connection with
the re-employment of such funds and including loss of anticipated
profits) which the Lender may sustain: (i) if for any reason, other
than a default by the Lender, a funding of a Eurodollar Rate Advance
does not occur on the date specified therefor in the Borrower's request
or notice as to such Advance under Section 3.1 or 3.2, or (ii) if, for
whatever reason (including, but not limited to, acceleration of the
maturity of Advances following an Event of Default), any repayment of a
Eurodollar Rate Advance, or a conversion pursuant to Section 3.7,
occurs on any day other than the last day of the Interest Period
applicable thereto. The Lender's request for compensation shall set
forth the basis for the amount requested and shall be final, conclusive
and binding, absent error.
3.9 DISCRETION OF LENDER AS TO MANNER OF FUNDING. The Lender
shall be entitled to fund and maintain its funding of Eurodollar Rate
Advances in any manner it may elect, it being understood, however, that
for the purposes of this Agreement all determinations hereunder
(including, but not limited to, determinations under Section 3.8, but
excluding determinations that the Lender may elect to make from the
Telerate System, Inc. screen) shall be made as if the Lender had
actually funded and maintained each Eurodollar Rate Advance during the
Interest Period for such Advance through the purchase of deposits
having a maturity corresponding to the last day of the Interest Period
and bearing an interest rate equal to the Eurodollar Rate for such
Interest Period.
3.10 OVERDRAFT LOANS; OVER ADVANCES. Overdraft Loans and Over
Advances shall bear interest at the rate(s) determined pursuant to
Section 2.7 or Section 2.8 of the Credit Agreement, as applicable.
3.11 COMMITMENT FEE. The Borrower shall pay to the Lender a
commitment fee for the period from the date hereof to the date the
Credit terminates in an amount equal to the sum of .25% per annum on
the average daily Unused Credit Amount that is between the outstanding
balance of the Loans and the Borrowing Base plus .25% per annum on the
average daily Unused Credit Amount that is between the Borrowing Base
and the Credit Amount.
3.12 LETTER OF CREDIT FEES. The Borrower shall pay the Lender,
or any Affiliate, a commission on the undrawn amount of each standby
Letter of Credit and on each L/C Draft accepted by the Lender or such
Affiliate, on any standby Letter of Credit, in an amount equal to 1.75%
per annum. The Borrower will pay the Lender, or any Affiliate, a
commission of .75% per annum (subject to a minimum fee of $50) on the
drawn amount of all trade Letters of Credit, plus the Lender's or such
Affiliate's standard issuance fee and out of pocket expenses.
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3.13 CREDIT TERMINATION FEE. Upon termination or cancellation
of the Credit by the Borrower, the Borrower shall pay to the Lender a
termination fee in an amount equal to one percent (1%) of the Credit
Amount in the event that the Credit is terminated or canceled by the
Borrower during the period from the date hereof through the one year
anniversary of such date.
3.14. AUDIT FEES. In the absence of an Event of Default, fees
for collateral audits shall be limited to $500 per day plus expenses
for up to three collateral audits per year.
4. ELIGIBLE ACCOUNT RECEIVABLE REQUIREMENTS. The Account Receivable
must not be unpaid on the date that is 121 days after the date of the invoice
evidencing such Account Receivable. If invoices representing 10% or more of the
unpaid amount of all Accounts Receivable from any one Account Debtor are unpaid
more than 120 days after the dates of such invoices, then all Accounts
Receivable relating to such Account Debtor shall cease to be Eligible Accounts
Receivable. The Account Receivable must not be for finance charges.
5. ELIGIBLE INVENTORY REQUIREMENTS. The Inventory must be finished
goods and not raw materials or work in process.
6. Intentionally Omitted.
7. ADDITIONAL COVENANTS. From the date of the Credit Agreement and
thereafter until all of the Borrower's Obligations under the Credit Agreement
are paid in full, the Borrower agrees that, unless the Lender shall otherwise
consent in writing, it will not, and will not permit any Subsidiary to, do any
of the following:
7.1 NET WORTH. Permit the Borrower's Net Worth to be less than
twelve million dollars ($12,000,000) at any time.
7.2 CAPITAL EXPENDITURES. Make Capital Expenditures in an
amount exceeding $2,500,000 on a consolidated basis in any fiscal year.
7.3 INTEREST COVERAGE RATIO. Permit the ratio, as of the last
day of any fiscal quarter, of the Borrower's Earnings Before Interest
and Taxes for the four consecutive fiscal quarters ending on that date
to its consolidated interest expense (including, without limitation,
imputed interest expense on Capitalized Leases) for the same period to
be less than 1.1 to 1.0.
Borrower's Initials __JSB__
Lender's Initials __LHR__
Date: July 31, 1999.
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CONFIRMATION OF SECURITY AGREEMENT
Reference is made to that certain Third Party Security Agreement dated
as of April 27th, 1999 (the "Security Agreement"), made and given by the
undersigned to secure the Obligations (as defined in the Security Agreement) of
PREMIUMWEAR , INC. (the "Borrower") under that certain Credit and Security
Agreement dated as of February 4, 1997 (as amended, the "Credit Agreement"),
between the Borrower and U.S. BANK NATIONAL ASSOCIATION, as assignee of FBS
BUSINESS FINANCE CORPORATION (the "Lender").
The undersigned acknowledges that it has received a copy of a proposed
Third Amendment to Credit and Security Agreement to be dated on or about July
31, 1999 (the "Amendment"). The undersigned hereby (a) consents to the terms of
the Amendment, and to the execution and delivery of the Amendment by the
Borrower to the Lender; (b) acknowledges that the obligations of the Borrower to
the Lender under the Credit Agreement constitute "Obligations" of the Borrower
to the Lender within the meaning of the above-referenced Security Agreement; and
(c) reaffirms that the security interests granted pursuant to the Security
Agreement secure, among other things, the Borrower's obligations and duties
under the Credit Agreement and the obligations of the undersigned under the
Security Agreement. The undersigned further reaffirms that all of the terms,
covenants and conditions of the Security Agreement remain in full force and
effect.
Date: August 16, 1999.
XXXXXX-XXXX
By /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Its Secretary
