<PAGE> 1
FORM lO-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
-----
X QUARTERLY REPORT PURSUANT TO SECTION 13 or 15 (d) OF THE
----- SECURITIES EXCHANGE ACT OF 1934
For the quarter ended March 31, 1999
OR
-----
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
----- SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-5869-1
SUPERIOR UNIFORM GROUP, INC.
Incorporated - Florida Employer Identification No.
11-1385670
10099 Seminole Boulevard
Post Office Box 4002
Seminole, Florida 33775-0002
Telephone No.: 727-397-9611
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
As of the date of this report, the registrant had 7,834,727 common
shares outstanding.
Page 1
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1. Financial Statements
SUPERIOR UNIFORM GROUP, INC.
CONDENSED SUMMARY OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------------------
1999 1998
----------------- -----------------
(Unaudited)
<S> <C> <C>
Net sales $ 37,504,104 $ 37,432,507
---------------- -----------------
Costs and expenses:
Cost of goods sold 24,878,451 24,791,285
Selling and administrative expenses 9,416,552 8,902,639
Business process re-engineering costs - 1,094,912
Interest expense 346,106 192,550
---------------- -----------------
34,641,109 34,981,386
---------------- -----------------
Earnings before taxes on income 2,862,995 2,451,121
Taxes on income 1,051,000 890,000
---------------- -----------------
Net earnings $ 1,811,995 $ 1,561,121
================ =================
Weighted average number of shares out-
standing during the period (Basic) 7,847,255 Shs. 7,871,098 Shs.
(Diluted) 7,895,357 Shs. 8,001,605 Shs.
Basic earnings per common share $ 0.23 $ 0.20
================ =================
Diluted earnings per common share $ 0.23 $ 0.20
================ =================
Cash dividends declared per common
share $ 0.135 $ 0.125
================ =================
</TABLE>
The results of the three months ended March 31, 1999 are not
necessarily indicative of results to be expected for the full year
ending December 31, 1999.
See accompanying notes to condensed interim financial statements.
Page 2
<PAGE> 3
SUPERIOR UNIFORM GROUP, INC.
CONDENSED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
March 31,
1999 December 31,
(Unaudited) 1998
---------------- ----------------
(1)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 9,417,902 $ 514,001
Accounts receivable and other current assets 30,117,544 34,435,880
Inventories* 51,071,471 50,761,088
---------------- ----------------
TOTAL CURRENT ASSETS 90,606,917 85,710,969
PROPERTY, PLANT AND EQUIPMENT, net 28,032,029 27,934,411
EXCESS OF COST OVER FAIR VALUE OF
ASSETS ACQUIRED 2,746,057 2,773,063
OTHER ASSETS 2,706,721 2,620,467
---------------- ----------------
$ 124,091,724 $ 119,038,910
================ ================
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 9,078,699 $ 10,659,144
Other current liabilities 6,591,867 5,744,694
Current portion of long-term debt 3,050,469 2,266,667
---------------- ----------------
TOTAL CURRENT LIABILITIES 18,721,035 18,670,505
LONG-TERM DEBT, net of current portion 21,999,531 17,600,000
DEFERRED INCOME TAXES 2,100,000 2,265,000
SHAREHOLDERS' EQUITY 81,271,158 80,503,405
----------------- ----------------
$ 124,091,724 $ 119,038,910
================= ================
* Inventories consist of the following:
<CAPTION>
March 31,
1999 December 31,
(Unaudited) 1998
---------------- ----------------
<S> <C> <C>
Finished goods $ 35,601,203 $ 34,844,679
Work in process 4,204,746 3,452,278
Raw materials 11,265,522 12,464,131
---------------- ----------------
$ 51,071,471 $ 50,761,088
================ ================
</TABLE>
(1) The balance sheet as of December 31, 1998 has been derived from the
audited financial statement as of that date and has been condensed.
See accompanying notes to condensed interim financial statements.
Page 3
<PAGE> 4
SUPERIOR UNIFORM GROUP, INC.
CONDENSED SUMMARY OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------------
1999 1998
---------- ----------
(Unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 1,811,995 $ 1,561,121
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 967,776 1,043,810
Deferred income taxes (165,000) (40,000)
Changes in assets and liabilities, net of acquisition:
Accounts receivable and other current assets 4,318,336 21,876
Inventories (310,383) (1,905,218)
Accounts payable (1,580,445) 2,464,955
Other current liabilities 847,173 25,828
-------------- -------------
Net cash flows provided by operating
activities 5,889,452 3,172,372
-------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES
Additions to property, plant, and equipment (1,052,051) (857,117)
Proceeds from disposals of property, plant and equipment 13,663 159,881
Purchase of business, net of cash acquired (2,837,155)
Other assets (86,254) (45,814)
-------------- -------------
Net cash (used) in investing activities (1,124,642) (3,580,205)
-------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES
Declaration of cash dividends (1,059,430) (979,363)
Proceeds from long-term debt 12,000,000
Repayment of Long-Term Debt (6,816,667) (416,666)
Common stock acquired and retired - (1,780,701)
Proceeds received on exercised stock options 15,188 479,661
-------------- -------------
Net cash provided by (used in) financing activities 4,139,091 (2,697,069)
-------------- -------------
Net increase (decrease) in cash and cash
equivalents 8,903,901 (3,104,902)
Cash and cash equivalents balance,
beginning of year 514,001 8,889,948
-------------- -------------
Cash and cash equivalents balance,
end of period $ 9,417,902 $ 5,785,046
============== =============
</TABLE>
See accompanying notes to condensed interim financial statements.
Page 4
<PAGE> 5
SUPERIOR UNIFORM GROUP, INC.
NOTES TO CONDENSED INTERIM FINANCIAL STATEMENTS
Note 1 - Summary of Significant Interim Accounting Policies:
a) Recognition of costs and expenses
Costs and expenses other than product costs are charged to income in interim
periods as incurred, or allocated among interim periods based on an estimate of
time expired, benefit received or activity associated with the periods.
Procedures adopted for assigning specific cost and expense items to an interim
period are consistent with the basis followed by the registrant in reporting
results of operations at annual reporting dates. However, when a specific cost
or expense item charged to expense for annual reporting purposes benefits more
than one interim period, the cost or expense item is allocated to the interim
periods.
b) Inventories
Inventories at interim dates are determined by using both perpetual records and
gross profit calculations.
c) Accounting for income taxes
The provision for income taxes is calculated by using the effective tax rate
anticipated for the full year.
d) Earnings per share
Historical basic per share data is based on the weighted average number of
shares outstanding. Historical diluted per share data is reconciled by adding to
weighted average shares outstanding the dilutive impact of the exercise of
outstanding stock options.
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
1999 1998
---- ----
<S> <C> <C>
Net income $1,811,995 $1,561,121
Weighted average shares
Outstanding 7,847,255 7,871,098
Basic earnings per common
Share $ .23 $ .20
<CAPTION>
Three Months Ended March 31,
----------------------------
1999 1998
---- ---
<S> <C> <C>
Net Income $1,811,995 $1,561,121
Weighted average shares
Outstanding 7,847,255 7,871,098
Common stock equivalents 48,102 130,507
Total weighted average shares
Outstanding 7,895,357 8,001,605
Diluted earnings per common $ .23 $ .20
</TABLE>
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<PAGE> 6
e) Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
f) Comprehensive Income
The Company adopted the provisions of FAS 130, "Reporting Comprehensive Income"
in the first quarter of 1998. FAS No. 130 requires disclosures of comprehensive
income including per-share amounts in addition to the existing income statement.
Comprehensive income is defined as the change in equity during a period, from
transactions and other events, excluding changes resulting from investments by
owners (e.g., supplemental stock offering) and distributions to owners (e.g.,
dividends). As of March 31, 1999, there are no items requiring separate
disclosure in accordance with this statement.
g) Operating Segments
The Company adopted the provisions of FAS No. 131 "Disclosures about Segments of
an Enterprise and Related Information." in the first quarter of 1998. FAS No.
131 requires disclosures of certain information about operating segments and
about products and services, geographic areas in which the Company operates, and
their major customers. The Company has evaluated the effect of this new standard
and has determined that currently they operate in one segment, as defined in
this statement.
h) Reclassifications
Certain reclassifications to the 1998 financial information have been made to
conform to the 1999 presentation.
Note 2 - Acquisition:
Effective January 2, 1998, the Company acquired the net assets of J & L Group,
Inc., a manufacturer of embroidered sportswear, with revenues for the year ended
December 1997 of approximately $6,700,000. The purchase price for this
acquisition was $2,873,929 and was allocated as follows:
<TABLE>
<S> <C>
Cash $ 36,773
Accounts Receivable 902,754
Inventories 1,157,435
Property, Plant & Equipment 92,021
Excess of Cost Over Fair Value
of Assets Acquired 2,067,461
----------
TOTAL ASSETS $4,256,444
==========
Accounts Payable and
Accrued Expenses $1,382,515
==========
</TABLE>
Note 3 - Business Process Re-Engineering:
The condensed summaries of operations for the three month period ended March 31,
1998 includes a pre-tax charge (in compliance with an Emerging Issues Task Force
Consensus issued November 20, 1997) in the amount of $1,094,912, as part of the
Company's commitment to business process re-engineering activities (integrated
SAP systems).
Page 6
Note 5 - Subsequent Event:
<PAGE> 7
NOTE 4 - Long-Term Debt:
<TABLE>
<CAPTION>
March 31,
1999 1998
--------------- ---------------
<S> <C> <C>
Note payable - bank, pursuant to revolving
credit and term loan agreement $ $ 6,400,000
Note payable - bank, pursuant to revolving
credit agreement, maturing March 26, 2002 - -
6.75% term loan payable to First Union, with
monthly payments of principal and interest,
maturing April 1, 2009 12,000,000 -
6.65% note payable to Massachusetts Mutual
Life Insurance Company due $1,666,667
annually, 1998-2005 11,250,000 11,666,667
9.9% note payable to Massachusetts Mutual
Life Insurance Company due $600,000
annually, 1998-2001 1,800,000 1,800,000
---------------- --------------
$ 25,050,000 $ 19,866,667
Less payments due within one year included
in current liabilities 3,050,469 2,266,667
---------------- --------------
$ 21,999,531 $ 17,600,000
================ ==============
</TABLE>
On March 26, 1999, the Company entered into a new 3-year credit agreement that
replaced the Company's existing revolving credit agreement and made available to
the Company up to $15,000,000 on a revolving credit basis. Interest is payable
at LIBOR plus 0.60% based upon the one-month LIBOR rate for U.S. dollar based
borrowings. The Company pays an annual commitment fee of 0.15% on the average
unused portion of the commitment. The Company also entered into a $12,000,000
10-year term loan on March 26, 1999 with the same bank. The term loan is an
amortizing loan, with monthly payments of principal and interest, maturing on
April 1, 2009. The term loan carries a variable interest rate of LIBOR plus
0.80% based upon the one-month LIBOR rate for U.S. dollar based borrowings.
Concurrent with the execution of the term loan agreement, the Company entered
into an interest rate swap with the bank under which the Company receives a
variable rate of interest on a notional amount equal to the outstanding balance
of the term loan from the bank and the Company pays a fixed rate of 6.75% on a
notional amount equal to the outstanding balance of the term loan to the bank.
The credit agreement and the term loan with First Union and the agreements with
MassMutual Life Insurance Company contain restrictive provisions concerning debt
to net worth ratios, other borrowing, capital expenditures, rental commitments,
tangible net worth ($60,000,000), working capital ratio (2.5:1), fixed charges
coverage ratio (2.5:1), stock repurchases and payment of dividends. At March 31,
1999, under the most restrictive terms of the debt agreements, retained earnings
of approximately $18,525,000 were available for declaration of dividends. The
Company is in full compliance with all terms, conditions and covenants of the
various credit agreements.
Note 5 - Subsequent Event:
On April 1, 1999, the Company acquired substantially all of the net assets of
The Empire Company, ("Empire") a supplier of uniforms, corporate I.D. wear and
promotional products. The acquisition will be accounted for utilizing the
purchase method of accounting. The acquisition price, subject to adjustment, was
approximately $9,100,000 in cash plus the assumption of certain liabilities.
Total assets of Empire were approximately $4,575,000 and total revenues for 1998
were approximately $14,000,000.
Page 7
<PAGE> 8
The interim information contained above is not certified or audited; it reflects
all adjustments (consisting of normal recurring accruals) which are, in the
opinion of management, necessary to a fair statement of the operating results
for the periods presented, stated on a basis consistent with that of the audited
financial statements.
The financial information included in this form has been reviewed by Deloitte &
Touche LLP, independent certified public accountants; such review was made in
accordance with established professional standards and procedures for such a
review.
All financial information has been prepared in accordance with the accounting
principles or practices reflected in the financial statements for the year ended
December 31, 1998, filed with the Securities and Exchange Commission. Reference
is hereby made to registrant's Financial Statements for 1998, heretofore filed
with registrant's Form 10-K.
Page 8
<PAGE> 9
INDEPENDENT ACCOUNTANTS' REPORT
Board of Directors
Superior Uniform Group, Inc.
Seminole, Florida
We have reviewed the accompanying condensed balance sheet of Superior Uniform
Group, Inc. (the "Company") as of March 31, 1999 and the condensed summaries of
operations and of cash flows for the three months ended March 31, 1999 and
1998. This condensed financial information is the responsibility of the
Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and of making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, the objective of
which is the expression of an opinion regarding the financial statements taken
as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the accompanying condensed financial information for it to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the balance sheet of Superior Uniform Group, Inc. as of December 31,
1998, and the related statements of earnings, shareholders' equity, and cash
flows for the year then ended (not presented herein); and in our report dated
February 19, 1999, we expressed an unqualified opinion on those financial
statements. In our opinion, the information set forth in the accompanying
condensed balance sheet as of December 31, 1998 is fairly stated, in all
material respects, in relation to the balance sheet from which it has been
derived.
/s/ Deloitte & Touche LLP
April 28, 1999
Page 9
<PAGE> 10
ITEM 2. Management's Discussion And Analysis of Financial Condition and
Results of Operations
RESULTS OF OPERATIONS
Net sales have increased from $37,432,507 for the three months ended March 31,
1998 to $37,504,104 for the three months ended March 31, 1999.
Cost of goods sold approximated 66.3% and 66.2%, respectively for the three
months ended March 31, 1999 and 1998.
Selling and administrative expenses, as a percentage of sales, were
approximately 25% and 23.8%, respectively for the first three months of 1999 and
1998. The increase is primarily attributed to higher payroll related costs in
1999.
Interest expense of $346,106 for the three month period ended March 31, 1999
increased 79.7% from $192,550 for the similar period ended March 31, 1998 due
primarily to higher average borrowings outstanding under the revolving credit
agreement.
Net earnings increased 16.1% to $1,811,995 for the three months ended March 31,
1999 as compared to net earnings of $1,561,121 for the same period ended March
31, 1998. Included in our earnings for the first quarter of 1998 is a pre-tax
charge (in compliance with an Emerging Issues Task Force Consensus issued
November 20, 1997) in the amount of $1,094,912 as part of our commitment to
business process re-engineering activities (integrated SAP systems). The Company
does not expect to incur significant additional re-engineering process charges
during 1999.
Accounts receivable and other current assets decreased 12.5% from $34,435,880 on
December 31, 1998 to $30,117,544 as of March 31, 1999, primarily due to
decreased sales in the first three months of 1999 as compared to the last three
months of 1998.
Inventories as of March 31, 1999 increased 0.6% to $51,071,471 from $50,761,088
on December 31, 1998.
Accounts payable decreased 14.8% from $10,659,144 on December 31, 1998 to
$9,078,699 on March 31, 1999 primarily due to decreases in purchases of raw
material inventories.
THE YEAR 2000 PROJECT: The Company recognizes the need to ensure that its
systems, applications and hardware will recognize and process transactions for
the Year 2000 and beyond and therefore initiated a project to identify its risks
with regard to Year 2000. This project consists of four phases including:
collecting an inventory of potential risks, assessing the actual risk, remedial
work to correct identified problems, and testing for proper operation. The first
two phases of the project have been completed and systems found to be
non-compliant are either being remedied or are ready for testing. All systems
are expected to be tested and ready for Year 2000 operations by July 1, 1999.
There can be no assurance that the Company will successfully complete the Year
2000 project. While the Company does not consider the possibility of such
occurrence to be reasonably likely, if the Company does not complete significant
portions of the project on a timely basis, the Company's operations and
financial condition could be adversely impacted.
The Company started a project approximately two years ago to replace all of its
existing business information systems with enterprise resource planning software
as part of a business process re-engineering initiative. Having selected SAP
R/3, a fully Year 2000 compliant product, we expect to place this system in
operation in the second quarter of 1999. So as not to put the Company at risk in
the event of a delay in the SAP R/3 implementation, the company has begun, in
parallel, a project to bring its existing systems into compliance. If necessary,
these changes are expected to be ready for implementation by July 1, 1999.
All other systems, including warehouse management, shop floor data collection,
and computer aided design and manufacturing systems have been determined to be
compliant or have available upgrades that are compliant, and those upgrades are
currently in process. Due to the nature of the Company's business, its
operations generally do not include significant systems relying on embedded
technology, such as microcontrollers, which are difficult to evaluate and
repair.
Page 10
<PAGE> 11
The cost to repair or replace affected systems, exclusive of the SAP R/3
implementation, is estimated at $670,000. Of this amount approximately $431,000
has been incurred and expensed as of March 31, 1999. This estimate, based on
currently available information, may need to be revised upon receipt of
additional information from vendors and suppliers.
The Company is also assessing the Year 2000 readiness of key third parties. The
Company is contacting critical suppliers of products and services and other
significant third parties regarding Year 2000 compliance to evaluate the extent
to which the Company may be vulnerable in the event of their failure to resolve
their own Year 2000 issues. If the Company does not receive reasonable
assurances from such third parties as to Year 2000 compliance, the Company will
assess the potential risks and where practicable, the Company will develop and
finalize contingency plans by June 30, 1999 to attempt to mitigate the extent of
the potential impact of the failure of these third parties to be Year 2000
ready. The Company has no means of ensuring that third parties will be Year 2000
ready and the failure by third parties to address Year 2000 issues could have a
material adverse effect on the Company's operations and financial results.
However, the effect, if any, on the Company from the failure of such parties to
be Year 2000 ready is unknown and not reasonably estimable. While the Company
believes its Year 2000 program is adequate to detect in advance compliance
issues, the Year 2000 issue has many aspects and potential consequences which
are not reasonably foreseeable and there can be no assurance that the Company
will not be adversely impacted.
Furthermore, the Company could also be adversely affected by the domino effect
of general disruptions in the general economy resulting from Year 2000 issues
and does not believe it can develop a contingency plan to protect the Company
from such event. Finally, although the Company's business requires the
availability of key public services and utilities, no contingency plans are
being developed to address any disruptions of such services and utilities.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents increased by $8,903,901 from $514,001 on December 31,
1998 to $9,417,902 as of March 31, 1999. Additionally, total borrowings under
long-term debt agreements increased by $4,399,531 from $17,600,000 on December
31, 1998 to $21,999,531 on March 31, 1999. On March 26, 1999, the Company
entered into a new 3-year credit agreement that replaced its existing revolving
credit agreement and made available to the Company up to $15,000,000 on a
revolving credit basis. Interest is payable at LIBOR plus 0.60% based upon the
one month LIBOR rate for U.S. dollar based borrowings. There were no borrowings
outstanding under this agreement as of March 31, 1999. On the same date, the
Company also entered into a $12,000,000 10-year term loan with the same bank.
The term loan is an amortizing loan, with monthly payments of principal and
interest, maturing April 1, 2009. The term loan carries a variable interest rate
of LIBOR plus 0.80%. Concurrent with the execution of the term loan agreement,
the Company entered into a matching interest rate swap agreement to fix the
interest rate on the term loan at 6.75%. The funds from the new term loan were
utilized to pay the outstanding balance on the existing revolver and the
remaining funds were subsequently utilized to fund the acquisition of The Empire
Company. The Company has operated without hindrance or restraint with its
present working capital, as income generated from operations and outside sources
of credit, both trade and institutional, have been more than adequate.
In the foreseeable future, the Company will continue its ongoing capital
expenditure program designed to maintain and improve its facilities. The Company
at all times evaluates its capital expenditure program in light of prevailing
economic conditions. The Company believes that its cash flow from operating
activities together with other capital resources and funds from credit sources
will be adequate to meet all of its funding requirements for the remainder of
the year and for the foreseeable future.
During the three months ended March 31, 1999 and 1998, respectively, the Company
paid cash dividends of $1,059,430 and $979,363. During those same periods, the
Company reacquired and retired 0 and 114,600 shares, respectively, with costs of
$0 and $1,780,701. The Company anticipates that it will continue to pay
dividends and that it will reacquire and retire additional shares of its common
stock in the future as financial conditions permit.
This quarterly report contains certain forward-looking statements that involve a
number of risks and uncertainties. Among the factors that could cause actual
results to differ materially are the following general economic conditions in
the areas of the United States in which the Company's customers are located;
changes in the healthcare, resort and commercial industries where uniforms and
service apparel are worn; the impact of competition; and the availability of
manufacturing materials.
Page 11
<PAGE> 12
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings
None.
ITEM 2. Changes in Securities
None.
ITEM 3. Defaults Upon Senior Securities
Inapplicable.
ITEM 4. Submission of Matters to a Vote of Security-Holders
None.
ITEM 5. Other Information
Inapplicable.
ITEM 6. Exhibits and Reports on Form 8-K
a) Exhibits
4.1 Loan Agreement dated March 26, 1999 between the
Registrant and First Union Bank
15 Letter re: unaudited interim financial information.
27 Financial Data Schedule for the quarter ended March
31, 1999 (for SEC use only).
b) Reports on Form 8-K
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 3, 1999 SUPERIOR UNIFORM GROUP, INC.
By /s/ Gerald M. Benstock
----------------------------------------
Gerald M. Benstock
Chairman and Chief Executive Officer
By /s/ Andrew D. Demott, Jr.
----------------------------------------
Andrew D. Demott, Jr.
Vice President, CFO, Treasurer
and Principal Accounting Officer
Page 12
<PAGE> 1
EXHIBIT 4.1
LOAN AGREEMENT
between
FIRST UNION NATIONAL BANK, a national banking association, Lender
and
SUPERIOR UNIFORM GROUP, INC., a Florida corporation, Borrower
Dated as of March 26, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. GENERAL DEFINITIONS.....................................................................................1
1.1 Definitions....................................................................................1
1.2 Other Terms....................................................................................4
2. REVOLVING CREDIT FACILITY...............................................................................4
2.1 Revolving Credit Facility; Maximum Amount; Use of Proceeds; Advance Period.....................4
2.2 Revolving Credit Note..........................................................................4
2.3 General Interest Rate..........................................................................4
2.4 Payment of Revolving Credit Loan...............................................................4
2.5 Other Limitations..............................................................................5
2.6 Letters of Credit..............................................................................5
2.7 Fee for Unused Availability....................................................................5
3. TERM LOAN...............................................................................................5
3.1 Term Loan; Maximum Amount; Use of Proceeds.....................................................5
3.2 Term Note......................................................................................5
3.3 General Interest Rate..........................................................................5
3.4 Payment of Term Loan...........................................................................5
4. CONDITIONS PRECEDENT....................................................................................6
4.1 Conditions Precedent to Advances...............................................................6
5. DEFAULT RATE; MAXIMUM RATE; OTHER PAYMENT TERMS; CO-TERMINUS............................................7
5.1 Default Rate...................................................................................7
5.2 Maximum Interest Rate..........................................................................7
5.3 Payments.......................................................................................7
5.4 Costs, Fees and Expenses.......................................................................7
5.5 Prepayment.....................................................................................7
5.6 Rights of Set Off..............................................................................7
5.7 Co-Terminus....................................................................................7
6. WARRANTIES AND REPRESENTATIONS..........................................................................8
6.1 General Warranties and Representations.........................................................8
6.2 Survival of Warranties and Representations....................................................10
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
7. COVENANTS AND CONTINUING AGREEMENTS....................................................................10
7.1 Affirmative Covenants.........................................................................10
7.2 Negative Covenants............................................................................11
7.3 Unfunded ERISA Liabilities....................................................................12
7.4 Insurance; Payment of Premiums................................................................12
7.5 Survival of Obligations Upon Termination of Agreement.........................................13
7.6 Deposit Account...............................................................................13
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES ON DEFAULT......................................................13
8.1 Events of Default.............................................................................13
8.2 Acceleration of Indebtedness..................................................................15
8.3 Notice........................................................................................15
9. MISCELLANEOUS..........................................................................................15
9.1 Assignment and Sale of Interests..............................................................15
9.2 Expenses (Including Attorneys' Fees)..........................................................15
9.3 Waiver by Lender..............................................................................15
9.4 Severability..................................................................................16
9.5 Parties.......................................................................................16
9.6 Conflict of Terms.............................................................................16
9.7 General Waivers by Borrower...................................................................16
9.8 Governing Law.................................................................................16
9.9 Notice........................................................................................17
9.10 Section Titles................................................................................18
9.11 Modification of Agreement.....................................................................18
9.12 Arbitration...................................................................................18
</TABLE>
EXHIBITS
EXHIBIT A -- Revolving Credit Note
EXHIBIT B -- Term Promissory Note
SCHEDULES
SCHEDULE 1 -- Amortization Schedule
SCHEDULE 2 -- List of Locations
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<PAGE> 4
LOAN AGREEMENT
This LOAN AGREEMENT is made as of the 26th day of March, 1999, by and
between FIRST UNION NATIONAL BANK, a national banking association ("Lender")
with offices at 100 South Ashley Drive, Suite 1000, Tampa, Florida 33602, and
SUPERIOR UNIFORM GROUP, INC., a Florida corporation (together with all
Subsidiaries, as hereinafter defined, and all Affiliates, as hereinafter
defined, "Borrower"), with its principal executive offices located at, and
having a mailing address of, 10099 Seminole Boulevard, Seminole, Florida 33772.
W I T N E S S E T H:
WHEREAS, Borrower desires to borrow from Lender, and Lender is willing
to make a loan or loans to Borrower, upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any extension of credit heretofore, now or hereafter made by
Lender to Borrower, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. GENERAL DEFINITIONS
1.1 Definitions. When used herein, the following terms shall
have the following meanings:
Agreement: this Loan Agreement, together with any and all
amendments, modifications, extensions, substitutions and renewals hereof.
Affiliate: as defined in 11 U.S.C. Section 101, except that
the term "debtor" therein shall be replaced by the term "Borrower".
Calculation Agent: as defined in the Hedge Agreement.
Closing Date: the date on which this Agreement is accepted by
Lender as evidenced by its due execution hereof whether or not any loans or
advances are made pursuant to this Agreement on such date.
Confirmation: with respect to a Hedge Agreement, one or more
documents exchanged between the parties which, taken together, confirm all of
the terms of such Hedge Agreement.
Default: an event or condition which, with notice, lapse of
time or the happening of any further condition, event or act, or any combination
of the foregoing, would constitute an Event of Default.
Effective Tangible Net Worth: as defined in Section 7.1(e).
<PAGE> 5
ERISA: the Employee Retirement Income Security Act of 1974, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
Event of Default: as defined in Section 8.1.
Financials: (a) those (i) audited financial statements of
Borrower for the period ended December 31, 1997, and (ii) reviewed income
statement and balance sheet as of September 30, 1998, and (b) that (i) certain
audited balance sheet of Borrower dated as of December 31, 1997, and (ii)
reviewed income statement and balance sheet as of September 30, 1998, which have
previously been delivered to Lender. The audited financial statements of
Borrower have been certified by Deloitte & Touche, LLP, as having been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis and fairly representing the assets, liabilities and financial
condition and results of operations of Borrower, without qualification.
Fixed Charge Coverage Ratio: as defined in Section 7.1(c).
Hedge Agreement: that certain ISDA Master Swap Agreement,
together with the Schedule thereto and the Confirmation delivered in connection
therewith, each executed by and between Borrower and Lender on or about the date
hereof and all extensions, modifications, supplements and replacements thereof
or thereto.
Indebtedness: all of Borrower's liabilities, obligations and
indebtedness to Lender of any and every kind and nature (including, without
limitation, principal, interest, charges, expenses, attorneys' fees and other
sums chargeable to Borrower by Lender and future advances made to or for the
benefit of Borrower), arising under this Agreement, under the Hedge Agreement or
under any of the Other Agreements, whether heretofore, now or hereafter owing,
arising, due or payable from Borrower to Lender, including obligations of
performance.
Liabilities: all liabilities, obligations and indebtedness of
any and every kind and nature (including, without limitation, liabilities,
obligations and indebtedness to trade creditors) whether heretofore, now or
hereafter owing, arising, due or payable from Borrower or any Subsidiary to any
Person and howsoever evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed, matured, liquidated or otherwise.
Without in any way limiting the generality of the foregoing, Liabilities
specifically includes (i) all indebtedness guaranteed, directly or indirectly,
in any manner, or endorsed (other than for collection or deposit in the ordinary
course of business) or discounted with recourse; (ii) all obligations or
liabilities of any Person that are secured by any Lien upon property owned by
Borrower or a Subsidiary, even though Borrower or such Subsidiary has not
assumed or become liable for the payment thereof; (iii) all obligations or
liabilities created or arising under any lease of real or personal property or
conditional sale or other title retention agreement with respect to property
used or acquired by Borrower or a Subsidiary, even though the rights and
remedies of the lessor, seller or lender thereunder are limited to repossession
of such property; (iv) all unfunded pension fund obligations and liabilities;
and (v) deferred taxes.
Lien: any mortgage, pledge, security interest, encumbrance,
lien, charge or claim upon property of any kind, whether or not voluntarily
given (including any agreement to give
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<PAGE> 6
any of the foregoing, any conditional sale or other title retention agreement,
any lease in the nature thereof, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code of any jurisdiction).
Notes: collectively, the Term Promissory Note and the
Revolving Credit Note, together with any and all amendments, modifications,
extensions, substitutions and renewals thereof.
Other Agreements: all agreements, instruments and documents,
including, without limitation, the Notes, and any other notes, guarantees,
mortgages, deeds of trust, chattel mortgages, pledges, powers of attorney,
consents, assignments, contracts, notices, security agreements, leases,
financing statements, subordination agreements, trust account agreements and all
other written matter whether heretofore, now or hereafter executed by or on
behalf of Borrower with respect to, or in connection with, this Agreement,
together with any and all amendments, modifications, extensions, substitutions
and renewals thereof.
Person: any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
Plan: any employee benefit plan of Borrower or any Subsidiary,
as defined in Section 3(3) of ERISA, including, without limitation, any
multi-employer plan or any employee welfare benefit plan which is maintained or
has been maintained pursuant to a collective bargaining agreement to which two
or more unrelated employers contribute and in respect of which Borrower or any
Subsidiary is an "employer" as defined in Section 3(5) of ERISA.
Revolving Credit Loan: as defined in Section 2.1.
Revolving Credit Loan Expiration Date: March 26, 2002, subject
to the provisions in Section 5.7.
Revolving Credit Note: that certain Revolving Credit Note in
the maximum principal amount of $15,000,000.00 dated of even date herewith, made
by Borrower payable to the order of Lender, substantially the form of Exhibit A
hereto, together with any and all amendments, modifications, extensions,
substitutions and renewals thereof.
Subsidiary: any corporation of which more than 50% of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation shall or might
have voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned by Borrower and/or one or more Subsidiaries.
Term Loan: as defined in Section 3.1.
Term Loan Maturity Date: April 1, 2009, subject to the
provisions in Section 5.7.
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<PAGE> 7
Term Promissory Note: that certain Term Promissory Note in the
principal amount of $12,000,000.00 dated of even date herewith, made by Borrower
payable to the order of Lender, substantially the form of Exhibit B hereto,
together with any and all amendments, modifications, extensions, substitutions
and renewals thereof.
Total Liabilities: all Liabilities of Borrower, including
capitalized leases and all reserves for deferred taxes and other deferred sums
appearing on the liabilities side of a balance sheet, but excluding debt fully
subordinated to Lender on terms and conditions acceptable to Lender.
1.2 Other Terms. Any accounting terms used in this Agreement
which are not specifically defined shall have the meanings customarily given
them in accordance with generally accepted accounting principles.
2. REVOLVING CREDIT FACILITY
2.1 Revolving Credit Facility; Maximum Amount; Use of
Proceeds; Advance Period. Subject to the terms and conditions hereof, and in
reliance on the representations and warranties herein set forth and in the
Financials heretofore delivered to Lender, Lender agrees to make available for
Borrower's use a revolving credit facility ("Revolving Credit Facility")
pursuant to which Lender shall from time to time make advances to Borrower, on a
revolving basis ("Revolving Credit Loan"). The aggregate principal amount of the
Revolving Credit Loan at any one time outstanding shall not exceed FIFTEEN
MILLION AND NO/100 Dollars ($15,000,000.00). The Revolving Credit Loan shall be
used by Borrower only for general working capital and corporate purposes (to
include possible asset purchases), and the issuance of trade letters of credit
all of which must be legal and proper corporate purposes and consistent with all
applicable laws and statutes. Lender's obligation to make the Revolving Credit
Loan shall be in effect beginning on the date hereof and shall continue until
the Revolving Credit Loan Expiration Date ("Revolving Credit Facility Term").
2.2 Revolving Credit Note. The Revolving Credit Loan shall be
evidenced by the Revolving Credit Note.
2.3 General Interest Rate. The Revolving Credit Loan
shall bear interest on the average daily outstanding balance of principal at the
rate specified in the Revolving Credit Note.
2.4 Payment of Revolving Credit Loan. The Revolving
Credit Loan and interest accrued thereon shall be due and payable as follows:
(a) interest accrued on the Revolving Credit
Loan through the last calendar day of each month shall be due
and payable in full on the first Business Day of the following
month;
(b) to the extent not otherwise payable pursuant
to this Agreement and the Revolving Credit Note, the principal
amount of the Revolving Credit Loan shall be due and payable
in full on the Revolving Credit Loan Expiration Date; and
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<PAGE> 8
(c) notwithstanding any term to the contrary
herein or in any of the Other Agreements, upon the occurrence
of an Event of Default, Lender shall have the right at any
time to demand immediate payment of the entire Indebtedness
relating to the Revolving Credit Facility.
2.5 Other Limitations. Lender shall have no obligation to
make advances under the Revolving Credit Loan if at the time there exists a
Default or Event of Default, or if after the giving thereof, the limit on
advances would be exceeded, or after termination of this Agreement.
2.6 Letters of Credit. Any letter of credit obtained with
proceeds of the Revolving Credit Loan must expire on or before the Revolving
Credit Loan Expiration Date.
2.7 Fee for Unused Availability. In addition to all
other amounts due to Lender hereunder and under the Revolving Credit Note,
Borrower shall pay to Lender on the first Business Day of each April, July,
October and January an availability fee equal to 0.15% (15 basis points) per
annum on the average daily unused available principal under the Notes for the
preceding four quarters or portion thereof.
3. TERM LOAN
3.1 Term Loan; Maximum Amount; Use of Proceeds. Subject
to the terms and conditions hereof and in reliance on the representations and
warranties set forth herein, and in the Financials heretofore delivered to
Lender, Lender agrees on the Closing Date to make a term loan to Borrower in the
principal amount of TWELVE MILLION AND NO/100 DOLLARS ($12,000,000.00) ("Term
Loan"). The proceeds of the Term Loan shall be used by Borrower to fund asset
acquisitions and to refinance existing debt.
3.2 Term Note. The Term Loan shall be evidenced by the
Term Promissory Note.
3.3 General Interest Rate. The Term Loan shall bear
interest on the daily outstanding balance of principal at the rate specified in
the Term Promissory Note.
3.4 Payment of Term Loan. The Term Loan and interest
accrued thereon shall be due and payable as follows:
(a) the principal amount of the Term Loan, in the
amounts set forth on the Amortization Schedule attached as
Schedule 1 hereto and hereby made a part hereof, together with
interest accrued thereon, shall be due and payable on the
dates set forth on such Amortization Schedule, with a final
payment of all outstanding principal and interest due and
payable in full on the Term Loan Maturity Date; and
(b) notwithstanding any term herein to the 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 Loan.
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<PAGE> 9
4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to Advances. Notwithstanding any
other provision of this Agreement or the Other Agreements and without affecting
in any manner the rights of Lender under this Agreement, it is understood and
agreed that Lender shall have no obligation to make any advance under this
Agreement unless and until the following conditions have been, and continue to
be, satisfied, all in form and substance reasonably satisfactory to Lender and
its counsel:
(a) Lender shall have received, on or prior to
the Closing Date unless otherwise indicated, the following documents:
(i) the Notes, duly executed and delivered;
(ii) evidence of the qualification and good
standing of Borrower in each state in which it is
required to be qualified to do business except where
its failure to qualify or its lack of good standing
would not have a material, adverse affect on Borrower
or its ability to conduct its business as currently
conducted;
(iii) certified copies of the resolutions of
the Board of Directors of Borrower (a) authorizing
the Loans and the Hedge Agreement, and
(b) authorizing execution and delivery of this
Agreement and the Other Agreements by officers of the
Borrower;
(iv) certificates of the secretary of the
Borrower certifying to the Lender the names of its
officers, the offices that each holds, the
authenticity of their signatures, and the
completeness and accuracy of its articles of
incorporation and bylaws;
(v) an opinion of Borrower's counsel, duly
executed and delivered; and
(vi) the Other Agreements, duly executed and
delivered;
(b) Borrower shall have executed and delivered such
additional documents and instruments as have been requested by
Lender;
(c) the representations and warranties contained
herein shall be true on and as of the Closing Date, and there
shall exist on the Closing Date no Default or Event of
Default;
(d) the advances on the terms and conditions herein
provided (including the use by Borrower of the proceeds of the
advances) shall not violate any applicable law or governmental
regulation (including, without limitation, Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System)
and shall not subject Lender to tax (other than income and
franchise taxes)
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<PAGE> 10
and Lender shall have received such certificates or other
evidence as Lender may reasonably request to establish
compliance with this condition; and
(e) all corporate and other proceedings taken or to
be taken in connection with the transactions contemplated
hereby and all documents incident thereto shall be in
substance and form reasonably satisfactory to Lender and its
counsel, and Lender and its counsel shall have received all
such counterpart originals or certified or other copies of
such documents as Lender or its counsel may reasonably
request.
5. DEFAULT RATE; MAXIMUM RATE; OTHER PAYMENT TERMS; CO-TERMINUS
5.1 Default Rate. Upon any Event of Default, and
continuing until the Event of Default is cured, the outstanding principal of the
Loan and all other Indebtedness shall bear interest at the Lender's Prime Rate
plus three percent (3.0%), payable on demand, which rate shall apply as well
before as after judgment is entered on the Notes.
5.2 Maximum Interest Rate. In no contingency or event
whatsoever shall the interest rate charged pursuant to the terms of this
Agreement exceed the highest rate permissible under applicable state and federal
law. In the event that Lender has received interest hereunder in excess of the
highest allowed rate, Lender shall promptly refund such excess interest to
Borrower.
5.3 Payments. All payments to Lender shall be payable at
Lender's address set forth in Section 9.9 hereof or at such other place or
places as Lender may designate from time to time in writing to Borrower.
5.4 Costs, Fees and Expenses. Costs, fees, expenses and
all other payments due Lender for which a due date is not expressed pursuant to
this Agreement and the Other Agreements shall be payable within two (2) Business
Days after demand.
5.5 Prepayment. Subject to Section 5.7, the principal
amount of the Term Loan may be prepaid in whole or in part at any time provided
that Borrower pays Lender such additional amounts deemed necessary by Lender to
compensate Lender for all losses, costs and expenses incurred by Lender,
including, without limitation, the amount which Borrower is obligated to pay
Lender under the Hedge Agreement and all other agreements between Lender and
Borrower.
5.6 Rights of Set Off. Borrower hereby grants to Lender
the right to set off against the Indebtedness any funds of Borrower on deposit
with Lender, which right may be exercised by Lender at any time following an
Event of Default.
5.7 Co-Terminus. Notwithstanding any term to the contrary
herein, or in any of the Other Agreements, Lender shall have the right to demand
payment of the entire remaining balance of the Indebtedness if, at any time:
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<PAGE> 11
(a) Borrower prepays the Term Loan in full or the
Term Loan is terminated pursuant to the terms of this Agreement or the Other
Agreements; or
(b) all of the following occur:
(i) the Revolving Credit Loan has
terminated pursuant to the terms of this Agreement or the Other
Agreements, including, without limitation, a termination on March 26,
2002; and
(ii) an offer was made by Lender, no
earlier than 90 days before the maturity date of the Revolving Credit
Note, to extend, renew or replace at least $10,000,000 of the Revolving
Credit Loan at an interest rate equal to or lower than the rate
specified in the Revolving Credit Note and on terms (including without
limitation fees) materially similar to the terms in this Agreement and
the Other Agreements and other terms then required by Lender for loans
similar in size and risk to the Revolving Credit Loan; and
(iii) Borrower has either:
(A) failed to accept such offer
within ten (10) Business Days after the offer was made by
Lender, or
(B) failed, within ten (10)
Business Days after delivery of documents evidencing such
extension, renewal or replacement, to execute and deliver to
Lender such documents and to pay Lender for its costs and fees
incurred and due in connection therewith.
6. WARRANTIES AND REPRESENTATIONS
6.1 General Warranties and Representations. Borrower
warrants and represents that:
(a) Borrower is a corporation which is duly
organized, validly existing and in good standing under the
laws of the State of Florida and is qualified to do business
and is in good standing in all other places where it is
required to be so qualified except where its failure to
qualify would not have a material, adverse affect on Borrower
or its ability to conduct its business as currently conducted;
(b) Borrower is not a party to any contract or
agreement or subject to any charge, corporate restriction,
judgment, decree or order having a material adverse effect,
taken as a whole, on its business, property, assets,
operations or condition, financial or otherwise, or is a party
to any labor dispute which would have a material adverse
effect on the financial condition of Borrower;
(c) Borrower is not in violation of any applicable
statute, regulation or ordinance of any governmental
authorities or of any applicable order, writ, injunction or
decree or any court or any Federal, state, municipal or other
governmental authority, which would in any respect adversely
affect its business;
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<PAGE> 12
(d) Borrower has not received notice to the effect
that it is not in full compliance with any of the requirements
of ERISA, and the regulations promulgated thereunder and, to
the best of its knowledge, there exists no event described in
Section 4043(3) thereof ("Reportable Event");
(e) Borrower's books and records, including, without
limitation, computer programs, printouts and other computer
materials and records are at the locations identified on
Schedule 2 attached hereto and hereby made a part hereof:
(f) the address specified in Section 6.1(e) is
Borrower's chief executive office and principal place of
business;
(g) Borrower has the right and power and is duly
authorized and empowered to enter into, execute, deliver and
perform this Agreement and the Other Agreements to which it is
a party, and the officers executing and delivering this
Agreement and such Other Agreements on behalf of Borrower are
duly authorized and empowered to do so;
(h) the execution, delivery and performance by
Borrower of this Agreement and the Other Agreements will not
constitute a violation of any applicable law or a breach of
any provision contained in Borrower's Articles of
Incorporation or By-Laws or contained in any agreement,
instrument or document to which Borrower is now a party or by
which Borrower is bound;
(i) this Agreement and the Other Agreements are
legal, valid and binding obligations of Borrower, enforceable
in accordance with their respective terms;
(j) Borrower has, and is current and in good standing
with respect to, all governmental approvals, permits,
certificates, inspections, consents and franchises necessary
to continue to conduct its business as heretofore conducted
and to own or lease and operate the assets now owned or leased
by it; and no authorization, consent or approval of any
federal, state, municipal or other governmental regulatory
authority is required in connection with either the execution
and delivery by Borrower of this Agreement, the Notes or the
Other Agreements to which Borrower is a party, or the
performance of its obligations thereunder; and
(k) the Financials were prepared in accordance with
generally accepted accounting principles and present fairly
the assets, liabilities and financial condition and results of
operations of Borrower at, and as of, the date thereof; there
has been no material and adverse change in the liabilities or
financial condition of Borrower since the date of the
Financials; and there is no material litigation or bankruptcy
or governmental actions or proceedings which are pending, or
to the best of Borrower's knowledge, threatened, against
Borrower which might result in any material, adverse change in
Borrower's financial condition.
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6.2 Survival of Warranties and Representations. All
representations and warranties of Borrower contained in this Agreement and the
Other Agreements shall survive the execution, delivery and acceptance thereof by
the parties thereto and the closing of the transactions described therein or
related thereto.
7. COVENANTS AND CONTINUING AGREEMENTS
7.1 Affirmative Covenants. Borrower shall:
(a) prepare financial statements and cause to be
furnished to Lender the following:
(i) within ninety (90) days after the
close of each fiscal year of Borrower, audited
financial statements reflecting its operations during
such fiscal year, including, without limitation, a
balance sheet, profit and loss statement and
statement of cash flows, all with supporting
schedules, all on a consolidated and consolidating
basis and in reasonable detail;
(ii) quarterly financial statements,
including, without limitation, a balance sheet,
profit and loss statement and statement of cash
flows, with supporting schedules, as soon as
available and in any event within forty-five (45)
days after the close of each such period, all in
reasonable detail and prepared in conformity in all
material respects with that of the preceding year,
which statements shall be certified as to their
correctness by a principal financial officer of
Borrower; and
(iii) such other data and information
(financial and otherwise) as Lender, from time to
time, may reasonably request, bearing upon or related
to Borrower's financial condition or results of
operations or income;
(b) within forty-five (45) days after the close
of each quarter, submit to Lender a certificate of compliance
executed by an authorized officer of Borrower certifying that
the Borrower is in full compliance with all terms and
conditions of this Agreement and the Other Agreements;
(c) maintain a "Fixed Charge Coverage Ratio" of
not less than 2.50 to 1.00, calculated at Borrower's fiscal
year end and quarterly on the last day of each fiscal quarter,
on a rolling four quarters basis (for purposes hereof, "Fixed
Charge Coverage Ratio" shall mean the sum of earnings before
interest, taxes, depreciation, amortization and rent expense
(EBITDAR) divided by the sum of current maturities of long
term debt plus rent expense plus interest expense; if the
Borrower acquires substantially all assets or stock of a
previously unrelated business entity, Borrower may utilize the
historical income statement of the acquired entity in
calculating the Fixed Charge Coverage Ratio as if the acquired
entity had been merged into Borrower for the prior four
quarters; and, if the Fixed Charge Coverage Ratio is
calculated inclusive of a merged entity historical
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<PAGE> 14
income statement, the calculation of the ratio and the
historical financial information of the acquired/merged entity
must be presented in form and content acceptable to Lender);
(d) maintain an "Effective Tangible Net Worth"
(as hereinafter defined) in an amount:
(i) from the date hereof until December 31,
1999, not less than $60,000,000.00; and
(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;
for purposes hereof, "Effective Tangible Net Worth" shall mean
total assets excluding assets owed to Borrower from an
officer, an Affiliate or a Subsidiary, and excluding the
aggregate amount of Borrower's goodwill, franchises, licenses,
patents, trademarks, trade names, copyrights, service marks,
brand names, and other intangible assets) minus Total
Liabilities.
(e) at all times, maintain a ratio of Total
Liabilities to Effective Tangible Net Worth of not more than
1.00 to 1.00.
(f) notify Lender immediately upon its formation
of any subsidiaries, which subsidiaries shall execute any and
all documents required by Lender, in its sole discretion,
necessary to add them as guarantors of the Indebtedness;
(g) maintain a demand deposit account with
Lender;
(h) pay in full immediately any draw made by
Borrower on any letter of credit;
(i) maintain insurance on all of its assets in
the full insurable value thereof and with insurers acceptable
to Lender; and
(j) Borrower shall cause any Subsidiary or
Affiliate that is more than 50% owned by Borrower to execute a
guaranty of the Indebtedness in form and substance
satisfactory to Lender.
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, or (ii) liens accruing by law for
employee benefits;
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<PAGE> 15
(b) guarantee or otherwise become responsible
for obligations of any other person or entity in an amount in
excess of $1,000,000.00 per fiscal year;
(c) merge or consolidate with any Person or
acquire all or substantially all of the assets of, or 50% or
more of any class of equity interest of, any Person, or sell,
lease, assign or otherwise dispose of a substantial portion of
its assets (other than sales of obsolete or worn-out equipment
and sales of inventory in the ordinary course of business), or
sell or otherwise dispose of stock of any Subsidiary provided
that Borrower may merge with (so long as the Borrower is the
survivor of such merger or the current shareholders of
Borrower continue to own a majority of the voting stock of the
survivor), or acquire all or substantially all the assets of,
a corporation or other entity as part of an acquisition of a
business which is in the same line of business as the Borrower
(so long as it is not a hostile takeover) if the aggregate
consideration does not exceed 35% of Borrower's net worth;
(d) in no event shall Borrower declare or pay a
dividend if there shall exist an Event of Default or a
condition which, upon the giving of notice or lapse of time or
both, would become an Event of Default under this Agreement or
the Other Agreements;
(e) change its fiscal year; or
(f) retire any long term debt, other than
indebtedness to The Chase Manhattan Bank being repaid from the
proceeds hereof, in advance of its obligation to do so.
7.3 Unfunded ERISA Liabilities. Borrower shall, and shall
cause each Subsidiary to, (i) keep in full force and effect any and all Plans
(other than multi-employer Plans) and shall not withdraw from any multi-employer
Plans, which may, from time to time, come into existence under ERISA, unless
such Plans can be terminated or such withdrawal can be effected without
liability to Borrower or such Subsidiary in connection with such termination or
withdrawal; (ii) make its contributions to all of the Plans in a timely manner
and in a sufficient amount to comply with the requirements of ERISA; (iii)
comply with all material requirements of ERISA which relate to Plans (including
without limitation the minimum funding requirements of Section 302 of ERISA);
(iv) notify Lender promptly upon receipt by Borrower or such Subsidiary of the
institution of any proceeding or other action which may result in the
termination of any Plans; (v) notify Lender in writing (x) promptly upon the
occurrence of any Reportable Event other than a termination, partial termination
or merger of a Plan or a transfer of a Plan's assets, and (y) prior to any
termination, partial termination or merger of a Plan or a transfer of a Plan's
assets.
7.4 Insurance; Payment of Premiums. Borrower shall maintain
insurance with financially sound and reputable insurers in such amounts and
against such liabilities and hazards as customarily is maintained by other
companies operating similar businesses and, in any event, in an amount
satisfactory to Lender.
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<PAGE> 16
7.5 Survival of Obligations Upon Termination of Agreement. No
termination (regardless of cause or procedure) of this Agreement or the Other
Agreements shall in any way affect or impair the powers, obligations, duties,
rights and liabilities of Borrower or Lender relating to (i) any transaction or
event occurring, or matter existing, prior to such termination, (ii) any
undertaking, agreement, covenant, warranty or representation of Borrower or
Lender with respect to such transaction, event or matter.
7.6 Deposit Account. Lender may credit any advance of the
Revolving Credit Loan into the demand deposit account maintained by Borrower
with Lender, and Lender may debit such account for any amounts due to Lender.
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES ON DEFAULT
8.1 Events of Default. The occurrence of any one or more
of the following events shall constitute an "Event of Default":
(a) Borrower fails to pay all or any portion of
the Indebtedness within five (5) Business Days after due and
payable;
(b) Borrower, in the reasonable discretion of
Lender, fails to perform, keep or observe any other material
term, provision, condition, covenant, warranty or
representation contained in this Agreement or in any of the
Other Agreements, which is required to be performed, kept or
observed by Borrower;
(c) a default shall occur under any other
agreement, document or instrument, other than this Agreement
or the Other Agreements, to which Borrower is a party, if such
default is in the performance of an obligation to pay money or
if the default would, in Lender's judgment, have a material
adverse effect on Borrower's business or Borrower's ability to
repay the Indebtedness;
(d) any representation, warranty, statement,
report, financial statement or certificate made or delivered
by Borrower or any of its officers, employees or agents, to
Lender is not true and correct in any material respect;
(e) any of Borrower's or any Subsidiary's
assets are attached, seized, levied upon, or subjected to, a
writ or distress warrant, or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of
creditors, which is not discharged within thirty (30) days of
commencement; or an application is made by any Person other
than Borrower or a Subsidiary for the appointment of a
receiver, trustee or custodian for any of Borrower's or any
Subsidiary's assets and such application is not discharged
within thirty (30) days;
(f) an application is made by Borrower or a
Subsidiary for the appointment of a receiver, trustee or
custodian for any of Borrower's or any Subsidiary's assets; a
petition under any section or chapter of the Bankruptcy Code
or any similar law or regulation shall be filed by Borrower or
a Subsidiary; or Borrower or a Subsidiary makes an assignment
for the benefit of its creditors or any case or proceeding is
filed by Borrower or a Subsidiary for its dissolution,
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<PAGE> 17
liquidation or termination and such case or proceeding is not
discharged within thirty (30) days;
(g) Borrower or a Subsidiary ceases to conduct
its business as now conducted or is enjoined, restrained or in
any way prevented by court order from conducting all or any
material part of its business affairs; or a petition under any
section or chapter of the Bankruptcy Code or any similar law
or regulation is filed against Borrower or a Subsidiary for
its dissolution or liquidation and such petition is not
discharged within thirty (30) days;
(h) a notice of lien, levy or assessment is
filed of record with respect to all or any of Borrower's or
any Subsidiary's assets by the United States government, or
any department, agency or instrumentality thereof, or by any
state, county, municipal or other governmental agency, or if
any taxes or debts owing at any time or times hereafter to any
one of these becomes a Lien upon any of the Borrower's or any
Subsidiary's assets other than inchoate liens;
(i) Borrower or a Subsidiary becomes insolvent
or admits in writing its inability to pay its debts as they
mature;
(j) any Plan shall be terminated within the
meaning of Title IV of ERISA, or a trustee shall be appointed
by an appropriate United States District Court to administer
any Plan or the Pension Benefit Guaranty Corporation (or any
successor thereto) shall institute proceedings to terminate
any Plan or to appoint a trustee to administer any Plan, which
proceedings are not dismissed or withdrawn within thirty (30)
days thereafter, if, as of the date of such termination,
withdrawal, appointment or institution of proceedings, the
liability (after giving effect to the tax consequences
thereof) of Borrower or any Subsidiary to the Pension Benefit
Guaranty Corporation (or any successor thereto) for unfunded
guaranteed vested benefits under the Plan exceeds the current
value of assets accumulated in such Plan by more than
$100,000.00 (or, in the case of a termination involving
Borrower or any Subsidiary as a "substantial employer" (as
defined in Section 4001(a)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed
such amount);
(k) any transfer of stock in Borrower which has
the effect of changing the voting control of Borrower on the
Closing Date;
(l) the occurrence of a default in payment or
performance by Borrower of any of its obligations under any
other loans, contracts, or agreements, or the occurrence of a
default by any Subsidiary or Affiliate of Borrower under any
loans, contracts or agreements with Lender or its affiliates;
or
(m) any monetary judgment or assessment is
entered against Borrower, in an amount greater than
$1,000,000.00, which is not discharged or stayed within thirty
(30) days of entry.
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<PAGE> 18
8.2 Acceleration of Indebtedness. Upon the occurrence of
an Event of Default, all of the Indebtedness may, at the option of Lender and
without demand, notice or legal process of any kind, be declared, and
immediately shall become, due and payable.
8.3 Notice. Any notice required to be given by Lender, if
given ten (10) days prior to such proposed action, shall constitute commercially
reasonable and fair notice thereof to Borrower.
9. MISCELLANEOUS
9.1 Assignment and Sale of Interests. Without Lender's
prior written consent, Borrower may not sell, assign or transfer this Agreement
or the Other Agreements or any portion hereof or thereof, including, without
limitation, Borrower's rights, title, interests, remedies, powers and/or duties
hereunder or thereunder.
9.2 Expenses (Including Attorneys' Fees). Borrower shall
reimburse Lender on demand for all following fees, costs, expenses and charges
(including, but not limited to, attorneys' fees) of, or incidental to:
(a) the preparation and administration of this
Agreement, all Other Agreements, any amendment of or
modification of this Agreement or the Other Agreements;
(b) any litigation, contest, dispute, suit,
proceeding or action including, without limitation, trial,
mediation, arbitration, administrative and bankruptcy
proceedings and appeals therefrom, (whether instituted by
Lender, Borrower or any other Person other than Borrower) in
any way relating to, or protecting Lender's interests in or
under, this Agreement or the Other Agreements;
(c) all state and federal taxes (other than
income taxes) incurred by Lender in connection with the
execution or recordation of this Agreement and any Other
Agreements or otherwise incurred by Lender in connection with
the Indebtedness, including, without limitation, such
documentary stamp taxes and intangible personal property taxes
as are now or hereafter due and payable pursuant to the laws
of the State of Florida; and
(d) all fees, costs, expenses and charges
incurred by Lender in connection with the filing and recording
of this Agreement and any Other Agreements in the public
records or with any state or federal authority.
9.3 Waiver by Lender. Lender's failure, at any time or
times hereafter, to require strict performance by Borrower of any provision of
this Agreement shall not waive, affect or diminish any right of Lender
thereafter to demand strict compliance and performance. Any suspension or waiver
by Lender of an Event of Default shall not suspend, waive or affect any other
Event of Default, whether the same is prior or subsequent thereto and whether of
the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations contained in this Agreement or the
Other Agreements and no Event of Default shall be deemed to have been suspended
or waived by Lender, unless such suspension or waiver
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<PAGE> 19
is by an instrument in writing signed by an authorized officer of Lender and
directed to Borrower specifying such suspension or waiver.
9.4 Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law. If, however, any provision of this Agreement shall be
prohibited by, or be invalid under, applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, unless the ineffectiveness of such provision materially and adversely
alters the benefits accruing to either party hereunder.
9.5 Parties. This Agreement and the Other Agreements
shall be binding upon and inure to the benefit of the successors and assigns of
Borrower and Lender. This provision, however, shall not be deemed to modify
Section 8.1 hereof.
9.6 Conflict of Terms. The Other Agreements and all
Schedules and Exhibits hereto are incorporated in this Agreement by this
reference thereto. Except as otherwise provided in this Agreement and except as
otherwise provided in the Other Agreements by specific reference to the
applicable provision of this Agreement, if any provision contained in this
Agreement is in conflict with, or inconsistent with, any provision in the Other
Agreements, the provision contained in this Agreement shall govern and control.
9.7 General Waivers by Borrower. Except as otherwise
expressly provided for in this Agreement, Borrower waives (i) presentment,
demand and protest and notice of presentment, protest, default, non-payment,
maturity, release, compromise, settlement, extension or renewal of any or all
commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties at any time held by Lender on which Borrower may, in any
way, be liable and hereby ratifies and confirms whatever Lender may do in this
regard; (ii) all rights to notice of a hearing prior to Lender's taking
possession or control of, or to Lender's reply, attachment or levy upon, any
bond or security which might be required by any court prior to allowing Lender
to exercise any of Lender's remedies; and (iii) the benefit of all valuation,
appraisement and exemption laws. Borrower acknowledges that it has been advised
by counsel with respect to this Agreement and the transactions evidenced by this
Agreement.
9.8 GOVERNING LAW. THIS AGREEMENT AND, UNLESS OTHERWISE
EXPRESSLY PROVIDED THEREIN, THE OTHER AGREEMENTS, SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO AGREEMENTS EXECUTED, DELIVERED AND PERFORMED WITHIN SUCH
STATE NOTWITHSTANDING EXECUTION OF THIS AGREEMENT AND THE OTHER AGREEMENTS
OUTSIDE THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE PRINCIPLES AND
CONFLICTS OF LAWS. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED,
BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE CITY OF TAMPA, STATE OF FLORIDA, AND WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON BORROWER, AND CONSENTS THAT ALL SUCH SERVICE OF
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<PAGE> 20
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS STATED ON
THE FIRST PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
ACTUAL RECEIPT THEREOF. BORROWER WAIVES ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
9.9 Notice. Except as otherwise provided herein, any
notices, requests and demands to or upon a party hereto shall be in writing and
shall be sent by certified or registered mail, return receipt requested, by
personal delivery against receipt, or by telegraph, telex or telecopy, addressed
as follows, and shall be deemed validly served and given on the date of receipt
as shown on the return receipt if delivered by certified mail, on the date of
delivery if done by personal delivery and upon confirmation of receipt if sent
by telegraph, telex or telecopy:
To the Lender: First Union National Bank
100 South Ashley Drive
Suite 1000
Tampa, Florida 33601
Attn: Timothy J. Coop Vice President
Telephone: (813) 276-6467
Telecopy: (813) 276-6499
with copy to: Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
P.O. Box 3239
Tampa, Florida 33601
Attn: Edgel C. Lester, Jr., Esquire
Telephone: (813) 229-4231
Telecopy: (813) 229-4133
To the
Borrower: Superior Uniform Group, Inc.
10099 Seminole Boulevard
Seminole, Florida 33772-2539
Attn: Andrew D. Demott, Jr., Chief Financial Officer
Telephone: (727) 397-9611
Telecopy: (727) 803-2641
with copy to: Schumaker, Loop & Kendrick, LLP
101 East Kennedy Boulevard, Suite 2800
Tampa, Florida 33602
Attn: Darrell C. Smith, Esquire
Telephone: (813) 229-7600
Telecopy: (813) 229-1660
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<PAGE> 21
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 9.9. Notice shall also be deemed validly
served and given on the date that a party rejects or refuses to accept delivery
or the date of an inability to effectuate delivery because of a changed address
of which no notice was given in accordance with this Section. Any written notice
that is not sent in conformity with the provisions hereof shall be nevertheless
be effective on the date that such notice is actually received by the noticed
party.
9.10 Section Titles. The section titles contained in this
Agreement are, and shall be, without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
9.11 Modification of Agreement. This Agreement and the
Other Agreements may not be modified, altered or amended, except in writing
signed by Borrower and Lender.
9.12 Arbitration. All parties to this Agreement agree as
follows:
(a) Upon demand of any party hereto, whether
made before or after institution of any judicial proceeding,
any claim or controversy arising out of, or relating to this
Agreement between the parties hereto ("Dispute") shall be
resolved by binding arbitration conducted under and governed
by the Commercial Finance Disputes Arbitration Rules
("Arbitration Rules") of the American Arbitration Association
("AAA") and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, disputes as to
whether a matter is subject to arbitration, claims brought as
class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any
court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or
related to swap agreements.
(b) All arbitration hearings shall be conducted
in the city in which the office of Lender is located. A
hearing shall begin within 90 days of demand for arbitration,
and all hearings shall be concluded within 120 days of demand
for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in
Rule 51 et seq. of the Arbitration Rules shall be applicable
to claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive
applicable Federal or state substantive law except as provided
herein.
(c) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise
before or after an arbitration proceeding is brought. The
parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the
following remedies as applicable: (i) all rights to foreclose
against any real or personal property or other security by
exercising a
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<PAGE> 22
power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Any claim or controversy
with regard to any party's entitlement to such remedies is a
Dispute.
(d) Each party agrees that it shall not have a
remedy of punitive or exemplary damages against the other in
any Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the
future in connection with any Dispute, whether the Dispute is
resolved by arbitration or judicially.
IN WITNESS WHEREOF, and intending to be legally bound hereby, this
Agreement has been duly executed and delivered by the undersigned as of the day
and year specified at the beginning hereof.
BORROWER:
SUPERIOR UNIFORM GROUP, INC., A
FLORIDA CORPORATION
By:/s/ Andrew D. Demott, Jr.
-------------------------------------------
Andrew D. Demott, Jr.
Vice President and Chief Financial Officer
LENDER:
FIRST UNION NATIONAL BANK, A NATIONAL
BANKING ASSOCIATION
By: /s/ Timothy J. Coop
------------------------------------------
Timothy J. Coop
Vice President
19
<PAGE> 23
STATE OF GEORGIA
COUNTY OF _________
The foregoing instrument was acknowledged before me this ____ day of
March, 1999, by Andrew D. Demott, Jr., as Vice President and Chief Financial
Officer of Superior Uniform Group, Inc., a Florida corporation, on behalf of the
corporation, who is personally known to me or has produced ___________ (state)
driver's license as identification.
My Commission Expires: __________________________________
Notary Public (Signature)
(AFFIX NOTARY SEAL) __________________________________
(Printed Name)
STATE OF GEORGIA
COUNTY OF ___________
The foregoing instrument was acknowledged before me this ____ day of
March, 1999, by Timothy J. Coop, as Vice President of First Union National Bank,
a national banking association, on behalf of the bank, who is personally known
to me or has produced ___________ (state) driver's license as identification.
My Commission Expires: ______________________________________
Notary Public (Signature)
(AFFIX NOTARY SEAL) ______________________________________
(Printed Name)
20
<PAGE> 24
EXHIBIT A
Copy of Revolving Credit Note
A-1
<PAGE> 25
EXHIBIT B
Copy of Term Promissory Note
B-1
<PAGE> 26
SCHEDULE 1
Copy of Amortization Schedule
Schedule 1 -- 1
<PAGE> 27
SCHEDULE 2
List of Locations
Schedule 2 -- 1
<PAGE> 28
REVOLVING CREDIT NOTE
$15,000,000.00
Month Day Year
----- --- ----
March 26 1999
Superior Uniform Group, Inc.
10099 Seminole Boulevard
Seminole, Florida 33772-2539
(Hereinafter referred to as "Borrower")
First Union National Bank
100 South Ashley Drive
Tampa, Florida 33602
(Hereinafter referred to as the "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of up to FIFTEEN MILLION and No/100 Dollars ($15,000,000.00) or
such sum as may be advanced and outstanding from time to time, with interest on
the unpaid principal balance at the rate and on the terms provided in this
Revolving Credit Note (including all renewals, extensions or modifications
hereof, this "Note").
INTEREST RATE DEFINITIONS.
|X| LIBOR MARKET INDEX. LIBOR Market Index plus .60% per annum, as LIBOR Market
Index may change from day to day ("LIBOR Market Index-Based Rate"). "LIBOR
Market Index Rate", for any day, is the rate per annum (rounded to the next
higher 1/100 of 1%) for 1 month U.S. dollar deposits as reported on Telerate
page 3750 as of 11:00 a.m., London time, on such day, or if such day is not a
London business day, then the immediately preceding London business day (or if
not so reported, then as determined by Bank from another recognized source or
interbank quotation).
: PRIME RATE. The rate of Bank's Prime Rate plus _____% as that rate may change
from time to time with changes to occur on the date Bank's Prime Rate changes
("Prime-Based Rate"). Bank's Prime Rate shall be that rate announced by Bank
from time to time as its prime rate and is one of several interest rate bases
used by Bank. Bank lends at rates both above and below Bank's Prime Rate, and
Borrower acknowledges that Bank's Prime Rate is not represented or intended to
be the lowest or most favorable rate of interest offered by Bank.
INTEREST RATE TO BE APPLIED. INTEREST RATE. Interest shall accrue on the unpaid
principal balance of each Advance (as defined herein) under this Note from the
date such Advance is made available to the Borrower at the LIBOR Market Index
Rate plus .60% as that rate may change from day to day in accord with changes in
the LIBOR Market Index Rate to be adjusted monthly beginning April 26, 1999
("Interest Rate").
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (defined herein) occurs and as long as a Default continues, all
outstanding Obligations in Bank's discretion shall bear interest at the Bank's
Prime Rate plus 3% ("Default Rate"). The Default Rate shall also apply from
acceleration until the Obligations or any judgment thereon is paid in full,
except as otherwise required by law.
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<PAGE> 29
INTEREST COMPUTATION. (ACTUAL/360). Interest shall be computed on the basis of a
360-day year for the actual number of days in the interest period ("Actual/360
Computation"). The Actual/360 Computation determines the annual effective
interest yield by taking the stated (nominal) interest rate for a year's period
and then dividing said rate by 360 to determine the daily periodic rate to be
applied for each day in the interest period. Application of the Actual/360
Computation produces an annualized effective interest rate exceeding that of the
nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only on the first Business Day of each month, until
fully paid. All outstanding principal will be repaid in accordance with the Loan
Agreement, as hereinafter defined, and, if Borrower subscribes to Bank's cash
management services and such services are applicable to this line of credit, the
terms of such services. In any event, this Note shall be due and payable in
full, including all principal and accrued interest, on March 26, 2002, the
maturity date of this Note. Notwithstanding any term to the contrary herein, or
in any of the Other Agreements, Lender shall have the right to demand payment of
the entire remaining balance of this Note if, at any time Maker prepays the Term
Loan in full or the Term Loan is terminated pursuant to the Loan Agreement or
the Other Agreements.
RESCISSION OF PAYMENTS. If any payment received by Bank under this Note or the
other Loan Documents is rescinded, avoided or for any reason returned by Bank
because of any adverse claim or threatened action, the returned payment shall
remain payable as an obligation of all Persons liable under this Note or the
other Loan Documents as though such payment had not been made.
LOAN AGREEMENT; LOAN DOCUMENTS; OBLIGATIONS. This Note is subject to the terms
and conditions of that certain Loan Agreement between Bank and Borrower dated as
of the date hereof, as the same may be modified and amended from time to time
(the "Loan Agreement"). All capitalized terms not otherwise defined herein shall
have such meaning as assigned to them in the Loan Agreement. The term
"Obligations" used in this Note refers to any and all indebtedness and other
obligations under this Note, all other obligations as defined in the respective
Loan Documents, and all obligations under any swap agreements as defined in 11
U.S.C. ss.101 between Bank and Borrower whenever executed.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days. The
Borrower acknowledges that the late charge imposed herein represents a
reasonable estimate of the expenses of Bank incurred because of such lateness.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan Documents,
if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall be deemed reduced to, and shall be, such
maximum lawful interest, and (i) the amount which would be excessive interest
shall be deemed applied to the reduction of the principal balance of this Note
and not to the payment of interest, and (ii) if the loan evidenced by this Note
has been or is thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal balance of this Note or the
refunding of excess to be a complete settlement and acquittance thereof.
EVENTS OF DEFAULT. An "Event of Default" shall exist if any one or more of the
following events shall occur (individually, an "Event of Default," and
collectively, "Events of Default"): NONPAYMENT; NONPERFORMANCE.
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<PAGE> 30
The failure of timely payment or performance of the Obligations under this Note.
EVENT OF DEFAULT UNDER OTHER LOAN DOCUMENTS. The occurrence of any Event of
Default under any of the other Loan Documents.
REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default, Bank
may at any time thereafter, take the following actions: BANK LIEN AND SET-OFF.
Exercise its right of set-off or to foreclose its security interest or lien
against any deposit account of any nature or maturity of Borrower with Bank
without notice. ACCELERATION UPON DEFAULT. Accelerate the maturity of this Note
and all other Obligations, and all of the Obligations shall be immediately due
and payable. CUMULATIVE. Exercise any rights and remedies as provided under the
Note and other Loan Documents, or as provided by law or equity.
REVOLVING CREDIT ADVANCES. This is a revolving credit note. Borrower may borrow,
repay and reborrow, and Bank may advance and readvance under this Note
respectively from time to time (each an "Advance" and together the "Advances"),
so long as the total indebtedness outstanding at any one time does not exceed
the principal amount stated on the face of this Note. Bank's obligation to
advance or readvance under this Note shall terminate if a Default exists.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Event of Default shall operate as a waiver of
any other Event of Default or the same Event of Default on a future occasion.
Neither the failure nor any delay on the part of Bank in exercising any right,
power, or remedy under this Note and other Loan Documents shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.
Each Borrower or any other Person liable under this Note waives presentment,
protest, notice of dishonor, demand for payment, notice of intention to
accelerate maturity, notice of acceleration of maturity, notice of sale and all
other notices of any kind. Further, each agrees that Bank may extend, modify or
renew this Note or make a novation of the loan evidenced by this Note for any
period and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any Borrower or any Person
liable under this Note or other Loan Documents, all without notice to or consent
of any Borrower or any Person who may be liable under this Note or other Loan
Documents and without affecting the liability of Borrower or any Person who may
be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and other Loan Documents are freely assignable, in whole
or in part, by Bank. Borrower shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by Borrower to assign
without Bank's prior written consent is null and void. Any assignment shall not
release Borrower from the Obligations. APPLICABLE LAW; CONFLICT BETWEEN
DOCUMENTS. This Note and other Loan Documents shall be governed by and construed
under the laws of the state where Bank first shown above is located as shown in
the heading of this Note without regard to that state's conflict of laws
principles. If the terms of this Note should conflict with the terms of the Loan
Agreement, the terms of the Loan Agreement shall control. SEVERABILITY. If any
provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. PLURAL; CAPTIONS. All references in the Loan Documents to Borrower,
Guarantor, Person, document or other nouns of reference mean both the singular
and plural form, as the case may be. The captions contained in the Loan
Documents are inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. BINDING CONTRACT. Borrower by execution of
and Bank by acceptance of this Note agree that each party is bound to all terms
and provisions of this Note. ENTIRETY. This Note and the other Loan Documents
delivered in connection herewith and therewith embody the entire agreement
between the parties and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof. ADVANCES. Bank in its sole
discretion may make other advances and readvances under this Note pursuant
hereto. POSTING OF PAYMENTS. All payments
3
<PAGE> 31
received during normal banking hours after 2:00 p.m. local time at the office of
Bank first shown above shall be deemed received at the opening of the next
banking day. Unless otherwise permitted by Bank, any repayments of this Note,
other than immediately available U.S. currency, will not be credited to the
outstanding loan balance until Bank receives collected funds. JOINT AND SEVERAL
OBLIGATIONS. Each Borrower is jointly and severally obligated under this Note.
FEES AND TAXES. Borrower shall promptly pay all documentary, intangible
recordation and/or similar taxes on this transaction whether assessed at closing
or arising from time to time, together with any interest and/or penalties
relating thereto. BUSINESS PURPOSE. Borrower represents that the loan evidenced
hereby is being obtained for business purposes.
ARBITRATION. All parties to this Note agree as follows:
(a) Upon demand of any party hereto, whether made before or
after institution of any judicial proceeding, any claim or controversy arising
out of, or relating to this Note between the parties hereto ("Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Finance Disputes Arbitration Rules ("Arbitration Rules") of the American
Arbitration Association ("AAA") and the Federal Arbitration Act. Disputes may
include, without limitation, tort claims, counterclaims, disputes as to whether
a matter is subject to arbitration, claims brought as class actions, or claims
arising from documents executed in the future. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or related to swap
agreements.
(b) All arbitration hearings shall be conducted in the city in
which the office of Lender is located. A hearing shall begin within 90 days of
demand for arbitration, and all hearings shall be concluded within 120 days of
demand for arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total of 60 days.
The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute Arbitration
Panel of the AAA. The parties do not waive applicable Federal or state
substantive law except as provided herein.
(c) All parties agree to preserve, without diminution, certain
remedies that any party may exercise before or after an arbitration proceeding
is brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following remedies as
applicable: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property; (iii) obtaining
provisional or ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing an involuntary
bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party's entitlement to
such remedies is a Dispute. Each party agrees that it shall not have a remedy of
punitive or exemplary damages against the other in any Dispute and hereby waive
any right or claim to punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute, whether the Dispute is
resolved by arbitration or judicially.
(d) Each party agrees that it shall not have a remedy of
punitive or exemplary damages against the other in any Dispute and hereby waive
any right or claim to punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute, whether the Dispute is
resolved by arbitration or judicially.
IN WITNESS WHEREOF, Borrower, as of the day and year first above written, has
caused this Note to be executed under seal.
4
<PAGE> 32
SUPERIOR UNIFORM GROUP, INC., a Florida
corporation
By:
_____________________________________________
Andrew D. Demott, Jr.
Vice President and Chief Financial
Officer
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF _____________
The foregoing instrument was acknowledged before me this ____ day of
March, 1999, by Andrew D. Demott, Jr., as Vice President and Chief Financial
Officer of Superior Uniform Group, Inc., a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced ___________ (state)
driver's license as identification.
My Commission Expires: _____________________________________________
Notary Public (Signature)
(AFFIX NOTARY SEAL)
_____________________________________________
(Printed Name)
Notary Public, State of Georgia
5
<PAGE> 33
TERM PROMISSORY NOTE
$12,000,000.00 Atlanta, Georgia
March 26, 1999
FOR VALUE RECEIVED, the undersigned, SUPERIOR UNIFORM GROUP, INC., a
Florida corporation ("Maker"), promises to pay to the order of FIRST UNION
NATIONAL BANK, a national banking association ("Lender"), in lawful money of the
United States of America, in immediately available funds, at FL0070, 214 North
Hogan Street, Jacksonville, Florida 32202 or at such other location as the
Lender may designate from time to time, the principal sum of TWELVE MILLION AND
NO/100 DOLLARS ($12,000,000.00), or so much thereof as may be advanced and
remain outstanding, together with interest thereon, as described below.
This Term Promissory Note ("Note") is the Term Promissory Note referred
to in, and issued pursuant to, that certain Loan Agreement, dated of even date
herewith between Lender and Maker (as amended from time to time, "Loan
Agreement"), the terms of which are incorporated herein by reference. The Loan
Agreement contains a provision, among other things, for the acceleration of the
stated maturity of this Note upon the happening of certain events set forth
therein. Capitalized terms, unless otherwise defined herein, shall have the
meaning given such terms in the Loan Agreement.
1. INTEREST
(a) Interest Rate. Interest shall accrue on the average daily
outstanding principal balance hereof from the date of advancement thereof at a
variable rate, based upon a year of 360 days and actual days elapsed, equal to
the Contract Rate, as hereinafter defined, subject to availability.
(b) Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
(i) "Business Day" shall mean any day on which the
Lender's offices in Tampa, Florida, are open for business. Unless specifically
denoted "Business Days" herein, references to "days" shall mean calendar days.
(ii) "Business Day Convention" shall mean the
convention for adjusting any relevant date if it would otherwise fall on a day
that is not a Business Day. If "Modified Following" is specified, that date will
be the first following day that is a Business Day unless that day falls in the
next calendar month, in which case that date will be the first preceding day
that is a Business Day.
(iii) The "Calculation Agent" shall have the meaning
given to it in the Hedge Agreement.
(iv) The "Confirmation" shall mean with respect to an
Hedge Agreement, one or more documents exchanged between the parties which,
taken together, confirm all of the terms of such Hedge Agreement.
<PAGE> 34
(v) The "Contract Rate" shall mean the 1 Month
LIBOR Market Index Rate plus .80% (80 basis points).
(vi) The "Hedge Agreement" shall mean that certain
ISDA Master Swap Agreement, together with the Schedule thereto and the
Confirmation delivered in connection therewith, each executed by and between
Maker and Lender on or about the date hereof and all extensions, modifications,
supplements and replacements thereof or thereto.
(vii) A "LIBOR Period" shall mean a one month period,
but in no event shall exceed in duration the remainder of the term of the loan
evidenced hereby.
(viii) The "1 Month LIBOR Market Index Rate" shall
mean for any day, the rate for one (1) month U.S. dollar deposits as reported on
Telerate page 3750 as of 11:00 a.m., London time, on such day, or if such day is
not a London business day, then the immediately preceding London business day
(or if not so reported, then as determined by Bank from another recognized
source or interbank quotation).
(ix) The "Prime Rate" shall mean a variable rate per
annum which equals the rate of interest announced from time to time by Lender as
its prime rate, but which is not necessarily the lowest or best rate offered
thereby at any time, such interest rate to change automatically from time to
time, effective as of the effective date of each change in the prime rate.
(x) The "Reset Date" shall mean each date specified
as such in the Confirmation, subject to adjustment in accordance with any
applicable Business Day Convention.
(c) Limitations on LIBOR; Compensation for Increased
Costs. If at any time prior to the proposed commencement of a LIBOR Period,
Lender shall have determined in good faith (which determination shall be
conclusive) and shall have given notice to Maker that it has become impractical
for Lender to continue to offer the Contract Rate to Maker or that Lender's
ability to continue to offer the Contract Rate to Maker has been materially
adversely affected because:
(i) by reason of circumstances affecting the
London Interbank Eurodollar Market, adequate
and fair means do not exist for ascertaining
the rate of interest to be applicable during
such LIBOR Period;
(ii) deposits in U.S. Dollars for the duration of
such LIBOR Period are not available to
Lender in the London Interbank Eurodollar
Market in sufficient amounts in the ordinary
course of business; or
(iii) the London Interbank Offered Rate will not
compensate Lender for the cost to Lender of
the funds to be used by it to fund the loan
evidenced hereby during such LIBOR Period;
2
<PAGE> 35
then, from after the date of such determination or at the end of such period as
Lender, in its discretion, shall have agreed, the entire outstanding principal
balance hereof shall accrue interest at the Prime Rate.
Notwithstanding anything herein contained, if at any time
while any principal remains outstanding hereunder, Lender determines in good
faith (which determination shall be conclusive) and notifies Maker that, by
reason of any law, regulation, treaty or official directive, or any change
therein or in the interpretation or application thereof, by the authority
charged with the administration thereof or by any court, it is unlawful or
impracticable for Lender to continue to maintain or offer the Contract Rate or
to give effect to any of its related obligations as contemplated hereby, Lender,
by such notice, may declare that the entire outstanding principal balance
hereof, together with all accrued and unpaid interest thereon to the date of
repayment, shall forthwith or at the end of such period as Lender, in its
discretion, shall have agreed, accrue interest at the Prime Rate.
Maker shall reimburse Lender for all losses or expenses
incurred by Lender as a result of (i) Maker's failure to pay any sum due
hereunder on its due date, (ii) repayment of any portion of the loan evidenced
hereby prior to the end of the applicable LIBOR Period, or (iii) any
acceleration of the due date of the loan evidenced hereby pursuant hereto.
(d) Taxation, Capital Adequacy and Other Increases in Cost of
Maintaining LIBOR Rate. If there occurs any future law, regulation, treaty or
official directive (whether or not having the force of law) or any change in
applicable present or future law, regulation, treaty or directive (whether or
not having force of law) or in the interpretation or application thereof by any
court or by any governmental or other authority or entity charged with the
administration thereof which now or hereafter shall:
(i) subject Lender to any tax of any kind
whatsoever with respect to this Note or any
outstanding principal hereunder, or change
the basis of taxation of payments to Lender
of principal, interest, fees or any other
amount payable hereunder (except for changes
in the rate of tax on the capital or overall
net income of Lender imposed by the laws of
the United States, or any state thereof, or
taxing authority therein);
(ii) impose, modify or make applicable any
reserve, special deposit or similar
requirement against assets held by, or
deposits or other liabilities in or for the
account of, or any other acquisition of
funds by, Lender; or
(iii) impose on Lender or the London Interbank
Eurodollar Market any other condition,
restriction or limitation;
and the result of any of the foregoing is to increase the cost to Lender of
maintaining or offering the Contract Rate or to reduce any amount receivable
hereunder with respect thereto, then, in any such case, at Maker's election,
either (1) Maker shall promptly pay to Lender, upon demand such additional
amounts necessary to compensate Lender for such additional cost or reduced
amount
3
<PAGE> 36
received which Lender deems to be material as are determined in good
faith by Lender or (2) thereafter, all amounts outstanding under the loan
evidenced hereby shall commence accruing interest at the Prime Rate upon
expiration of each LIBOR Period then in effect with respect to any portion of
the loan evidenced hereby. If Lender becomes entitled to claim any additional
amounts pursuant to this clause, it shall promptly notify Maker of the event by
reason of which it has become so entitled. A certificate of Lender as to any
such additional amounts payable to it and containing reasonable details of the
calculation thereof shall be conclusive and binding in the absence of manifest
error.
(e) Maximum Amount of Interest. It is the intention of Maker
and Lender to conform strictly to the interest law applicable to this loan
transaction. Accordingly, it is agreed that notwithstanding any provisions to
the contrary in this Note, or in any of the documents securing payment hereof or
otherwise relating hereto, the aggregate of all interest and any other charges
or consideration constituting interest under the applicable interest law that is
taken, reserved, contracted for, charged or received under this Note or under
any of the other aforesaid agreements or otherwise in connection with this loan
transaction shall under no circumstances exceed the maximum amount of interest
allowed by the interest law applicable to this loan transaction. If any excess
of interest in such respect is provided for, in this Note or in any of the
documents securing payment hereof or otherwise relating hereto, then, in such
event, (i) the provisions of this paragraph shall govern and control, (ii)
neither Maker nor Maker's heirs, legal representatives, successors or assigns
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the maximum amount of interest allowed by the interest law
applicable to this loan transaction, (iii) any excess shall be deemed a mistake
and cancelled automatically and, if theretofore paid, shall be credited on this
Note by Lender (or if this Note shall have been paid in full, refunded to
Maker), and (iv) the effective rate of interest shall be automatically subject
to reduction to the maximum legal rate of interest allowed under such interest
law as now or hereafter construed by courts of appropriate jurisdiction. To the
extent permitted by the interest law applicable to this loan transaction, all
sums paid or agreed to be paid to Lender for the use, forbearance or detention
of the indebtedness evidenced hereby shall be amortized, prorated, allocated and
spread throughout the full term of this Note.
2. PAYMENT TERMS.
(a) The outstanding principal balance hereof, together with
interest thereon, shall be due and payable on the dates and in the amounts set
forth on the Amortization Schedule attached as Schedule 1 hereto and hereby made
a part hereof.
(b) Notwithstanding any term herein to the 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 outstanding
principal balance hereof, together with all accrued and unpaid interest and
charges thereon and any cost, including breakage cost, associated with any LIBOR
contract or Hedge Agreement.
3. PREPAYMENT. The principal amount of the Loan may be prepaid in
whole or in part at any time provided that Maker compensates Lender for any
costs under the Hedge Agreement resulting from such prepayment.
4
<PAGE> 37
4. CO-TERMINUS. Notwithstanding any term to the contrary herein,
or in any of the Other Agreements, Lender shall have the right to demand payment
of the entire remaining balance of this Note if, at any time:
(a) the Revolving Credit Loan has terminated pursuant to the
terms of the Loan Agreement or the Other Agreements, including, without
limitation, a termination on March 26, 2002; and
(b) An offer was made by Lender, no earlier than 90 days
before the maturity date of the Revolving Credit Note, to extend, renew or
replace at least $10,000,000 of the Revolving Credit Loan at an interest rate
equal to or lower than the rate specified in the Revolving Credit Note and on
terms (including without limitation fees) materially similar to the terms in the
Loan Agreement and the Other Agreements and other terms then required by Lender
for loans similar in size and risk to the Revolving Credit Loan; and
(c) Borrower has either:
(i) failed to accept such offer within ten (10)
Business Days after the offer was made by Lender, or
(ii) failed within ten (10) Business Days after
delivery of documents evidencing such extension, renewal or
replacement, to execute and deliver to lender such documents
and to pay Lender for its costs and fees incurred and due in
connection therewith.
5. DEFAULT RATE. Upon any Event of Default, and continuing until
the Event of Default is cured, the outstanding principal of the loan and all
other indebtedness evidenced hereby shall bear interest at a rate per annum,
calculated on the basis of a 360-day year and days actually elapsed, equal to
the Contract Rate plus three percent (3.0%), payable on demand, which rate shall
apply as well before as after judgment.
6. MISCELLANEOUS.
(a) If any payment of principal or interest on this Note shall
become due on a Saturday, Sunday or on any other day on which banks in Tampa,
Florida, are not open for business, such payment shall be made on the
immediately preceding Business Day.
(b) All payments received by Lender hereunder shall be applied
first to unpaid interest and other charges and costs payable by Maker and second
to the principal balance hereof.
(c) Maker hereby waives presentment, demand, protest and
notice of any kind in connection with this Note.
(d) This Note shall bind Maker and its successors and assigns,
and the benefits hereof shall inure to the benefit of Lender and its successors
and assigns. All references
5
<PAGE> 38
herein to the "Maker" and "Lender" shall be deemed to apply to the Maker and
Lender, respectively, and their respective successors and assigns.
(e) This Note, for all purposes, shall be governed by, and
construed in accordance with, the laws of the State of Florida. In the event any
provision of this Note shall be prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining provisions
of this Note.
7. ARBITRATION. All parties to this Note agree as follows:
(a) Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to this Note between the parties hereto ("Dispute")
shall be resolved by binding arbitration conducted under and governed by the
Commercial Finance Disputes Arbitration Rules ("Arbitration Rules") of the
American Arbitration Association ("AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, disputes
as to whether a matter is subject to arbitration, claims brought as class
actions, or claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or
related to swap agreements.
(b) All arbitration hearings shall be conducted in the
city in which the office of Lender is located. A hearing shall begin within 90
days of demand for arbitration, and all hearings shall be concluded within 120
days of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total of 60
days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators
shall be licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties do not waive applicable Federal or
state substantive law except as provided herein.
(c) All parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies as applicable: (i) all rights to foreclose against any real or personal
property or other security by exercising a power of sale or under applicable law
by judicial foreclosure including a proceeding to confirm the sale; (ii) all
rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute. Each party agrees that it shall not
have a remedy of punitive or exemplary damages against the other in any Dispute
and hereby waive any right or claim to punitive or exemplary damages they have
now or which may arise in the future in connection with any Dispute, whether the
Dispute is resolved by arbitration or judicially.
6
<PAGE> 39
(d) Each party agrees that it shall not have a remedy of
punitive or exemplary damages against the other in any Dispute and hereby waive
any right or claim to punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute, whether the Dispute is
resolved by arbitration or judicially.
IN WITNESS WHEREOF, Maker has executed this Note on the date first
above written.
SUPERIOR UNIFORM GROUP, INC., a Florida
corporation
By:
__________________________________________
Andrew D. Demott, Jr.
Vice President and Chief Financial
Officer
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF _____________
The foregoing instrument was acknowledged before me this ____ day of
March, 1999, by Andrew D. Demott, Jr., as Vice President and Chief Financial
Officer of Superior Uniform Group, Inc., a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced ___________ (state)
driver's license as identification.
My Commission Expires: ________________________________
Notary Public (Signature)
(AFFIX NOTARY SEAL)
________________________________
(Printed Name)
Notary Public, State of Georgia
7
<PAGE> 40
SCHEDULE I
AMORTIZATION SCHEDULE
[THE HEDGE AGREEMENT AND AMORTIZATION SCHEDULE ARE BASED ON A TEN (10)
YEAR AMORTIZATION AND TEN (10) YEAR TERM.]
Schedule A-1
<PAGE> 1
EXHIBIT 15
May 3, 1999
Board of Directors
Superior Uniform Group, Inc.
Seminole, Florida
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Superior Uniform Group, Inc. for the periods ended March 31,
1999 and 1998, as indicated in our report dated April 28, 1999; because we did
not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, is
incorporated by reference in Registration Statement No. 2-85796 on Form S-8.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Tampa, Florida
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED INTERIM FINANCIAL STATEMENTS INCLUDED IN THE COMPANY'S FORM 10-Q FOR
THE PERIOD ENDED MARCH 31, 1999, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<CURRENCY> U.S.
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<EXCHANGE-RATE> 1
<CASH> 9,417,902
<SECURITIES> 0
<RECEIVABLES> 30,117,544
<ALLOWANCES> 0
<INVENTORY> 51,071,471
<CURRENT-ASSETS> 90,606,917
<PP&E> 28,032,029
<DEPRECIATION> 0
<TOTAL-ASSETS> 124,091,724
<CURRENT-LIABILITIES> 18,721,035
<BONDS> 21,999,531
0
0
<COMMON> 7,895,357
<OTHER-SE> 83,371,158
<TOTAL-LIABILITY-AND-EQUITY> 124,091,724
<SALES> 37,504,104
<TOTAL-REVENUES> 0
<CGS> 24,878,451
<TOTAL-COSTS> 34,641,109
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 346,106
<INCOME-PRETAX> 2,862,995
<INCOME-TAX> 1,051,000
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,811,995
<EPS-PRIMARY> 0.23
<EPS-DILUTED> 0.23
</TABLE>
