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EXHIBIT 4.2
RENEWAL REVOLVING CREDIT NOTE
$15,000,000.00
Month Day Year
March 27, 2001
Superior Uniform Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(Hereinafter referred to as "Borrower")
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Hereinafter referred to as the "Bank")
▇▇▇▇▇▇▇▇ 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
Renewal 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.
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,
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including all principal and accrued interest, on March 26, 2004, the
"Maturity Date" of this Note. Provided Borrower is not in default under this
Note or under any of the "Loan Documents" (as hereinafter defined), Borrower
shall have the right and option to extend the Maturity Date for an additional
twelve month period ("Term Option") upon and in accordance with the following
terms and conditions: (a) Borrower shall give written notice to Bank at least 30
days prior to the Maturity Date of its intent to exercise the Term Option; (b)
Borrower shall execute and deliver to Bank all documentation as reasonably
required by Bank in connection with the Term Option; and (c) Borrower shall pay
to Bank its reasonable attorneys' fees in connection therewith.
In the event Borrower exercises the Term Option, the outstanding principal
balance of this Note shall convert to a term loan and shall be due and payable
in equal consecutive monthly installments of principal and interest in an amount
determined by Bank which would allow the outstanding principal balance hereof to
be repaid in twelve months, and shall be evidenced by, and Borrower hereby
agrees to execute a note or other documentation reasonable required by Bank to
evidence the same.
Notwithstanding any term to the contrary herein, or in any of the Other
Agreements, Bank shall have the right to demand payment of the entire remaining
balance of this Note if, at any time Borrower prepays the Term Loan in full or
the Term Loan is terminated pursuant to the Loan Agreement or the Other
Agreements.
As used herein, "Loan Documents" shall mean this Note, the Loan Agreement, the
Notes and all 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
March 26, 1999, as amended pursuant to the terms of that certain First Amendment
to Loan Agreement and Revolving Credit Note dated as of October 16, 2000 by and
between Borrower and Bank, and that certain Second Amendment to Loan Agreement
and Other Documents dated as of the date hereof, by and between Borrower and
Bank (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 ▇▇▇▇▇▇▇▇ 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. 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.
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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 ▇▇▇▇▇▇▇▇ 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 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
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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 Bank 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, ▇▇▇▇▇▇▇▇, as of the day and year first above
written, has caused this Note to be executed under seal.
SUPERIOR UNIFORM GROUP, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Vice President, Chief Financial
Officer and Treasurer
[CORPORATE SEAL]
STATE OF
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COUNTY OF
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The foregoing instrument was acknowledged before me this ____ day of
March, 2001, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as Vice President, Chief Financial
Officer and Treasurer 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:
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Notary Public (Signature)
(AFFIX NOTARY SEAL)
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(Printed Name)
Notary Public, State of
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