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CREDIT AGREEMENT
Dated April 17, 2000
Between
HIBBETT SPORTING GOODS, INC., HIBBETT TEAM
SALES, INC.
AND SPORTS WHOLESALE, INC.
and
AMSOUTH BANK, FLEET NATIONAL BANK AND
BANK OF AMERICA, N.A.
and
AMSOUTH BANK, AS AGENT
Relating to a
$20,000,000 FUTURE ADVANCE FACILITY
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT dated as of April 17, 2000 ("this Agreement") is
entered into by HIBBETT SPORTING GOODS, INC., a Delaware corporation
("Hibbett"), HIBBETT TEAM SALES, INC., an Alabama corporation ("HTS"), and
SPORTS WHOLESALE, INC., an Alabama corporation ("SW"; HTS and SW are sometimes
together referred to as the "Initial Participating Entities"; Hibbett and the
Initial Participating Entities, together with all entities that hereafter become
Participating Entities, being hereafter sometimes together referred to as the
"Borrowers"), AMSOUTH BANK, an Alabama banking corporation ("AmSouth"), BANK OF
AMERICA, N.A., a national banking association, and FLEET NATIONAL BANK, a
national banking association (collectively, with all other persons that may from
time to time hereafter become Lenders hereunder by execution of an Assignment
and Acceptance, the "Lenders"), and AMSOUTH BANK, an Alabama banking
corporation, as agent for the Lenders (the "Agent").
Recitals
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A. The Borrowers have applied to the Lenders for a future advance loan in
an aggregate principal amount outstanding not to exceed $20,000,000 (the "Future
Advance Facility") the proceeds of which are to be used by the Borrowers to
finance the buyback of Hibbett's common stock through the Advance Termination
Date (as hereinafter defined).
B. The Lenders are willing to make the Future Advance Facility available
to the Borrowers only if, among other things, the Borrowers enter into this
Agreement and the other Loan Documents (as hereinafter defined).
Agreement
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NOW, THEREFORE, in consideration of the foregoing Recitals, and to induce
the Lenders to make the Future Advance Facility available, the Borrowers, the
Lenders and the Agent agree as follows:
ARTICLE 1
DEFINITIONS
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SECTION 1.1 For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
Unless otherwise specified, all accounting terms used herein have the
meanings assigned to them, and all computations herein provided shall be
made, in accordance with those generally accepted accounting principles
applied in the preparation of the audited financial statements of Hibbett
referred to in Section 5.3; provided that the financial statements required
to be delivered pursuant to clauses (1) and (2) of Section 7.3 shall be
prepared in accordance with generally accepted accounting principles as in
effect from time to time and provided further that quarterly financial
statements delivered pursuant to such clause (1) are not required to
contain footnote disclosure and shall be subject to ordinary year-end audit
adjustments. All references herein to "generally accepted accounting
principles" refer to such principles as they exist at the date of
application thereof.
All references in this Agreement to designated "Articles", "Sections"
and other subdivisions or to lettered Exhibits are to the designated
Articles, Sections and other subdivisions hereof and the lettered Exhibits
annexed hereto unless the context otherwise clearly indicates. All
Article, Section, other subdivision and Exhibit captions herein are used
for reference only and in no way limit or describe the scope or intent of,
or in any way affect, this Agreement.
The terms "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
The terms "include," "including" and similar terms shall be construed
as if followed by the phrase "without being limited to."
The terms defined in this article have the meanings attributed to them
in this article. Singular terms shall include the plural as well as the
singular, and vice versa. Words of masculine, feminine or neuter gender
shall mean and include the correlative words of other genders.
All recitals set forth in this Agreement are hereby incorporated in
the operative provisions of this Agreement.
No inference in favor of or against any party shall be drawn from the
fact that such party or its counsel has drafted any portion hereof.
All references herein to a separate instrument are to such separate
instrument as the same may be amended or supplemented from time to time
pursuant to the applicable provisions thereof.
Actual/360 Basis shall mean a method of computing interest or other
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charges hereunder on the basis of an assumed year of 360 days for actual
number of days elapsed, meaning that interest or other charges accrued for
each day will be computed by
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multiplying the rate applicable on that day by the unpaid principal balance
(or other relevant sum) on that day and dividing the result by 360.
Adjusted Funded Debt shall mean the sum of (a) all Funded Debt of
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Hibbett and the Consolidated Entities, on a consolidated basis and (b) the
product of 7 times the Operating Lease Payments of Hibbett and the
Consolidated Entities, on a consolidated basis, for the measurement period.
Advance shall mean a borrowing under the Future Advance Facility
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consisting of the aggregate principal amount of a Loan.
Advance Termination Date shall mean March 31, 2001 or such later date
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as the Agent and the Lenders may agree to after receipt of a request to
extend such date by the Borrowers (which request must be received by the
Agent not later than 30 days prior to March 31, 2001).
Affiliate of any specified person shall mean any person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition
"control" when used with respect to any specified person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent shall mean AmSouth Bank and its successors, as agent for the
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Lenders under this Agreement.
Agreement shall mean, on any date, this Credit Agreement, as
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originally in effect on the Closing Date and as thereafter from time to
time amended, supplemented, restated or otherwise modified and in effect on
such date.
AmSouth shall mean AmSouth Bank, an Alabama banking corporation, as a
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Lender and its successors and assigns.
Applicable Commitment Percentage shall mean, for each Lender, a
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fraction, the numerator of which shall be the then amount of such Lender's
Commitment and the denominator of which shall be the aggregate amount of
the Commitments of all the Lenders, which Applicable Commitment Percentage
for each Lender as of the Closing Date is as set forth on the signature
pages hereof under the caption "Applicable Commitment Percentage" or, in
the case of any person that hereafter becomes a Lender, on the signature
pages of the Assignment and Acceptance executed by such person; provided,
however, that the Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with Section 10.1 hereof.
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Applicable Lending Office shall mean, for each Lender and for each
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Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan on the signature pages hereof
or, in the case of any person that hereafter becomes a Lender, on the
signature pages of the Assignment and Acceptance executed by such person,
or such other office of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the Agent and Hibbett as the
office by which its Loans of such Type are to be made and maintained.
Assignment and Acceptance shall mean an Assignment and Acceptance in
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the form of Exhibit I (with blanks appropriately completed) delivered in
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connection with an assignment of a portion of a Lender's interest under
this Agreement pursuant to Section 10.1.
Assumption Agreement shall have the meaning attributed to that term in
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Section 2.1(h).
Base Rate shall mean the higher of the (i) Federal Funds Effective
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Rate plus 1/2% per annum and (ii) Prime Rate.
Base Rate Loans shall mean Loans that bear interest at rates based
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upon the Base Rate.
Borrowers shall have the meaning attributed to that term in the
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preamble to this Agreement.
Business Day shall mean (a) any day on which commercial banks are not
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authorized or required to close in the city in the United States in which
each of the Lenders maintains its principal place of business and (b) if
such day relates to the giving of notices or quotes in connection with a
borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a LIBOR Loan or a notice
by Hibbett with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, any day on which dealings in Dollar deposits
are carried out in the London interbank market.
Capital Expenditures shall mean any expenditure for fixed assets or
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that is properly chargeable to capital account in accordance with generally
accepted accounting principles.
Change of Control shall mean (i) the persons listed on Exhibit G
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hereto shall cease to be the "beneficial owner" (within the meanings of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) of
securities of Hibbett representing thirty percent (30%) or more of the
combined voting power of the then outstanding securities of Hibbett, or
(ii) any Person or "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934), shall, directly or indirectly, as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, other than the persons listed on Exhibit
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G hereto, have become, after the Closing Date, the
-
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"beneficial owner" of securities of Hibbett representing 25% or more of the
combined voting power of the then outstanding securities of Hibbett
ordinarily (and apart from rights accruing under special circumstances)
having the right to vote in the election of directors, assuming the
conversion, exchange or exercise into or for voting stock of all
outstanding shares so convertible, exchangeable or exercisable or (iii) the
members of the Board of Directors of Hibbett shall cease to consist of a
majority of the individuals (y) who constituted the Board of Directors as
of the Closing Date or (z) who shall have become members thereof subsequent
to the Closing Date after having been nominated, or otherwise approved in
writing, by at least a majority of individuals who constituted the Board of
Directors of Hibbett as of the Closing Date. For purposes of this
definition, "voting power" shall be determined with reference to the then
outstanding securities of Hibbett ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the
election of directors, assuming the conversion, exchange or exercise into
or for voting stock of all outstanding securities of Hibbett so
convertible, exchangeable or exercisable.
Closing Date shall mean the date of this Agreement.
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Commitment shall mean, as to each Lender, the obligation of such
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Lender to make Loans pursuant to Section 2.1 hereof in an aggregate amount
at any one time outstanding up to but not exceeding the amount set out
below such Lender's name on the signature pages hereof under the caption
"Commitment" (as the same may be reduced at any time or from time to time
pursuant to Section 2.6 hereof), or, in the case of any person who
hereafter becomes a Lender, on the signature pages of the Assignment and
Acceptance executed by such person (as the same may be reduced at any time
or from time to time pursuant to Section 2.8 hereof); provided that the
Commitment of each Lender shall be increased or decreased to reflect any
assignments to or by such Lender effected in accordance with Section 10.1
hereof.
Consolidated Entity shall mean a person whose financial statements are
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appropriately consolidated with Hibbett's financial statements under
generally accepted accounting principles.
Consolidated Net Income shall mean, with reference to any period, the
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net income of Hibbett and its Consolidated Entities (on a consolidated
basis) for such period after eliminating all non-recurring non-cash items
of income and expense.
Convert, Conversion and Converted shall refer to a conversion pursuant
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to Section 3.2 hereof of one Type of Loan into another Type of Loan, which
may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
Credit Obligations shall mean the outstanding principal amount of all
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borrowings under the Future Advance Facility and all other obligations and
debts of the Borrowers owing to the Lenders and arising under the terms of
this Agreement, the Notes and the
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other Loan Documents, whether now or hereafter incurred, existing or
arising, including the principal amount of all Advances, any sums expended
by the Agent or any of the Lenders in exercising the rights and remedies
described in Section 8.1, all accrued interest on Advances, and all costs,
fees, charges and expenses incurred and payable in connection therewith,
including fees payable under the terms of, or in connection with, this
Agreement, and all other obligations and debts owing to the Lenders arising
in connection with, ancillary to, or in support of Advances, and all
extensions, alterations, modifications, revisions and renewals of any of
the foregoing.
Current Maturities shall mean principal maturing or coming due on
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Funded Debt during the next succeeding period of twelve calendar months.
Debt of any person shall mean, without duplication, (i) the Credit
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Obligations and all other indebtedness, whether or not represented by
bonds, debentures, notes or other securities, for the repayment of borrowed
money or for reimbursement of drafts drawn or available to be drawn under
letters of credit (provided that letters of credit issued to secure trade
obligations, workmen's compensation or similar liabilities and other
obligations (not constituting Debt) arising in the ordinary course of
business shall count as Debt only to the extent that the aggregate face
amount of such letters of credit exceeds $2,000,000) and banker's
acceptances issued for the account of such person, (ii) all indebtedness
deferred for the payment of the purchase price of property or assets
purchased (except accounts payable arising in the ordinary course of
business and not incurred through the borrowing of money), (iii) all
capitalized lease obligations, (iv) all indebtedness secured by any
mortgage or pledge of, or Lien on, property of such person, whether or not
the indebtedness secured thereby shall have been assumed, (v) Guaranteed
Obligations, (vi) all obligations with respect to any conditional sale
contract or title retention agreement, and (vii) all obligations with
respect to interest rate swap agreements.
Default shall mean an Event of Default or an event that with notice or
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lapse of time or both would become an Event of Default.
Dollars and the symbol $ shall mean dollars constituting legal tender
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for the payment of public and private debts in the United States of
America.
EBITDAR for any period shall mean Consolidated Net Income (or the net
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deficit, if expenses and charges exceed revenues and other proper income
credits) for such period, plus amounts that have been deducted for (i)
Interest Expense, (ii) Operating Lease Payments, (iii) depreciation, (iv)
amortization and (v) income and profit taxes in determining Consolidated
Net Income for such period.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
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as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
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ERISA Affiliate shall mean, as of any date, any corporation,
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partnership or other trade or business (whether or not incorporated) under
common control with Hibbett and which together with Hibbett is treated as
single employer under Section 414 of the Internal Revenue Code, as amended.
Event of Default shall have the meaning assigned to such term in
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Article 8 hereof.
Federal Funds Effective Rate shall mean, for any day, the rate per
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annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of Atlanta on
the Business Day next succeeding such day, provided that (a) if the day for
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which such rate is to be determined is not a Business Day, the Federal
Funds Effective Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published for any Business Day,
and (b) if such rate is not so published for any Business Day, the Federal
Funds Effective Rate for such Business Day shall be the average rate
charged to the Agent on such Business Day on such transactions as
determined by the Agent.
Funded Debt shall mean all Debt of Hibbett and the Consolidated
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Entities, on a consolidated basis, that matures by its terms more than one
year after, or is renewable or extendible at the option of the debtor to a
date more than one year after, the date as of which Funded Debt is being
determined.
Future Advance Facility shall mean the credit facility made available
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to the Borrowers by the Lenders under the terms of Article 2 in an
aggregate amount of up to $20,000,000 as reduced by the Borrowers pursuant
to Section 2.6 hereof.
Governmental Authority shall mean any national, federal, state,
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county, municipal or other agency, authority, department, commission,
bureau, board, court or instrumentality thereof.
Governmental Requirements shall mean all laws, rules, regulations,
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requirements, ordinances, judgments, decrees, codes and orders of any
Governmental Authority applicable to the Borrowers or any Consolidated
Entity.
Guaranteed Obligations of any person shall mean all guaranties
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(including guaranties of guaranties and guaranties of dividends and other
monetary obligations), endorsement assumptions and other contingent
obligations with respect to, or to purchase or otherwise pay or acquire,
Debt of others.
Hazardous Material shall mean (a) any asbestos or insulation or other
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material composed of or containing asbestos and (b) any hazardous, toxic or
dangerous waste, substance or material defined as such in the Comprehensive
Environmental Response, Compensation and Liability Act, any so-called
"Superfund" or "Superlien" law, or any
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other Governmental Requirement regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material. This definition refers to the
amounts of such waste, substance or material present at a particular
facility in excess of the reportable quantity or threshold planning
quantity, if applicable, for such waste, substance or material as may be
listed in such act, law or other Governmental Requirement described in the
foregoing sentence.
Immaterial Subsidiary shall mean any Subsidiary of the Borrowers that
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either (a) has assets with a gross fair market value of less than $250,000
and gross revenues (determined for the most recently ended period of twelve
consecutive fiscal months) of less than $250,000 or (b) has been organized
by the Borrowers as an acquisition vehicle solely for the purpose of
merging with another person in connection with an acquisition permitted
under Section 7.7(15).
Interest Expense shall mean all interest incurred on Debt (including
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obligations payable under capitalized leases attributable to interest)
during the period in question.
Interest Period shall mean each period commencing on the date such
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LIBOR Loan is made or Converted from a Loan of another Type or the last day
of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second or third calendar month
thereafter, as Hibbett may select as provided in Section 3.2 hereof, except
that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any LIBOR
Loan would otherwise end after the Maturity Date, such Interest Period
shall end on the Maturity Date; (ii) each Interest Period that would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day or, if such next succeeding Business Day falls in
the next succeeding calendar month, on the next preceding Business Day; and
(iii) notwithstanding clauses (i) and (ii) above, no Interest Period for
any LIBOR Loan shall have a duration of less than one month and, if the
Interest Period for any LIBOR Loan would otherwise be a shorter period,
such LIBOR Loan shall not be available hereunder for such period.
Lender's Local Time shall mean the time in effect at the location of
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the Applicable Lending Office of the Lender in question.
Lenders shall mean AmSouth, Bank of America, N.A. and Fleet National
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Bank, and their respective successors and assigns.
Liabilities shall mean all Debt and all other items (including taxes
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accrued as estimated) that, in accordance with generally accepted
accounting principles, would be included in determining total liabilities
as shown on the liabilities side of a balance sheet.
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LIBOR-Based Rate shall mean the rate of interest determined by the
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Agent by reference to the Xxxxxx-Xxxxxx Money Center reporting service or
other comparable financial information reporting service at the time
employed by the Agent as of 10:00 a.m. (Birmingham, Alabama time) two (2)
Business Days prior to the commencement of the Interest Period, of the cost
of funds available to the Agent from the purchase on the London interbank
market of funds in the form of time deposits in Dollars in the approximate
amount of the Segment that is to bear interest at the LIBOR-Based Rate,
having a maturity comparable to the Interest Period during which the LIBOR-
Based Rate is to be in effect, it being expressly understood that the Agent
may not actually purchase any such time deposits and obtain such funds.
LIBOR Loans shall mean Loans on which interest rates are determined on
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the basis of LIBOR-Based Rates plus the Margin.
LIBOR Reserve Requirement shall mean the percentage (expressed as a
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decimal) prescribed by the Board of Governors of the Federal Reserve System
(or any successor), on the date on which the LIBOR-Based Rate is
determined, for determining the reserve requirements of the Agent
(including any marginal, emergency, supplemental, special or other
reserves) with respect to liabilities relating to time deposits purchased
in the London interbank market having a maturity equal to the period during
which the LIBOR-Based Rate will be in effect and in an amount equal to the
Segment involved, without any benefit or credit for any proration,
exemptions or offsets under any now or hereafter applicable regulations.
Lien shall mean any mortgage, pledge, assignment, charge, encumbrance,
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lien, security interest or financing lease.
Loan Documents shall mean this Agreement, any Assumption Agreement,
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the Notes and all other agreements, instruments and documents executed or
delivered at any time in connection with the Credit Obligations, or to
evidence or secure any of the Credit Obligations.
Loans shall mean the loans provided for by Section 2.1 hereof, which
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may be Base Rate Loans or LIBOR Loans.
Margin shall mean that percent per annum set forth below, in the case
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of a LIBOR Loan bearing interest at a LIBOR-Based Rate, which shall be the
Margin set forth opposite the ratio of Adjusted Funded Debt to EBITDAR at
the time of each such Advance as determined based on the most recent
financial statements furnished to the Agent pursuant to Section 5.3 or
Section 7.3 hereof:
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Ratio of Adjusted Funded
Debt to EBITDAR Margin
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(1) Less than 1.75 to 1.00 1.5%
(2) Greater than or equal to 1.75 to 1.00
but less than 3.25 to 1.00 1.75%
(3) Greater than or equal to 3.25 to 1.00 2.0%
If the outstanding principal amount of the Notes equals or exceeds
$18,000,000 during any quarter, the Margin shall be increased .25% for such
quarter.
Margin Stock shall have the meaning attributed to that term in
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Regulation U of the Federal Reserve Board, as amended.
Material Adverse Change shall mean a material adverse change in the
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financial condition, results of operations or business of Hibbett and its
Subsidiaries, taken as a whole.
Material Adverse Effect shall mean a material adverse effect upon (i)
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the financial condition, results of operations or business of Hibbett and
its Subsidiaries, taken as a whole, (ii) the ability of Hibbett and the
Participating Entities, taken as a whole, to perform their obligations
under this Agreement or any of the other Loan Documents or (iii) the
legality, validity or enforceability of this Agreement or any of the other
Loan Documents or the rights and remedies of the Agent or the Lenders
hereunder and thereunder.
Material Contract shall mean any contract or agreement (i) to which
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Hibbett or any of its Subsidiaries is a party, by which any of them or
their respective properties is bound or to which any of them is subject and
(ii) that is required to be filed as an exhibit to Hibbett's registration
statements or periodic reports (including on Forms 10-Q and 10-K) submitted
to the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and the rules and regulations from time to time promulgated
thereunder, or under the Exchange Act of 1934.
Maturity Date means November 5, 2002.
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Notes shall mean the promissory notes provided for by Section 2.5
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hereof and all promissory notes delivered in substitution or exchange
thereof in each case as the same shall be modified and supplemented and in
effect from time to time.
Operating Lease Payments shall mean all amounts payable under any
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lease or rental agreement (other than obligations under capital leases)
during the period in question (but excluding, in any event, amounts paid in
respect of taxes, utilities, insurance, common
10
area maintenance and other like charges associated with the lease and
rental of real and personal property).
Opinion of Counsel shall mean a favorable written opinion of an
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attorney or firm of attorneys duly licensed to practice law in the
jurisdiction the laws of which are applicable to the legal matters in
question and who is not an employee of the Borrowers or of an Affiliate of
the Borrowers.
Participating Entity shall mean the Initial Participating Entities and
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any Subsidiary that hereafter executes and delivers to the Agent an
Assumption Agreement and all other documents necessary to assume joint and
several liability as to the Credit Obligations.
PBGC shall mean the Pension Benefit Guaranty Corporation and any
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successor thereto.
Permitted Encumbrances shall mean:
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(1) Liens for taxes, assessments and other governmental charges that
are not delinquent or that are being contested in good faith by appropriate
proceedings duly pursued, and for which adequate reserves have been
established and are being maintained;
(2) mechanics', materialmen's, contractors', landlords' or other
similar liens arising in the ordinary course of business, securing
obligations that are not delinquent or that are being contested in good
faith by appropriate proceedings duly pursued, and for which adequate
reserves have been established and are being maintained;
(3) restrictions, exceptions, reservations, easements, conditions,
limitations and other matters of record that do not materially adversely
affect the value or utility of the property affected thereby or the use to
which such property is being put;
(4) Liens and other matters approved in writing by the Required
Lenders;
(5) Liens for purchase money obligations or capital leases provided
that such Liens attach only to the property so purchased or leased;
(6) Liens existing on any asset prior to the acquisition thereof by
Hibbett or any Consolidated Entity that does not violate the terms of this
Agreement;
(7) deposits under workmen's compensation, unemployment insurance and
Social Security laws;
(8) Liens arising out of any litigation, legal proceeding or judgment
that are not delinquent or that are being contested in good faith by
appropriate proceedings duly pursued, and for which adequate reserves have
been established and are being maintained,
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and any pledges or deposits to secure, or in lieu of, any surety, stay or
appeal bond with respect to any litigation, legal proceeding or judgment;
(9) the existing Liens described in Exhibit A hereto; and
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(10) Liens arising out of the refinancing, extension, renewal or
refunding of any Debt secured by Liens permitted by any of the foregoing
clauses (5) or (6), provided that such Debt is not increased other than by
an amount equal to any reasonable financing fees and is not secured by any
additional assets.
Permitted Investments shall mean:
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(1) direct obligations of, or obligations the payment of which is
guaranteed by, the United States of America or an interest in any trust or
fund that invests solely in such obligations or repurchase agreements,
properly secured, with respect to such obligations;
(2) direct obligations of agencies or instrumentalities of the United
States of America having a rating of A or higher by Standard & Poor's
Ratings Group or A2 or higher by Xxxxx'x Investors Service, Inc.;
(3) a certificate of deposit issued by, or other interest-bearing
deposits with, a bank having its principal place of business in the United
States of America and having equity capital of not less than $250,000,000;
(4) certificates of deposit issued by, or other interest-bearing
deposits with, any other bank organized under the laws of the United States
of America or any state thereof, provided that such deposit is either (i)
insured by the Federal Deposit Insurance Corporation or (ii) properly
secured by such bank by pledging direct obligations of the United States of
America having a market value not less than the face amount of such
deposits;
(5) commercial paper maturing within 270 days of the acquisition
thereof and, at the time of acquisition, having a rating of A-1 or higher
by Standard & Poor's Ratings Group, or P-1 or higher by Xxxxx'x Investors
Service, Inc.;
(6) eligible banker's acceptances, repurchase agreements and tax-
exempt municipal bonds having a maturity of less than one year, in each
case having a rating of, or that is the full recourse obligation of a
person whose senior debt is rated, A or higher by Standard & Poor's Ratings
Group or A2 or higher by Xxxxx'x Investors Service, Inc.;
(7) any other investment having a rating of A or higher or A-1 or
higher by Standard & Poor's Ratings Group or A2 or higher or P-1 or higher
by Xxxxx'x Investors Service, Inc;
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(8) mutual funds, the stated investment policies of which require
substantially all assets in such mutual funds to be invested in one or more
other itemized Permitted Investments;
(9) investments consisting of loans and advances by any of the
Borrowers to (i) the Participating Entities, (ii) employees for reasonable
travel, relocation, business expenses and other various purposes in the
ordinary course of business not exceeding $250,000 in the aggregate and
(iii) Immaterial Subsidiaries not exceeding $1,000,000 in the aggregate;
and
(10) other investments made with the express prior written approval of
the Required Lenders.
person (whether or not capitalized) shall include natural persons,
------
sole proprietorships, corporations, trusts, unincorporated organizations,
associations, companies, institutions, entities, joint ventures,
partnerships, limited liability companies and Governmental Authorities.
Plan shall mean any "employee pension benefit plan" as defined in
----
Section 3(3) of ERISA which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue
Code and which is maintained, or contributed to, by Hibbett or any ERISA
Affiliate for employees of Hibbett or any ERISA Affiliate.
Prime Rate shall mean that rate of interest designated by the Agent
----------
from time to time as its "prime rate", it being expressly understood and
agreed that its prime rate is merely an index rate used by the Agent to
establish lending rates and is not necessarily the Agent's most favorable
lending rate, and that changes in the Agent's prime rate are discretionary
with the Agent. Any change in the Prime Rate shall be effective as of the
date of such change.
Principal Office shall mean the principal office of the Agent located
----------------
at AmSouth-Sonat Tower, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
or such other location in Jefferson County, Alabama designated by the Agent
by notice to the Borrowers and the Lenders.
QRS Lease shall mean that certain Lease Agreement between QRS 12-14
---------
(AL), Inc. and SW dated February 12, 1996 and any amendments or supplements
thereto.
Regulatory Change shall mean on or after the Closing Date, the
-----------------
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Agent, AmSouth or any Lender with any
13
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency with respect to maintaining
LIBOR Loans.
Request for Advance or Interest Rate Election shall have the meaning
---------------------------------------------
attributed to that term in Section 2.2.
Required Lenders shall mean Lenders having at least 100% of the
----------------
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Lenders holding at least 100% of the aggregate unpaid principal
amount of the Loans, provided that if any Lender shall have failed to fund
its portion of a Loan pursuant to Section 2.1 and the Agent has made such
Loan on such Lender's behalf, the Agent shall be deemed the holder of such
portion of such Lender's Commitment for purposes of this definition.
Segment shall mean a portion of the Advances (or all thereof) with
-------
respect to which a particular interest rate is (or is proposed to be)
applicable.
Solvent shall mean, as to any person, on a particular date, that such
-------
person has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage, is able to
pay its debts as they mature, owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount
required to pay its probable liability on existing debts as they become
mature (including known reasonable contingencies and contingencies that
should be included in notes of such person's financial statements pursuant
to generally accepted accounting principles), and does not intend to, and
does not believe that it will, incur debts or probable liabilities beyond
its ability to pay such debts or liabilities as they mature.
Stores shall mean the existing and hereafter acquired or opened retail
------
sporting goods stores owned and operated by the Borrowers.
Subsidiary shall mean any corporation or other entity of which
----------
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by Hibbett,
and which is a Consolidated Entity.
Type shall have the meaning as assigned to such term in Section 1.2
----
hereof.
Upfront Fee shall have the meaning attributed to that term in Section
-----------
2.11.
SECTION 1.2 Types of Loans. The "Type" of a Loan refers to whether a Loan
--------------
is a Base Rate Loan or a LIBOR Loan, each of which constitutes a Type.
14
ARTICLE 2
FUTURE ADVANCE FACILITY TERMS
-----------------------------
SECTION 2.1 Loans.
-----
(a) From and after the Closing Date to and including the earlier of (a)
the date on which a Default exists hereunder and (b) the Advance Termination
Date, on the terms and subject to the conditions set forth in this Agreement,
each Lender severally agrees to lend to the Borrowers, jointly and severally, an
amount not exceeding such Lender's Commitment in effect from time to time;
provided, however, that no more than seven (7) different Interest Periods for
-------- -------
Loans may be outstanding at the same time (for which purpose Interest Periods
described in the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous). All Loans made by the
Lenders to the Borrowers under this Agreement with respect to the Future Advance
Facility shall be evidenced by a promissory note for each Lender each dated the
Closing Date payable to the order of each Lender, duly executed by the
Borrowers, and in the aggregate maximum principal amount of $20,000,000, all as
provided in Section 2.5 hereof. The Loans shall bear interest as provided in
Article 3 below. The unpaid principal amount of all Loans hereunder shall not
exceed the Future Advance Facility, and each Loan made hereunder shall be
allocated pro rata among the Lenders based upon their Applicable Commitment
Percentage.
(b) Each Participating Entity, separately and severally, hereby appoints
and designates Hibbett as its agent and attorney-in-fact to act on behalf of it
for all purposes of the Loan Documents. Hibbett shall have authority to
exercise on behalf of each Participating Entity all rights and powers that
Hibbett deems necessary, incidental or convenient in connection with the Loan
Documents, including the authority to execute and deliver certificates,
documents, agreements and other instruments referred to or provided for in the
Loan Documents, request Advances and elect interest rate options hereunder,
receive all proceeds of Advances, give all notices, approvals and consents
required or requested from time to time by the Lender and take any other actions
and steps that each Participating Entity could take for its own account in
connection with the Loan Documents from time to time, it being the intent of
each Participating Entity to grant to Hibbett plenary power to act on behalf of
each Participating Entity in connection with and pursuant to the Loan Documents.
The appointment of Hibbett as agent and attorney-in-fact for each Participating
Entity hereunder shall be coupled with an interest and be irrevocable so long as
any Loan Document shall remain in effect. Neither the Agent nor the Lenders
need obtain any Participating Entity's consent or approval for any act taken by
Hibbett pursuant to any Loan Document, and all such acts shall bind and obligate
Hibbett and each Participating Entity, jointly and severally. Each
Participating Entity forever waives and releases any claim (whether now or
hereafter arising) against the Lender based on any claim of Hibbett's lack of
authority to act on behalf of each Participating Entity in connection with the
Loan Documents.
(c) The liability of each Participating Entity with respect to the Credit
Obligations shall be limited to an amount equal to the greater of (i) $1.00 less
than the greatest of (A) the
15
Participating Entity's Net Worth (as hereinafter defined) as of the end of the
most recently concluded fiscal quarter of the Participating Entity ended on or
prior to the date the Participating Entity became a Borrower, (B) the highest
Net Worth of the Participating Entity at the end of any fiscal quarter ending
after the Participating Entity became a Borrower and prior to the earlier of the
date of the commencement of a case under the United States Bankruptcy Code (the
"Bankruptcy Code") involving the Participating Entity or the date enforcement of
this Agreement or any of the other Loan Documents is sought against the
Participating Entity and (C) the Net Worth of the Participating Entity at the
earlier of the date of the commencement of a case under the Bankruptcy Code
involving the Participating Entity or the date enforcement of this Agreement or
any of the other Loan Documents is sought against the Participating Entity; or
(ii) the amount that in a legal proceeding brought within the applicable
limitations period is determined by the final, non-appealable order of a court
having jurisdiction over the issue and the applicable parties to be the amount
of value or benefit given by the Lender, or received by the Participating
Entity, in exchange for the obligations of the Participating Entity under this
Agreement and the other Loan Documents. As used in this subsection 2.1(c), "Net
Worth" shall mean (x) the fair value of the property of the Participating Entity
from time to time (taking into consideration the value, if any, of rights of
subrogation, contribution and indemnity), minus (y) the total liabilities of the
Participating Entity (including contingent liabilities [discounted in
appropriate instances], but excluding liabilities of the Participating Entity
under this Agreement and the other Loan Documents) from time to time.
(d) Each Initial Participating Entity (i) acknowledges that it has had
full and complete access to the underlying papers relating to the Credit
Obligations and all other papers executed by any person in connection with the
Credit Obligations, has reviewed them and is fully aware of the meaning and
effect of their contents; (ii) is fully informed of all circumstances that bear
upon the risks of executing this Agreement and the other Loan Documents that a
diligent inquiry would reveal; (iii) has adequate means to obtain from Hibbett
on a continuing basis information concerning Hibbett's financial condition and
is not depending on the Agent or the Lenders to provide such information, now or
in the future; and (iv) agrees that neither the Agent nor the Lenders shall have
any obligation to advise or notify it or to provide it with any data or
information.
(e) Each Initial Participating Entity hereby agrees that its obligations
and liabilities with respect to the Credit Obligations are joint and several
with Hibbett, continuing, absolute and unconditional (subject to the provisions
of subsection (c) of this section). Without limiting the generality of the
foregoing, the obligations and liabilities of each Initial Participating Entity
with respect to the Credit Obligations shall not be released, discharged,
impaired, modified or in any way affected by (i) the invalidity or
unenforceability of any Loan Document, (ii) the failure of the Agent or the
Lenders to give each Initial Participating Entity a copy of any notice given to
Hibbett, (iii) any modification, amendment or supplement of any obligation,
covenant or agreement contained in any Loan Document, (iv) any compromise,
settlement, release or termination of any obligation, covenant or agreement in
any Loan Document, (v) any waiver of payment, performance or observance by or in
favor of Hibbett of any obligation, covenant or agreement under any Loan
Document, (vi) any consent, extension, indulgence or other action or inaction,
or any exercise or non-exercise of any right, remedy or privilege with respect
to any
16
Loan Document, (vii) the extension of time for payment or performance of any of
the Credit Obligations, or (viii) any other matter that might otherwise be
raised in avoidance of, or in defense against an action to enforce, the
obligations of each Initial Participating Entity under this Agreement, the
Future Advance Facility, the Notes or any other Loan Document.
(f) None of the Borrowers will exercise any rights that it may have or
acquire by way of subrogation under this Agreement or any of the other Loan
Documents or the Subrogation and Contribution Agreement referred to in
subsection (g) below, by any payment made hereunder or under any of the other
Loan Documents or otherwise, until all the Credit Obligations have been paid in
full and this Agreement has been terminated and is no longer subject to
reinstatement under Section 10.8. If any amount shall be paid to a Borrower on
account of any such subrogation rights at any time when all of the Credit
Obligations shall not have been paid in full and this Agreement terminated, such
amount shall be held in trust for the benefit of the Lenders and shall be paid
forthwith to the Lenders to be credited and applied upon the Credit Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
(g) The Borrowers will not amend or waive any provision of the Subrogation
and Contribution Agreement dated the Closing Date entered into by the Borrowers
nor consent to any departure from such Subrogation and Contribution Agreement,
without having obtained the prior written consent of the Lenders to such
amendment, waiver or consent.
(h) Each person that is to become after the Closing Date a Participating
Entity shall, at the time it is to become a Participating Entity, execute and
deliver to the Lender, in accordance with the provisions of Section 7.13, an
Assumption Agreement in the form attached hereto as Exhibit C ("Assumption
---------
Agreement").
SECTION 2.2 Advances.
--------
(a) Except as otherwise provided in Section 2.1(b), Advances shall be made
no more frequently than once in each week, shall be in an amount not less than
$100,000 and shall be in an integral multiple of $10,000. Once repaid, the
Advances may not be reborrowed. Each request for an Advance must be in writing
(which may be by facsimile transmission) and must be received by the Agent not
later than (x) 11:00 a.m., Birmingham, Alabama time, at least three Business
Days prior to the date of any LIBOR Loan and (y) 10:00 a.m., Birmingham, Alabama
time, on the day which such Advance is to be made in the case of a Base Rate
Loan. Each request for an Advance shall be in the form attached hereto as
Exhibit B ("Request for Advance or Interest Rate Election") and shall specify
---------
the amount of the Advance requested, the date as of which the Advance is to be
made, and shall provide the interest rate information called for in Section 3.2.
(b) Unless the Required Lenders shall otherwise require, the Agent may
accept from the Borrowers telephonic or facsimile requests for Advances without
requiring the submission of a Request for Advances or Interest Rate Election
form. Any request for Advances not made in writing shall be promptly confirmed
in writing, which may be by facsimile. The Agent shall promptly furnish each
Lender by facsimile a copy of each Request for Advance or Interest Rate Election
or, unless such Lender objects, convey to such Lender by telephone or facsimile
17
transmission the information contained in the Request for Advances or Interest
Rate Election or other form of request for Advances received from the Borrowers.
Not later than 1:00 P.M. Birmingham, Alabama time, on the date specified for
each Advance hereunder, each Lender shall make available the amount of the Loan
or Loans to be made by it on such date to the Agent at the Principal Office, in
Dollars and in immediately available funds, and the amount received by the Agent
shall be made available to the Borrowers by depositing the proceeds thereof into
an account with the Agent in the name of the Borrowers.
(c) The Lenders' obligation to make Advances shall terminate, if not
sooner terminated pursuant to other provisions of this Agreement, on the Advance
Termination Date. The Lenders shall have no obligation to make Advances if a
Default has occurred and is continuing. Each Request for Advance or Interest
Rate Election, whether submitted under this Section 2.2 in connection with a
requested Advance or under Section 3.2 in connection with an interest rate
election, shall be signed by an officer of Hibbett designated as authorized to
sign and submit Request for Advance or Interest Rate Election forms in the
documents submitted to the Agent pursuant to Section 6.3 below. Hibbett may,
from time to time, by notice to the Agent, terminate the authority of any person
to submit Request for Advance or Interest Rate Election forms and designate new
or additional persons to so act by delivering to the Agent a certificate of the
Secretary or Assistant Secretary of Hibbett certifying the incumbency and
specimen signature of each such person. The Agent and the Lenders shall be
entitled to rely conclusively upon the authority of any person so designated by
Hibbett.
SECTION 2.3 Payments. All interest accrued on Base Rate Loans shall be
--------
payable on the first day of each month, commencing on May 1, 2000 and upon
payment in full of such Base Rate Loans. All interest accrued on each LIBOR Loan
shall be payable at the end of the applicable Interest Period then in effect.
The principal amount of the Loans shall be payable in 3 consecutive principal
installments, the first 2 of which shall be in an amount equal to the
outstanding principal balance of the Credit Obligations on the Advance
Termination Date divided by five and shall be payable on July 31 of each year or
such other date as the Borrowers, the Agent and the Lenders may agree in
accordance with Section 2.14, beginning July 31, 2001 and continuing to and
including July 31, 2002. The final principal installment shall be in the amount
of the entire outstanding principal balance, plus all accrued interest, and
shall be due and payable on the Maturity Date or such other date as the
Borrowers, the Agent and the Lenders may agree in accordance with Section 2.14.
THE PRINCIPAL INSTALLMENTS WILL NOT FULLY AMORTIZE THE LOANS BY THE MATURITY
DATE, AND A SUBSTANTIAL "BALLOON PAYMENT" WILL BE DUE ON THE MATURITY DATE. All
payments of Credit Obligations shall be payable to the Agent on or before 10:00
a.m. Birmingham, Alabama time on the date when due, at the Principal Office in
Dollars and in immediately available funds free and clear of all rights of set-
off or counterclaim. If any payment falls due on a day that is not a Business
Day, then such due date shall be extended to the next succeeding Business Day
(except that, in the case of LIBOR Loans, if the next succeeding Business Day
falls in another calendar month, such due date shall be the next preceding
Business Day), and such extension of time shall then be included in the
computation of payment of interest, fees or other applicable amounts. Payments
received by the Lenders shall be applied first to expenses, fees and charges,
then to accrued interest and finally to principal.
18
SECTION 2.4 Prepayment.
----------
(a) The Borrowers may at any time prepay all or any part of the Advances,
without premium or penalty (except as set forth below); provided, however, that
no LIBOR Loan may be prepaid during an Interest Period unless the Borrowers
shall pay to the Agent the amounts required by Section 4.5 hereof. The
Borrowers shall pay all interest accrued to the date of prepayment on any amount
prepaid as permitted under the terms of the next preceding sentence on or prior
to the Maturity Date in connection with the prepayment in full of the Credit
Obligations and the concurrent termination of this Agreement. The Borrowers
shall give the Agent notice of its intent to pay any Base Rate Loan not later
than 10:00 a.m. on the date of payment. Failure to give such notice shall
result in payment of interest through the next succeeding Business Day on the
amount so paid.
(b) If at any time the principal amount of the Advances is greater than
the Commitments then in effect, the Borrower shall immediately make a prepayment
(notwithstanding the provisions of clause (a) of this section, but subject to
the provisions of Section 4.5) on the Advances equal to the difference between
(a) said aggregate principal amount of the Advances and (b) the Commitments.
SECTION 2.5 Notes.
-----
(a) The Loans made by each Lender shall be evidenced by a single
promissory note of the Borrowers substantially in the form of Exhibit D hereto,
---------
dated the Closing Date, payable to such Lender in a principal amount equal to
the amount of its Commitment as originally in effect and otherwise duly
completed.
(b) The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Loan made by each Lender to the Borrowers, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books; provided that the failure of such Lender to make, or any
--------
error by the Lender in making, any such recordation shall not affect the
obligations of the Borrowers to make a payment when due of any amount owing
hereunder or under such Note with respect to the Loans to be evidenced by such
Note.
SECTION 2.6 Reduction in Future Advance Facility. The Borrowers shall have
------------------------------------
the right from time to time on the first day of each successive January, April,
July and October, upon not less than three (3) Business Days' written notice to
the Agent, to reduce the amount of the Future Advance Facility. The Agent shall
give each Lender, within one (1) Business Day thereafter, telephonic notice
(confirmed in writing) of such reduction. Each such reduction shall be in the
aggregate principal amount of $1,000,000 or a larger integral multiple of
$500,000, and shall permanently reduce the Commitment of each Lender on a pro
rata basis. No such reduction shall result in payment of a LIBOR Loan other than
on the last day of the respective Interest Period. Each reduction of the Future
Advance Facility shall be accompanied by payment of the Loans to the extent that
the Credit Obligations exceed the Future Advance Facility after giving effect to
such reductions together with accrued and unpaid interest on the amounts
prepaid.
19
SECTION 2.7 Lending Offices. The Loans of each Type made by each Lender
---------------
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
SECTION 2.8 Pro Rata Payments. Except as otherwise provided herein, (a)
-----------------
each payment on account of the principal of and interest on the Loans and fees
(other than the Agent's fees payable under Section 9.14 hereof, which shall be
retained by the Agent) described in this Agreement shall be made to the Agent
for the account of the Lenders pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Borrowers for the account of
each of the Lenders on account of principal, interest and fees, shall be made
without set-off or counterclaim, and (c) the Agent will promptly distribute
payments received by it to the Lenders. If a payment is received by the Agent
before 10:00 a.m., Birmingham, Alabama time on a Business Day, the Agent shall
distribute each Lender's share of the payment to such Lender before 2:00 p.m.,
Lender's Local Time on the same day; or if a payment is received by the Agent
after 10:00 a.m. Birmingham, Alabama time on a Business Day or is received on a
day other than a Business Day, the Agent shall distribute each Lender's share of
the payment to such Lender before 2:00 p.m., Lender's Local Time on the next
Business Day. If, for any reason, the Agent makes any distribution to any Lender
prior to receiving the corresponding payment from the Borrowers, and the
Borrowers' payment is not received by the Agent within three Business Days after
payment by the Agent to the Lender, the Lender will, upon written request from
the Agent, return the payment to the Agent with interest at the interest rate
per annum for overnight borrowing by the Agent from the Federal Reserve Bank for
the period commencing on the date the Lender received such payment and ending
on, but excluding, the date of its repayment to the Agent. If the Agent advises
any Lender of any miscalculation of the amount of such Lender's share that has
resulted in an excess payment to such Lender, promptly upon request by the Agent
such Lender shall return the excess amount to the Agent with interest calculated
as set forth above. Similarly, if a Lender advises the Agent of any
miscalculation that has resulted in an insufficient payment to such Lender,
promptly upon written request by such Lender the Agent shall pay the additional
amount to such Lender with interest calculated as set forth above. In the event
the Agent is required to return any amount of principal, interest or fees or
other sums received by the Agent after the Agent has paid over to any Lender its
share of such amount, such Lender shall, promptly upon demand by the Agent,
return to the Agent such share, together with applicable interest on such share.
SECTION 2.9 Deficiency Advances. No Lender shall be responsible for any
-------------------
default of any other Lender with respect to such other Lender's obligation to
make any Loan hereunder nor shall the Commitment of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing, in the event any Lender (a "failing Lender") shall
fail to make an Advance with respect to a Loan to the Borrowers as provided in
Section 2.1, the Agent may in its discretion, but shall not be obligated to,
advance under the Note in its favor (without regard to the maximum face amount
of such Note, which maximum face amount shall be deemed increased as necessary
to give effect to the provisions of this section) as a Lender all or any portion
of such amount (the "deficiency advance") and shall thereafter be entitled to
payments of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such failing Lender would
have been entitled had such failing Lender made such Advance under its Note;
provided that, upon payment to the Agent
20
from such failing Lender of the entire outstanding amount of such deficiency
advance, together with interest thereon, from the most recent date or dates
interest was paid to the Agent by the Borrowers on each Loan comprising the
deficiency advance at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank, then such payment shall be credited against
the Note of the Agent in full payment of such deficiency advance and the
Borrowers shall be deemed to have borrowed the amount of such deficiency advance
from such failing Lender as of the most recent date or dates, as the case may
be, upon which any payments of interest were made by the Borrower thereon.
Acceptance by the Borrower of a deficiency advance from the Agent shall in no
way limit the rights of the Borrower against a failing Lender. Each Lender other
than AmSouth and the failing Lender shall have the right, at its option, to
purchase from AmSouth a portion of the deficiency advance determined by
multiplying the principal amount of the deficiency advance by a fraction the
numerator of which is the purchasing Lender's Applicable Commitment Percentage
and the denominator of which is the aggregate of the Applicable Commitment
Percentages of all the Lenders other than the failing Lender.
SECTION 2.10 Adjustments by Agent. Notwithstanding the construction of
--------------------
"pro rata" to mean based on the Applicable Commitment Percentage and any
provisions contained herein for the advancement of funds or distribution of
payments on a pro rata basis, the Agent may, in its discretion, but shall not be
obligated to, adjust downward or upward (but not in excess of any applicable
Commitment) the principal amount of any Loan to be made by any Lender to the
nearest amount that is evenly divisible by $100, and make appropriate related
adjustments in the distribution of payments of principal and interest on the
Loans.
SECTION 2.11 Fees. As consideration for the Lenders' agreement to provide
----
the Future Advance Facility, the Borrowers agree to pay to the Agent for the
account of each of the Lenders a fee equal to $100,000 (the "Upfront Fee"). The
Upfront Fee shall be payable on the Closing Date and shall be non-refundable.
SECTION 2.12 Credit Reliance by Lenders. The Borrowers acknowledge and
--------------------------
agree with the Agent and the Lenders that in extending credit to the Borrowers
under the Loan Documents the Agent and the Lenders have relied primarily on the
credit of the Borrowers and have not relied on the stock of Hibbett to be
acquired by the Borrowers, or any stock Hibbett or its Subsidiaries may own, as
collateral for the Credit Obligations.
SECTION 2.13 Withholding Tax Exemption. Each Lender that is not
incorporated or organized under the laws of the United States of America, or a
state thereof, shall, on or before the date such Lender becomes a party to this
Agreement, deliver to each of Hibbett and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement and
such Lender's Note without deduction or withholding of any United States federal
income taxes. Each Lender that so delivers a Form 1001 or 4224 further
undertakes to deliver to each of Hibbett and the Agent two additional copies of
such form (or a successor form) on or before the date that such form expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224), becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from a required withholding or deduction of
United States
21
federal income tax or after the occurrence of any event requiring a change in
the most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by Hibbett or the
Agent, in each case certifying that such Lender is entitled to receive payments
under this Agreement and such Lender's Note without deduction or withholding of
any United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred after the
Closing Date and prior to the date on which any such delivery would otherwise be
required that renders all such forms inapplicable or that would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender promptly advises Hibbett and the Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
SECTION 2.14 Extension of Maturity Date. The Borrowers may request, not
--------------------------
earlier than ninety (90) days but not later than forty-five (45) days prior to
November 5 of each year, that the Maturity Date be extended for an additional
period of one year. The Agent shall notify the Borrowers in writing, within
forty-five (45) days of receipt of such request, of the decision of the Lenders
as to whether to extend the Maturity Date. Failure by the Agent to give such
notice shall constitute refusal by the Lenders to extend the Maturity Date. The
Maturity Date shall be extended only upon written consent of all Lenders and the
payment of any fees charged by the Agent and the Lenders related to any such
extension.
ARTICLE 3
INTEREST
--------
SECTION 3.1 Applicable Interest Rates. The Borrowers shall have the
-------------------------
option to elect to have any Segment bear interest at the LIBOR-Based Rate plus
the applicable Margin or at the Base Rate. For any period of time and for any
Segment with respect to which the Borrowers do not elect another interest rate,
such Segment shall bear interest at the Base Rate. The Borrowers' right to
elect a LIBOR-Based Rate for a Segment shall be subject to the following
requirements: (a) each such Segment shall be in the amount of $100,000 or more
and in an integral multiple of $10,000 and (b) each such Interest Period with
respect to such Segment shall have a maturity selected by the Borrowers of one,
two or three months; provided, however, that no such Interest Period with
respect to such Segment shall have a maturity date later than the Maturity Date.
SECTION 3.2 Procedure for Exercising Interest Rate Options. Hibbett, on
----------------------------------------------
behalf of itself and each Participating Entity, may elect to have a particular
interest rate apply to a Segment by notifying the Agent in writing not later
than 11:00 a.m., Birmingham, Alabama time, three (3) Business Days prior to the
effective date on which any LIBOR-Based Rate is to become applicable or not
later than 10:00 a.m., Birmingham, Alabama time, on the same day on which a
requested Base Rate is to become applicable. Unless the Required Lenders
otherwise require, the Agent may, in its discretion, accept an election by
Hibbett to have a particular rate applied to a Segment given by telephone or
facsimile. Any notice of interest rate election hereunder shall be irrevocable
and shall be in the form attached hereto as Exhibit B and shall set forth the
---------
following:
22
(a) the amount of the Segment to which the requested interest rate will apply,
(b) the date on which the selected interest rate will become applicable, (c)
whether the interest rate selected is the Base Rate or a LIBOR-Based Rate and
(d) if the interest rate selected is a LIBOR-Based Rate, the maturity selected
for the Interest Period. Any request to have a particular rate applied to a
Segment not made in writing shall be promptly confirmed in writing. On the
second Business Day preceding the Business Day that a requested LIBOR-Based Rate
is to become applicable, the Agent shall use its best efforts to notify Hibbett
by telephone or by facsimile transmission of the applicable LIBOR-Based Rate, by
10:00 a.m., Birmingham, Alabama time, or as earlier on that day as may be
practical in the circumstances. The Agent shall not be required to provide a
LIBOR-Based Rate on any day on which a quote is not available. The Agent shall
notify the Lenders by facsimile transmission as promptly as practicable of the
receipt by the Agent of each interest rate election and of each LIBOR-Based Rate
agreed to by the Agent and Hibbett.
SECTION 3.3 Base Rate. Each Segment subject to the Base Rate shall bear
---------
interest from the date the Base Rate becomes applicable thereto until payment in
full, or until a LIBOR-Based Rate is selected by the Borrowers and becomes
applicable thereto, on the unpaid principal balance of such Segment on an
Actual/360 Basis. Any change in the Base Rate shall take effect on the effective
date of such change in the Base Rate designated by the Agent, without notice to
the Borrowers and without any further action by the Agent. Notwithstanding the
foregoing, for the purpose of enabling the Agent to send periodic billing
statements in advance of each interest payment date reflecting the amount of
interest payable on such interest payment date, the Base Rate, in effect 15 days
prior to each interest payment date shall be deemed to be the Base Rate, as
continuing in effect until the date prior to such interest payment date for
purposes of computing the amount of interest payable on such interest payment
date. If the Agent elects to use the Base Rate, 15 days prior to the interest
payment date for billing purposes, and if the Base Rate changes during such 15-
day period, the difference between the amount of interest that in fact accrues
during such period and the amount of interest actually paid will be added to or
subtracted from, as the case may be, the interest otherwise payable in preparing
the periodic billing statement for the next succeeding interest payment date. In
determining the amount of interest payable at the Maturity Date or upon full
prepayment of the Credit Obligations, all changes in the Base Rate occurring on
or prior to the day before the Maturity Date or the date of such full prepayment
shall be taken into account.
SECTION 3.4 LIBOR-Based Rate. Each LIBOR Loan shall bear interest from the
----------------
date the LIBOR-Based Rate becomes applicable thereto until the end of the
applicable Interest Period on the unpaid principal balance of such Segment at
the LIBOR-Based Rate on an Actual/360 Basis plus the applicable Margin.
SECTION 3.5 Changes in Margin. Any change in the rate of interest payable
-----------------
with respect to a LIBOR Loan because of a change in the Margin shall become
effective as of the first day of the fiscal quarter next following the receipt
by the Agent of the Compliance Certificate furnished by the Borrowers to the
Agent pursuant to Section 7.3(3) hereof, stating that as a result of a change in
the ratio of Adjusted Funded Debt to EBITDAR there has been a change in the
Margin. Any such change in the Margin shall be effective without notice to the
Borrowers and without any further action by the Agent or the Lenders.
23
SECTION 3.6 Post Maturity Interest. Upon and after the occurrence of any
----------------------
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under applicable bankruptcy laws) payable upon demand at a rate that is 2.00%
per annum (calculated on an Actual/360 Basis) in excess of the interest rate
otherwise payable under this Agreement with respect to the applicable Loans (or,
in the case of any such fees and other amounts, at a rate that is 2.00% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans); provided that, in the case of LIBOR Loans, upon the expiration
--------
of the Interest Period in effect at the time any such increase in interest rate
is effective, such LIBOR Loans shall thereupon become Base Rate Loans and
thereafter bear interest payable upon demand at a rate that is 2.00% per annum
(calculated on an Actual/360 Basis) in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. The payment or acceptance of
the increased rate provided by this Section 3.6 shall not constitute a waiver of
any Event of Default or an amendment to this Agreement or otherwise prejudice or
limit any rights or remedies of the Lender. Interest on all Loans shall be
calculated on an Actual/360 Basis.
ARTICLE 4
TERMINATION OF LIBOR-BASED RATE AND YIELD PROTECTION
----------------------------------------------------
SECTION 4.1 Additional Costs.
----------------
(a) The Borrowers shall pay directly to each Lender (through the Agent)
from time to time such amounts as such Lender may determine in good faith to be
necessary to compensate it for any costs which such Lender determines are
attributable to its making or maintaining any LIBOR Loan or its obligation to
make any LIBOR Loans hereunder, or any reduction in any amount receivable by
such Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs") resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or its Notes in respect of any of
such Loans (other than taxes imposed on or measured by the overall net
income of such Lender or of its Applicable Lending Office for any of
such Loans by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit or
similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Lender
including any change in the LIBOR Reserve Requirement; or
(iii) imposes any other condition affecting the interests of any
Lender under this Agreement or its LIBOR Loans to the Borrowers.
24
If any Lender requests compensation from the Borrowers in writing under
this Section 4.1(a), the Borrowers may, by notice to such Lender (with a copy to
the Agent), (i) suspend the obligation of such Lender to make or continue LIBOR
Loans until the regulatory change giving rise to such request ceases to be in
effect or (ii) require such Lender to designate another of its existing
facilities as the Applicable Lending Office for making LIBOR Loans or take other
reasonable action if such designation or other action would avoid the need for,
or reduce the amount of, compensation pursuant to this Section 4.1(a) and would
not in such Lender's good faith judgment be disadvantageous to such Lender. Any
amounts due under this Section 4.1(a) as a result of a change in the LIBOR
Reserve Requirement shall only be payable by the Borrowers to the extent such
Lender incurs actual costs associated with any such change.
(b) Without limiting the effect of the provisions of Section 4.1(a), in
the event that, by reason of any regulatory change, any Lender either (i) incurs
additional costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender which
includes deposits by reference to which the interest rate on LIBOR Loans is
determined as provided in this Agreement or a category of extensions of credit
or other assets of such Lender which includes LIBOR Loans or (ii) becomes
subject to restrictions on the amount of any such category of liabilities or
assets which it may hold, then, if such Lender so elects (through the Agent) by
notice to the Borrowers, the obligation of such Lender to make or continue LIBOR
Loans hereunder shall be suspended until such regulatory change ceases to be in
effect. Notwithstanding the foregoing, the obligation of any Lender to make or
continue LIBOR Loans shall not be affected by any other Lender's suspension of
its obligations as set forth in this Section 4.1(b).
(c) Without limiting the effect of the foregoing provisions of this
Section 4.1 (but without duplication), the Borrowers shall pay directly to each
Lender (through the Agent) from time to time on written request such amounts as
such Lender may determine in good faith to be necessary to compensate such
Lender for any increased costs which it determines are attributable to the
maintenance by such Lender (or any Applicable Lending Office) of capital in
respect of its Loans pursuant to any Regulatory Change or implementing any risk-
based capital guideline or requirement (whether or not having the force of law
and whether or not the failure to comply therewith would be unlawful) hereafter
issued by any Governmental Authority implementing at the national level the
Basle Accord (including the Final Risk-Based Capital Guidelines of the Board of
Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX
Xxxx 000, Xxxxxxxx X) and the Final Risk-Based Capital Guidelines of the Office
of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), such
compensation to include an amount equal to any reduction of the rate of return
on assets or equity of such Lender (or any Applicable Lending Office) to a level
below that which such Lender (or any Applicable Lending Office) could have
achieved but for such Regulatory Change. For purposes of this Section 4.1(c),
"Basle Accord" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented in effect from time to time or any replacement thereof.
25
(d) Each Lender (through the Agent) shall notify Hibbett of any event
occurring after the Closing Date that will entitle such Lender to compensation
under Section 4.1(a) or (c) as promptly as practicable, but in any event within
45 days after such Lender obtains actual knowledge thereof; provided however,
that if such Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 4.1 in respect of any costs
resulting from such event, only be entitled to payment under this Section 4.1
for costs incurred from and after the date 45 days prior to the date that such
Lender does give such notice. Each Lender (through the Agent) will furnish to
Hibbett a certificate setting forth in reasonable detail the basis and amount of
each request by such Lender for compensation under Section 4.1(a) or (b) and
such compensation shall be due five Business Days from the date Hibbett receives
such certificate. Determinations and allocations by any Lender for purposes of
this Section 4.1 of the effect of any regulatory change pursuant to Section
4.1(a) or (b), of maintaining Loans or its obligation to make Loans or on
amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 4.1, shall be made in a manner
consistent with that applied by such Lender in similar contexts and shall be
conclusive in the absence of demonstrable error.
SECTION 4.2 Limitation on Types of Advances. Anything herein to the
-------------------------------
contrary notwithstanding, if on or prior to the determination of any LIBOR-Based
Rate for any Interest Period:
(a) the Agent determines in good faith (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of LIBOR-Based Rate are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining rates of
interest for LIBOR Loans as provided herein; or
(b) if the Required Lenders determine in good faith (which determination
shall be conclusive) and notify the Agent that the relevant rates of interest
referred to in the definition of LIBOR-Based Rate in this Agreement upon the
basis of which the rate of interest for LIBOR Loans for such Interest Period is
to be determined are not likely to adequately cover the cost to such Lenders of
making or maintaining LIBOR Loans for such Interest Period;
then the Agent shall give Hibbett and each Lender written notice thereof, and so
long as such condition remains in effect, the Lenders shall be under no
obligation to make additional LIBOR Loans, and the Borrowers shall, on the last
day(s) of the then-current Interest Period(s) for the outstanding LIBOR Loans,
either prepay such Loans or convert such Loans into Base Rate Loans.
SECTION 4.3 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender (through the Agent) shall promptly notify
Hibbett and such Lender's obligation to make LIBOR Loans shall be suspended
until such time as such Lender may again make and maintain LIBOR Loans.
26
SECTION 4.4 Treatment of Affected Loans. pursuant to Sections 4.1 or 4.3,
---------------------------
such Lender's LIBOR Loans shall be automatically converted into Base Rate Loans
on the last day(s) of the then-current Interest Period(s) for such outstanding
Loans (or, in the case of a conversion pursuant to Section 4.3 that is legally
required to be made immediately, on such earlier date as such Lender may specify
to Hibbett with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Sections 4.1 or 4.3
which gave rise to such conversion no longer exist to the extent that such
Lender's LIBOR Loans have been so converted, all payments and prepayments of
principal which would otherwise be applied to such Lender's LIBOR Loans shall be
applied instead to its Base Rate Loans.
SECTION 4.5 Compensation. The Borrowers shall pay to the Agent for the
------------
account of each Lender, upon the request of such Lender through the Agent, five
Business Days after Hibbett receives the certificate referred to herein, such
amount or amounts as shall be sufficient to compensate it for any loss, cost, or
expense which such Lender determines in good faith is attributable to:
(a) any payment, prepayment or conversion of a LIBOR Loan by the Borrowers
for any reason on a date other than the last day of the Interest Period for such
LIBOR Loan; or
(b) any failure by the Borrowers for any reason to borrow a LIBOR Loan
(other than a refusal by such Lender to make such a LIBOR Loan pursuant to this
Article 4) from such Lender on the date for such borrowing specified in the
relevant Request for Advance or Interest Rate Election.
Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest which otherwise would have accrued on the principal amount so paid,
prepaid or converted or not borrowed for the period from the date of such
payment, prepayment, conversion or failure to borrow to the last day of the
then-current Interest Period for such LIBOR Loan (or, in the case of a failure
to borrow, the Interest Period for such LIBOR Loan which would have commenced on
the date specified for such borrowing) at the applicable rate of interest for
such LIBOR Loan provided for herein over (ii) the amount of interest which would
otherwise have accrued on such principal amount at a rate per annum equal to the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
determined in good faith by such Lender); provided that such compensation shall
not include loss of margin for the period after any payment, prepayment,
conversion or failure to borrow described in Sections 4.5(a) or (b).
27
SECTION 4.6 Taxes.
-----
(a) Any and all payments by the Borrowers hereunder shall be paid (except
to the extent required by law) free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding franchise
taxes and taxes based on net income (including branch profit taxes and minimum
taxes) imposed on the Agent or any Lender by the United States or the
jurisdiction (or any political subdivision thereof) in which the Agent or such
Lender, as the case may be, is organized, is doing business, or has its
principal office or Applicable Lending Office (all such nonexcluded taxes,
levies, imposts deductions, charges, withholding and liabilities being
hereinafter referred to as "Taxes"). If the Borrowers shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder to the
Lenders or the Agent (i) the sum payable by the Borrowers shall be increased by
the amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.6) such
Lender or the Agent shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrowers shall make such
deduction, and (iii) the Borrowers shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in accordance with
applicable law. Notwithstanding anything to the contrary, the Borrowers shall
not be required to increase the sum payable to any Lender that is not
incorporated or organized under the laws of the United States of America or a
state thereof with respect to any Taxes that are imposed on amounts payable to
such Lender at the time such Lender becomes a party to this Agreement or that
are attributable to such Lender's failure to comply with the requirements of
Section 2.13.
(b) In addition, the Borrowers agree to pay any present or future stamp or
documentary taxes or an other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrowers will indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 4.6) imposed on amounts
payable hereunder paid by such Lender or the Agent (net of any benefits as
reasonably determined by such Lender or Agent), and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
Such indemnification shall be made within five Business Days after the date of
receipt of a written demand therefor from such Lender, or the Agent, as the case
may be together with evidence that payment of such Taxes and Other Taxes has
been made.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrowers in respect of any payment to any Lender or the Agent,
the Borrowers will furnish to the Agent the original or a certified copy of a
receipt evidencing payment thereof or, if such receipt is not available, any
other evidence of payment reasonably satisfactory to the Agent.
28
(e) Any Lender or the Agent, as the case may be, claiming any additional
amounts payable pursuant to this Section 4.6 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested by the Borrowers if the making of such a filing
would avoid the need for or reduce the amount of any such additional amounts
which may thereafter accrue and would not, in the sole reasonable determination
of such Lender, be otherwise disadvantageous to such Lender. To the extent any
Lender shall receive a refund (either by way of a direct payment or an offset)
or a credit in respect of all or a portion of the additional amounts payable
pursuant to this Section 4.6, such Lender shall promptly notify the Borrowers of
the amount of such refund or credit and within 30 days after the receipt of such
refund or credit, pay to the Borrowers the amount of such refund or credit.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Borrowers, jointly and severally, represents and warrants to
the Agent and the Lenders as follows:
SECTION 5.1 Organization Powers, Existence, etc. (a) Hibbett and each
-----------------------------------
Consolidated Entity (other than Immaterial Subsidiaries) are duly organized,
validly existing and in good standing under the laws of the state in which it is
incorporated, (b) Hibbett and each Consolidated Entity (other than Immaterial
Subsidiaries) have the corporate power and authority to own its properties and
assets and to carry on its business as now being conducted, (c) Hibbett and each
Consolidated Entity (other than Immaterial Subsidiaries) have the corporate
power to execute, deliver and perform the Loan Documents to which they are a
party, (d) Hibbett and each Consolidated Entity (other than Immaterial
Subsidiaries) are duly qualified to do business in each state with respect to
which the failure to be so qualified would have a Material Adverse Effect and
(e) except as set forth in Exhibit H hereto, Hibbett and each Consolidated
---------
Entity has not done business under any other name, trade name or otherwise
within the five years immediately preceding the Closing Date.
SECTION 5.2 Authorization of Borrowing, etc. The execution, delivery and
-------------------------------
performance of the Loan Documents (a) have been duly authorized by all requisite
corporate action and (b) will not violate any Governmental Requirement, the
certificate of incorporation or bylaws of Hibbett or any Consolidated Entity, or
any Material Contract to which Hibbett or any Consolidated Entity is a party, or
by which Hibbett or any Consolidated Entity or any of their properties are
bound, or be in conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under, any such Material Contract.
SECTION 5.3 Liabilities. Hibbett has furnished to the Lender a copy of the
-----------
audited consolidated balance sheet of Hibbett and the Consolidated Entities
dated as of January 31, 1999 and a statement of changes in shareholders' equity
and the related statements of income and cash flow as of the end of fiscal year
1999. Such financial statements were prepared in conformity with
29
generally accepted accounting principles consistently applied throughout the
period involved (subject, with respect to the unaudited financial statements, to
the absence of notes required by generally accepted accounting principles and to
normal year-end audit adjustments), are in accordance with the books and records
of Hibbett and the Consolidated Entities in all material respects, are correct
and complete in all material respects and present fairly the financial condition
of Hibbett and the Consolidated Entities as of the date of such financial
statements, and, since the date of such financial statements, no Material
Adverse Change in the financial condition, business or results of operations of
Hibbett and the Consolidated Entities, taken as a whole, has occurred. Neither
Hibbett nor any Consolidated Entity has any Liabilities, Guaranteed Obligations
or other obligations or liabilities, direct or contingent, that are material in
amount other than the Liabilities reflected in such balance sheet and the notes
thereto.
SECTION 5.4 Taxes. Hibbett and each Consolidated Entity has filed or
-----
caused to be filed all federal, state and local tax returns that are required to
be filed (other than such state or local tax returns and reports the failure to
file which would not be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect), and has paid all taxes as shown on said returns
or on any assessment received by Hibbett or any Consolidated Entity to the
extent that such taxes have become due, other than those that are being
contested in good faith and by proper proceedings and for which adequate
reserves have been established in accordance with generally accepted accounting
principles. The Borrowers have reserves which are believed by the officers of
the Borrowers to be adequate for the payment of additional taxes for years which
have not been audited by the respective tax authorities.
SECTION 5.5 Litigation. There are no actions, suits or proceedings pending
----------
or, to the best knowledge of the Borrowers, threatened against or affecting
Hibbett or any Consolidated Entity, by or before any Governmental Authority that
involve any of the transactions contemplated in this Agreement or the reasonable
likelihood of any judgment or liability that may result in a Material Adverse
Change; and neither Hibbett nor any Consolidated Entity is in default with
respect to any material Governmental Requirement which default could reasonably
be likely to have a Material Adverse Effect.
SECTION 5.6 Agreements. Neither Hibbett nor any Consolidated Entity is in
----------
default in the performance, observance or fulfillment of any of the obligations
contained in any Material Contract to which it is a party, which default could
reasonably be likely to have a Material Adverse Effect.
SECTION 5.7 Use of Proceeds. None of the Borrowers intends to use any part
---------------
of the proceeds of Advances for any purpose that is not expressly authorized by
this Agreement.
SECTION 5.8 ERISA. Neither Hibbett nor any ERISA Affiliate maintains or
-----
contributes to, or has within the preceding five years maintained or contributed
to, any Plan that is a Plan subject to Title IV of ERISA.
SECTION 5.9 Subsidiaries. As of the Closing Date, Hibbett has no
------------
Subsidiaries other than the Initial Participating Entities. The Participating
Entities have no direct or indirect equity
30
ownership in any other person other than other Subsidiaries of Hibbett.
Hibbett's ownership interest in each Participating Entity is free and clear of
all Liens, warrants, options, rights to purchase and other interests of any
person. All capital stock of the Participating Entity has been duly authorized
and validly issued and is fully paid and non-assessable.
SECTION 5.10 Environmental Laws.
------------------
(a) To the best knowledge of the Borrowers, all properties owned or used
by the Borrowers, while under the custody, care and control of the Borrowers,
have been maintained in compliance in all material respects with all applicable
federal, state and local environmental protection, occupational, health and
safety or similar laws, including the Federal Water Pollution Control Act (33
U.S.C. (S) 1251 et seq.), Resource Conservation & Recovery Act (42 U.S.C. (S)
-- ---
6901 et seq.), Safe Water Drinking Act (42 U.S.C. (S) 300(f) et seq.), Toxic
-- --- -- ---
Substances Control Act (15 U.S.C. (S) 2601 et seq.), Clean Air Act (42 U.S.C.
(S) 7401 et seq.) and Comprehensive Environmental Response of Compensation and
-- ---
Liability Act (42 U.S.C. (S) 6901 et seq.) ("CERCLA").
-- ---
(b) The Borrowers have not received any material written notification from
any Governmental Authority with respect to current, existing violations of any
of the laws enumerated in clause (a) above, or pursuant to any of their
respective implementing regulations or state analogues to such laws or
regulations.
(c) To the best knowledge of the Borrowers, there has not been, at any
location owned or used by the Borrowers, any "Release" (as defined in Section
101(22) of CERCLA) by the Borrowers, anyone within the Borrowers' control, or
any other person, of any Hazardous Materials.
(d) To the best knowledge of the Borrowers, the Borrowers have not sent or
arranged for the transportation or disposal of Hazardous Materials or wastes to
a site which, pursuant to CERCLA or any similar state law (i) has been placed,
or is proposed (by the Environmental Protection Agency or relevant state
authority) to be placed, on the "National Priorities List" of hazardous waste
sites or its state equivalent, or (ii) is subject to a claim, an administrative
order or other request to take "removal" or "remedial" action (in each case as
defined in CERCLA) by any person.
SECTION 5.11 Disclosure. No financial statement, document, certificate or
----------
other written communication furnished to the Lender by or on behalf of the
Borrowers in connection with any Loan Document contained when so furnished any
statement of a material fact that was untrue in any material respect.
SECTION 5.12 Licenses. All material licenses, permits, accreditations and
--------
approvals required by all Governmental Authorities necessary in order for each
Store to be operated for its intended purpose have been obtained and are in full
force and effect, except for those the failure to obtain which would not be
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect.
31
SECTION 5.13 Title to Properties. As of the Closing Date, the Borrowers
-------------------
have good and marketable title to all their properties and assets reflected on
the balance sheet referred to in Section 5.3 except for those matters shown on
such balance sheet and except for such properties and assets as have been
disposed of since the date of said balance sheet as no longer used or useful in
the conduct of its business or as have been disposed of in the ordinary course
of the business. All such properties and assets are free and clear of all Liens,
except as otherwise permitted or required by the provisions of the Loan
Documents.
SECTION 5.14 Enforceability. This Agreement and each of the other Loan
--------------
Documents, when duly executed and delivered by the Borrowers, as appropriate, in
accordance with the provisions of this Agreement, will constitute the legal,
valid and binding, joint and several, obligations of the Borrowers, enforceable
in accordance with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and similar laws affecting
the rights and remedies of creditors generally.
SECTION 5.15 Consents, Registrations, Approvals, etc. No registration with
----------------------------------------
or consent or approval of, or other action by, any Governmental Authority is
required for the execution, delivery and performance of this Agreement or the
other Loan Documents, or the borrowings under this Agreement, by the Borrowers.
SECTION 5.16 Solvency. Hibbett is Solvent, and Hibbett will not, as a
--------
result of the transactions provided for herein (i) become not Solvent, (ii) be
left with unreasonably small capital, (iii) incur debts beyond its ability to
pay them as they mature or (iv) have Liabilities (including reasonable
contingencies) in excess of the fair saleable value of its assets.
ARTICLE 6
GENERAL CONDITIONS OF LENDING
-----------------------------
The Lenders' obligation to make each Loan hereunder is subject to the
following conditions precedent:
SECTION 6.1 Representations and Warranties. On the date of each Advance
------------------------------
hereunder and on the date Hibbett presents to the Agent a Request for Advance or
Interest Rate Election form, the representations and warranties set forth in
this Agreement and in all other Loan Documents shall be true and correct on and
as of such date with the same effect as though such representations and
warranties had been made on the date of the Advance on the date Hibbett presents
to the Agent a Request for Advance or Interest Rate Election (or in the case of
any such representation and warranty made as of a particular date, as of such
particular date), except to the extent previously fulfilled in accordance with
the terms hereof, subsequently inapplicable, or modified as a result of
activities of the Borrowers, or any of them. The borrowing of each Advance or
the presentation by Hibbett of each Request for Advance or Interest Rate
Election shall constitute a representation and warranty by the Borrowers to the
Lender that no material adverse change in the financial condition of Hibbett and
the Consolidated Entities, on a
32
consolidated basis, as reflected in the financial statements delivered to the
Agent and the Lenders pursuant to Section 5.3 has occurred since the date of
such financial statements.
SECTION 6.2 No Default. On the date of each Advance hereunder, the
----------
Borrowers shall be in compliance with all the terms and conditions set forth in
this Agreement on their part to be observed or performed, and no Default shall
have occurred and be continuing. The borrowing of each Advance shall constitute
a representation and warranty by the Borrowers to the Agent and the Lenders that
no Default has occurred and is continuing. The presentation by Hibbett of each
Request for Advances or Interest Rate Election shall constitute a representation
and warranty by the Borrowers to the Lenders and to the Agent that no Default or
Event of Default has occurred and is continuing.
SECTION 6.3 Supporting Documents.
--------------------
(a) The Agent, on behalf of the Lenders, shall have also received on the
Closing Date (i) a copy of resolutions of the Board of Directors of each of the
Borrowers, certified as in full force and effect on such date by the Secretary
or Assistant Secretary of the respective Borrower, authorizing the execution,
delivery and performance of the Loan Documents and authorizing designated
officers of the Borrowers to execute and deliver the Loan Documents on behalf of
the Borrowers, and with respect to Hibbett, to execute and deliver to the Agent
a Request for Advance or Interest Rate Election; (ii) a certificate of the
Secretary or Assistant Secretary of each of the Borrowers, dated such date,
certifying that (A) an attached copy of the Certificate of Incorporation and
bylaws of such Borrower as true and correct as of such date, (B) that the
Certificate of Incorporation and Bylaws of such Borrower has not been amended
since the date of the last amendment attached thereto and (c) the incumbency and
specimen signatures of the designated officers referred to in clause (i) above;
(iii) an Opinion of Counsel to the Borrowers in the form required by the Agent
and its counsel; and (iv) such additional supporting documents as the Agent or
its counsel may reasonably request.
(b) The Agent shall also have received on or before any date after the
Closing Date on which a person becomes a Participating Entity (i) a copy of
resolutions of the Board of Directors and, if necessary, the shareholders,
partners or members of such person certified as in full force and effect on the
date thereof by the Secretary or Assistant Secretary of such person, authorizing
such person's execution, delivery and performance of, the Loan Documents and all
other agreements and instruments that this Agreement requires to be executed,
delivered and performed by such person; (ii) a copy of the organizational
documents of such person, certified as true and correct on and as of the date on
which Loan Documents are executed and delivered by such person; (iii)
certificates of good standing with respect to such person from the appropriate
Governmental Authorities in the jurisdiction under the laws of which such person
is incorporated or formed; (iv) an Opinion of Counsel to such person consistent
with the form of the Opinions of Counsel to the Borrowers delivered pursuant to
subsection (a) of this Section 6.3 (with such changes therein as are appropriate
in the circumstances) as to the execution and delivery by such person of the
Loan Documents and other matters related thereto; (v) fully executed copies of
all Loan Documents that this Agreement requires to be executed or delivered (or
both) by such
33
person (including a fully executed Assumption Agreement); and (vi) such
additional supporting documents as the Lender or its counsel may reasonably
request.
ARTICLE 7
GENERAL COVENANTS OF THE BORROWERS
----------------------------------
From the Closing Date until payment in full of the Credit Obligations and
the termination of this Agreement, the Borrowers, jointly and severally,
covenant and agree that:
SECTION 7.1 Existence, Properties, etc. Each of the Borrowers shall, and
--------------------------
(to the extent of its right to do so) shall cause each other Consolidated Entity
(other than Immaterial Subsidiaries) to (a) do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
and franchises and comply with all Governmental Requirements applicable to it
except to the extent the failure to do so would not be reasonably likely to have
a Material Adverse Effect or as otherwise permitted by clause (i) of Section
7.7(6) and (b) at all times maintain, preserve and protect all franchises and
trade names and preserve all of its property used or useful in the conduct of
its business and keep the same in good repair, working order and condition, and
from time to time make, or cause to be made, all needful and proper repairs,
renewals and replacements, betterments and improvements thereto, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times except to the extent the failure to do so would not be
reasonably likely to have a Material Adverse Effect.
SECTION 7.2 Payment of Indebtedness, Taxes, etc. Each of the Borrowers
-----------------------------------
shall, and (to the extent of its right to do so) shall cause each Consolidated
Entity to, (a) pay its indebtedness and obligations in accordance with its terms
except to the extent the failure to do so would not be reasonably likely to have
a Material Adverse Effect and (b) pay and discharge or cause to be paid and
discharged promptly all taxes, assessments and other charges or levies of
Governmental Authorities imposed upon it or upon its income and profits or upon
any of its properties before the same shall become in default, as well as all
lawful claims for labor, materials and supplies or otherwise, which, if unpaid,
might become a Lien upon such properties or any part thereof except to the
extent the failure to do so would not be reasonably likely to have a Material
Adverse Effect; provided, however, that Hibbett and the other Consolidated
-------- -------
Entities shall not be required to pay and discharge or cause to be paid and
discharged any such indebtedness, obligation, tax, assessment, charge, levy or
claim so long as the validity or amount thereof is being duly contested in good
faith by appropriate proceedings and Hibbett and the Consolidated Entities shall
maintain adequate reserves for such taxes, indebtedness, obligations,
assessments, charges, levies or claims during such proceedings.
SECTION 7.3 Financial Statements, Reports, etc. The Borrowers shall
----------------------------------
deliver or cause to be delivered to the Lender:
(1) Not later than 45 days after the end of each first, second and
third fiscal quarter, a copy of Hibbett's 10-Q as filed with the Securities
and Exchange Commission or
34
if such filing is no longer required, a balance sheet and a statement of
revenues and expenses of Hibbett and its Consolidated Entities on a
consolidated basis and a statement of cash flow of Hibbett and its
Consolidated Entitles on a consolidated basis for such fiscal quarter and
for the period beginning on the first day of the fiscal year and ending on
the last day of such fiscal quarter (in sufficient detail to indicate
Hibbett's and each Consolidated Entity's compliance with the financial
covenants set forth in Section 7.7), together with statements in
comparative form for the corresponding periods in the preceding fiscal
year, and certified by the president or chief financial officer of Hibbett;
each certificate provided pursuant to this clause (1) shall state that,
except as disclosed in such certificate no Default has occurred and is
continuing as of such date or, if such certificate discloses that a Default
has occurred and is continuing as of such date, such certificate shall
describe such Default in reasonable detail and state what action, if any,
the Borrowers are taking or propose to take with respect thereto.
(2) Not later than 90 days after the end of each fiscal year, a copy
of Hibbett's 10-K as filed with the Securities and Exchange Commission or
if such filing is no longer required, financial statements (including a
balance sheet, a statement of revenues and expenses, a statement of changes
in shareholders' equity and a statement of cash flow) of Hibbett and its
Consolidated Entities on a consolidated and for such fiscal year (in
sufficient detail to indicate Hibbett's and each Consolidated Entity's
compliance with the financial covenants set forth in this Article 7),
together with statements in comparative form for the preceding fiscal year,
and accompanied by an unqualified opinion of certified public accountants
of recognized national standing, which unqualified opinion shall state in
effect that such financial statements (A) were audited using generally
accepted auditing standards, (B) were prepared in accordance with generally
accepted accounting principles applied on a consistent basis, and (C)
present fairly the financial condition and results of operations of Hibbett
and its Consolidated Entities for the periods covered.
(3) Together with the financial statements required by paragraphs (1)
and (2) above a compliance certificate duly executed by the president or
chief financial officer of Hibbett in the form of Exhibit E attached hereto
---------
("Compliance Certificate").
(4) Not later than 90 days after the end of each fiscal year,
financial projections (including income statements, balance sheets and cash
flow statements) for the Borrowers or any Consolidated Entity encompassing
the next two fiscal years.
(5) Promptly upon receipt thereof, copies of all management or
similar letters submitted to the Borrowers or any Consolidated Entity by
independent accountants in connection with any annual or interim audit of
the books of the Borrowers or any Consolidated Entity made by such
accountants.
(6) After the filing or receiving thereof, copies of all material
reports and notices that any Borrower or other ERISA Affiliate files under
ERISA with the Internal Revenue Service or the PBGC or the United States
Department of Labor.
35
(7) As soon as practicable, such other information regarding the
business affairs, financial condition or operations of Hibbett or its
Consolidated Entities as the Lender shall reasonably request from time to
time or at any time.
The Lender shall have no obligation to make Advances at any time at which
the Borrowers or any of them is delinquent in the preparation and delivery of
any of the items described above, whether or not such delinquency constitutes a
Default.
SECTION 7.4 Litigation Notice. Each of the Borrowers shall, promptly
-----------------
after the same shall have become known to any officer of such Borrower, notify
the Lender in writing of any action, suit or proceeding at law or in equity or
by or before any Governmental Authority in which there is a reasonable
likelihood of an outcome that would have a Material Adverse Effect.
SECTION 7.5 Default Notice. Hibbett shall promptly give notice in writing
--------------
to the Lender of the occurrence of any Default, together with a written
statement of the chief executive officer or chief financial officer of Hibbett
setting forth the nature and period of existence thereof and the action that the
Borrowers have taken and propose to take with respect thereto.
SECTION 7.6 Insurance. The Borrowers shall and (to the extent of their
---------
right to do so) shall cause each of the Consolidated Entities to keep at all
times their insurable properties adequately insured with reputable insurers and
maintain in force, and pay all premiums and costs related to (a) insurance on
such properties to such extent and against such risks, including fire, as is
customary with companies in the same or a similar business of comparable size,
(b) necessary xxxxxxx'x compensation insurance and (c) such other insurance
(including liability insurance) as may be required by applicable Governmental
Requirements or as may otherwise be customarily maintained by companies in the
same or a similar business of comparable size.
SECTION 7.7 Covenants Regarding Financial Condition. Except as otherwise
---------------------------------------
expressly provided in this Section 7.7, Hibbett shall also cause and require
each of the Consolidated Entities to observe and perform each of the covenants
and agreements of this section to be observed and performed by the Borrowers or
any of them, whether or not a specific reference is made to the Consolidated
Entities in each such covenant.
The Borrowers, jointly and severally, covenant and agree that:
(1) Fixed Charges Coverage Ratio. As of the last day of each fiscal
----------------------------
quarter, the ratio of (A) EBITDAR for the consecutive four quarter period
to (B) the sum of (i) Interest Expense, Operating Lease Payments, all
income taxes (but only to the extent actually paid during such period),
dividends (but only to the extent actually paid during such period) for
such period and (ii) Current Maturities of Hibbett and the Consolidated
Entities on a consolidated basis (excluding the principal payment due on
the Credit Obligations on the Maturity Date) at the end of such period
shall be greater than 1.25 to 1.0 at any time.
36
(2) Adjusted Funded Debt to EBITDAR Ratio. The ratio of Adjusted
-------------------------------------
Funded Debt on the last day of any consecutive four quarter period to
EBITDAR for such period shall be less than 4.0 to 1.0.
(3) Capital Expenditures. Hibbett and the Consolidated Entities on a
--------------------
consolidated basis will not make in the aggregate in any consecutive four
fiscal quarters Capital Expenditures (net of landlord allowances, proceeds
of asset sales and casualty insurance proceeds) that exceed $15,000,000.
(4) Investment and Loans. Hibbett and the Consolidated Entities on a
--------------------
consolidated basis will not, directly or indirectly, purchase or otherwise
acquire any stock, security, obligation or evidence of indebtedness of,
make any capital contribution to, own any equity interest in, or make any
loan or advance to, any other person; provided, however, that it may
acquire and continue to hold (A) all stock of and own interests in the
persons that constitute or, after giving effect to such purchase, will
constitute Consolidated Entities; and (B) Permitted Investments.
(5) Disposition of Assets. Hibbett and the Consolidated Entities on
---------------------
a consolidated basis will not without the consent of the Lender, sell,
lease, transfer or otherwise dispose of all or any substantial part of its
properties and assets; provided, however, that this Section shall not be
construed to apply to any such properties or assets consisting of Margin
Stock to the extent that any such application would cause the Credit
Obligations to be indirectly secured by the Margin Stock under Regulation U
of the Federal Reserve Board or any other Governmental Requirement
applicable to the Agent, the Lenders or the Credit Obligations.
(6) Consolidation or Merger. Hibbett and the Consolidated Entities
-----------------------
will not consolidate with or merge with or into another person or permit
any other person to merge into it; provided, however, (i) it may permit the
-----------------
Consolidated Entities to merge or consolidate with other Consolidated
Entities or Hibbett and (ii) it may merge or consolidate with another
person so long as (x) any Borrower is the surviving corporation, (y) if
such merger or consolidation is in connection with a permitted acquisition,
the applicable conditions of subparagraph (15) of this Section shall be
satisfied and (z) immediately after giving effect thereto, no Default would
exist.
(7) Liens. Hibbett will not, and will not permit any Consolidated
-----
Entity to, incur, create, assume or permit to exist any Lien upon any of
its accounts receivable, contract rights, chattel paper, inventory,
equipment, instruments, general intangibles or other personal or real
property of any character, whether now owned or hereafter acquired, other
than Liens that constitute Permitted Encumbrances; provided, however, that
this Section shall not be construed to apply to any such properties or
assets consisting of Margin Stock to the extent that any such application
would cause the Credit Obligations to be indirectly secured by the Margin
Stock under Regulation U of the Federal Reserve Board or any other
Governmental Requirement applicable to the Agent, the Lenders or the Credit
Obligations.
37
(8) Sale of Receivables. Hibbett will not, and will not permit any
-------------------
Consolidated Entity to, sell, assign or discount, or grant or permit any
Lien on, any of its accounts receivable or any promissory note held by it,
with or without recourse, other than the discount of such notes in the
ordinary course of business for collection.
(9) Lease Obligations. Hibbett and the Consolidated Entities on a
-----------------
consolidated basis will not incur, create, permit to exist or assume any
obligation to make Operating Lease Payments under any lease (other than any
capital lease or the QRS Lease) that (x) has an unexpired term (including
renewals at the option of the lessee) of more than 20 years or (y) provides
for aggregate Operating Lease Payments during any consecutive four fiscal
quarters in excess of $1,000,000, if (z) immediately thereafter, the
aggregate Operating Lease Payments to be made by it under all leases (other
than any capital leases or the QRS Lease) described in the preceding
subclauses (x) or (y) would exceed $10,000,000 in any consecutive four
fiscal quarters.
(10) Indebtedness. Hibbett and the Consolidated Entities on a
------------
consolidated basis will not incur, create, assume or permit to exist any
Debt, except (A) the indebtedness evidenced by the Notes, (B) other Debt to
the Lenders (including commitments to lend) existing on the date hereof,
(C) purchase money obligations allowed under Section 7.7(7) of this
Agreement, (D) capitalized lease obligations, (E) Debt owed to a
Participating Entity, and in addition, (F) other Debt not exceeding
$4,000,000 in the aggregate.
(11) Guaranties. Except for the existing guaranty by Hibbett of the
----------
obligations of SW under the QRS Lease, any other guaranty by a Borrower of
another Consolidated Entity's obligations and the limitation set forth in
Section 7.7(10)(F) above, Hibbett will not, and will not permit any
Consolidated Entity to, guarantee, endorse, become surety for or otherwise
in any way become or be responsible for the indebtedness, liabilities or
obligations of any other person, whether by agreement to purchase the
indebtedness or obligations of any other person, or agreement for the
furnishing of funds to any other person (directly or indirectly, through
the purchase of goods, supplies or services or by way of stock purchase,
capital contribution, working capital maintenance agreement, advance or
loan) or for the purpose of paying or discharging the indebtedness or
obligations of any other person, or otherwise, except for the endorsement
of negotiable instruments in the ordinary course of business for
collection.
(12) Take or Pay Contracts. Hibbett will not, and will not permit any
---------------------
Consolidated Entity to, enter into or be a party to any contract for the
purchase of merchandise, materials, supplies or other property if such
contract provides that payment for such merchandise, materials, supplies or
other property shall be made regardless of whether delivery of such
merchandise, materials, supplies or other property is ever made or
tendered.
38
(13) Sale-Leaseback. Except for (i) the QRS Lease and (ii) any
--------------
sale-leaseback of any additions to its existing warehouse and headquarters
in Birmingham, Alabama, Hibbett will not, and will not permit any
Consolidated Entity to, enter into any arrangement, directly or indirectly,
with any person whereby it sells or transfers any property, real, personal
or mixed, and used or useful in its business, whether now owned or
hereafter acquired, and thereafter rents or leases such property or other
property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred.
(14) Dividends and Distributions. Hibbett will not permit any
---------------------------
Consolidated Entity to be or become subject to any restrictions on the
ability of such Consolidated Entity to pay dividends or to make
distributions.
(15) Permitted Acquisitions. Hibbett will not, and will not permit
----------------------
any Consolidated Entity to, not make in any given fiscal year any
acquisitions of stock or assets of persons engaged primarily in the same
line of business as the Borrowers having a cost in excess of $5,000,000,
if, on the date of the acquisition a Default exists or would result from
such acquisition without the express prior consent of the Required Lenders;
provided that this Section 7.7(15) shall not prohibit Hibbett from
complying with its obligations under the Purchase Agreement relating to the
QRS Lease if Hibbett can do so without causing a Default under some other
provision of this Agreement.
SECTION 7.8 Continuation of Current Business. Neither the Borrowers nor
--------------------------------
any Consolidated Entity will engage in any business other than the business now
being conducted by it or other business reasonably ancillary thereto.
SECTION 7.9 Cooperation; Inspection of Properties. The Borrowers shall,
-------------------------------------
and shall cause the Consolidated Entities to, permit the Agent and its
representatives, at the Agent's sole cost and expense (so long as no Default
exists) to inspect the Borrowers' and the Consolidated Entities' properties and
assets (including all Stores), and to inspect, review and audit the Borrowers'
and the Consolidated Entities' books and records from time to time and at any
time, after reasonable notice and at reasonable times.
SECTION 7.10 Use of Proceeds. The Borrowers shall use the proceeds
---------------
exclusively to finance the buyback of Hibbett's common stock through the Advance
Termination Date.
SECTION 7.11 Transactions with Affiliates. Except as set forth in Exhibit
---------------------------- -------
H, none of the Borrowers nor any other Consolidated Entity will, directly or
-
indirectly, enter into any lease or other transaction with any Affiliate (other
than a Borrower or another Consolidated Entity) on terms that are less favorable
to such Borrower or Consolidated Entity entering into such lease or other
transaction than would have been obtained on an arm's length basis with persons
who are not Affiliates of such Borrower or other Consolidated Entity.
SECTION 7.12 ERISA. The Borrowers will not and will not permit any other
-----
ERISA Affiliate to establish any Plan subject to Title IV of ERISA
39
SECTION 7.13 Creation or Acquisition of Subsidiaries. The Borrowers may
---------------------------------------
from time to time create or acquire new Subsidiaries in connection with
permitted acquisitions allowed under Section 7.7(15) or otherwise in accordance
with this Agreement, provided that neither the aggregate fair market value at
--------
any time of the assets of all Subsidiaries that are Immaterial Subsidiaries at
such time, nor the aggregate gross revenues (determined for the most recently
ended period of twelve consecutive fiscal months) of all Subsidiaries that are
Immaterial Subsidiaries at such time, shall exceed $4,000,000, and provided
--------
further that promptly (and in any event within fifteen (15) Business Days) after
-------
the creation or direct or indirect acquisition by any Borrower of any such new
Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so
created or acquired, promptly (and in any event within fifteen (15) Business
Days) after such new Subsidiary ceases to be an Immaterial Subsidiary ), such
new Subsidiary will execute and deliver to the Agent an Assumption Agreement and
all other documents necessary to cause it to become jointly and severally liable
for all the Credit Obligations (subject to the limitations provided in the
Assumption Agreement).
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
------------------------------
SECTION 8.1 Events of Default. The following shall constitute Events of
-----------------
Default under this Agreement:
(a) default in the due payment of any interest payable on any Note or
any other amount payable under Articles 2, 3 and 4 of this Agreement and
such default shall continue unremedied for a period of 5 days after the
date the Agent gives Hibbett telephonic (confirmed promptly in writing) or
written notice of such default; provided, however, that the Agent shall not
be required to provide such notice more than 3 times in any 12 consecutive
month period; or
(b) default in the due payment of any principal payable on any Note;
or
(c) any of the Borrowers shall default in the observance or
performance of any provision in Sections 7.7, 7.8, 7.10, 7.12 and 7.13; or
(d) any of the Borrowers shall default in the performance or
observance of any provision of this Agreement, except those covered by
clauses (a), (b) or (c) above, and shall not cure such default within 30
days after the date the Agent gives written or telephonic notice of the
default to Hibbett; or
(e) any statement, certification, representation or warranty
contained herein, or in any of the other Loan Documents or in any report,
financial statement, certificate or other instrument delivered to the Agent
or the Lenders by or on behalf of the Borrowers, was misleading or untrue
in any material respect at the time it was made; or
40
(f) default shall be made with respect to any Debt of any of the
Borrowers or of any other Consolidated Entity (other than the Credit
Obligations) when due or within any applicable grace period or the
performance of any other obligation incurred in connection with any Debt of
such Borrower or other Consolidated Entity (other than the Credit
Obligations), if the effect of such default is to accelerate the maturity
of such Debt or to permit the holder thereof to cause such Debt to become
due prior to its stated maturity, or any such Debt shall not be paid when
due or within any applicable grace period, if the aggregate amount of all
such Debt involved exceeds $1,000,000; or
(g) any of the Borrowers or any other Consolidated Entity (other than
an Immaterial Subsidiary) shall (i) apply for or consent to the appointment
of a receiver, trustee, liquidator or other custodian of it or any of its
properties or assets, (ii) fail or admit in writing its inability to pay
its debts generally as they become due, (iii) make a general assignment for
the benefit of creditors, (iv) suffer or permit an order for relief to be
entered against it in any proceeding under the federal Bankruptcy Code, or
(v) file a voluntary petition in bankruptcy, or a petition or an answer
seeking an arrangement with creditors or seeking to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution
or liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any such
law or statute, or if corporate or partnership action shall be taken by the
Borrowers or any other Consolidated Entity (other than an Immaterial
Subsidiary) for the purpose of effecting any of the foregoing; or
(h) a petition shall be filed, without the application, approval or
consent of any of the Borrowers or any other Consolidated Entity (other
than an Immaterial Subsidiary), in any court of competent jurisdiction,
seeking bankruptcy, reorganization, rearrangement, dissolution or
liquidation of such Borrower or other Consolidated Entity (other than an
Immaterial Subsidiary) or of all or a substantial part of the properties or
assets of such Borrowers or other Consolidated Entity (other than an
Immaterial Subsidiary), or seeking any other relief under any law or
statute of the type referred to in clause (v) of paragraph (g) above
against such Borrower or other Consolidated Entity (other than an
Immaterial Subsidiary), or the appointment of a receiver, trustee,
liquidator or other custodian of the Borrower or any other Consolidated
Entity (other than an Immaterial Subsidiary) or of all or a substantial
part of the properties or assets of such Borrower or any other Consolidated
Entity (other than an Immaterial Subsidiary), and such petition shall not
have been dismissed within 60 days after the filing thereof; or
(i) an Event of Default (as therein defined) under the QRS Lease
shall have occurred and be continuing, and the Landlord thereunder shall
have given notice pursuant to Section 23 of the QRS Lease of its intention
to exercise remedies thereunder; or
(j) final judgment or judgments for the payment of money in excess of
an aggregate of $500,000 shall be rendered against any of the Borrowers or
any other Consolidated Entity (other than an Immaterial Subsidiary) and the
same shall remain
41
undischarged for a period of 30 days during which execution shall not be
effectively stayed; or
(k) (1) the occurrence of a Change of Control, or (2) Hibbett ceases
to beneficially own and control not less than the same percentage ownership
of any Subsidiary from the time such Subsidiary becomes a Participating
Entity.
then, and in any such event and at any time thereafter, if such Event of Default
shall then be continuing,
(A) either or both of the following actions may be taken: (i) the
Agent, with the consent of the Lenders, may, and at the direction of the
Required Lenders shall, declare any obligation of the Lenders to make
further Loans terminated, whereupon the obligation of each Lender to make
further Loans hereunder shall terminate immediately, and (ii) the Agent
shall at the direction of the Required Lenders, at their option, declare by
notice to the Borrowers any or all of the Credit Obligations to be
immediately due and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrowers to the Lenders, shall
forthwith become immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any instrument evidencing
the Credit Obligations to the contrary notwithstanding; provided, however,
--------
that notwithstanding the above, if there shall occur an Event of Default
under clauses (f) or (g) above, then the obligation of the Lenders to lend
hereunder shall automatically terminate and any and all of the Credit
Obligations shall be immediately due and payable without the necessity of
any action by the Agent or the Required Lenders or notice to the Agent or
the Lenders;
(B) the Agent, on behalf of Lenders may, and at the direction of the
Required Lenders shall, exercise any and all rights and remedies available
to the Agent or Lenders under the Loan Documents and applicable law.
SECTION 8.2 Agent to Act. In case any one or more Events of Default shall
------------
occur and be continuing, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce their rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Credit Obligations or
any other legal or equitable right or remedy; provided, however, that the Agent
may, without obtaining the direction or consent of the Required Lenders, take
any such action described above in this section if, in the good faith judgment
of the Agent, action is required to be taken in order to protect the interests
of the Lenders prior to the time consent or approval of the Required Lenders can
be obtained.
SECTION 8.3 Cumulative Rights. No right or remedy herein conferred upon
-----------------
the Agent or the Lenders is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right or
remedy shall be cumulative and shall be
42
in addition to every other such right or remedy contained herein and therein or
now or hereafter existing at law or in equity or by statute, or otherwise.
SECTION 8.4 No Waiver. No course of dealing between the Borrowers and any
---------
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies hereunder shall operate as a waiver
of any rights or remedies hereunder and no single or partial exercise of any
rights or remedies hereunder shall operate as a waiver or preclude the exercise
of any other rights or remedies hereunder or of the same right or remedy on a
future occasion.
SECTION 8.5 Default. The Agent and the Lenders shall have no right to
-------
accelerate any of the Loans except upon the occurrence of an Event of Default;
provided, however, nothing contained in this sentence shall in any respect
--------
impair or adversely affect the right, power and authority of the Agent and the
Lenders (i) to take any action expressly required or permitted to be taken under
the Loan Documents upon the occurrence of any Default (and including any action
or proceeding which the Agent may determine to be necessary or appropriate in
furtherance of any such expressly authorized action) and (ii) to take any action
provided under the Loan Documents or otherwise available by statute, at law or
in equity upon the occurrence of any Default.
SECTION 8.6 Allocation of Proceeds. If an Event of Default has occurred
----------------------
and is continuing, and the maturity of the Notes has been accelerated pursuant
to Section 8.2, all payments received by the Agent hereunder with respect to any
principal of or interest on the Credit Obligations or any other amounts payable
by the Borrowers hereunder shall be applied by the Agent in the following order:
(i) amounts due to the Agent for servicing fees;
(ii) amounts due to the Lenders pursuant to Section 2.11;
(iii) payments of interest on the Loans;
(iv) payments of principal on the Loans;
(v) payments of all other amounts due under this Agreement, if any,
to be applied in accordance with the outstanding principal balance of each
Lender's Loans.
ARTICLE 9
THE AGENT
---------
SECTION 9.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints AmSouth as the Agent of the Lenders under this Agreement, and each of
the Lenders hereby irrevocably authorizes AmSouth, as the Agent for such Lender,
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such
43
powers as are expressly delegated to the Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any of the Lenders, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise be imposed upon or exist against the
Agent.
SECTION 9.2 Acts of Agent. The Agent shall administer the Loans and the
-------------
Loan Documents on behalf of and for the benefit of the Lenders in all respects
as if the Agent were the sole Lender under the Loan Documents, except that:
(a) the Agent shall administer the Loans and the Loan Documents with
a degree of care at least equal to that customarily employed by the Agent
in the administration of similar credit facilities for its own account;
(b) the Agent shall not, without the consent of all the Lenders, take
or agree or consent to any action (including any amendment to or
modification of any of the Loan Documents) that would (i) extend the
maturity of any payment of principal of or interest on, or fees or other
compensation or amounts payable with respect to, the Loans, (ii) reduce the
principal amount of or rate of interest on the Loans, (iii) increase or
extend any Lender's Commitment, (iv) reduce the rate of any fee payable
under Section 2.11 or modify any provision that would reduce any amounts
payable by the Borrowers under this Agreement, (v) reduce the percentage
set out in the definition of "Required Lenders", or (vi) make any change in
this subsection (b) or in subsection (c) below; and
(c) except as otherwise set forth in subsection (b) above when the
consent of all the Lenders is required and as otherwise expressly provided
elsewhere in this Agreement, the Agent shall not, without the consent of
the Required Lenders (x) take any action that, under any of the other
provisions of this Agreement, requires consent or approval of the Required
Lenders or (y) effect any modification of, or consent to or waive the
violation of, any provision of, or waive any Event of Default under, any of
the Loan Documents.
The Agent, upon its receipt of actual knowledge thereof, shall notify the
Lenders of (1) each proposed action that would require the consent of all or any
of the Lenders under clause (a) or (b) of this section, (2) the occurrence of
any Event of Default or of any failure of payment or any breach of covenant
described in Section 8.1(c), whether or not such failure has become an Event of
Default, and (3) any action proposed to be taken by the Agent in the
administration of the Loans and the Loan Documents not in the ordinary course of
business; provided, that any failure of the Agent to give the Lenders any such
--------
notice shall not alone be the basis for any liability of the Agent to the
Lenders except for the Agent's gross negligence or willful misconduct. The
Agent shall promptly furnish to the Lenders copies of all documents and notices
(other than non-material communications) that the Agent may receive pursuant to
this Agreement and the other Loan Documents; provided, that any failure of the
--------
Agent to furnish promptly to any Lender any such copies shall not alone be the
basis for any liability of the Agent to the Lenders except for the Agent's gross
negligence or willful misconduct. The Agent shall
44
assume no responsibility with respect to the authenticity, validity, accuracy or
completeness of any document furnished to any Lender. Each Lender, upon its
receipt of actual knowledge thereof, shall notify the Agent of the occurrence of
any event of the kind described in clause (2) of this section; provided, that
--------
any failure of the Lender to give the Agent any such notice shall not alone be
the basis for any liability of such Lender to the Agent or to any other Lender
except for such Lender's gross negligence or willful misconduct.
The Agent shall make available to the Lenders for inspection upon request
the Agent's records with respect to all sums received or expended by the Agent
in connection with the Loans and the Loan Documents.
SECTION 9.3 Attorneys-in-fact. The Agent may execute any of its duties
-----------------
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the gross negligence or willful
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 9.4 Limitation on Liability. Neither the Agent nor any of its
-----------------------
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its Affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by Hibbett, any of the other
Borrowers or any other Consolidated Entity, or any officer or partner thereof,
contained in this Agreement or in any of the other Loan Documents, or in any
certificate, report, statement or other document referred to or provided for in
or received by the Agent under or in connection with this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any of the other Loan Documents, or for any failure of any of
the Borrowers to perform its obligations thereunder. The Agent shall not be
under any obligation to any of the Lenders to ascertain or to inquire as to the
observance or performance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of any of the Borrowers
or to inspect the properties, books or records of any of the Borrowers or any
other Consolidated Entity.
SECTION 9.5 Reliance. The Agent shall be entitled to rely, and shall be
--------
fully protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper person or
persons and upon advice and statements of legal counsel (including counsel to
the Borrowers), independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless an assignment or other appropriate documentation shall have been
filed with and accepted by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive advice or concurrence of the Lenders or the Required Lenders as
provided in this Agreement or it shall first be indemnified to its satisfaction
by the
45
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders (except where the
consent or approval of all the Lenders is required), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all present and future holders of the Notes.
SECTION 9.6 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or any of the
Borrowers or any other Consolidated Entity referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". If the Agent receives such a notice, the Agent shall
promptly give notice thereof to the Lenders. The Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable.
SECTION 9.7 No Representations. Each Lender expressly acknowledges that
------------------
neither the Agent nor any of its Affiliates has made any representations or
warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrowers or any of them or any of the Consolidated
Entities, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the financial condition, creditworthiness,
affairs, status and nature of the Borrowers and the Consolidated Entities and
made its own decision to enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and to make such
investigation as it deems necessary to inform itself as to the status and
affairs, financial or otherwise, of the Borrowers and the Consolidated Entities.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Borrowers or any of the Consolidated Entities that may come into the possession
of the Agent or any of its Affiliates.
SECTION 9.8 Indemnification. The Lenders agree to indemnify the Agent in
---------------
its capacity as such (to the extent not reimbursed by the Borrowers or any of
the other Consolidated Entities and without limiting any obligations of the
Borrowers or any of the other Consolidated Entities so to do), ratably according
to the respective principal amount of the Revolving Notes held by them (or, if
no Notes are outstanding, ratably in accordance with their respective Applicable
Commitment Percentages as then in effect) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements
46
of any kind or nature whatsoever that may at any time (including at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement or any
other document contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. The
agreements in this section shall survive the payment of the Credit Obligations
and the termination of this Agreement.
SECTION 9.9 Agent as Lender. The Agent and its Affiliates may make loans
---------------
to, accept deposits from and generally engage in any kind of business with the
Borrowers and the other Consolidated Entities as though it were not the Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement as
any Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity.
SECTION 9.10 Resignation. If the Agent shall resign as Agent under this
-----------
Agreement, then the Required Lenders may appoint a successor Agent for the
Lenders, which successor shall be approved by the Borrowers (unless a Default or
an Event of Default exists), which approval shall not be unreasonably withheld,
which shall be a commercial bank organized under the laws of the United States
of America or any state thereof, having a combined surplus and capital of not
less than $500,000,000, whereupon such successor Agent shall succeed to the
rights, powers and duties of the former Agent and the obligations of the former
Agent shall be terminated and canceled, without any other or further act or deed
on the part of such former Agent or any of the parties to this Agreement;
provided, however, that the former Agent's resignation shall not become
--------
effective until such successor Agent has been appointed; provided, further, if
-------- -------
the Required Lenders cannot agree as to a successor Agent within ninety (90)
days after such resignation, the Agent shall appoint a successor Agent
acceptable to Lenders having at least 51% of the aggregate amount of the
Commitments, and the parties hereto agree to execute whatever documents are
necessary to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however in such event all
--------
provisions of this Agreement and the Loan Documents, shall remain in full force
and effect. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9.11 Sharing of Payments, etc. Each Lender agrees that if it
------------------------
shall, through the exercise of a right of banker's lien, set-off, counterclaim
or otherwise, obtain payment with respect to its Credit Obligations (other than
any payment pursuant to Section 4.5 or 4.6) which results in its receiving more
than its pro rata share of the aggregate payments with respect to all of the
Credit Obligations (other than any payment pursuant to Section 4.5 or 4.6), then
(a) such Lender shall be deemed to have simultaneously purchased from the other
Lenders a share in their Credit Obligations so that the amount of the Credit
Obligations held by each of the Lenders shall be pro rata, and (b) such other
adjustments shall be made from time to time as shall be equitable
47
to insure that the Lenders share such payments ratably; provided, however, that
--------
for purposes of this Section 9.11 the term "pro rata" shall be determined with
respect to both the Commitments of each Lender and to the Future Advance
Facility after subtraction in each case of amounts, if any, by which any such
Lender has not funded its share of the outstanding Advances. If all or any
portion of any such excess payment is thereafter recovered from the Lender which
received the same, the purchase provided in this Section 9.11 shall be rescinded
to the extent of such recovery, without interest. The Borrowers expressly
consent to the foregoing arrangements and agree that each Lender so purchasing a
portion of the other Lenders' Credit Obligations may exercise all rights of
payment (including all rights of set-off, banker's lien or counterclaim) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
SECTION 9.12 Payments Between Agent and Lenders. All payments by the Agent
----------------------------------
to any Lender, and all payments by any Lender to the Agent, under the terms of
this Agreement shall be made by wire transfer in immediately available funds to
the receiving party's address specified in or pursuant to Section 10.2. If the
Agent or any of the Lenders shall fail to pay when due any sum payable to the
Agent or any other Lender, such sum shall bear interest until paid at the
interest rate per annum for overnight borrowing by the payee from the Federal
Reserve Bank for the period commencing on the date such payment was due and
ending on, but excluding, the date such payment is made.
SECTION 9.13 Independent Agreements. The provisions contained in Sections
----------------------
9.1 through 9.9 and 9.11 through 9.13 constitute independent obligations and
agreements of the Agent and the Lenders, and the Borrowers shall not be deemed
parties thereto or bound thereby or entitled to any benefit thereunder. The
Borrowers acknowledge the rights of the Lenders and the Agent under Section
9.10.
SECTION 9.14 Agent Fees. The Borrowers agree to pay to the Agent, for its
----------
individual account, such fees in such amounts as shall be agreed to from time to
time.
ARTICLE 10
MISCELLANEOUS
-------------
SECTION 10.1 Participations and Assignments.
------------------------------
(a) The Borrowers and the Lenders understand that each of the Lenders may
grant a participation in such Lender's Notes, Loans and interest in the Credit
Obligations and the Loan Documents to any Affiliate of such Lender, and all
communications with such Lender and the Borrowers shall be solely with such
Lender and not with any participant. Each participation granted by a Lender
hereunder (other than to an Affiliate of the Lender) shall be in an amount not
less than $3,000,000. The Borrowers agree that any participant or
subparticipant (which, like a participant, must be an Affiliate of such Lender)
may exercise any and all rights of banker's lien or set-off with respect to any
Borrower, as fully as if such participant or subparticipant had made a loan
directly to such Borrower in the amount of the participation or subparticipation
given to such
48
participant or subparticipant in the Credit Obligations and the Loan Documents.
For purposes of this Section 10.1 only, the Borrowers shall be deemed to be
directly obligated to each participant or subparticipant in the amount of its
participating interest in the amount of the principal of, and interest on, the
Credit Obligations. Nothing contained in this section shall affect such Lender's
right of set-off (under Section 10.3 or applicable law) with respect to the
entire amount of the Credit Obligations, notwithstanding any such participation
or subparticipation. The Lenders may divulge to any participant or
subparticipant all information, reports, financial statements, certificates and
documents obtained by the Lenders from any of the Borrowers or any other person
under any provisions of this Agreement or the other Loan Documents or otherwise.
(b) At any time after the Closing Date each Lender may, with the prior
consent of the Borrowers (unless a Default or Event of Default exists) and the
Agent, which consent shall not be unreasonably withheld, assign to one or more
banks or financial institutions all or a portion of its rights and obligations
under this Agreement (including all or a portion of the Note payable to its
order); provided, that (i) each such assignment shall be of a constant, and not
--------
a varying, percentage of all of the assigning Lender's rights and obligations
under this Agreement, (ii) for each assignment involving the issuance and
transfer of Notes, the assigning Lender shall execute an Assignment and
Acceptance and the Borrowers hereby consent to execute a replacement Note or
Notes to give effect to the assignment, (iii) the minimum commitment which shall
be assigned is $3,000,000 and (iv) such assignee shall have an office located in
the United States. Upon such execution, delivery, approval and acceptance, from
and after the effective date specified in each Assignment and Acceptance (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder or under such Note or Notes have been assigned or
negotiated to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder, as fully as if such assignee had been named
as a Lender in this Agreement, and of a holder of such Note or Notes, and (y)
the assignor shall, to the extent that rights and obligations hereunder or under
such Note or Notes have been assigned or negotiated by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its future
obligations under this Agreement. Any Lender that makes an assignment shall pay
to the Agent a one-time administrative fee of $5,000, which fee shall not be
reimbursed by Borrowers.
(c) By executing and delivering an Assignment and Acceptance, the Lender-
assignor and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) the assignment made under such
Assignment and Acceptance is made under such Assignment and Acceptance without
recourse; (ii) such assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or any
other person or the performance or observance by the Borrowers or any other
person of any of its obligations under any Credit Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of all
financial statements delivered pursuant to Section 7.3, and such other Credit
Documents and other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Agent, the assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
49
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement, the Note and the other
Credit Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender and a holder of such Note.
(d) The Agent shall maintain at its address referred to herein a copy of
each Assignment and Acceptance delivered to and accepted by it.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Agent shall give prompt notice thereof to the Borrowers.
(f) Notwithstanding any provision of this Section 10.1 to the contrary,
any Lender may assign all or any portion of its interest in the Loans to any of
its Affiliates without approval by the Agent or the Borrowers upon payment of
the administrative fee described in Section 10.1(a) above, or to any Federal
Reserve Bank without approval by the Agent or the Borrowers and without payment
of any fees.
SECTION 10.2 Notices.
-------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other document provided or permitted by this Agreement or the other Loan
Documents to be made upon, given or furnished to, or filed with, any of the
Borrowers or any of the Lenders or the Agent must (except as otherwise provided
in this Agreement or the other Loan Documents) be in writing and be delivered by
one of the following means: (1) by personal delivery at the hand delivery
address specified below, (2) by first-class, registered or certified mail,
postage prepaid and addressed as specified below, or (3) if facsimile
transmission facilities for such party are identified below or pursuant to a
separate notice from such party, sent by facsimile transmission to the number
specified below or in such notice.
(b) The hand delivery address, mailing address and (if applicable)
facsimile transmission number for receipt of notice or other documents by such
parties are as set forth below the signatures of the Borrowers and the Lender on
the attached signature pages. Any of such parties may change its address or
facsimile transmission number for receiving any such notice or other document by
giving notice of the change to the other parties referred to in this Section
10.2.
(c) Any such notice or other document shall be deemed delivered when
actually received by an officer, director, partner or other legal representative
of the party at the address or number specified pursuant to this Section 10.2,
or, if sent by mail, three Business Days after such notice or document is
deposited in the United States mail, addressed as provided above.
(d) Five (5) Business Days' notice to the Borrowers as provided above
shall constitute reasonable notification to the Borrowers when notification is
required by law; provided, however,
50
that nothing contained in the foregoing shall be construed as requiring five (5)
Business Days' notice if, under applicable law and the circumstances then
existing, a shorter period of time would constitute reasonable notice.
SECTION 10.3 Setoff. Upon the occurrence and during the continuance of
------
any Event of Default each Lender is hereby authorized at any time and from time
to time, without notice to the Borrowers or any of them (any such notice being
expressly waived by the Borrowers), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (including any branches,
agencies or Affiliates of such Lender, wherever located) to or for the credit or
the account of the Borrowers or any of them against any and all of the
obligations of the Borrowers and each of them now or hereafter existing under
any of the Loan Documents, irrespective of whether or not any demand shall have
been made under the Loan Documents and although such obligations may be
unmatured. Such Lender agrees promptly to notify each affected Borrower after
any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application or impose any
liability on such Lender. The rights of such Lender under this Section 10.3 are
in addition to all other rights and remedies (including other rights of set-off
or pursuant to any banker's lien) that such Lender may have.
SECTION 10.4 Survival. All representations and warranties made under this
--------
Agreement shall be deemed to be made, and shall be true and correct, at and as
of the Closing Date and the date of each Loan except to the extent (a)
previously fulfilled in accordance with the terms hereof, (b) subsequently
inapplicable, (c) modified as a result of activities of the Borrowers or changes
in circumstances, in any case as permitted hereunder or consented to in
accordance with the provisions hereof or (d) such representations and warranties
specifically relate to an earlier date. All covenants, agreements,
representations and warranties made in this Agreement or in any of the other
Loan Documents and in the certificates delivered pursuant to any of the Loan
Documents shall survive the making by the Lenders of the Loans and the execution
and delivery to the Agent and Lenders of this Agreement, the Notes and the other
Loan Documents and shall continue in full force and effect so long as any of the
Credit Obligations remain outstanding.
SECTION 10.5 Expenses. (a) The Borrowers shall pay all reasonable out-of-
--------
pocket expenses of the Agent and the Lenders, including fees and disbursements
of counsel for the Agent, in connection with the preparation of the Loan
Documents, any waiver or consent hereunder or thereunder or any amendment hereof
or thereof, and fees and disbursements of counsel for the Agent and the Lenders,
in connection with any Default or alleged Default hereunder (including those in
connection with collection and other enforcement proceedings resulting
therefrom), other than expenses due to the Agent or the Lenders' own gross
negligence or willful misconduct. Any amount paid or advanced by the Agent or
the Lenders under this section or the other Loan Documents not immediately
reimbursed to the Agent or the Lenders after demand shall bear interest until
paid at a rate equal to two percent (2%) in excess of the Base Rate in effect
from time to time, or the highest rate permitted by law, whichever is less. The
Borrowers shall pay all costs and expenses of performing and satisfying their
obligations under this Agreement. The Borrowers' obligations under this Section
10.5 shall survive the payment in full of the Credit Obligations and the
termination of this Agreement.
51
SECTION 10.6 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
SECTION 10.7 Submission to Jurisdiction. Each Borrower irrevocably (a)
--------------------------
acknowledges that this Agreement will be accepted by the Agent and performed by
such Borrower in the State of Alabama; (b) submits to the jurisdiction of each
state or federal court sitting in Jefferson County, Alabama (collectively, the
"Courts") over any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents (individually, an "Agreement
Action"); (c) waives, to the fullest extent permitted by law, any objection or
defense that such Borrower may now or hereafter have based on improper venue,
lack of personal jurisdiction, inconvenience of forum or any similar matter in
any Agreement Action brought in any of the Courts; (d) agrees that final
judgment in any Agreement Action brought in any of the Courts shall be
conclusive and binding upon such Borrower and may be enforced in any other court
to the jurisdiction of which such Borrower is subject, by a suit upon such
judgment; (e) consents to the service of process on such Borrower in any
Agreement Action by the mailing of a copy thereof by registered or certified
mail, postage prepaid, to such Borrower at its address designated in or pursuant
to Section 10.2; (f) agrees that service in accordance with this Section 10.7
shall in every respect be effective and binding on such Borrower to the same
extent as though served on such Borrower in person by a person duly authorized
to serve such process; and (g) AGREES THAT THE PROVISIONS OF THIS SECTION, EVEN
IF FOUND NOT TO BE STRICTLY ENFORCEABLE BY ANY COURT, SHALL CONSTITUTE "FAIR
WARNING" TO SUCH BORROWER THAT THE EXECUTION OF THIS AGREEMENT MAY SUBJECT SUCH
BORROWER TO THE JURISDICTION OF EACH STATE OR FEDERAL COURT SITTING IN JEFFERSON
COUNTY, ALABAMA WITH RESPECT TO ANY AGREEMENT ACTIONS, AND THAT IT IS
FORESEEABLE BY SUCH BORROWER THAT IT MAY BE SUBJECTED TO THE JURISDICTION OF
SUCH COURTS AND MAY BE SUED IN THE STATE OF ALABAMA IN ANY AGREEMENT ACTIONS.
Nothing in this Section 10.7 shall limit or restrict the Agent's right to serve
process or bring Agreement Actions in manners and in courts otherwise than as
herein provided.
SECTION 10.8 Termination. The termination of this Agreement shall not
-----------
affect any rights of the Borrowers, the Lenders or the Agent or any obligation
of the Borrowers, the Lenders or the Agent, arising prior to the effective date
of such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Credit Obligations arising prior to or after such termination
have been irrevocably paid in full. The rights granted to the Agent for the
benefit of the Lenders hereunder and under the other Loan Documents shall
continue in full force and effect, notwithstanding the termination of this
Agreement, until all of the Credit Obligations have been paid in full after the
termination hereof or the Borrowers have furnished the Lenders with an
indemnification satisfactory to the Lenders with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until payment in full of the Credit Obligations
unless
52
otherwise provided herein. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Credit Obligations, the Agent or the
Lenders are for any reason compelled to surrender such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force and the Borrowers shall be liable to, and
shall indemnify and hold the Agent and the Lenders harmless for, the amount of
such payment surrendered until the Agent and the Lenders shall have been finally
and irrevocably paid in full. The provisions of the foregoing sentence shall be
and remain effective notwithstanding any contrary action which may have been
taken by the Agent or the Lenders in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Agent's or the
Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
SECTION 10.9 Governing Law. All documents executed pursuant to the
-------------
transactions contemplated herein, including this Agreement and each of the Loan
Documents, shall be deemed to be contracts made under, and for all purposes
shall be construed in accordance with, Title 9 of the U.S. Code and the internal
laws and judicial decisions of the State of Alabama.
SECTION 10.10 Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by the Agent and the Lenders, and so long as the
Agent and the Lenders have fulfilled their respective obligations hereunder,
each of the Borrowers hereby indemnifies, exonerates and holds the Agent and the
Lenders and their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from and against any
and all actions, causes of action, claims, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to any of
the following:
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment in connection with the Borrowers or the
release by the Borrowers of any Hazardous Materials; or
(d) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrowers thereof of any Hazardous
Materials (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any environmental laws),
regardless of whether caused by, or within the control of, the Borrowers,
53
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 10.11 Agreement Controls. In the event that any term of any of
------------------
the Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
SECTION 10.12 Successors and Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrowers may not assign or
transfer their rights or obligations hereunder without the prior written consent
of the Required Lenders. The Lenders may not assign or transfer their respective
interest hereunder except as otherwise provided in this Agreement.
SECTION 10.13 Severability. Any provision of any of the Loan Documents
------------
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10.14 Obligations of Hibbett Absolute. Hibbett hereby agrees that
-------------------------------
its obligations and liabilities with respect to the Credit Obligations are joint
and several with the Participating Entities, continuing, absolute and
unconditional. Without limiting the generality of the foregoing, the obligations
and liabilities of Hibbett with respect to the Credit Obligations shall not be
released, discharged, impaired, modified or in any way affected by (a) the
invalidity or unenforceability of any Loan Document executed by any other person
with respect to the Credit Obligations, (b) the failure of the Agent to give
Hibbett a copy of any notice given to any other person, (c) any modification,
amendment or supplement of any obligation, covenant or agreement contained in
any Loan Document executed by any other person with respect to the Credit
Obligations, (d) any compromise, settlement, release or termination of any
obligation, covenant or agreement in any Loan Document executed with respect to
the Credit Obligations, (e) any waiver of payment, performance or observance by
or in favor of any other person of any obligation, covenant or agreement under
any Loan Document, (f) any consent, extension, indulgence or other action or
inaction, or any exercise or non-exercise of any right, remedy or privilege with
respect to any Loan Document executed by any other person with respect to the
Credit Obligations, or (g) the extension of time for payment or performance of
any Credit Obligation by any other person.
SECTION 10.15 Arbitration; Preservation and Limitation of Remedies.
----------------------------------------------------
(a) If any dispute or controversy shall arise among the parties hereto as
to any matter arising out of or in connection with the Loan Documents, the
parties shall attempt in good faith to resolve such controversy by mutual
agreement. If such dispute or controversy cannot be so
54
resolved, it shall be resolved solely in accordance with the provisions of this
Section 10.15. Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder.
(b) Any dispute, controversy or claim between or among the parties hereto
(the "Disputing Parties"), including disputes, controversies and claims arising
out of or related to the Loan Documents, or the breach thereof, and the subject
matter hereof, shall, except as provided in this Section 10.15, be settled by a
single arbitrator by arbitration in Birmingham, Alabama in accordance with the
Commercial Arbitration Rules of the American Arbitration Association as amended
from time to time and as modified by this Agreement. Defenses based on statutes
of limitation, estoppel, waiver, laches and similar doctrines, that would
otherwise be applicable to an action brought by a party, shall be applicable in
any such arbitration proceeding, and the commencement of an arbitration
proceeding with respect to this Agreement shall be deemed the commencement of an
action for such purposes.
(c) The arbitrator shall be selected by the Disputing Parties within 15
days after demand for arbitration is made by a Disputing Party. If the
Disputing Parties are unable to agree on an arbitrator within such period, then
each Disputing Party shall select one arbitrator, and each such arbitrator shall
select a third arbitrator and the dispute shall be settled by the panel
consisting of such three arbitrators (such panel, or the single arbitrator
agreed to by both parties, as the case may be, being hereinafter referred to as
the "Arbiter"). Each arbitrator shall be a licensed attorney in the State of
Alabama and shall possess substantive legal experience with respect to the
principal issues in dispute.
(d) Except as may otherwise be agreed in writing by the Disputing Parties
or as ordered by the Arbiter upon substantial justification, the hearing of the
dispute shall be held and concluded within 90 days of submission of the dispute
to arbitration. The Arbiter shall render its final award within 30 days
following conclusion of the hearing. The Arbiter shall state the factual and
legal basis for the award. The decision of the Arbiter shall be final and
binding except as provided in the Federal Arbitration Act, 9 U.S.C. Section 1
et. seq., and except for errors of law based on findings of fact. Final
-- ---
judgment may be entered upon such an award in any court of competent
jurisdiction, but entry of such judgment shall not be required to make such
award effective.
(e) Nothing in this Section 10.15 shall limit any right that any party may
otherwise have to exercise self-help remedies such as set-off or to obtain
preliminary injunctive relief in order to preserve the status quo pending the
disposition of any such arbitration proceeding.
55
IN WITNESS WHEREOF, each of the Borrowers, the Lenders and the Agent have
caused this Credit Agreement to be executed and delivered by its duly authorized
corporate officer as of the day and year first above written.
HIBBETT SPORTING GOODS, INC.
By:__________________________________________
Its______________________________________
HIBBETT TEAM SALES, INC.
By:__________________________________________
Its______________________________________
SPORTS WHOLESALE, INC.
By:__________________________________________
Its______________________________________
Hand Delivery and Mailing Address:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Chief Financial Officer
AMSOUTH BANK
By:__________________________________________
Its Senior Vice President
Commitment: $10,000,000
Applicable Commitment Percentage: 50%
Lending Office and Hand Delivery Address:
Upper Lobby, AmSouth-Sonat Tower
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Mailing Address:
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx Xxxxxxx
BANK OF AMERICA, N.A.
By:_______________________________________________
Its___________________________________________
Commitment: $3,000,000
Applicable Commitment Percentage: 15%
Lending Office, Mailing and Hand Delivery Address:
Xxx Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxxx
FLEET NATIONAL BANK
By:_______________________________________________
Its___________________________________________
Commitment: $7,000,000
Applicable Commitment Percentage: 35%
Lending Office, Mailing and Hand Delivery Address:
000 Xxxxxxx Xxxxxx
Mail Stop MA-DE-10009E
Xxxxxx, Xxxxxxxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx Xxxxxx
AMSOUTH BANK, as Agent
By:_______________________________________________
Its Senior Vice President
Lending Office, Mailing and Hand Delivery Address:
000 Xxxxxxxxx Xxxxxx
0/xx/ Xxxxx, Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxxx
EXHIBIT A
EXISTING LIENS
--------------
NONE
A-1
EXHIBIT B
HIBBETT SPORTING GOODS, INC.
REQUEST FOR ADVANCE OR INTEREST RATE ELECTION
---------------------------------------------
Under the Credit Agreement dated as of April 17, 2000 (as amended from time
to time, the "Credit Agreement") entered into by HIBBETT SPORTING GOODS, INC., a
Delaware corporation, HIBBETT TEAM SALES, INC., an Alabama corporation and
SPORTS WHOLESALE, INC., an Alabama corporation (together with any persons who
may become Participating Entities pursuant to Section 7.13 of the Credit
Agreement, the "Borrowers") and AMSOUTH BANK, an Alabama banking corporation,
BANK OF AMERICA, N.A., a national banking association and FLEET NATIONAL BANK, a
national banking association (collectively, the "Lenders") and AMSOUTH BANK, as
Agent for the Lenders:
Request for Advance
-------------------
Pursuant to Section 2.2 of the Credit Agreement, Hibbett, on behalf of the
Borrowers, hereby requests an Advance as follows:
(a) Amount of Advance - $_______________.
(b) Date as of which the Advance is to be made -
_________________.
(c) The following interest rate information is
provided by respect to the Advance:
(i) the interest rate shall be [the Base Rate]
[the LIBOR-Based Rate] (circle one).
(ii) If the LIBOR-Based Rate is selected, the
maturity selected for the Interest Period is [one
month] [two months] [three months] for a LIBOR-
Based Rate (circle one, if applicable).
Interest Rate Election
----------------------
Pursuant to Section 3.2 of the Credit Agreement, Hibbett makes the
following interest rate election with respect to the Segment in the principal
amount of $______________ that matures on ____________________.
(a) The amount of the Segment to which the requested interest rate
will apply - $__________.
B-1
(b) The date on which the selected interest rate will
become applicable - _______________.
(c) The interest rate selected is [the Base Rate] [the
LIBOR-Based Rate] (circle one).
(d) If the LIBOR-Based Rate is selected, the maturity
selected for the Interest Period is [one month]
[two months] [three months] for a LIBOR-Based Rate
(circle one, if applicable).
In accordance with Section 6.1 of the Credit Agreement, each borrowing of
an Advance constitutes a representation and warranty by the Borrowers to the
Agent and the Lenders that no material adverse change in the financial condition
of the Borrowers and the Consolidated Entities, on a consolidated basis, as
reflected in the financial statements referred to in Section 5.3 of the Credit
Agreement, has occurred since the date of such financial statements and that the
representations and warranties of Borrowers contained in the Credit Agreement
continue to be true and correct (except the financial statements referred to in
Section 5.3 shall be deemed those most recently delivered to the Agent pursuant
to Section 7.3).
Dated ________________.
HIBBETT SPORTING GOODS, INC.
By: ______________________________________
Its __________________________________
B-2
EXHIBIT C
ASSUMPTION AGREEMENT
--------------------
THIS ASSUMPTION AGREEMENT ("this Agreement") is entered into by AMSOUTH
BANK, an Alabama banking corporation, as Agent for the Lenders described below
and the other undersigned entity (the "Assuming Entity") on _____________ 20__.
Recitals
--------
A. AmSouth Bank, Bank of America, N.A. and Fleet National Bank
(collectively, the "Lenders") and AmSouth Bank, as Agent for the Lenders have
entered into a Credit Agreement dated April 17, 2000 (the "Credit Agreement")
with Hibbett Sporting Goods, Inc., a Delaware corporation ("Hibbett"), and
certain Affiliates thereof (collectively, the "Borrowers").
B. Under the terms of the Credit Agreement the Lenders have made a
revolving line of credit facility in the maximum principal amount of $20,000,000
available to the Borrowers on the terms and conditions specified in the Credit
Agreement (the "Future Advance Facility").
C. The Assuming Entity desires, pursuant to Section 2.1 of the Credit
Agreement, to become obligated as a Borrower, jointly and severally, with all
other parties that are now Borrowers, with respect to the Credit Agreement, the
Notes and the other Credit Obligations and to take all other action necessary to
become a Borrower and a Participating Entity, as defined in the Credit
Agreement.
D. Capitalized terms used in this Agreement, unless otherwise defined
herein, have the meanings assigned to them in the Credit Agreement.
Agreement
---------
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements herein set forth, and to induce the Lenders to extend credit under
the Future Advance Facility, and in further consideration of the substantial
material benefit to accrue to the Assuming Entity from credit extended and to be
extended by the Lenders under the Future Advance Facility, the parties hereto
agree as follows:
1. The Assuming Entity hereby assumes, and agrees that it is and shall
be fully liable, jointly and severally with all parties that are now Borrowers,
for the Credit Obligations, and all covenants, agreements, warranties and
representations with respect to the Future Advance Facility set forth in the
Credit Agreement and the Notes, and hereby agrees that it is and shall be a
party to, and a Borrower under the terms of, the Credit Agreement and the Notes,
with the same force and effect as would be the case if the Assuming Entity had
been named as a Borrower in and had executed and delivered the Credit Agreement
and the Notes to the Lender on the Closing Date; provided, however, that its
liability with respect to the Credit Obligations shall be limited to an amount
equal
C-1
to the greater of (i) $1.00 less than the greatest of (A) the Assuming Entity's
Net Worth (as hereinafter defined) as of the end of the most recently concluded
fiscal quarter of the Assuming Entity ended on or prior to the date the Assuming
Entity became a Borrower, (B) the highest Net Worth of the Assuming Entity at
the end of any fiscal quarter ending after the Assuming Entity became a Borrower
and prior to the earlier of the date of the commencement of a case under the
United States Bankruptcy Code (the "Bankruptcy Code") involving the Assuming
Entity or the date enforcement of any of the Loan Documents is sought against
the Assuming Entity and (C) the Net Worth of the Assuming Entity at the earlier
of the date of the commencement of a case under the Bankruptcy Code involving
the Assuming Entity or the date enforcement of any of the Loan Documents is
sought against the Assuming Entity; or (ii) the amount that in a legal
proceeding brought within the applicable limitations period is determined by the
final, non-appealable order of a court having jurisdiction over the issue and
the applicable parties to be the amount of value or benefit given by the Lender,
or received by the Assuming Entity, in exchange for the obligations of the
Assuming Entity under this Agreement, the Credit Agreement and the other Loan
Documents. As used in this Section 1, "Net Worth" shall mean (x) the fair value
of the property of the Assuming Entity from time to time (taking into
consideration the value, if any, of rights of subrogation, contribution and
indemnity), minus (y) the total liabilities of the Assuming Entity (including
contingent liabilities [discounted in appropriate instances], but excluding
liabilities of the Assuming Entity under this Agreement, the Credit Agreement
and the other Loan Documents) from time to time.
2. The Assuming Entity acknowledges that it has had full and complete
access to the underlying papers relating to the Credit Obligations and all other
papers available to any Borrower in connection with the Credit Obligations, has
reviewed them and is fully aware of the meaning and effect of their contents.
The Assuming Entity is fully informed of all circumstances that bear upon the
risks of executing this Agreement and which a diligent inquiry would reveal.
The Assuming Entity has adequate means to obtain from the Borrowers on a
continuing basis information concerning the Borrowers' financial condition and
is not depending on the Lender to provide such information, now or in the
future. The Assuming Entity agrees that the Lender shall have no obligation to
advise or notify the Assuming Entity or to provide the Assuming Entity with any
data or information, except as may otherwise be required by the Credit
Agreement. The execution and delivery of this Agreement is not a condition
precedent (and the Lender has not in any way implied that the execution of this
Agreement is a condition precedent) to the Lender's making, extending or
modifying any loan or any other financial accommodation to or for the Assuming
Entity other than under the Credit Agreement.
3. The Assuming Entity hereby unconditionally agrees to pay and perform
all of the Credit Obligations, whether now existing or hereafter incurred or
arising (subject to the proviso of Section 1 above).
4. The Assuming Entity hereby specifically acknowledges and agrees,
without limiting the generality of the other provisions of this Agreement, to be
bound by the terms and conditions specified in Sections 2.1(b) and 10.15 of the
Credit Agreement.
5. The Assuming Entity hereby agrees that the obligations and
liabilities of the Assuming Entity with respect to the Credit Obligations are
joint and several with the other Borrowers, continuing, absolute and
unconditional (subject to the proviso of Section 1 above). Without limiting
C-2
the generality of the foregoing, the obligations and liabilities of the Assuming
Entity with respect to the Credit Obligations shall not be released, discharged,
impaired, modified or in any way affected by (a) the invalidity or
unenforceability of any Loan Document, (b) the failure of the Agent or the
Lenders to give the Assuming Entity a copy of any notice given to any other
Borrower, (c) any modification, amendment or supplement of any obligation,
covenant or agreement contained in any Loan Document, (d) any compromise,
settlement, release or termination of any obligation, covenant or agreement in
any Loan Document, (e) any waiver of payment, performance or observance by or in
favor of any other Borrower of any obligation, covenant or agreement under any
Loan Document, (f) any consent, extension, indulgence or other action or
inaction, or any exercise or non-exercise of any right, remedy or privilege with
respect to any Loan Document, (g) the extension of time for payment or
performance of any of the Credit Obligations, or (h) any other matter that might
otherwise be raised in avoidance of, or in defense against an action to enforce,
the obligations of the Assuming Entity under this Agreement, the Future Advance
Facility, the Credit Agreement, the Notes or any other Loan Document.
6. The Assuming Entity covenants and agrees with the Agent as follows:
(a) The Assuming Entity will be bound by all of the obligations,
requirements and restrictions in the covenants contained in Article 7 of
the Credit Agreement.
(b) The Assuming Entity will not exercise any rights that it may
acquire by way of subrogation under this Agreement or the Subrogation and
Contribution Agreement referred to in clause (c) of this Section 6, by any
payment made hereunder or under any of the other Loan Documents or
otherwise, until all the Credit Obligations have been paid in full and the
Credit Agreement has been terminated. If any amount shall be paid to the
Assuming Entity on account of any such subrogation rights at any time when
all of the Credit Obligations shall not have been paid in full and the
Credit Agreement terminated, such amount shall be held in trust for the
benefit of the Agent and the Lenders and shall be paid forthwith to the
Agent to be credited and applied upon the Credit Obligations, whether
matured or unmatured, in accordance with the terms of the Loan Documents.
(c) The Assuming Entity will not amend or waive any provision of
the Subrogation and Contribution Agreement dated April 17, 2000, as amended
from time to time and as amended by an amendment entered into by the
Assuming Entity and Hibbett of even date herewith nor consent to any
departure by Hibbett or any other Participating Entity from such
Subrogation and Contribution Agreement, as amended, or from any similar
Subrogation and Contribution Agreements executed by other Participating
Entities relating to the Future Advance Facility, without having obtained
the prior written consent of the Required Lenders to such amendment, waiver
or consent.
7. The Assuming Entity irrevocably (a) acknowledges that this Agreement
and the other Loan Documents will be executed or accepted by the Agent and
performed by the Assuming Entity in the State of Alabama (which is the state in
which the Lender's main office is located); (b) submits to the jurisdiction of
each state or federal court sitting in Jefferson County, Alabama (collectively,
the "Courts") over any suit, action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents (individually, an
C-3
"Agreement Action"); (c) waives, to the fullest extent permitted by law, any
objection or defense that the Assuming Entity may now or hereafter have based on
improper venue, lack of personal jurisdiction, inconvenience of forum or any
similar matter in any Agreement Action brought in any of the Courts; (d) agrees
that final judgment in any Agreement Action brought in any of the Courts shall
be conclusive and binding upon the Assuming Entity and may be enforced in any
other court to the jurisdiction of which the Assuming Entity is subject, by a
suit upon such judgment; (e) designates ________________________, whose address
is ________________________, Alabama _____ as the Assuming Entity's authorized
agent to accept and acknowledge on the Assuming Entity's behalf service of any
and all process that may be served in any Agreement Action in any of the Courts;
(f) agrees, if such agent shall cease so to act, irrevocably to designate and
appoint without delay another such agent in the State of Alabama satisfactory to
the Lender; (g) consents to the service of process on the Assuming Entity in any
Agreement Action by the mailing of a copy thereof by registered or certified
mail, postage prepaid, to (i) the Assuming Entity at the Assuming Entity's
address designated in or pursuant to Section 10.1 of the Credit Agreement or
(ii) the agent for service of process appointed by the Assuming Entity under
this Section 7; (h) agrees that service in either manner specified in clause (g)
next above shall in every respect be effective and binding on the Assuming
Entity to the same extent as though such service of process were served on the
Assuming Entity in person by a person duly authorized to serve such process; and
(i) AGREES THAT THE PROVISIONS OF THIS SECTION, EVEN IF FOUND NOT TO BE STRICTLY
ENFORCEABLE BY ANY COURT, SHALL CONSTITUTE "FAIR WARNING" TO THE ASSUMING ENTITY
THAT THE EXECUTION OF THIS AGREEMENT MAY SUBJECT THE ASSUMING ENTITY TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ALABAMA WITH RESPECT TO ANY AGREEMENT
ACTIONS, AND THAT IT IS FORESEEABLE BY THE ASSUMING ENTITY THAT THE ASSUMING
ENTITY MAY BE SUBJECTED TO THE JURISDICTION OF THE COURTS OF THE STATE OF
ALABAMA AND MAY BE SUED IN THAT STATE IN ANY AGREEMENT ACTIONS. Nothing in this
Section 7 shall limit or restrict the right of the Agent to serve process or
bring Agreement Actions in manners and in courts otherwise than as herein
provided.
8. The Assuming Entity agrees that it is, and for all purposes of the
Credit Agreement, the Notes and the other Loan Documents shall be, a Borrower
and a Participating Entity.
9. This Agreement shall bind the Assuming Entity's successors and
assigns and shall inure to the benefit of, and be enforceable by, the Agent and
the Lenders and their respective successors and assigns. This Agreement may only
be waived, modified or amended by a written instrument signed by the party
against which the enforcement thereof is sought. This Agreement shall in all
respects be governed by, and construed in accordance with, the laws of the State
of Alabama. If any term of this Agreement shall be invalid or unenforceable, the
remainder of this Agreement shall remain in force and effect. This Agreement may
be executed in counterparts, each of which shall be deemed an original, but all
of which shall constitute one agreement. This Agreement and the other Loan
Documents constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede any inconsistent agreement with respects to
the subject matter hereof and thereof.
C-4
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
on the date first written above.
AMSOUTH BANK, as Agent
By: ______________________________
Its __________________________
[NAME OF ASSUMING ENTITY]
By: ______________________________
Its __________________________
C-5
EXHIBIT D
PROMISSORY NOTE
Birmingham, Alabama
April 17, 2000
$____________/1/
FOR VALUE RECEIVED, HIBBETT SPORTING GOODS, INC., a Delaware corporation,
HIBBETT TEAM SALES, INC., an Alabama corporation and SPORTS WHOLESALE, INC., an
Alabama corporation (together referred to as the "Borrowers"), hereby jointly
and severally promise to pay to ____________________/2/ (the "Lender"), for
account of its Applicable Lending Office provided for by the Credit Agreement
referred to below, at the Principal Office of AmSouth Bank, the principal sum of
____________________/3/ Dollars (or such lesser amount as shall equal the
aggregate unpaid principal under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Loan, at such office, in like money and
funds, for the period commencing on the date of such Loan until such Loan shall
be paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to the Borrowers, and each payment
made on account of the principal thereof, shall be recorded by the Lender on its
books and, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, provided that the failure of the Lender to make any such
--------
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Loans made by the Lender.
This Note is one of the Notes referred to in the Credit Agreement dated
April 17, 2000 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") among the Borrowers, the lenders named therein and
AmSouth Bank, as Agent, and evidences Loans made by the Lender thereunder.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein. In the event this Note is not paid when
due at any stated or accelerated maturity, each of the Borrowers, jointly and
severally, agrees to pay, in addition to the principal and interest, all costs
of collection, including reasonable attorney's fees.
___________________
/1/ Insert the amount of Lender's Commitment.
/2/ Insert name of Lender in capital letters.
/3/ Insert Lender's Commitment in words.
D-1
Each of the Borrowers hereby severally (a) waives presentment, protest,
notice of protest, notice of dishonor, suit against any party and all other
requirements necessary to hold them jointly and severally liable hereunder; (b)
agrees that time of payment may be extended, renewal notes taken, the terms and
conditions of credit modified or amended, collateral security released, or other
indulgences granted without notice of or consent to such action by any party and
without release of the liability of the Borrowers or any of them; (c) consents
to the Lender's or the Agent's releasing, agreeing not to xxx, suspending the
right to enforce this Note against or otherwise discharging or compromising
claims against the Borrowers, or any of them, or any other person against whom
the Lender has a right of recourse, all without notice to or the consent of the
Borrowers or any of them.
No failure or delay on the part of the Lender or the Agent in exercising
any right, power or privilege under this Note shall operate as a waiver thereof.
No modification, amendment or waiver of any provision of this Note shall be
effective unless in writing and signed by a duly authorized officer of the
Lender.
The provisions of this Note shall be binding, jointly and severally, upon
the successors and assigns each of the Borrowers, and shall inure to the benefit
of the Lender and its successors and assigns. This Note shall be governed by
the laws of the State of Alabama.
D-2
IN WITNESS WHEREOF, each of the Borrowers has caused this Note to be
executed in its name and on its behalf by its duly authorized officer, on the
date and year first above written.
HIBBETT SPORTING GOODS, INC.
By: _________________________________________
Its______________________________________
Taxpayer's Identification Number: 00-0000000
HIBBETT TEAM SALES, INC.
By: _________________________________________
Its______________________________________
Taxpayer's Identification Number: 00-0000000
SPORTS WHOLESALE, INC.
By: _________________________________________
Its______________________________________
Taxpayer's Identification Number: 00-0000000
Send all statements, correspondence and xxxxxxxx to:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
D-3
SCHEDULE OF LOANS
-----------------
This Note evidences Loans made, continued or converted under the within-
described Credit Agreement to the Borrowers, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and having Interest Periods
(if applicable) of the continuations, conversions and prepayments of principal
set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- ---------- ---------
D-4
EXHIBIT E
FORM OF
COMPLIANCE CERTIFICATE
----------------------
Reference is made to that certain Credit Agreement between HIBBETT SPORTING
GOODS, INC., a Delaware corporation ("Hibbett"), HIBBETT TEAM SALES, INC., an
Alabama corporation and SPORTS WHOLESALE, INC., an Alabama corporation (together
referred to as the "Borrowers") and AMSOUTH BANK, an Alabama banking
corporation, BANK OF AMERICA, N.A., a national banking association and FLEET
NATIONAL BANK, a national banking association (collectively, the "Lenders") and
AMSOUTH BANK, as Agent for the Lenders, dated as of April 17, 2000 (as amended
from time to time, the "Credit Agreement"). Capitalized terms used in this
certificate and the Schedule attached hereto, unless otherwise defined herein,
have the meanings assigned to them in the Credit Agreement.
The undersigned does hereby certify to the Agent as follows:
1. She is the duly elected and serving [chief financial officer or chief
executive officer] of Hibbett.
2. She has reviewed the terms of the Credit Agreement and the other Loan
Documents and has made, or has caused to be made under her supervision, a review
of the transactions and conditions of Hibbett and its Consolidated Entities
through the date on which this certificate is delivered to the Agent. No
Default has occurred and is continuing as of the date this certificate is
delivered to the Agent, except as follows: ____________________________________
________________________________________________________ [Give detailed
description or insert "none" if appropriate].
3. The computations relating to Hibbett's financial condition set forth on
Schedule C-1 attached hereto were true and correct as of _______________, 20___
(such date being the last day of the most recently ended fiscal calendar
quarter) and there has been no Material Adverse Change in such amounts upon
which such computations are based through the date on which this certificate is
delivered to the Agent, except as follows: ____________________________________
_________________________________________________________ [Give detailed
description or insert "none" if appropriate].
________________________________
___________________ of
HIBBETT SPORTING GOODS, INC.
Dated: ______________, 20__
E-1
SCHEDULE E-1
------------
Financial Covenant Compliance
-----------------------------
The following financial covenants calculations are made as of
______________, 20____ (the "Determination Date"):
1. The ratio at the Determination Date of EBITDAR to Operating
Lease Payments, Interest Expense, Income Taxes, Dividends and Current
Maturities for the most recent four quarter period was _______ to 1.00,
calculated as follows:
(a) Consolidated Net Income for period $___________
(b) Depreciation and amortization ___________
(c) Interest Expense ___________
(d) Income Taxes ___________
(e) Operating Lease Payments ___________
(f) Sum of (a) through (e) ___________
(g) Operating Lease Payments for period ___________
(h) Interest Expense for period ___________
(i) Income Taxes for period ___________
(j) Dividends for period ___________
(k) Current Maturities at end of period ___________
(l) Sum of (g) through (k) ___________
(m) (f)/(l) ___________
Required: Greater than 1.25 to 1.0 at any time.
2. The ratio at the Determination Date of Adjusted Funded Debt to
EBITDAR for the immediately preceding four quarters was ______ to 1.00,
calculated as follows:
(a) Adjusted Funded Debt of Hibbett and its
Consolidated Entities _________
(b) Consolidated Net Income after taxes for period _________
(c) Income taxes _________
(d) Interest Expense _________
(e) Depreciation and amortization _________
(f) Operating Lease Payments _________
(g) Sum of (b) through (f) (EBITDAR) _________
(h) (a)/(g) _________
Required: Less than 4.0 to 1.0 at any time.
E-2
3. During the four quarter period ended on the Determination Date
Hibbett and the Consolidated Entities on a consolidated basis incurred in
the aggregate:
Capital Expenditures (net of landlord allowances, proceeds of
asset sales and casualty insurance proceeds) of $_________.
Required: Not in excess of $15,000,000.
________________________________
___________________ of
HIBBETT SPORTING GOODS, INC.
Dated: ______________, 20__
E-3
EXHIBIT F
TRANSACTIONS WITH AFFILIATES
----------------------------
None
F-1
EXHIBIT G
LIST OF SHAREHOLDERS
--------------------
The SK Equity Fund, L.P.
SK Investment Fund, L.P.
Xxxxx Xxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxx, Xxxx & Xxxxxx Partners, L.L.C.
SKM Partners, L.P.
G-1
EXHIBIT H
ADDITIONAL NAMES
----------------
Hibbett Sporting Goods, Inc.
Hibbett Team Sales, Inc.
Sports Wholesale, Inc.
Hibbett
Hibbett & Design
Outlet Sports
Sports & Co. & Design
Sports Addition
H-1
EXHIBIT I
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
DATED ___________________, 20_____
Reference is made to the Credit Agreement dated April 17, 2000 (the
"Agreement") among HIBBETT SPORTING GOODS, INC., a Delaware corporation and
certain of its affiliates ("Borrowers"), the Lenders (as defined in the
Agreement) and AMSOUTH BANK, as Agent for the Lenders ("Agent"). Unless
otherwise defined herein, terms defined in the Agreement are used herein with
the same meanings.
_______________________________ (the "Assignor") and _____________________
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchased and assumes from the Assignor, WITHOUT RECOURSE, a
__________%/1/ interest in and to all of the Assignor's rights and obligations
under the Agreement as of the Effective Date (as defined below), including,
without limitation, such percentage interest in the Loans owing to the Assignor
on the Effective Date, and the Note held by the Assignor.
2. The Assignor (i) represents and warrants that, as of the date hereof,
the aggregate outstanding principal amount of the Loans owing to it (without
giving effect to assignments thereof which have not yet become effective) is
$____________; (ii) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim; (iii) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Agreement or any of the Credit
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any of the Credit Documents or any
other instrument or document furnished pursuant thereto; (iv) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Borrowers or the performance or observance by Borrowers
of any of their obligations under the Agreement or any of the Credit Documents
or any other instrument or document furnished pursuant thereto and (v) attaches
the Note referred to in paragraph 1 above and requests that the Agent exchange
such Note for new Note(s) as follows: A Note, dated _______________, 20____ in
the principal amount of $_____________ payable to the order of the Assignor, and
a Note, dated _________________, 20_____, in the principal amount of
$________________ payable to the order of the Assignee.
3. The Assignee (i) confirms that it has received a copy of the Agreement,
together with copies of the financial statements referred to in Section 7.3
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
the
-------------------------
/1/ Specify percentage in no more than 4 decimal points.
I-1
Agent, the Assignor, or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Agreement; (iii)
appoints and authorizes the Agent to take such actions on its behalf and to
exercise such powers under the Credit Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Agreement are required to be performed
by the Lender; and (v) specifies as its address for notices the office set forth
beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
________________________________ (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the Agent
for acceptance and recording by the Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i) the
Assignee shall be a party to the Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Credit Documents and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Agreement.
6. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments under the Agreement and Note in respect of the
interest assigned hereby (including, without limitation, all payments of
principal and interest with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under this Agreement
and the Note for periods prior to the Effective Date directly between
themselves.
I-2
7. This Assignment and Acceptance shall be governed by and construed in
accordance with, the laws of the State of Alabama.
[NAME OF ASSIGNOR]
By: ____________________________________
Name:
Title:
Notice of Address: _____________________
___________________________
___________________________
After the Effective Date
Outstanding Loans:$ ____________________
[NAME OF ASSIGNEE]
By: ____________________________________
Name:
Title:
Notice of Address: _____________________
___________________________
___________________________
After the Effective Date
Outstanding Loans:$ ____________________
Accepted this _____ day of __________________, 20____
AMSOUTH BANK, as Agent
By: ______________________________________________________
Name:
Title:
Consented to:
HIBBETT SPORTING GOODS, INC., on its own behalf
and on behalf of the remaining Borrowers
By: _____________________________
Name:
Title:
I-3
