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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended Commission file number
January 30, 1999 000-20969
HIBBETT SPORTING GOODS, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-1074067
(State of other jurisdiction (I.R.S. Employer
of Incorporation or organization) Identification No.)
451 Industrial Lane
Birmingham, Alabama 35211
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(205) 942-4292
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on
Title of Each Class CUSIP Number Which Registered
Common Stock, $.01 Par Value 428565-10-5 NASDAQ Stock Market
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such) and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No ___
----
Indicate by check mark if disclosure of delinquent filers pursuant to item 405
of Regulation S-K ((S)229.405 of this chapter) is not contained herein, and will
not be contained, to the best of Registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. ___.
The aggregate market value of the voting stock held by non-affiliates of the
Registrant (assuming for purposes of this calculation that all executive
officers and directors are "affiliates") was $80,138,531 at April 6,1999, based
on the closing sale price of $21.625 for the Common Stock on such date on the
Nasdaq National Market.
The number of shares outstanding of the Registrant's Common Stock, as of April
6, 1999 was 6,421,491.
DOCUMENTS INCORPORATED BY REFERENCE
Items 6, 7, 7A and 8 of Part II are incorporated by reference from the Company's
1999 Annual Report to Stockholders. Items 10, 11, 12 and 13 of Part III are
incorporated by reference from the Company's definitive Proxy Statement for the
1999 Annual Meeting of Stockholders, to be held June 8, 1999. Registrant's
definitive Proxy Statement will be filed with the Securities and Exchange
Commission on or before April 30, 1999.
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HIBBETT SPORTING GOODS, INC.
INDEX
PART I
<TABLE>
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<S> <C>
Item 1. Business 2
Item 2. Properties 6
Item 3. Legal Proceedings 7
Item 4. Submission of Matters to a Vote of Security Holders 7
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters 7
Item 6. Selected Consolidated Financial and Operating Data 7
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 7
Item 7A. Quantitative and Qualitative Disclosure About
Market Risk 8
Item 8. Consolidated Financial Statements and Supplementary
Data 8
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 8
PART III
Item 10. Directors and Executive Officers of Registrant 8
Item 11. Executive Compensation 8
Item 12. Security Ownership of Certain Beneficial Owners and
Management 8
Item 13. Certain Relationships and Related Transactions 8
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K 8
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PART I
ITEM 1. BUSINESS
GENERAL
Hibbett Sporting Goods, Inc. ("Hibbett" or the "Company") is a rapidly-
growing operator of full-line sporting goods stores in small to mid-sized
markets predominantly in the southeastern United States. Hibbett's stores offer
a broad assortment of quality athletic equipment, footwear and apparel at
competitive prices with superior customer service. The Company's merchandise
assortment features a broad selection of brand name merchandise emphasizing team
and individual sports complemented by localized apparel and accessories designed
to appeal to a wide range of customers within each market. The Company believes
that its stores are among the primary retail distribution alternatives for brand
name vendors that seek to reach Hibbett's target markets.
The Company operates 156 Hibbett Sports stores as well as eleven smaller-
format Sports Additions athletic shoe stores and four larger-format Sports & Co.
superstores. Hibbett's primary retail format and growth vehicle is Hibbett
Sports, a 5,000 square foot store located primarily in enclosed malls and
dominant strip centers. Although competitors in some markets may carry product
lines and national brands similar to Hibbett, the Company believes that its
Hibbett Sports stores are typically the primary, full-line sporting goods
retailers in their markets due to the extensive selection of traditional team
and individual sports merchandise offered and a high level of customer service.
BUSINESS STRATEGY
The Company targets markets with county populations that range from 30,000
to 250,000. By targeting these smaller markets, the Company believes that it is
able to achieve significant strategic advantages, including numerous expansion
opportunities, comparatively low operating costs and a more limited competitive
environment than generally faced in larger markets. In addition, the Company
establishes greater customer and vendor recognition as the leading full-line
sporting goods retailer in these local communities.
Management believes that its ability to merchandise to local sporting or
community interests differentiates Hibbett from its national competitors. This
strong regional focus also enables the Company to achieve significant cost
benefits including lower corporate expenses, reduced distribution costs and
increased economies of scale from marketing activities. Additionally, Hibbett
also utilizes sophisticated information systems to maintain tight controls over
operating costs.
The Company strives to hire enthusiastic sales personnel with an interest
in sports. The Company's extensive training program focuses on product
knowledge and selling skills and is conducted through the use of in-store
clinics, videos, self study courses, and interactive group discussions.
STORE CONCEPTS
Hibbett Sports
The Company's primary retail format is Hibbett Sports, a 5,000 square foot
store located in enclosed malls and dominant strip centers. The Company tailors
its Hibbett Sports concept to the size, demographics and competitive conditions
of each market. Eighty-eight Hibbett Sports stores are located in enclosed
malls, the majority of which are the only enclosed malls in the county, and the
remaining sixty-eight are located in dominant strip centers.
Hibbett Sports stores offer a core selection of quality, brand name
merchandise with an emphasis on team and individual sports. This merchandise
mix is complemented by a selection of localized apparel and accessories designed
to appeal to a wide range of customers within each market. For example, the
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Company believes that apparel with logos of sports teams of local interest
represents a larger percentage of the merchandise mix in Hibbett Sports stores
than it does in the stores of national chain competitors. In addition, the
Company strives to quickly respond to major sports events of local interest such
as the recent University of Tennessee NCAA football championship.
Sports Additions
The Company's eleven Sports Additions stores are small, mall-based stores,
averaging 1,500 square feet with approximately 90% of merchandise consisting of
athletic footwear and the remainder consisting of caps and a limited assortment
of apparel. Sports Additions stores offer a broader assortment of athletic
footwear, with a greater emphasis on fashion than the athletic footwear
assortment offered by Hibbett Sports stores. All but one Sports Additions store
are currently located in malls in which Hibbett Sports stores are also present.
Sports & Co.
The Company opened four Sports & Co. superstores between March 1995 and
September 1996. Sports & Co. superstores average 25,000 square feet and offer a
larger assortment of athletic footwear, apparel and equipment than Hibbett
Sports stores. Athletic equipment and apparel represent a higher percentage of
the overall merchandise mix at Sports & Co. superstores than they do at Hibbett
Sports stores. Sports & Co. superstores are designed to project the same
exciting and entertaining in-store atmosphere as Hibbett Sports stores but on a
larger scale. For example, Sports & Co. superstores offer customer
participation areas, such as putting greens and basketball hoop shoots, and
feature periodic special events including appearances by well-known athletes.
Team Sales
Hibbett Team Sales, Inc. ("Team Sales"), a wholly-owned subsidiary of the
Company, is a leading supplier of customized athletic apparel, equipment and
footwear to school, athletic and youth programs in Alabama. Team Sales sells its
merchandise directly to educational institutions and youth associations. The
operations of Team Sales are independent of the operations of the Company's
stores, and its warehousing and distribution operate out of its own warehouse.
Team Sales does not meet the materiality reporting requirements of the Financial
Accounting Standards Board's Statement of Financial Accounting Standards No.
131, Disclosures About Segments of an Enterprise and Related Information.
EXPANSION STRATEGY
Hibbett targets markets ranging in population from 30,000 to 250,000. By
targeting smaller markets, the Company believes that it is able to achieve
significant strategic advantages, including numerous expansion opportunities,
comparatively lower operating costs and a more limited competitive environment
than generally faced in larger markets. In addition, the Company establishes
greater customer and vendor recognition as the leading full-line sporting goods
retailer in the local community.
In fiscal 1994, the Company began to accelerate its rate of new store
openings to take advantage of the growth opportunities in its target markets.
The Company has identified approximately 500 potential markets for future
Hibbett Sports stores within the states in which it operates and in contiguous
states. Hibbett's clustered expansion program, which calls for opening new
stores within a two-hour driving distance of another Company location, allows it
to take advantage of efficiencies in distribution, marketing and regional
management. In January 1996, the Company moved its operations to a newly
constructed distribution center which has significant expansion potential to
support the Company's growth for the foreseeable future. The Company anticipates
expanding the distribution center in fiscal 2000.
In evaluating potential markets, the Company considers population, economic
conditions, local competitive dynamics and availability of suitable real estate.
Hibbett Sports stores effectively operate in both enclosed mall and dominant
strip center locations.
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The Company's continued growth will depend, in large part, upon the
Company's ability to open new stores in a timely manner and to operate them
profitably. However, successful expansion is subject to various contingencies,
many of which are beyond the Company's control. These contingencies include,
among others, (i) the Company's ability to identify and secure suitable store
sites on a timely basis and on satisfactory terms and to complete any necessary
construction or refurbishment of these sites, (ii) the Company's ability to
hire, train and retain qualified managers and other personnel and (iii) the
successful integration of new stores into existing operations. No assurance can
be given that the Company will be able to complete its expansion plans
successfully; that the Company will be able to achieve results similar to those
achieved with prior locations; or that the Company will be able to continue to
manage its growth effectively. The Company's failure to achieve its expansion
plans could materially adversely affect its business, financial condition and
results of operations.
MERCHANDISING
The Company's merchandising strategy is to provide a broad assortment of
quality athletic equipment, footwear and apparel at competitive prices in a full
service environment. The Company's stores offer a broad selection of brand name
merchandise with an emphasis on team and individual sports. This merchandise mix
is complemented by a selection of localized apparel and accessories designed to
appeal to a wide range of customers within each market. The Company's leading
product category is athletic footwear, followed by apparel and sporting
equipment, ranked according to sales.
The Company emphasizes quality brand name merchandise. The Company believes
that the breadth and depth of its brand name merchandise selection generally
exceeds the merchandise selection carried by local independent competitors.
Many of these branded products are highly technical and require considerable
sales assistance. The Company coordinates with its vendors to educate the sales
staff at the store level on new products and trends.
Although the core merchandise assortment tends to be similar for each
Hibbett Sports store, important local or regional differences frequently exist.
Accordingly, the Company's stores regularly offer products that reflect
preferences for particular sporting activities in each community and local
interest in college and professional sports teams. The Company's knowledge of
these interests, combined with its access to leading vendors, enables Hibbett
Sports stores to react quickly to emerging trends or special events, such as
college or professional championships.
The Company's merchandise staff analyzes current sporting goods trends by
maintaining close relationships with the Company's vendors, monitoring sales at
competing stores, communicating with customers, store managers and personnel and
reviewing industry trade publications. The merchandise staff works closely with
store personnel to meet the requirements of individual stores for appropriate
merchandise in sufficient quantities.
The Company's success depends in part on its ability to anticipate and
respond to changing merchandise trends and consumer demand in a timely manner.
Accordingly, any failure by the Company to identify and respond to emerging
trends could adversely affect consumer acceptance of the merchandise in the
Company's stores, which in turn could materially adversely affect the Company's
business, financial condition and results of operations. In addition, if the
Company miscalculates either the market for the merchandise in its stores or its
customers' purchasing habits, it may be faced with a significant amount of
unsold inventory, which could have a material adverse effect on the Company's
business, financial condition and results of operations. In addition, a major
shift in consumer demand away from athletic footwear and apparel could have a
material adverse effect on the Company's business, financial condition and
results of operations.
VENDOR RELATIONSHIPS
The sporting goods retail business is very brand name driven. Accordingly,
the Company maintains relationships with a number of well-known sporting goods
vendors to satisfy customer demand. The
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Company believes that its stores are among the primary retail distribution
alternatives for brand name vendors that seek to reach Hibbett's target markets.
As a result, the Company is able to attract considerable vendor interest and
establish long-term partnerships with vendors. As its vendors expand their
product lines and grow in popularity, the Company expands its sales and
promotions of these products within its stores. In addition, as the Company
continues to increase its store base and enter new markets, the vendors have
increased their brand presence within these regions. The Company also places
significant emphasis on and works with its vendors to establish the most
favorable pricing and to receive cooperative marketing funds. Management
believes the Company maintains excellent working relationships with vendors.
During fiscal 1999, the Company's largest vendor, Nike, represented
approximately 36% of its total purchases.
The loss of key vendor support could have a material adverse effect on the
Company's business, financial condition and results of operations. The Company
believes that it has long-standing and strong relationships with its vendors and
that it has adequate sources of brand name merchandise on competitive terms;
however, there can be no assurance that the Company will be able to acquire such
merchandise at competitive prices or on competitive terms in the future. In
this regard, certain merchandise that is high profile and in high demand may be
allocated by vendors based upon the vendors' internal criteria which are beyond
the Company's control.
ADVERTISING AND PROMOTION
The Company targets special advertising opportunities in its markets to
increase the effectiveness of its advertising budget. In particular, the
Company prefers advertising in local media as a way to further differentiate
itself from national chain competitors. Substantially all of the Company's
advertising and promotional spending is centrally directed, with some funds
allocated to district managers on an as-requested basis. Advertising in the
sports pages of local newspapers serves as the foundation of the Company's
promotional program, and in fiscal 1999 it accounted for the majority of the
Company's total advertising costs. Other media such as local radio, television
and outdoor billboards are used by the Company to reinforce Hibbett name
recognition and brand awareness in the community. In addition, direct mail to
customers on an in-house mailing list has been used by the Company to reinforce
already established buying patterns and to increase customer loyalty.
DISTRIBUTION
The Company maintains a single 130,000 square foot distribution center in
Birmingham, Alabama for all 171 of its existing stores and manages the
distribution process centrally from its corporate headquarters which are located
in the same building as the distribution center. In January 1996 the Company
moved its operations to this newly constructed distribution center which has
significant expansion potential to support the Company's growth for the
foreseeable future. In fact, in order to support its continued expansion, the
Company anticipates adding approximately 90,000 square feet to the facility in
fiscal 2000. The Company believes strong distribution support for its stores is
a critical element of its expansion strategy and is central to its ability to
maintain a low cost operating structure. As the Company continues its
expansion, it intends to open new stores in locations that can be supplied from
the Company's distribution center.
The Company receives substantially all of its merchandise at its
distribution center. For key products, the Company maintains backstock at the
distribution center that is allocated and distributed to stores through an
automatic replenishment program based on items sold during the prior week.
Merchandise is typically delivered to stores weekly via Company-operated
vehicles.
COMPETITION
The business in which the Company is engaged is highly competitive and many
of the items sold by the Company are sold by local sporting goods stores,
department and discount stores, athletic footwear and other specialty athletic
stores, traditional shoe stores and national and regional full-line sporting
goods stores. The marketplace for sporting goods remains highly fragmented as
many different retailers compete
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for market share by utilizing a variety of store formats and merchandising
strategies. In recent years, the growth of large format retailers has resulted
in significant consolidation in large metropolitan markets. However, the Company
believes that the competitive environment for sporting goods remains different
in small to mid-sized markets where retail demand may not support larger format
stores. In smaller markets such as those targeted by the Company's Hibbett
Sports format, national chains compete by focusing on a specialty category like
athletic footwear in the case of Foot Locker and Foot Action. Accordingly, many
of the stores with which the Company competes are units of national chains that
have substantially greater financial and other resources than the Company.
Hibbett Sports format stores compete with national chains that focus on athletic
footwear, local sporting goods stores, department and discount stores,
traditional shoe stores and mass merchandisers. Although its Hibbett Sports
format may face competition from a variety of competitors, the Company believes
that its Hibbett Sports format is able to compete effectively by distinguishing
itself as a full-line sporting goods store with an emphasis on team and
individual sports merchandise complemented by a selection of localized apparel
and accessories. The larger markets targeted by Sports & Co. superstores are
also highly competitive. The Company's Sports & Co. superstores compete with
sporting goods superstores, athletic footwear superstores and mass
merchandisers. Competitors of Sports & Co. superstores may carry similar product
lines and national brands and a broader assortment. The Company believes the
principal competitive factors in its markets are service, breadth of merchandise
offered availability of brand names, availability of local merchandise and
price. The Company believes it competes favorably with respect to these factors
in the small to mid-sized markets predominantly in the Southeast. However, there
can be no assurance that the Company will continue to be able to compete
successfully against existing or future competitors. Expansion by the Company
into markets served by its competitors, entry of new competitors or expansion of
existing competitors into the Company's markets, could have a material adverse
effect on the Company's business, financial condition and results of operations.
EMPLOYEES
The Company employed approximately 563 full-time and approximately 1,233
part-time employees at January 30, 1999, none of whom are represented by a labor
union. The number of part-time employees fluctuates depending on seasonal
needs. There can be no assurance that the Company's employees will not, in the
future, elect to be represented by a union. The Company considers its
relationship with its employees to be good and has not experienced significant
interruptions of operations due to labor disagreements.
ITEM 2. PROPERTIES
The Company currently leases all of its existing 171 store locations and
expects that its policy of leasing rather than owning will continue as it
expands. The Company's leases typically provide for a short initial lease term
with options on the part of the Company to extend. Management believes that
this lease strategy enhances the Company's flexibility to pursue various
expansion opportunities resulting from changing market conditions and to
periodically re-evaluate store locations. The Company's ability to open new
stores is contingent upon locating satisfactory sites, negotiating favorable
leases and recruiting and training additional qualified management personnel.
As current leases expire, the Company believes that it will be able either
to obtain lease renewals if desired for present store locations or to obtain
leases for equivalent or better locations in the same general area. To date,
the Company has not experienced any significant difficulty in either renewing
leases for existing locations or securing leases for suitable locations for new
stores. The Company's leases may contain certain provisions with which the
Company may not be in compliance. Based primarily on the Company's belief that
it maintains good relations with its landlords, that most of its leases are at
market rents and that it has historically been able to secure leases for
suitable locations, management believes that these provisions will not have a
material adverse effect on the business or financial condition of the Company.
The Company moved its operations to the newly-built corporate offices and
distribution center in Birmingham, Alabama in January 1996. The offices and the
distribution center are leased by the Company
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under a long term operating lease. The Company expects the planed expansion in
fiscal 2000 will be incorporated into the existing lease. Team Sales owns its
warehousing and distribution center located in Birmingham, Alabama.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to various legal proceedings incidental to its
business. In the opinion of management, after consultation with legal counsel,
the ultimate liability, if any, with respect to those proceedings is not
presently expected to materially affect the business, financial position or
results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded on the NASDAQ National Market
(NASDAQ) under the symbol HIBB. The following table sets forth, for the periods
indicated the high and low closing sales prices of shares of the Common Stock as
reported by NASDAQ.
<TABLE>
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FISCAL 1999: High Low
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<S> <C> <C>
First Quarter (February 1 to May 2) $ 35 5/8 $23
Second Quarter (May 3 to August 1) $ 40 1/4 $32 5/8
Third Quarter (August 2 to October 31) $ 31 3/4 $20
Fourth Quarter (November 1 to January 30) $ 36 1/16 $16 1/2
FISCAL 1998:
First Quarter (February 2 to May 3) $ 17 3/4 $15
Second Quarter (May 4 to August 2) $ 23 1/2 $15
Third Quarter (August 3 to November 1) $ 32 1/4 $22
Fourth Quarter (November 2 to January 31) $ 28 $17
</TABLE>
On April 6, 1999, the last reported sale price for the Company's Common
Stock as quoted by NASDAQ was $21 5/8 per share. As of April 6, 1999, the
Company had approximately 54 registered shareholders.
The Company has never declared or paid any dividends on its common stock.
The Company currently intends to retain its future earnings to finance the
growth and development of its business and therefore does not anticipate
declaring or paying cash dividends on its common stock for the foreseeable
future. Any future decision to declare or pay dividends will be at the
discretion of the Board of Directors and will be dependent upon the Company's
financial condition, results of operations, capital requirements, and such other
factors as the Board of Directors deems relevant.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The information required is incorporated by reference from page 9 of the
Company's 1999 Annual Report to Stockholders.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information required is incorporated by reference from pages 10 to 16
of the Company's 1999 Annual Report to Stockholders.
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ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The information required is incorporated by reference from page 16 of the
Company's 1999 Annual Report to Stockholders.
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required is incorporated by reference from pages 18 to 28
of the Company's 1999 Annual Report to Stockholders.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT
The information required is incorporated by reference from the sections
entitled "Directors and Executive Officers", "The Board of Directors", and
"Certain Relationships and Related Transactions" in the Proxy Statement for the
Annual Meeting of Stockholders to be held June 8, 1999 (the "Proxy Statement"),
which is to be filed with the Securities and Exchange Commission.
ITEM 11. EXECUTIVE COMPENSATION
The information required is incorporated by reference from the section
entitled "Executive Compensation" in the Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required is incorporated by reference from the sections
entitled "Security Ownership of Certain Beneficial Owners" and "Directors and
Executive Officers" in the Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required is incorporated by reference from the section
entitled "Certain Relationships and Related Transactions" in the Proxy
Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Documents filed as part of this report:
1. Financial Statements:
The following Financial Statements and Supplementary Data of the
Registrant and Independent Auditors' Report on such Financial
Statements are incorporated by reference from the Company's 1999
Annual Report to Stockholders, in Part II, Item 8:
Consolidated Balance Sheets as of January 30, 1999 and January 31,
1998
Consolidated Statements of Operations for the fiscal years ended
January 30,1999, January 31, 1998 and February 1,1997
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Consolidated Statements of Stockholders' Investment for the fiscal
years ended January 30, 1999, January 31, 1998 and February 1, 1997
Consolidated Statements of Cash Flows for the fiscal years ended
January 30, 1999, January 31, 1998 and February 1, 1997
Notes to Consolidated Financial Statements
Report of Independent Public Accountants
2. Financial Statement Schedules:
The following consolidated financial statement schedule of Hibbett Sporting
Goods, Inc. is attached hereto:
Schedule II Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are not applicable, and
therefore have been omitted.
3. Exhibits.
The Exhibits listed on the accompanying Exhibits Index are filed as part
of, or incorporated by reference into, this report.
EXHIBITS INDEX
Exhibit #
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3.1 (a) Certificate of Incorporation of the Company
3.2 (a) Bylaws of the Company
10.1 + Credit Agreement dated as of November 5, 1998 between the
Company, Hibbett Team Sales, Inc., Sports Wholesale, Inc.,
AmSouth Bank, NationsBank, N.A. and BankBoston, N.A.
10.2 + Credit Agreement dated as of November 5, 1998 between the
Company, Hibbett Team Sales, Inc., Sports Wholesale, Inc. and
AmSouth Bank
10.3 (b) Advisory Agreement dated November 1, 1995 between the Company and
Saunders, Karp & Co., L.P.
10.4 (b) Non-competition Agreement dated November 1, 1995 among Charles C.
Anderson, Joel R. Anderson, Clyde B. Anderson, the Company, The
SK Equity Fund, L.P. and SK Investment Fund, L.P.
10.5 (d) The Company's Stock Option Plan (as amended effective as of
October 10, 1996)
10.6 (d) The Company's Amended and Restated 1996 Stock Option Plan ("1996
Plan")
10.7 (d) The Company's Employee Stock Purchase Plan
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10.8 (d) The Company's Stock Plan for Outside Directors
10.9.1 (b) Lease Agreement dated as of February 12, 1996 between QRS 12-14
(AL), Inc. and Sports Wholesale, Inc. (the "Lease Agreement")
10.9.2 (c) Landlord's Waiver and Consent re: Lease Agreement dated February
12, 1996 by QRS 12-14 (AL), Inc.
10.10 (d) Letter from the Company to Clyde B. Anderson dated September 13,
1996 re: Consulting Agreement
13.1 + Fiscal 1999 Annual Report
21 (b) List of Company's Subsidiaries
23.1 + Consent of Arthur Andersen LLP
27 + Financial Data Schedule
(a) Filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended February 1, 1997, and
incorporated herein by reference.
(b) Filed as an exhibit to the Company's Registration Statement
on Form S-1, (Registration No. 333-07023) filed with the
Securities and Exchange Commission June 27, 1996, and
incorporated herein by reference.
(c) Filed as an exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-1(Registration No. 333-
07023), filed with the Securities and Exchange Commission
July 16, 1996, and incorporated herein by reference.
(d) Filed as an exhibit to Amendment No. 2 to the Company's
Registration Statement on Form S-1(Registration No. 333-
07023), filed with the Securities and Exchange Commission
September 16, 1996, and incorporated herein by reference.
+ Filed heretowith
(b) Reports on Form 8-K:
No reports on Form 8-K have been filed during the three months
ended January 30, 1999.
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
HIBBETT SPORTING GOODS, INC.
By: /s/ Michael J. Newsome
-----------------------------------
Michael J. Newsome
President
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Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- ------------------------------ -------------------------- ---------------
/s/ Michael J. Newsome Principal Executive Officer April 23, 1999
- ------------------------------ and Director --------------
Michael J. Newsome
/s/ Susan H. Fitzgibbon Principal Financial Officer April 23, 1999
- ------------------------------ and Principal Accounting --------------
Susan H. Fitzgibbon Officer
/s/ Clyde B. Anderson Director April 23, 1999
- ------------------------------ --------------
Clyde B. Anderson
/s/ H. Ray Compton Director April 23, 1999
- ------------------------------ --------------
H. Ray Compton
/s/ F. Barron Fletcher, III Director April 23, 1999
- ------------------------------ --------------
F. Barron Fletcher, III
/s/ Carl Kirkland Director April 23, 1999
- ------------------------------ --------------
Carl Kirkland
/s/ John F. Megrue, Jr. Director April 23, 1999
- ------------------------------ --------------
John F. Megrue, Jr.
/s/ Thomas A. Saunders, III Director April 23, 1999
- ------------------------------ --------------
Thomas A. Saunders, III
11
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
SCHEDULES AND EXHIBITS
TO
ANNUAL REPORT
ON
FORM 10-K
FOR THE FISCAL YEAR ENDED
JANUARY 30, 1999
___________________
HIBBETT SPORTING GOODS, INC.
================================================================================
12
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
ON SUPPLEMENTAL SCHEDULE
To Hibbett Sporting Goods, Inc.:
We have audited in accordance with generally accepted auditing standards, the
financial statements of HIBBETT SPORTING GOODS, INC. (a Delaware corporation)
AND SUBSIDIARIES, included in this Form 10-K and have issued our report thereon
dated March 11, 1999. Our audit was made for the purpose of forming an opinion
on the basic financial statements taken as a whole. Schedule II included in
Part IV of the Form 10-K is presented for purposes of complying with the
Securities and Exchange Commission's rules and is not part of the basic
financial statements. This schedule has been subjected to the auditing
procedures applied in the audit of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
ARTHUR ANDERSEN LLP
Birmingham, Alabama
March 11, 1999
13
<PAGE>
HIBBETT SPORTING GOODS, INC.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED JANUARY 30, 1999, JANUARY 31, 1998, AND FEBRUARY 1, 1997
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------------------------------------
January 30, January 31, February 1, 1997
1999 1998
------------------ --------------- -----------------
<S> <C> <C> <C>
Balance of allowance for doubtful accounts
at beginning of period $184,000 $134,000 $ 86,000
Charged to costs and expenses 85,400 110,000 71,000
Write-offs, net of recoveries (45,400) (60,000) (23,000)
------------------ -------------- ------------------
Balance of allowance for doubtful accounts
at end of period $224,000 $184,000 $134,000
================== =============== ==================
</TABLE>
14
<PAGE>
EXHIBIT 10.1
[EXECUTION COPY]
================================================================================
CREDIT AGREEMENT
DATED NOVEMBER 5, 1998
BETWEEN
HIBBETT SPORTING GOODS, INC., HIBBETT TEAM SALES, INC.
AND SPORTS WHOLESALE, INC.
AND
AMSOUTH BANK, BANKBOSTON, N.A. AND
NATIONSBANK, N.A.
AND
AMSOUTH BANK, AS AGENT
RELATING TO A
$25,000,000 REVOLVING FACILITY LOAN
================================================================================
<PAGE>
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT dated as of November 5, 1998 ("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"),
NATIONSBANK, N.A., a national banking association, and BANKBOSTON, N.A., 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
--------
A. The Borrowers have applied to the Lenders for a revolving credit
facility in an aggregate principal amount outstanding not to exceed $25,000,000
(the "Revolving Facility") the proceeds of which are to be used by the Borrowers
for general corporate purposes, including seasonal working capital, and letters
of credit issued in the ordinary course of business.
B. The Lenders are willing to make the Revolving 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
---------
NOW, THEREFORE, in consideration of the foregoing Recitals, and to induce
the Lenders to make the Revolving Facility available, the Borrowers, the Lenders
and the Agent agree as follows:
ARTICLE 1
DEFINITIONS
-----------
SECTION 1.1 For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
<PAGE>
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.
Absolute Rate shall have the meaning assigned to such term in Section
-------------
2.3(c)(ii)(D) hereof.
2
<PAGE>
Absolute Rate Auction shall mean a solicitation of Competitive Bid
---------------------
Quotes setting forth Absolute Rates pursuant to Section 2.3 hereof.
Absolute Rate Loans shall mean the Competitive Bid Loans on which the
-------------------
interest rates are determined on the basis of Absolute Rates set at
Absolute Rate Auctions.
Actual/360 Basis shall mean a method of computing interest or other
----------------
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 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.
Advance shall mean a borrowing under the Revolving Facility consisting
-------
of the aggregate principal amount of a Syndicated Loan or a Competitive Bid
Loan.
Affiliate of any specified person shall mean any person directly or
---------
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
-----
Lenders under this Agreement.
Agreement shall mean, on any date, this Credit Agreement, as
---------
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
-------
Lender and its successors and assigns.
Applicable Commitment Percentage shall mean, for each Lender, a
--------------------------------
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.
3
<PAGE>
Applicable Lending Office shall mean, for each Lender and for each
-------------------------
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
-------------------------
the form of Exhibit K (with blanks appropriately completed) delivered in
---------
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
--------------------
Section 2.1(i).
Base Rate shall mean the higher of the (i) Federal Funds Effective
---------
Rate plus 1/2% per annum and (ii) Prime Rate.
Base Rate Loans shall mean Syndicated Loans that bear interest at
---------------
rates based upon the Base Rate.
Borrowers shall have the meaning attributed to that term in the
---------
preamble to this Agreement.
Business Day shall mean (a) any day on which commercial banks are not
------------
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
--------------------
that is properly chargeable to capital account in accordance with generally
accepted accounting principles.
Class shall have the meaning assigned to such term in Section 1.2
-----
hereof.
Closing Date shall mean the date of this Agreement.
------------
Commitment shall mean, as to each Lender, the obligation of such
----------
Lender to make Syndicated 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
4
<PAGE>
signature pages hereof under the caption "Commitment" (as the same may be
reduced at any time or from time to time pursuant to Section 2.8 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.
Competitive Bid Borrowing shall have the meaning assigned to such term
-------------------------
in Section 2.3(b) hereof.
Competitive Bid Loans shall mean the Loans provided for by Section 2.3
---------------------
(a) hereof.
Competitive Bid Notes shall mean the promissory notes provided for by
---------------------
Section 2.7(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
Competitive Bid Quote shall mean an offer in accordance with Section
---------------------
2.3(c) hereof by a Lender to make a Competitive Bid Loan with one single
specified interest rate.
Competitive Bid Quote Request shall have the meaning assigned to such
-----------------------------
term in Section 2.3(b) hereof.
Consolidated Entity shall mean a person whose financial statements are
-------------------
appropriately consolidated with Hibbett's financial statements under
generally accepted accounting principles.
Consolidated Net Income shall mean, with reference to any period, the
-----------------------
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
---------------------------------
to Section 3.2 hereof of one Type of Syndicated Loan into another Type of
Syndicated 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 Revolving Facility Obligations, the
------------------
Letter of Credit Obligations 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 other Loan Documents, whether now or hereafter
incurred, existing or arising, including the principal amount of all
Advances, all Letter of Credit Borrowings and all Reimbursement
Obligations, 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
5
<PAGE>
Reimbursement Obligations, 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 Letter of Credit Borrowings,
and all extensions, alterations, modifications, revisions and renewals of
any of the foregoing.
Current Maturities shall mean principal maturing or coming due on
------------------
Funded Debt (other than the Credit Obligations) during the next succeeding
period of twelve calendar months.
Debt of any person shall mean, without duplication, (i) the Credit
----
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
-------
lapse of time or both would become an Event of Default.
Dollars and the symbol $ shall mean dollars constituting legal tender
------- -
for the payment of public and private debts in the United States of
America.
EBITDA for any period shall mean Consolidated Net Income (or the net
------
deficit, if expenses and charges exceed revenues and other proper income
credits) for such period, plus amounts that have been deducted for (i)
depreciation, (ii) amortization, (iii) Interest Expense and (iv) income and
profit taxes in determining Consolidated Net Income for such period.
EBITDAR for any period shall mean Consolidated Net Income (or the net
-------
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.
6
<PAGE>
ERISA shall mean the Employee Retirement Income Security Act of 1974,
-----
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
ERISA Affiliate shall mean, as of any date, any corporation,
---------------
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
----------------
Article 8 hereof.
Facility Fee shall have the meaning attributed to that term in Section
------------
2.14.
Facility Fee Rate shall mean that percent per annum set forth below in
-----------------
the column entitled "Facility Fee Rate":
Ratio of Funded Debt Facility Fee
to EBITDA Rate (%)
-------------------- ------------
(1) Equal to or less than 1.25 to 1.00 .125%
(2) Greater than 1.25 to 1.00 but
less than or equal to 2.0 to 1.00 .15%
(3) Greater than 2.0 to 1.00 but
less than or equal to 3.0 to 1.0 .175%
Federal Funds Effective Rate shall mean, for any day, the rate per
----------------------------
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
--------
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.
Fixed Rate shall mean the Absolute Rate or the LIBOR-Based Rate.
----------
Fixed Rate Segment shall mean a Segment to which a Fixed Rate is (or
------------------
is proposed to be) applicable.
7
<PAGE>
Funded Debt shall mean all Debt of Hibbett and the Consolidated
-----------
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.
Governmental Authority shall mean any national, federal, state,
----------------------
county, municipal or other agency, authority, department, commission,
bureau, board, court or instrumentality thereof.
Governmental Requirements shall mean all laws, rules, regulations,
-------------------------
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
----------------------
(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
------------------
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 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
---------------------
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
----------------
obligations payable under capitalized leases attributable to interest)
during the period in question.
Interest Period shall mean:
---------------
(a) with respect to any LIBOR Loan, each period commencing on the date
such 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
8
<PAGE>
in the first, second, third, or sixth 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;
(b) with respect to any Absolute Rate Loan, the period commencing on
the date such Absolute Rate Loan is made and ending on any Business Day not
less than 7 days and not more than 180 days thereafter, as Hibbett may
select as provided in Section 2.3 hereof; and
(c) with respect to any LIBOR Market Loan, the period commencing on
the date such LIBOR Market Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrowers may select as provided in Section 2.3(b)
hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or 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
Competitive Bid Loan or LIBOR Loan would otherwise end after the
Termination Date, such Interest Period shall end on the Termination 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, in the case
of an Interest Period for a LIBOR Loan or a LIBOR Market Loan, 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 Loan (other than an Absolute Rate
Loan) shall have a duration of less than one month (in the case of a LIBOR
Loan or a LIBOR Market Loan) and, if the Interest Period for any LIBOR Loan
or LIBOR Market Loan would otherwise be a shorter period, such Loan shall
not be available hereunder for such period.
Issuing Bank shall mean, with respect to each Letter of Credit, the
------------
Lender that issues such Letter of Credit as provided in Section 2.4.
Lender's Local Time shall mean the time in effect at the location of
-------------------
the Applicable Lending Office of the Lender in question.
Lenders shall mean AmSouth, NationsBank, N.A. and BankBoston, N.A.,
-------
and their respective successors and assigns.
Letter of Credit Borrowings shall mean as of any date the maximum
---------------------------
aggregate amount that the Issuing Banks could be required to pay under
drafts that could be, or have been, properly drawn in compliance with the
terms of all Letters of Credit outstanding on such date, other than drafts
that have been drawn and paid.
9
<PAGE>
Letter of Credit Obligations shall mean (a) the Letter of Credit
----------------------------
Borrowings and (b) the Reimbursement Obligations and the Borrowers' other
obligations under this Agreement with respect to Letters of Credit or
drawings made thereunder, including obligations with respect to all
principal, interest, fees and other charges related thereto.
Letter of Credit Participation shall mean, with respect to any Lender
------------------------------
other than the Issuing Bank, the extension of credit represented by the
participation of such Lender hereunder in the Issuing Bank's liability with
respect to a Letter of Credit issued in accordance with the terms of
Section 2.4.
Letters of Credit shall mean all letters of credit issued on or after
-----------------
the Closing Date by the Issuing Banks for the account of the Borrowers or
any of them under this Agreement.
Liabilities shall mean all Debt and all other items (including taxes
-----------
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.
LIBOR Auction shall mean a solicitation of Competitive Bid Quotes
-------------
setting forth LIBOR Margins based on the LIBOR-Based Rate pursuant to
Section 2.3 hereof.
LIBOR-Based Rate shall mean the rate of interest determined by the
----------------
Agent by reference to the Knight-Ridder 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 Syndicated Loans on which interest rates are
-----------
determined on the basis of LIBOR-Based Rates plus the Syndicated Margin.
LIBOR Margin shall have the meaning assigned to such term in Section
------------
2.3(c)(ii)(C) hereof.
LIBOR Market Loans shall mean Competitive Bid Loans on which interest
------------------
rates are determined on the basis of LIBOR-Based Rates pursuant to a LIBOR
Auction.
LIBOR Reserve Requirement shall mean the percentage (expressed as a
-------------------------
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
10
<PAGE>
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,
----
lien, security interest or financing lease.
Loan Documents shall mean this Agreement, any Assumption Agreement,
--------------
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 aggregate outstanding amount of all Syndicated
-----
Loans, Competitive Bid Loans, Letter of Credit Borrowings and Reimbursement
Obligations, and all extensions and renewals thereof.
Margin Stock shall have the meaning attributed to that term in
------------
Regulation U of the Federal Reserve Board, as amended.
Material Adverse Change shall mean a material adverse change in the
-----------------------
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)
-----------------------
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
-----------------
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.
Notes shall mean the Syndicated Notes and the Competitive Bid Notes.
-----
11
<PAGE>
Operating Lease Payments shall mean all amounts payable under any
------------------------
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 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
------------------
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 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
----
successor thereto.
Permitted Encumbrances shall mean:
----------------------
(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 a
Borrower and not created in contemplation of such acquisition;
(7) deposits under workmen's compensation, unemployment insurance and
Social Security laws;
12
<PAGE>
(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, 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
---------
(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:
---------------------
(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 Moody's 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 Moody's 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 Moody's Investors Service, Inc.;
13
<PAGE>
(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 Moody's Investors Service, Inc;
(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 Consolidated Entities and (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
(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, 1900 Fifth Avenue North, Birmingham, Alabama 35203,
or such other location in Jefferson County, Alabama designated by the Agent
by notice to the Borrowers and the Lenders.
Quarterly Payment Date shall have the meaning attributed to that term
----------------------
in Section 2.5.
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,
14
<PAGE>
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 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 or establishing reserves for
Letters of Credit, as the case may be.
Reimbursement Obligation shall mean at any time the obligation of the
------------------------
Borrowers with respect to any Letter of Credit to reimburse the applicable
Issuing Bank and the other Lenders to the extent of their respective Letter
of Credit Participations for amounts theretofore paid by the Issuing Bank
or any other Lender pursuant to a drawing under such Letter of Credit.
Request for Advance or Interest Rate Election shall have the meaning
---------------------------------------------
attributed to that term in Section 2.2.
Request for Issuance of Letters of Credit shall mean an issuance
-----------------------------------------
request duly executed by an officer of Hibbett or other Borrower, as
applicable, designated as authorized to sign, substantially in the form of
Exhibit L hereto.
---------
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 Syndicated Loan pursuant to Section 2.1 and the Agent has
made such Syndicated 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.
Revolving Facility shall mean the credit facility made available to
------------------
the Borrowers by the Lenders under the terms of Article 2 in an aggregate
amount of up to $25,000,000 as reduced by the Borrowers pursuant to Section
2.8 hereof.
Revolving Facility Obligations shall mean the outstanding principal
------------------------------
amount of all borrowings under the Revolving Facility consisting of the
aggregate principal amount of a Syndicated Loan or a Competitive Bid Loan,
all interest accrued thereon, all costs, charges, fees and expenses payable
in connection therewith and all extensions and renewals thereof.
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
15
<PAGE>
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.
Syndicated Loans shall mean the loans provided for by Section 2.1
----------------
hereof, which may be Base Rate Loans or LIBOR Loans.
Syndicated Loan Segment shall mean a portion of the Advances (or all
-----------------------
thereof) for a Syndicated Loan with respect to which a particular interest
rate is (or is proposed to be) applicable.
Syndicated Margin shall mean that percent per annum set forth below,
-----------------
in the case of a Syndicated Loan bearing interest at a LIBOR-Based Rate,
which shall be the Syndicated Margin set forth opposite the ratio of Funded
Debt to EBITDA 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:
Ratio of Funded Debt Syndicated
to EBITDA Margin
--------------------- ----------
(1) Equal to or less than 1.25 to 1.00 .80%
(2) Greater than 1.25 to 1.00 but
less than or equal to 2.0 to 1.00 1.05%
(3) Greater than 2.0 to 1.00 but
less than or equal to 3.0 to 1.0 1.30%
Syndicated Notes shall mean the promissory notes provided for by
----------------
Section 2.7 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.
16
<PAGE>
Termination Date means November 5, 2001, as the same may be extended
----------------
from time to time in accordance with Section 2.13 hereof.
Type shall have the meaning as assigned to such term in Section 12
----
hereof.
SECTION 1.2 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished
--------------------------
by "Class" and "Type". The "Class" of a Loan refers to whether such Loan is a
Competitive Bid Loan or a Syndicated Loan, each of which constitutes a Class.
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan, a LIBOR
Loan, an Absolute Rate Loan or a LIBOR Market Loan, each of which constitutes a
Type. Loans may be identified by both Class and Type.
ARTICLE 2
REVOLVING FACILITY TERMS
------------------------
SECTION 2.1 SYNDICATED LOANS.
----------------
(a) From and after the Closing Date to (but not including) the 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,
and the Borrowers may borrow, repay and reborrow, an amount not exceeding the
difference between (i) such Lender's Commitment in effect from time to time,
less the then outstanding principal amount of such Lender's Syndicated Loans and
(ii) the sum of such Lender's share of the then outstanding (x) Letter of Credit
Borrowings and (y) Reimbursement Obligations; provided, however, that no more
-------- -------
than seven (7) different Interest Periods for both Syndicated Loans and
Competitive Bid Loans combined may be outstanding at the same time (for which
purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous). All Syndicated Loans made by
the Lenders to the Borrowers under this Agreement with respect to the Revolving
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 $25,000,000, all as
provided in Section 2.7 hereof. The Syndicated Loans shall bear interest as
provided in Article 3 below. The unpaid principal amount of all Loans hereunder
shall not exceed the Revolving Facility, and each Syndicated Loan made hereunder
shall be allocated pro rata among the Lenders based upon their Applicable
Commitment Percentage regardless of amounts outstanding under Competitive Bid
Loans.
(b) If a draft drawn under any Letter of Credit is paid by the Issuing
Bank, and the Borrowers fail or refuse to reimburse the Issuing Bank for such
payment, as required by Section 2.4, on or before the close of business on the
next Business Day after demand is made by the Issuing Bank on the Borrowers for
such reimbursement, the Borrowers hereby authorize the Agent, upon the request
and on behalf of the Issuing Bank, without the requirement of notice to
17
<PAGE>
the Borrowers, to satisfy the Reimbursement Obligation created by the payment of
such draft by making a Syndicated Loan to the Borrowers under the Revolving
Facility with interest at the Base Rate. Such Syndicated Loans shall not be
subject to the provisions of Section 2.2. If the Issuing Bank requests that the
Agent request a Syndicated Loan, specifying in such request to the Agent the
aggregate amount of the Syndicated Loan and the date on which such Syndicated
Loan is to be made, the Agent shall provide notice thereof to each Lender by
telephone or facsimile specifying the amount of the Syndicated Loan to be made
by such Lender and the date on which the Syndicated Loan is to be made. If such
notice to a Lender is given by the Agent at or before 11:00 a.m. Lender's Local
Time on any Business Day, such Lender shall, pursuant to the terms and subject
to the conditions of this Agreement, make a Syndicated Loan in the amount of
such Lender's Applicable Commitment Percentage of the reimbursement amount and
shall pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before 2:00 p.m.
Birmingham, Alabama time on the same Business Day. If such notice to a Lender is
given by the Agent after 11:00 a.m. Lender's Local Time on any Business Day,
such Lender shall, pursuant to the terms and subject to the conditions of this
Agreement, make a Syndicated Loan in the amount of such Lender's Applicable
Commitment Percentage of the reimbursement amount and shall pay such amount to
the Agent for the account of the Issuing Bank at the Principal Office in Dollars
and in immediately available funds before 12:00 noon Birmingham, Alabama time on
the next following Business Day. Each such Syndicated Loan shall bear interest
at the Base Rate.
(c) 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, request
the issuance of Letters of Credit, 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.
(d) 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
18
<PAGE>
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(d), "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.
(e) 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.
(f) 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 (d) 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
19
<PAGE>
any exercise or non-exercise of any right, remedy or privilege with respect to
any 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
Revolving Facility, the Notes or any other Loan Document.
(g) 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 (h) 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.
(h) 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.
(i) 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 E ("Assumption
---------
Agreement").
SECTION 2.2 ADVANCES OF SYNDICATED LOANS.
----------------------------
(a) Except as otherwise provided in Section 2.1(b), Advances of Syndicated
Loans shall be made no more frequently than once in each week, shall be in an
amount not less than $3,000,000 and shall be in an integral multiple of
$100,000. Each request for an Advance of a Syndicated Loan 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 of a Syndicated Loan 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 of
Syndicated Loans without requiring the submission of a Request for Advances or
Interest Rate Election form. Any request
20
<PAGE>
for Advances of Syndicated Loans 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
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 of a Syndicated Loan hereunder, each Lender shall make available
the amount of the Syndicated 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 of Syndicated Loans shall
terminate, if not sooner terminated pursuant to other provisions of this
Agreement, on the Termination Date. The Lenders shall have no obligation to
make Advances of Syndicated Loans 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 and each Request for Issuance of
Letters of Credit, shall be signed by an officer of Hibbett designated as
authorized to sign and submit Request for Advance or Interest Rate Election or
Request for Issuance of Letters of Credit 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 or Request for Issuance of Letters of Credit
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 COMPETITIVE BID LOANS.
---------------------
(a) In addition to borrowings of Syndicated Loans, at any time prior to the
Termination Date the Borrowers may request the Lenders to make offers to make
Competitive Bid Loans to the Borrowers in Dollars. The Lenders may, but shall
have no obligation to, make such offers and the Borrowers may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.3. Competitive Bid Loans may be LIBOR Market Loans or Absolute Rate Loans
(each a "Type" of Competitive Bid Loan), provided that:
--------
(i) there may be no more than seven (7) different Interest
Periods for both Syndicated Loans and Competitive Bid Loans combined
outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous); and
21
<PAGE>
(ii) the aggregate principal amount of all Competitive Bid
Loans, together with the sum of the aggregate principal amount of all
outstanding Syndicated Loans shall not exceed the aggregate amount of
the Commitments at such time.
(b) When the Borrowers wish to request offers to make Competitive Bid
Loans, Hibbett shall give the Agent (which shall promptly notify the Lenders)
notice (a "Competitive Bid Quote Request") to be received by the Agent not later
than 10:00 a.m. Birmingham, Alabama time, on (x) the fourth Business Day prior
to the date of borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Business Day next preceding the date of borrowing proposed therein, in the
case of an Absolute Rate Auction (or, in any such case, such other time and date
as Hibbett and the Agent, with the consent of the Required Lenders, may
approve). Hibbett may request offers to make Competitive Bid Loans for not more
than two (2) different Interest Periods in a single Competitive Bid Quote
Request (for which purpose Interest Periods in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the request for
--------
each separate Interest Period shall constitute a separate Competitive Bid Quote
Request for a separate borrowing (a "Competitive Bid Borrowing"), and there
shall not be outstanding at any one time more than five (5) Competitive Bid
Borrowings. Each Competitive Bid Quote Request shall be substantially in the
form of Exhibit C hereto and shall specify as to each Competitive Bid
---------
Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing,
which shall be at least $3,000,000 and in multiples of $100,000 but
shall not cause the limits specified in Section 2.3(a) hereof to be
exceeded;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Competitive Bid Quote requested is for a LIBOR
Market Loan or an Absolute Rate Loan; and
(v) if the Competitive Bid Quote requested is for an Absolute
Rate Loan, the date on which the Competitive Bid Quote is to be
submitted (the "Quotation Date").
Except as otherwise provided in this Section 2.3(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as Hibbett and the Agent, with the consent of the Required Lenders, may
approve) of any other Competitive Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid Quotes, each
containing an offer to make a Competitive Bid Loan in response to any
Competitive Bid Quote Request; provided that, if Hibbett's request under Section
--------
2.3(b) hereof specified more than one Interest Period, such Lender may make a
single submission containing one or more Competitive
22
<PAGE>
Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be
submitted to the Agent not later than (x) 1:00 p.m. Birmingham, Alabama time, on
the fourth Business Day prior to the proposed date of borrowing, in the case of
a LIBOR Auction, or (y) 10:00 a.m. Birmingham, Alabama time on the Quotation
Date, in the case of an Absolute Rate Auction (or, in any such case, such other
time and date as Hibbett and the Agent, with the consent of the Required
Lenders, may approve), provided that any Competitive Bid Quote may be submitted
--------
by AmSouth only if AmSouth notifies Hibbett of the terms of the offer contained
therein not later than (x) noon Birmingham, Alabama time on the fourth Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) 8:45 a.m. Birmingham, Alabama time on the Quotation Date, in the case of an
Absolute Rate Auction. Subject to Sections 4.5, 4.6 and Article 6 and 9 hereof,
any Competitive Bid Quote so made shall be irrevocable except with the consent
of the Agent given on the instructions of the Borrowers.
(ii) Each Competitive Bid Quote shall be substantially in the form of
Exhibit D hereto and shall specify:
- ---------
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Competitive Bid Loan for which
each such Competitive Bid Quote is being made, which principal amount
shall be at least $1,000,000 (or a larger multiple of $100,000);
provided that the aggregate principal amount of all Competitive Bid
--------
Loans for which a Lender submits Competitive Bid Quotes may not exceed
the principal amount of the Competitive Bid Borrowing for a particular
Interest Period for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below the
applicable LIBOR-Based Rate (the "LIBOR Margin") offered for each
Competitive Bid Loan, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) to be added to or
subtracted from the applicable LIBOR-Based Rate;
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (rounded upwards, if necessary, to the nearest 1/10,000th of
1%) offered for each such Competitive Bid Loan (the "Absolute Rate");
and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and Hibbett, no Competitive Bid Quote shall
contain qualifying, conditional or similar language or propose terms other than
or in addition to those set forth in the applicable Competitive Bid Quote
Request and, in particular, no Competitive Bid Quote may be conditioned upon
acceptance by Hibbett of all (or some specified minimum) of the principal amount
of the Competitive Bid Loan for which such Competitive Bid Quote is being made.
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(d) The Agent shall (x) in the case of a LIBOR Auction, by 3:00 p.m.
Birmingham, Alabama time, on the day a Competitive Bid Quote is submitted or (y)
in the case of an Absolute Rate Auction, as promptly as practicable after a
Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m.
Birmingham, Alabama time on the Quotation Date), notify Hibbett of the terms (i)
of any Competitive Bid Quote submitted by a Lender that is in accordance with
Section 2.3(c) and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted by such
Lender with respect to the same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded by the Agent unless such
subsequent Competitive Bid Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Agent's notice to Hibbett shall
specify (A) the aggregate principal amount of the Competitive Bid Borrowing for
which Competitive Bid Quotes have been received and (B) the respective principal
amounts and LIBOR Margins or Absolute Rates, as the case may be, so offered by
each Lender (identifying the Lender that made each Competitive Bid Quote).
(e) Not later than 11:30 a.m. Birmingham, Alabama time on (x) the third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) the Quotation Date, in the case of an Absolute Rate Auction (or,
in any such case, such other time and date as Hibbett and the Agent, with the
consent of the Required Lenders, may approve), Hibbett shall notify the Agent of
its acceptance or nonacceptance of the offers submitted pursuant to Section
2.3(d) hereof (and the failure of Hibbett to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify each affected
Lender. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. Hibbett
may accept any Competitive Bid Quote in whole or in part (provided that any
--------
Competitive Bid Quote accepted in part shall be at least $1,000,000 or a larger
multiple of $100,000); provided that:
--------
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $3,000,000 (or a larger multiple of
$100,000) but shall not cause the limits specified in Section 2.3(a)
hereof to be exceeded;
(iii) acceptance of offers may be made only in ascending order
of LIBOR Margins or Absolute Rates, as the case may be, in each case
beginning with the lowest rate so offered; and
(iv) Hibbett may not accept any offer where the Agent has
correctly advised Hibbett that such offer fails to comply with Section
2.3(c) hereof or otherwise fails to comply with the requirements of
this Agreement (including Section 2.3(a) hereof).
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<PAGE>
If offers are made by two or more Lenders with the same LIBOR Margins or
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount with respect to which offers are accepted for the related
Interest Period after the acceptance of all offers, if any, of all lower LIBOR
Margins or Absolute Rates, as the case may be, offered by any Lender for such
related Interest Period, the principal amount of Competitive Bid Loans with
respect to which such offers are accepted shall be allocated by Hibbett among
such Lenders as nearly as possible (in amounts of at least $1,000,000 or larger
multiples of $100,000) in proportion to the aggregate principal amount of such
offers. Determinations by Hibbett of the amounts of Competitive Bid Loans and
the lowest bid after adjustment as provided in Section 2.3(e)(iii) shall be
conclusive in the absence of manifest error.
(f) Any Lender whose offer to make any Competitive Bid Loan has been
accepted shall, not later than noon Birmingham, Alabama time on the date
specified for the making of such Loan, make the amount of such Loan available to
the Agent at the Principal Office in Dollars and in immediately available funds,
for the account of the Borrowers. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Borrowers on such date by depositing the same, in Dollars and in immediately
available funds, in an account of the Borrowers maintained at the Principal
Office. The Borrowers shall pay the Agent, for its sole account, $100 for each
request to make Competitive Bid Loans.
SECTION 2.4 LETTER OF CREDIT BORROWINGS.
---------------------------
(a) From and after the Closing Date to and including thirty (30) Business
Days prior to the Termination Date, the Borrowers may, by submission to the
Agent of a Request for Issuance of Letters of Credit, from time to time request
that Letters of Credit be issued upon the terms and subject to the conditions of
this Agreement for the account of the Borrowers in such amounts as may be
requested by the Borrowers, up to a maximum aggregate amount of Letter of Credit
Borrowings at any one time outstanding that, when added to (i) the then
outstanding Reimbursement Obligations plus (ii) the then outstanding Syndicated
Loans and Competitive Bid Loans, would not exceed the Commitments then in
effect; provided, however, that no Letter of Credit shall be issued if the
issuance thereof would cause the aggregate outstanding amount of Letter of
Credit Borrowings and Reimbursement Obligations to exceed $5,000,000.
(b) Each Request for Issuance of Letters of Credit shall be submitted to
the Agent by Hibbett, on behalf of itself and the other Borrowers, at least
three Business Days prior to the date the Letter of Credit is to be issued (or
such shorter period as may be agreed to by the Agent), shall obligate the
Borrowers to reimburse the Issuing Bank on demand for any amounts drawn under
such Letter of Credit and such other sums as may be provided for herein, and
shall be executed by a duly authorized officer of Hibbett, on behalf of itself
and the other Borrowers, as applicable. On the same day that the Agent receives
a Request for Issuance of Letters of Credit, the Agent shall notify the Lender
requested by the Borrowers to issue a Letter of Credit and the other Lender or
Lenders of receipt of such Request for Issuance of Letters of Credit. If the
Lender requested by the Borrowers to issue the Letter of Credit is a Lender
other than AmSouth, and such Lender declines to issue such Letter of Credit, or
if the Borrowers fail to specify the Lender that is to
25
<PAGE>
issue the Letter of Credit, AmSouth shall issue the Letter of Credit requested
by the Borrowers and shall be the Issuing Bank with respect thereto. The Issuing
Bank (whether the Lender requested by the Borrowers to issue the Letter of
Credit or AmSouth) shall issue the Letter of Credit and will make available to
the beneficiary thereof the original of such Letter of Credit, as directed by
Hibbett in the Request for Issuance of Letters of Credit.
(c) Each Letter of Credit shall (i) be a letter of credit issued in the
ordinary course of the business of the Borrowers; (ii) expire by its terms on a
date not later than thirty (30) Business Days prior to the Termination Date;
(iii) be in an amount that complies with paragraph (a) of this Section 2.4; (iv)
not conflict with any law or regulation binding on the Issuing Bank; and (v)
contain such further provisions and conditions as are standard and reasonable
for ordinary irrevocable letters of credit and as may be requested by Hibbett,
on behalf of itself and each Participating Entity, and reasonably satisfactory
to the Issuing Bank.
(d) In accordance with the provisions of Section 2.1(b), the Issuing Bank
shall notify the Agent and the other Lender or Lenders of any drawing under any
Letter of Credit issued for the account of the Borrowers as promptly as
practicable following the receipt by the Issuing Bank of such drawing.
(e) Each Lender (other than the Issuing Bank) shall automatically acquire
on the date of issuance thereof a Letter of Credit Participation in the
liability of the Issuing Bank with respect to each Letter of Credit in an amount
equal to such Lender's Applicable Commitment Percentage of such liability, and
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank as hereinafter described, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of Credit.
Simultaneously with the making of a Syndicated Loan made under Section 2.1(b) by
a Lender, such Lender shall, automatically and without any further action on the
part of the Issuing Bank or such Lender, acquire a Letter of Credit
Participation in an amount equal to such Syndicated Loan (excluding the portion
thereof constituting interest) in the related Reimbursement Obligation of the
Borrowers. The Reimbursement Obligations of the Borrowers shall be immediately
due and payable, whether by Syndicated Loans made in accordance with Section
2.1(b) or otherwise. Each Lender's obligation to make payment to the Agent for
the account of the Issuing Bank pursuant to this Section 2.4(e), and the right
of the Issuing Bank to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and shall be made without
any offset, abatement, withholding or reduction whatsoever; provided, however,
that nothing contained in this sentence shall limit the Issuing Bank's liability
for its gross negligence or willful misconduct in improperly honoring a draft
drawn under a Letter of Credit.
(f) For each Letter of Credit that the Issuing Bank issues (and all
renewals thereof), the Borrowers pay to the Agent for the benefit of the Lenders
a letter of credit fee payable on each Quarterly Payment Date in arrears,
computed at the Syndicated Margin for LIBOR Loans in effect from time to time
during the calendar quarter ended on the day next preceding the Quarterly
Payment Date based on the aggregate amount of Letter of Credit Borrowings
outstanding from
26
<PAGE>
time to time during such calendar quarter. In addition, for each Letter of
Credit that is issued (and all renewals thereof), the Borrowers agree to pay to
the Agent in advance, for the sole account of the Issuing Bank, an issuance or
renewal fee, as the case may be, equal to one-eighth of one percent (1/8%)
per annum on the stated amount of the Letter of Credit being issued or renewed.
Such fee shall be payable in advance on the date of issuance or renewal, as the
case may be.
The Borrowers acknowledge that each Issuing Bank will be required by
applicable rules and regulations of the Federal Reserve Board to maintain
reserves for its liability to honor draws made pursuant to a Letter of Credit
notwithstanding the obligation of the Lenders for a Letter of Credit
Participation in such liability. The Borrowers agree to reimburse the Issuing
Bank promptly for all additional costs incurred by reason of any Regulatory
Change that the Issuing Bank may hereafter incur solely by reason of its acting
as issuer of the Letters of Credit and its being required to reserve for such
liability, it being understood by the Borrowers that other interest and fees
payable under this Agreement do not include compensation of the Issuing Bank for
such reserves. Each Issuing Bank shall furnish to the Borrowers, at the time of
such Issuing Bank's demand for payment of such additional costs, the computation
of such additional cost, which shall be conclusive absent demonstrable error,
provided that such computations are made on a reasonable basis.
The Borrowers shall pay to the Issuing Bank administrative and other fees,
if any, in connection with the Letters of Credit in such amounts and at such
times as the Issuing Bank and the Borrowers shall agree from time to time.
(g) If a draft drawn under a Letter of Credit is presented to the Issuing
Bank and the Issuing Bank honors such draft, the Borrowers shall, promptly upon
demand of the Issuing Bank therefor and no later than the Business Day following
the date of such demand, reimburse the Issuing Bank for the amount of such
draft, with interest thereon (i) from the date such draft is honored by the
Issuing Bank to but not including the date the Issuing Bank makes demand on the
Borrowers for reimbursement, at the applicable Federal Funds Effective Rate and
(ii) if the Borrowers do not reimburse the Issuing Bank on the date such demand
is made, from the date on which such demand is made to, but not including, the
date of reimbursement by the Borrowers to the Issuing Bank, at the Base Rate
then in effect.
SECTION 2.5 PAYMENTS. All interest accrued on Syndicated Loans and
--------
Reimbursement Obligations subject to the Base Rate shall be payable on the first
day of each successive January, April, July and October (each, a "Quarterly
Payment Date"), commencing on January 1, 1999 and upon payment in full of such
Syndicated Loans and Reimbursement Obligations. All interest accrued on each
Loan subject to a Fixed Rate having an Interest Period of three months or less
shall be payable at the end of the applicable Interest Period then in effect.
All interest accrued on each Loan subject to a Fixed Rate having an Interest
Period of greater than three months shall be payable (a) on the date that is
three months after the initial date of the Interest Period applicable to such
Loan and (b) the last day of the Interest Period applicable to such Loan. The
principal amount of Syndicated Loans, and Reimbursement Obligations, together
with accrued interest thereon, shall be due on the Termination Date. The
principal amount of Competitive Bid Loans
27
<PAGE>
shall be paid on the last day of the Interest Period for such Competitive Bid
Loan. 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.
SECTION 2.6 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 Fixed Rate Segment 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 Termination 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, together with the
sum of the then outstanding Letter of Credit Borrowings and Reimbursement
Obligations, 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 plus the sum of the then outstanding Letter of Credit Borrowings and
Reimbursement Obligations and (b) the Commitments.
SECTION 2.7 NOTES.
-----
(a) The Syndicated Loans made by each Lender shall be evidenced by a single
promissory note of the Borrowers substantially in the form of Exhibit F-1
-----------
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 Competitive Bid Loans made by any Lender shall be evidenced by a
single promissory note of the Borrowers substantially in the form of Exhibit F-2
-----------
hereto, dated the Closing Date, payable to such Lender and otherwise duly
completed.
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<PAGE>
(c) The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Loan of each Class 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 2.8 REDUCTION IN REVOLVING FACILITY. The Borrowers shall have
-------------------------------
the right from time to time on each Quarterly Payment Date, upon not less than
three (3) Business Days' written notice to the Agent, to reduce the amount of
the Revolving 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
$5,000,000 or a larger integral multiple of $1,000,000, and shall permanently
reduce the Commitment of each Lender on a pro rata basis. No such reduction
shall result in payment of a Fixed Rate Segment other than on the last day of
the respective Interest Period. Each reduction of the Revolving Facility shall
be accompanied by payment of the Loans to the extent that the Credit Obligations
exceed the Revolving Facility after giving effect to such reductions together
with accrued and unpaid interest on the amounts prepaid.
SECTION 2.9 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 2.10 PRO RATA PAYMENTS. Except as otherwise provided herein, (a)
-----------------
each payment on account of the principal of and interest on the Syndicated 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) each payment on account of principal of and interest
on a Competitive Bid Loan shall be made to the Agent for the account of the
Lender making such Competitive Bid Loan, (c) 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 (d) 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
29
<PAGE>
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 2.11 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 Syndicated 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 Syndicated 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 Syndicated Note in its favor (without
regard to the maximum face amount of such Syndicated 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 Syndicated Note; provided that, upon
payment to the Agent 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 Syndicated
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 Syndicated 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 2.12 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
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<PAGE>
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 2.13 EXTENSION OF TERMINATION DATE. If the Borrowers have
-----------------------------
furnished to the Agent and the Lenders the financial statements referred to in
Section 7.3 within the time set forth therein and three year financial
projections for the Borrowers, the Borrowers may request, not earlier than
ninety (90) days prior to the first and second annual anniversary of the Closing
Date, that the Termination 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 Termination Date. Failure by the Agent to give such notice shall
constitute refusal by the Lenders to extend the Termination Date. The
Termination Date shall be extended only upon written consent of all Lenders.
SECTION 2.14 FEES. As consideration for the Lenders' agreement to provide
----
the Revolving Facility, the Borrowers agree to pay to the Agent for the account
of each of the Lenders a facility fee equal to the Facility Fee Rate times the
average daily amount of the Commitments (the "Facility Fee"). The Facility Fee
shall be payable in arrears on each Quarterly Payment Date, commencing on
January 1, 1999, and on the Termination Date or the date of any earlier
termination of this Agreement. The Facility Fee shall be computed on an
Actual/360 Basis.
SECTION 2.15 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 Syndicated 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 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 Syndicated
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.
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ARTICLE 3
INTEREST
--------
SECTION 3.1 APPLICABLE INTEREST RATES. The Borrowers shall have the
-------------------------
option to elect to have any Syndicated Loan Segment bear interest at the LIBOR-
Based Rate plus the applicable Syndicated Margin or at the Base Rate. For any
period of time and for any Syndicated Loan Segment with respect to which the
Borrowers do not elect another interest rate, such Syndicated Loan Segment shall
bear interest at the Base Rate. The Borrowers' right to elect a LIBOR-Based Rate
for a Syndicated Loan Segment shall be subject to the following requirements:
(a) each such Syndicated Loan Segment shall be in the amount of $5,000,000 or
more and in an integral multiple of $500,000 and (b) each such Syndicated Loan
Segment shall have a maturity selected by the Borrowers of one, two, three or
six months; provided, however, that no such Syndicated Loan Segment shall have a
maturity date later than the Termination 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 Syndicated Loan 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 9:00 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 Syndicated Loan 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: (a) the amount of the Syndicated Loan 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 Syndicated Loan 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 LIBOR 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
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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 Termination Date or upon full prepayment of
the Credit Obligations, all changes in the Base Rate occurring on or prior to
the day before the Termination Date or the date of such full prepayment shall be
taken into account.
SECTION 3.4 LIBOR-BASED RATE. Each Syndicated Loan Segment subject to the
----------------
LIBOR-Based Rate 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 Syndicated Loan Segment at the LIBOR-Based Rate on an
Actual/360 Basis plus the applicable Syndicated 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 Syndicated 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 Funded Debt to EBITDA there has been a change in the
Syndicated Margin. Any such change in the Syndicated Margin shall be effective
without notice to the Borrowers and without any further action by the Agent or
the Lenders.
SECTION 3.6 POST MATURITY INTEREST. Upon and after the occurrence of any
----------------------
Event of Default, the outstanding principal amount of all Advances and
Reimbursement Obligations 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 Advances and Reimbursement Obligations (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 Advances); provided that, in the case of Advances subject to a Fixed Rate,
--------
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective, such Advances subject to a Fixed Rate
shall thereupon become Base Rate Advances 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 Advances. 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
33
<PAGE>
prejudice or limit any rights or remedies of the Lender. Interest on all
Advances and Reimbursement Obligations 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.
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.
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(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 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; 12 CFR Part 225,
Appendix A) 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.
(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
35
<PAGE>
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.
SECTION 4.4 TREATMENT OF AFFECTED LOANS.
---------------------------
If the obligation of any Lender to make LIBOR Loans shall be suspended
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.
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<PAGE>
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
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 Advance 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 or Competitive Bid Quote
Request.
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 Loan (or, in the case of a failure to
borrow, the Interest Period for such Loan which would have commenced on the date
specified for such borrowing) at the applicable rate of interest for such 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).
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
37
<PAGE>
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 2.15.
(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.
(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.
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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 J 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, 1998 and a statement of changes in shareholders' equity
and the related statements of income and cash flow as of the end of fiscal year
1998 and the unaudited consolidated balance sheet of Hibbett and the
Consolidated Entities dated as of August 1, 1998 and the related statements of
income and cash flow for the six month period then ended. Such financial
statements were prepared in conformity with 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
39
<PAGE>
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 the purpose of purchasing or carrying any
Margin Stock or retiring any debt incurred to purchase or carry any Margin Stock
or for any other 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 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.
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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.
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
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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 Syndicated Loan and the Issuing Bank's
obligation to issue each Letter of Credit hereunder is subject to the following
conditions precedent:
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. On the date of each Advance
------------------------------
or issuance of a Letter of Credit hereunder and on the date Hibbett presents to
the Agent a Request for Advance or Interest Rate Election form or Competitive
Bid Quote Request or Request for Issuance of Letters of Credit, 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 or issuance of the Letter of Credit on the date Hibbett presents to the
Agent a Request for Advance or Interest Rate Election or Competitive Bid Quote
Request or Request for Issuance of Letters of Credit, as the case may be (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 obtaining of each Letter of Credit or the presentation by Hibbett of
each Request for Advance or Interest Rate Election or Competitive Bid Quote
Request or Request for Issuance of Letters of Credit shall constitute a
42
<PAGE>
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 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 and on the
----------
date of the issuance of each Letter of Credit, 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 or obtaining of each Letter of
Credit 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
or Request for Issuance of Letters of Credit 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 Competitive Bid Quote Request form or a Request for Advance or Interest Rate
Election or Request of Issuance of Letters of Credit forms; (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
43
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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 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.
44
<PAGE>
SECTION 7.3 FINANCIAL STATEMENTS, REPORTS, ETC. The Borrowers shall
----------------------------------
deliver or cause to be delivered to the Lender:
(1) Not later than 50 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 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 100 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 opinion of certified public accountants of recognized
national standing, which 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 G attached hereto
---------
("Compliance Certificate").
(4) 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.
45
<PAGE>
(5) 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.
(6) As soon as practicable, such other information regarding the
business affairs, financial condition or operations of the Borrower 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 or issue Letters of
Credit 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 an Event of 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 workman's 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. The ratio of (A) EBITDAR for any
----------------------------
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) and (ii) Current
46
<PAGE>
Maturities of Hibbett and the Consolidated Entities on a consolidated basis
at the end of such period shall not be less than 1.25 to 1.0 at any time.
(2) Funded Debt to EBITDA Ratio. The ratio of Funded Debt on the last
---------------------------
day of any consecutive four quarter period to EBITDA for such period shall
not be greater than 3.0 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.
(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.
(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.
47
<PAGE>
(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 Lender, (C) purchase money obligations allowed under Section 7.7(7),
(D) Debt not exceeding $4,000,000 in the aggregate, (E) capitalized lease
obligations and (F) Debt owed to a Consolidated Entity.
(11) Guaranties. Except for the existing guaranty by Hibbett of the
----------
obligations of SW under the QRS Lease and any other guaranty by a Borrower
of another Consolidated Entity's obligations, 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.
(13) Sale-Leaseback. Except for (i) the Lease Agreement between QRS
--------------
12-14 (AL), Inc. and SW dated February 12, 1996 and any amendments or
supplements thereto (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.
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<PAGE>
(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. The Borrowers shall 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 for general corporate purposes.
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
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
- -------
49
<PAGE>
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 principal or interest payable
on any Note, Reimbursement Obligation 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) 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
(c) any of the Borrowers shall default in the performance or
observance of any provision of this Agreement, except those covered by
clauses (a) or (b) above, and shall not cure such default within 30 days
after the date the Lender gives written or telephonic notice of the default
to Hibbett; or
(d) 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
Lender by or on behalf of the Borrowers, was misleading or untrue in any
material respect at the time it was made; or
(e) 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
50
<PAGE>
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
(f) 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
(g) 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 (h) 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
(h) 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
(i) 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 and
the same shall remain undischarged for a period of 30 days during which
execution shall not be effectively stayed; or
(j) (1) The persons listed on Exhibit I hereto and the beneficiaries
---------
of any trusts listed therein, taken together, shall cease to beneficially
own and control, directly or indirectly, at least (a) 50% of the number of
issued and outstanding shares of the capital stock of Hibbett entitled
(without regard to the occurrence of any contingency) to vote for
51
<PAGE>
the election of a majority of the members of the board of directors of
Hibbett (the "Voting Shares") beneficially owned and controlled by them on
the Closing Date (as such number may be adjusted for stock splits,
combinations and similar events) and (b) 20% of the total issued and
outstanding Voting Shares at any time, or (2) Hibbett ceases to
beneficially own and control at least one hundred percent (100%) of the
issued and outstanding shares of each class of capital stock of the Initial
Participating Entities.
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 or to issue Letters of Credit terminated, whereupon the
obligation of each Lender to make further Loans or to issue Letters of
Credit 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 (other than Letter of
Credit Borrowings) 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, (A) the foregoing shall not affect in any way the obligations of the
Lenders to make Syndicated Loans to reimburse drawings under Letters of
Credit as provided in Section 2.4, or to purchase participations from the
Issuing Bank in the unreimbursed amount of any drawings under any Letters
of Credit as provided in Section 2.4, and (B) 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 (other than Letter of Credit Borrowings) 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) at the option of the Required Lenders, the Issuing Bank and the
Agent may treat all then outstanding Letters of Credit as if drafts in the
full amount available to be drawn thereunder had been properly drawn
thereunder and paid by the Issuing Bank and the Borrowers had failed or
refused to reimburse the Issuing Bank for the amount so paid within the
time permitted under Section 2.1;
(C) the Borrowers shall, promptly upon demand of the Agent, deposit
in cash with the Agent an amount equal to the amount of all Letter of
Credit Obligations then outstanding, as collateral security for the
repayment thereof, which deposit shall be held by the Agent under the
provisions of Section 10.8; and
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(D) 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 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;
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(ii) amounts due to the Lenders pursuant to Section 2.14 and amounts
due to the Lenders and to the Issuing Banks pursuant to Section 2.4;
(iii) payments of interest on the Syndicated Loans;
(iv) payments of principal on the Syndicated Loans;
(v) payment of cash amounts to the Agent for deposit pursuant to
Section 10.8; and
(vi) 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 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 2.7 or modify any provision that would reduce any amounts
payable by the Borrowers under this
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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 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 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
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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 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 and the Participants. 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
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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 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
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be approved by the Borrowers, 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 3.5 or 3.6) 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 3.5 or 3.6), 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 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 Revolving Facility after subtraction
in each case of amounts, if any, by which any such Lender has not funded its
share of the outstanding Advances and Reimbursement Obligations. 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
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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, an annual Agent's fee in such amount 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 $5,000,000. 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
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 Agent and the Borrowers, 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
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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 $5,000,000 (together with which the
assigning Lender's applicable portion of the Letter of Credit Participations
shall also be assigned) 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. No assignee shall have the right to make any
further assignment of its rights and obligations pursuant to this Section 10.1.
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
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.
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(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, 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
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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 or 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
105 shall survive the payment in full of the Credit Obligations and the
termination of this Agreement.
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
62
<PAGE>
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 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. If on any
date on which the Borrowers wish to pay
63
<PAGE>
the Credit Obligations in full and terminate this Agreement, there are any
outstanding Letter of Credit Borrowings, the Borrowers shall, unless otherwise
agreed by the Required Lenders in their sole discretion, make a cash prepayment
to the Agent on such date in an amount equal to the then-outstanding Letter of
Credit Borrowings, and the Agent shall hold such prepayment in an interest-
bearing cash collateral account in the name and under the sole control of the
Agent (which account shall bear interest at the Agent's then-current rate for
such accounts) as security for the Reimbursement Obligations and other Letter of
Credit Obligations. To the extent allowed by law, such account shall not
constitute an asset of the Borrowers, or any of them, subject to their rights
therein under this Section 10.8. The Agent shall from time to time debit such
account for the payment of the Letter of Credit Obligations as the same become
due and payable and shall promptly refund any excess funds (including interest)
held in said account to the Borrowers if and when no Letter of Credit Borrowings
remain outstanding hereunder and all of the Credit Obligations have been paid in
full. The Borrowers shall remain liable for any Credit Obligations in excess of
the amounts paid from such account.
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, 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
64
<PAGE>
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,
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.
65
<PAGE>
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 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.
(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 seek to obtain preliminary injunctive relief in order to
preserve the status quo pending the disposition of any such arbitration
proceeding.
66
<PAGE>
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:
451 Industrial Lane
Birmingham, Alabama 35211
FAX: (205) 912-7293
Attention: Chief Financial Officer
<PAGE>
AMSOUTH BANK
By:_________________________________
Its Senior Vice President
Commitment: $12,500,000
Applicable Commitment Percentage: 50%
Lending Office and Hand Delivery Address:
7th Floor, AmSouth-Sonat Tower
1900 Fifth Avenue North
Birmingham, Alabama 35203
FAX: (205) 801-0157
Attention: Regional Banking Department
Mailing Address:
Post Office Box 11007
Birmingham, Alabama 35288
FAX: (205) 801-0157
Attention: Regional Banking Department
<PAGE>
NATIONSBANK, N.A.
By:__________________________________
Its:______________________________
Commitment: $5,000,000
Applicable Commitment Percentage: 20%
Lending Office, Mailing and Hand Delivery Address:
One Perimeter Park South
Suite 100 North
Birmingham, Alabama 35243
FAX: (205) 970-6015
Attention: Alan Schweer
<PAGE>
BANKBOSTON, N.A.
By:__________________________________
Its:______________________________
Commitment: $7,500,000
Applicable Commitment Percentage: 30%
Lending Office, Mailing and Hand Delivery Address:
100 Federal Street
Mail Stop 010905
Boston, Massachusetts 02110
FAX: (617) 434-6685
Attention: Peter Griswold
<PAGE>
AMSOUTH BANK, as Agent
By:__________________________________
Its Senior Vice President
<PAGE>
EXHIBIT 10.2
[EXECUTION COPY]
================================================================================
CREDIT AGREEMENT
DATED NOVEMBER 5, 1998
BETWEEN
HIBBETT SPORTING GOODS, INC., HIBBETT TEAM SALES, INC.
AND SPORTS WHOLESALE, INC.
AND
AMSOUTH BANK
RELATING TO A
$5,000,000 REVOLVING FACILITY LOAN
================================================================================
<PAGE>
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT dated as of November 5, 1998 ("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") and AMSOUTH BANK, an Alabama banking corporation (the "Lender").
RECITALS
--------
A. The Borrowers have applied to the Lender for a short-term revolving
credit facility in an aggregate principal amount outstanding not to exceed
$5,000,000 (the "Revolving Facility"), the proceeds of which are to be used by
the Borrowers for general corporate purposes, including seasonal working
capital.
B. The Lender is willing to make the Revolving 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
---------
NOW, THEREFORE, in consideration of the foregoing Recitals, and to induce
the Lender to make the Revolving Facility available, the Borrowers and the
Lender agree as follows:
ARTICLE 1
DEFINITIONS
-----------
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 53; provided that the financial statements required
to be delivered pursuant to clauses (1) and (2) of Section 73 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
<PAGE>
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
----------------
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 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.
Advance shall mean a borrowing under the Revolving Facility pursuant
-------
to Section 21.
Affiliate of any specified person shall mean any person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such
2
<PAGE>
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.
Agreement shall mean, on any date, this Credit Agreement, as
---------
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.
Assumption Agreement shall have the meaning attributed to that term in
--------------------
Section 21.
Base Rate shall mean (a) the higher of the (i) Federal Funds Effective
---------
Rate plus 1/2% per annum and (ii) Prime Rate plus (b) the applicable
Margin.
Base Rate Loans shall mean Loans that bear interest at rates based
---------------
upon the Base Rate.
Business Day shall mean any day on which commercial banks are not
------------
authorized or required to close in Birmingham, Alabama.
Capital Expenditures shall mean any expenditure for fixed assets or
--------------------
that is properly chargeable to capital account in accordance with generally
accepted accounting principles.
Closing Date shall mean the date of this Agreement.
------------
Consolidated Entity shall mean a person whose financial statements are
-------------------
appropriately consolidated with Hibbett's financial statements.
Consolidated Net Income shall mean, with reference to any period, the
-----------------------
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
---------------------------------
to Section 32 hereof of one Type of Loan into another Type of Loan.
Credit Obligations shall mean the Revolving Facility Obligations, and
------------------
all other obligations and debts of the Borrowers owing to the Lender and
arising under the terms of this Agreement, the Note, and the other Loan
Documents, whether now or hereafter incurred, existing or arising,
including the principal amount of all Advances, any sums expended by the
Lender in exercising the rights and remedies described in Section 81, 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
3
<PAGE>
connection with, this Agreement, and all other obligations and debts owing
to the Lender 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
------------------
Funded Debt (other than the Credit Obligations) during the next succeeding
period of twelve calendar months.
Debt of any person shall mean, without duplication, (i) the Credit
----
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
-------
lapse of time or both would become an Event of Default.
Dollars and the symbol $ shall mean dollars constituting legal tender
------- -
for the payment of public and private debts in the United States of
America.
EBITDA for any period shall mean Consolidated Net Income (or the net
------
deficit, if expenses and charges exceed revenues and other proper income
credits) for such period, plus amounts that have been deducted for (i)
depreciation, (ii) amortization, (iii) Interest Expense and (iv) income and
profit taxes in determining Consolidated Net Income for such period.
EBITDAR for any period shall mean Consolidated Net Income (or the net
-------
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.
4
<PAGE>
ERISA shall mean the Employee Retirement Income Security Act of 1974,
-----
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
ERISA Affiliate shall mean, as of any date, any corporation,
---------------
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
----------------
Article 8 hereof.
Federal Funds Effective Rate shall mean, for any day, the rate per
----------------------------
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
--------
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 Lender on such Business Day on such transactions as
determined by the Lender.
Fixed Rate shall mean the Quoted Cost of Funds Rate.
----------
Fixed Rate Segment shall mean a Segment to which a Fixed Rate is (or
------------------
is proposed to be) applicable.
Funded Debt shall mean all Debt of Hibbett and the Consolidated
-----------
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.
Governmental Authority shall mean any national, federal, state,
----------------------
county, municipal or other agency, authority, department, commission,
bureau, board, court or instrumentality thereof.
Governmental Requirements shall mean all laws, rules, regulations,
-------------------------
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
----------------------
(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.
5
<PAGE>
Hazardous Material shall mean (a) any asbestos or insulation or other
------------------
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 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
---------------------
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
----------------
obligations payable under capitalized leases attributable to interest)
during the period in question.
Interest Period shall mean the period commencing on the date a Quoted
---------------
Cost of Funds Rate Loan is made and ending on any Business Day up to 29
days thereafter, as Hibbett may select as provided in Section 32 hereof.
Each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day.
Liabilities shall mean all Debt and all other items (including taxes
-----------
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.
Lien shall mean any mortgage, pledge, assignment, charge, encumbrance,
----
lien, security interest or financing lease.
Loan Documents shall mean this Agreement, any Assumption Agreement,
--------------
the Note, 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 aggregate outstanding amount of all Advances and
-----
all extensions and renewals thereof.
6
<PAGE>
Margin shall mean, at any time with respect to the Loan the applicable
------
percentage points as determined under the following matrix with reference
to the ratio of Funded Debt to EBITDA calculated as provided below:
<TABLE>
<CAPTION>
APPLICABLE MARGIN
RATIO OF FUNDED APPLICABLE MARGIN (QUOTED COST OF
DEBT TO EBITDA (BASE RATE) FUNDS RATE)
--------------- ----------------- ------------------
<S> <C> <C>
(1) Equal to or less than 0 .925%
1.25 to 1.00
(2) Greater than 1.25 to 0 1.1175%
1.00 but less than or
equal to 2.0 to 1.00
(3) Greater than 2.0 to .25% 1.425%
1.00 but less than or
equal to 3.0 to 1.0
</TABLE>
From the Closing Date until receipt of the Lender of the financial
statements for the fiscal quarter ended October 31, 1998 pursuant to
Section 73 below, the Margin shall be 0% for Base Rate Loans and .925% for
Quoted Cost of Funds Rate Loans. The Margins shall be reset from time to
time in accordance with the above matrix on the day after receipt by the
Lender in accordance with Section 7.3 of financial statements together with
a Compliance Certificate that provides for different Margins than those
then in effect.
Margin Stock shall have the meaning attributed to that term in
------------
Regulation U of the Federal Reserve Board, as amended.
Material Adverse Change shall mean a material adverse change in the
-----------------------
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)
-----------------------
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 Lender hereunder and
thereunder.
Material Contract shall mean any contract or agreement (i) to which
-----------------
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
7
<PAGE>
1933, as amended, and the rules and regulations from time to time
promulgated thereunder, or under the Exchange Act of 1934.
Maximum Credit Amount shall mean $5,000,000.
---------------------
Note shall have the meaning assigned to such term in Section 21
----
hereof.
Operating Lease Payments shall mean all amounts payable under any
------------------------
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 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
------------------
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 any Subsidiary that hereafter executes
--------------------
and delivers to the Lender 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
----
successor thereto.
Permitted Encumbrances shall mean:
----------------------
(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 Lender;
(5) Liens for purchase money obligations or capital leases provided
that such Liens attach only to the property so purchased or leased;
8
<PAGE>
(6) Liens existing on any asset prior to the acquisition thereof by a
Borrower and not created in contemplation of such acquisition;
(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, 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
---------
(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:
---------------------
(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 Moody's 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 Moody's Investors
Service, Inc.;
9
<PAGE>
(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 Moody's 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 Moody's Investors Service, Inc;
(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 Consolidated Entities and (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
(10) other investments made with the express prior written approval of
the Lender.
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 an employee pension benefit plan as defined in Section
----
3(2) 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 Lender
----------
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 Lender to
establish lending rates and is not necessarily the Lender's most favorable
lending rate, and that changes in the Lender's prime rate are discretionary
with the Lender. 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 Lender located
----------------
at AmSouth-Sonat Tower, 1900 Fifth Avenue North, Birmingham, Alabama 35203,
or such other location in Jefferson County, Alabama designated by the
Lender by notice to the Borrowers.
10
<PAGE>
Quarterly Payment Date shall have the meaning attributed to that term
----------------------
in Section 23.
Quoted Cost of Funds Rate shall mean the per annum rate of interest
-------------------------
designated by the Lender as its quoted cost of funds determined by the
Lender in its sole discretion (provided market conditions and other
considerations allow the Lender to quote such rate), plus the applicable
Margin.
Quoted Cost of Funds Rate Loans shall mean Loans that bear interest at
-------------------------------
rates based upon the Quoted Cost of Funds Rate.
Request for Advance or Interest Rate Election shall have the meaning
---------------------------------------------
attributed to that term in Section 22.
Revolving Facility shall mean the credit facility made available to
------------------
the Borrower by the Lender under the terms of Article 2 in an aggregate
amount of up to $5,000,000 as reduced by the Borrowers pursuant to Section
25 hereof.
Revolving Facility Obligations shall mean the outstanding principal
------------------------------
amount of all Advances, all interest accrued thereon, all costs, charges,
fees and expenses payable in connection therewith and all extensions and
renewals thereof.
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.
Termination Date means November 4, 1999.
----------------
11
<PAGE>
Type shall have the meaning as assigned to such term in Section 1.2
----
hereof.
SECTION 1.2 TYPES OF LOANS. The "Type" of an Advance refers to whether
--------------
such Advance is a Base Rate Loan or a Quoted Cost of Funds Rate Loan, each of
which constitutes a Type.
ARTICLE 2
REVOLVING FACILITY TERMS
------------------------
SECTION 2.1 ADVANCES.
--------
(a) From and after the Closing Date to (but not including) the Termination
Date, on the terms and subject to the conditions set forth in this Agreement,
the Lender agrees to lend to the Borrowers, jointly and severally, and the
Borrowers may borrow, repay and reborrow, an amount not exceeding the Maximum
Credit Amount in effect from time to time; provided, however, that no more than
-------- -------
four (4) different Interest Periods may be outstanding at the same time (for
which purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous). All Advances made by the Lender
to the Borrowers under this Agreement with respect to the Revolving Facility
shall be evidenced by a promissory note for the Lender dated the Closing Date
payable to the order of the Lender, duly executed by the Borrowers, and in the
aggregate maximum principal amount of $5,000,000 (the "Note"). The date,
amount, Type, interest rate and duration of Interest Period (if applicable) of
each Advance 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;
provided that the failure of the 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 the Note with
respect to the Advances to be evidenced by the Note. The Advances shall bear
interest as provided in Article 3 below. The unpaid principal amount of all
Loans hereunder shall not exceed the Revolving Facility.
(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
12
<PAGE>
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. The Lender need not obtain each 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 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 Lender to provide such information, now or in the future; and
(iv) agrees that the Lender shall not 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 (d) of this section). Without limiting the generality of the
foregoing, the obligations and liabilities of each Initial Participating Entity
13
<PAGE>
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 Lender 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 Loan
Document, (vii) the extension of time for payment or performance of any of the
Credit Obligations, (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 Revolving Facility,
the Note 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 (h) 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 98. 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 Lender and shall be paid
forthwith to the Lender 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 Lender 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 713, an
Assumption Agreement in the form attached hereto as Exhibit E ("Assumption
---------
Agreement").
SECTION 2.2 ADVANCES OF LOANS. Advances shall be made no more frequently
-----------------
than once in each week, shall be in an amount not less than $250,000 and shall
be in an integral multiple of $50,000. Each request for an Advance must be
received by the Lender not later than 11:30 a.m., Birmingham, Alabama time, on
the day which such Advance is to be made in the case of a Base Rate Loan or
Quoted Cost of Funds 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 32. The Lender shall accept from the Borrowers telephonic
or facsimile requests for Advances
14
<PAGE>
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. Not later than 1:00 P.M. Birmingham, Alabama time, on the
date specified for each Advance hereunder, the Lender shall make available the
amount of the Advance to be made by it on such date to the Borrowers by
depositing the proceeds thereof into an account with the Lender in the name of
the Borrowers. The Lender's obligation to make Advances shall terminate, if not
sooner terminated pursuant to other provisions of this Agreement, on the
Termination Date. The Lender 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 22 in connection with a
requested Advance or under Section 32 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 Lender pursuant to Section 63 below. Hibbett may,
from time to time, by notice to the Lender, 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 Lender a
certificate of the Secretary or Assistant Secretary of Hibbett certifying the
incumbency and specimen signature of each such person. The Lender shall be
entitled to rely conclusively upon the authority of any person so designated by
Hibbett.
SECTION 2.3 PAYMENTS. All interest accrued on Loans subject to the Base
--------
Rate shall be payable on the first day of each successive January, April, July
and October (each, a "Quarterly Payment Date"), commencing on January 1, 1999
and upon payment in full of such Advances. All interest accrued on each Loan
subject to a Fixed Rate shall be payable at the end of the applicable Interest
Period then in effect. The principal amount of Advances, together with accrued
interest thereon, shall be due on the Termination Date. All payments of Credit
Obligations shall be payable to the Lender 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, 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 Lender
shall be applied first to expenses, fees and charges, then to accrued interest
and finally to principal.
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 Fixed Rate Segment may be prepaid during an Interest Period. The Borrowers
shall pay, on the date of prepayment, all interest accrued to the date of
prepayment on any amount prepaid.
(b) If at any time the principal amount of the Advances is greater than the
Maximum Credit Amount then in effect, the Borrower shall immediately make a
prepayment (notwithstanding the provisions of clause (a) of this section on the
Advances equal to the difference between (a) said aggregate principal amount of
the Advances and (b) the Maximum Credit Amount.
15
<PAGE>
SECTION 2.5 REDUCTION IN REVOLVING FACILITY. The Borrowers shall have the
-------------------------------
right from time to time upon not less than three (3) Business Days' notice to
the Lender, to reduce the amount of the Revolving Facility. Each such reduction
shall be in the aggregate principal amount of $1,000,000 or a larger integral
multiple of $100,000, and shall permanently reduce the Maximum Credit Amount.
Any such reduction resulting in payment of a Fixed Rate Segment other than on
the last day of the respective Interest Period shall be permitted. Each
reduction of the Revolving Facility shall be accompanied by payment of the Loans
to the extent that the principal amount of the Advances exceed the Revolving
Facility after giving effect to such reductions together with accrued and unpaid
interest on the amounts prepaid.
SECTION 2.6 FEES. As consideration for the Lender's agreement to provide
----
the Revolving Facility, the Borrowers agree to pay to the Lender a facility fee
per annum equal to the then applicable Margin times the average daily amount of
the Maximum Credit Amount (the "Facility Fee"). The Facility Fee shall be
determined under the following matrix with reference to the ratio of Funded Debt
to EBITDA payable in arrears in each Quarterly Payment Date, commencing on
January 1, 1999 and on the Termination Date or the date of any earlier
termination of this Agreement:
<TABLE>
<CAPTION>
RATIO OF FUNDED
DEBT TO EBITDA APPLICABLE MARGIN
--------------- ------------------
<S> <C>
(1) Equal to or less than .125%
1.25 to 1.00
(2) Greater than 1.25 to .15%
1.00 but less than or
equal to 2.0 to 1.00
(3) Greater than 2.0 to 1.00 .175%
but less than or equal to
3.0 to 1.0
</TABLE>
From the Closing Date until receipt by the Lender of the financial
statement for the fiscal quarter ending October 31, 1998 pursuant to Section 73
below, the fee percentage shall be .125%. The Facility Fee Rate shall be reset
from time to time as the calculation of Margin changes as set forth herein.
ARTICLE 3
INTEREST ON LOANS
-----------------
SECTION 3.1 APPLICABLE INTEREST RATES. The Borrowers shall have the
-------------------------
option to elect to have any Segment bear interest at the Base Rate or the Quoted
Cost of Funds 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
16
<PAGE>
a Quoted Cost of Funds Rate for a Segment shall be subject to the following
requirements: (a) each Segment shall be in the amount of $50,000 or more and in
an integral multiple thereof, (b) each Segment shall have a maturity selected by
the Borrower of from one to twenty-nine days, (c) no more than four Segments may
be outstanding at any time, and (d) no Segment may have a maturity date later
than the Termination 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 Lender in writing not later
than 9:00 a.m., Birmingham, Alabama time, on the same day on which a requested
Base Rate or Quoted Cost of Funds Rate is to become applicable. 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: (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 Quoted Cost of Funds Rate and (d) if
the interest rate selected is a Quoted Cost of Funds Rate, the maturity selected
for the Interest Period. The Lender shall accept from the Borrowers telephonic
requests to have a particular rate applied to a Segment without requiring the
submission of a Request for Advances or Interest Rate Election form. Any
request to have a particular rate applied to a Segment not made in writing shall
be promptly confirmed in writing. On the same day that a requested Quoted Cost
of Funds Rate is to become applicable, the Lender shall notify Hibbett by
telephone or by facsimile transmission of the applicable Quoted Cost of Funds
Rate by 11:00 a.m., Birmingham, Alabama time, or as earlier on that day as may
be practical in the circumstances. If Hibbett does not accept any Quoted Cost
of Funds Rate quoted by the Lender within 15 minutes of it being provided by the
Lender, the Lender may, in view of changing market conditions, revise the Quoted
Cost of Funds Rate at any time. No Quoted Cost of Funds Rate shall be effective
until mutually agreed upon by Hibbett and the Lender. If the Lender and Hibbett
attempt to agree on the Quoted Cost of Funds Rate but fail so to agree, or if
there is any uncertainty as to whether or not the Lender and Hibbett have agreed
upon the Quoted Cost of Funds Rate, interest shall accrue on the Segment for
which the Quoted Cost of Funds Rate has been selected at the then applicable
Base Rate.
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 Quoted Cost of Funds 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 Lender, without
notice to the Borrowers and without any further action by the Lender.
Notwithstanding the foregoing, for the purpose of enabling the Lender 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 Lender 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
17
<PAGE>
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
Termination Date or upon full prepayment of the Credit Obligations, all changes
in the Base Rate occurring on or prior to the day before the Termination Date or
the date of such full prepayment shall be taken into account.
SECTION 3.4 QUOTED COST OF FUNDS RATE. Each Segment subject to the Quoted
-------------------------
Cost of Funds Rate shall bear interest from the date the Quoted Cost of Funds
Rate becomes applicable thereto until the end of the applicable Interest Period
on the unpaid principal balance of such Segment at the Quoted Cost of Funds Rate
on an Actual/360 Basis.
SECTION 3.5 CHANGES IN MARGIN. Any change in the rate of interest payable
-----------------
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 Lender of the Compliance
Certificate furnished by the Borrowers to the Lender pursuant to Section 7.3(3)
hereof, stating that as a result of a change in the ratio of Funded Debt to
EBITDA 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 Lender.
SECTION 3.6 POST MATURITY INTEREST. Upon and after the occurrence of any
----------------------
Event of Default, the outstanding principal amount of all Advances 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 Advances
(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 Advances subject to a Fixed
--------
Rate, upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective, such Advances subject to a Fixed Rate
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
36 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 Advances shall be calculated on an Actual/360 Basis.
18
<PAGE>
ARTICLE 4
TERMINATION OF FIXED RATE AND YIELD PROTECTION
----------------------------------------------
SECTION 4.1 ADDITIONAL COSTS.
----------------
(a) Without limiting the effect of the foregoing provisions of this Section
41 (but without duplication), the Borrowers shall pay directly to the Lender
from time to time on written request such amounts as the Lender may determine in
good faith to be necessary to compensate the Lender for any increased costs
which it determines are attributable to the maintenance by the Lender 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 government or governmental or supervisory 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; 12 CFR Part 225, Appendix A) 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 the Lender to a level
below that which the Lender could have achieved but for such regulatory change.
For purposes of this Section 41, "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.
(b) The Lender shall notify Hibbett of any event occurring after the
Closing Date that will entitle the Lender to compensation under Section 4.1(a)
or (c) as promptly as practicable, but in any event within 45 days after the
Lender obtains actual knowledge thereof; provided however, that if the Lender
fails to give such notice within 45 days after it obtains actual knowledge of
such an event, the Lender shall, with respect to compensation payable pursuant
to this Section 41 in respect of any costs resulting from such event, only be
entitled to payment under this Section 41 for costs incurred from and after the
date 45 days prior to the date that the Lender does give such notice. The
Lender will furnish to Hibbett a certificate setting forth in reasonable detail
the basis and amount of each request by the 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
the Lender for purposes of this Section 41 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 the Lender under this Section 41, shall be made
in a manner consistent with that applied by the Lender in similar contexts and
shall be conclusive in the absence of demonstrable error.
19
<PAGE>
SECTION 4.2 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 Lender by the United States or the jurisdiction (or any
political subdivision thereof) in which the Lender is organized, is doing
business, or has its Principal 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 Lender (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 42) the Lender 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.
(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 the Lender 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 42) imposed on amounts payable hereunder
paid by the Lender (net of any benefits as reasonably determined by the Lender),
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 the
Lender 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 the Lender, the Borrowers
will furnish to the Lender 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.
(e) The Lender claiming any additional amounts payable pursuant to this
Section 42 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 the Lender, be otherwise disadvantageous
to the Lender. To the extent the 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 42, the Lender shall
promptly notify the Borrowers
20
<PAGE>
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 Lender 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 D 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, 1998 and a statement of changes in shareholders' equity
and the related statements of income and cash flow as of the end of fiscal year
1998 and the unaudited consolidated balance sheet of Hibbett and the
Consolidated Entities dated as of August 1, 1998 and the related statements of
income and cash flow for the six month period then ended. Such financial
statements were prepared in conformity with 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
21
<PAGE>
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 the purpose of purchasing or carrying any
Margin Stock or retiring any debt incurred to purchase or carry any Margin Stock
or for any other 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 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.
22
<PAGE>
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.
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 53 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
23
<PAGE>
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 Lender's obligation to make each Advance hereunder is subject to the
following conditions precedent:
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. On the date of each Advance
------------------------------
hereunder, 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 (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 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 consolidated
basis, as reflected in the financial statements delivered to the Lender pursuant
to Section 53 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
24
<PAGE>
borrowing of each Advance shall constitute a representation and warranty by the
Borrowers to the Lender that no Default has occurred and is continuing.
SECTION 6.3 SUPPORTING DOCUMENTS.
--------------------
(a) The Lender 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 Lender a Request for Advance
or Interest Rate Election forms; (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 Lender and its
counsel; and (iv) such additional supporting documents as the Lender or its
counsel may reasonably request.
(b) The Lender 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 63 (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 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 the Revolving Facility, the Borrowers, jointly and severally,
covenant and agree that:
25
<PAGE>
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 50 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 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 77), 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
26
<PAGE>
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 100 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 opinion of certified public accountants of recognized
national standing, which 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 C attached hereto
---------
("Compliance Certificate").
(4) 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.
(5) 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.
(6) As soon as practicable, such other information regarding the
business affairs, financial condition or operations of the Borrower 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 or issue Letters of
Credit 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 an Event of 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.
27
<PAGE>
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 workman's 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 77, 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. The ratio of (A) EBITDAR for any
----------------------------
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) and (ii) Current Maturities of Hibbett and the
Consolidated Entities on a consolidated basis at the end of such period
shall not be less than 1.25 to 1.0 at any time.
(2) Funded Debt to EBITDA Ratio. The ratio of Funded Debt on the
---------------------------
last day of any consecutive four quarter period to EBITDA for such period
shall not be greater than 3.0 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.
28
<PAGE>
(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.
(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.
(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 Note, (B) other Debt
incurred in connection with the Credit Agreement of even date between the
Borrowers, the Lender, NationsBank, N.A., BankBoston, N.A. and the Lender
as Agent, (C) purchase money obligations allowed under Section 7.7(7), (D)
Debt not exceeding $4,000,000 in the aggregate (E) capitalized lease
obligations and (F) Debt owed to a Consolidated Entity.
(11) Guaranties. Except for the existing guaranty by Hibbett of the
----------
obligations of SW under the QRS Lease and any other guaranty by a Borrower
of another Consolidated Entity's obligations, Hibbett will not, and will
not permit any Consolidated
29
<PAGE>
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.
(13) Sale-Leaseback. Except for (i) the Lease Agreement between QRS
--------------
12-14 (AL), Inc. and SW dated February 12, 1996 and any amendments or
supplements thereto (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. The Borrowers shall 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 Lender; 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.
30
<PAGE>
SECTION 7.9 COOPERATION; INSPECTION OF PROPERTIES. The Borrowers shall,
-------------------------------------
and shall cause the Consolidated Entities to, permit the Lender and its
representatives, at the Lender'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 for general corporate purposes.
SECTION 7.11 TRANSACTIONS WITH AFFILIATES. Except as set forth in Exhibit
---------------------------- -------
F, 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
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 Lender 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:
31
<PAGE>
(a) default in the due payment of any principal or interest payable on
any Advance 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 Lender gives Hibbett telephonic (confirmed promptly in
writing) or written notice of such default; provided, however, that the
Lender shall not be required to provide such notice more than 3 times in
any 12 consecutive month period; or
(b) any of the Borrowers shall default in the observance or
performance of any provision in Sections 77, 78, 710, 712 and 713; or
(c) any of the Borrowers shall default in the performance or
observance of any provision of this Agreement, except those covered by
clauses (a) or (b) above, and shall not cure such default within 30 days
after the date the Lender gives written or telephonic notice of the default
to Hibbett; or
(d) 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 Lender by or on
behalf of the Borrowers, was misleading or untrue in any material respect
at the time it was made; or
(e) 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
(f) 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
(g) 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),
32
<PAGE>
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 (h) 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
(h) 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
(i) 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 and
the same shall remain undischarged for a period of 30 days during which
execution shall not be effectively stayed; or
(j) (1) The persons listed on Exhibit G hereto and the beneficiaries
---------
of any trusts listed therein, taken together, shall cease to beneficially
own and control, directly or indirectly, at least (a) 50% of the number of
issued and outstanding shares of the capital stock of Hibbett entitled
(without regard to the occurrence of any contingency) to vote for the
election of a majority of the members of the board of directors of Hibbett
(the "Voting Shares") beneficially owned and controlled by them on the
Closing Date (as such number may be adjusted for stock splits, combinations
and similar events) and (b) 20% of the total issued and outstanding Voting
Shares at any time, or (2) Hibbett ceases to beneficially own and control
at least one hundred percent (100%) of the issued and outstanding shares of
each class of capital stock of the Initial Participating Entities.
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
Lender may declare any obligation of the Lender to make further Advances
terminated, whereupon the obligation of the Lender to make further Advances
hereunder shall terminate immediately, and (ii) the Lender may 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 Lender, 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
33
<PAGE>
an Event of Default under clauses (f) or (g) above, then the obligation of
the Lender 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 Lender or notice to the Lender; and
(B) the Lender may exercise any and all rights and remedies available
to the Lender under the Loan Documents and applicable law.
SECTION 8.2 CUMULATIVE RIGHTS. No right or remedy herein conferred upon
-----------------
the Lender 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 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 8.3 NO WAIVER. No course of dealing between the Borrowers and the
---------
Lender or any failure or delay on the part of the Lender 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 8.4 DEFAULT. The Lender 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 Lender (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
Lender 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.
ARTICLE 9
MISCELLANEOUS
-------------
SECTION 9.1 PARTICIPATIONS. The Borrowers and the Lender understand that
--------------
the Lender may grant a participation in the Note, Loans and interest in the
Credit Obligations and the Loan Documents to any Affiliate of the Lender, and
all communications with the Lender and the Borrowers shall be solely with the
Lender and not with any participant. The Borrowers agree that any participant
or subparticipant (which, like a participant, must be an Affiliate of the
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 participant or subparticipant in the Credit
Obligations and the Loan Documents. For purposes of this Section 91 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
34
<PAGE>
Obligations. Nothing contained in this section shall affect the Lender's right
of set-off (under Section 93 or applicable law) with respect to the entire
amount of the Credit Obligations, notwithstanding any such participation or
subparticipation. The Lender may divulge to any participant or subparticipant
all information, reports, financial statements, certificates and documents
obtained by the Lender from any of the Borrowers or any other person under any
provisions of this Agreement or the other Loan Documents or otherwise.
SECTION 9.2 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 the Lender 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 92.
(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 92, 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, 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 9.3 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 the Lender (including any branches,
agencies or Affiliates of the 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
35
<PAGE>
whether or not any demand shall have been made under the Loan Documents and
although such obligations may be unmatured. The 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 the Lender. The rights of the
Lender under this Section 93 are in addition to all other rights and remedies
(including other rights of set-off or pursuant to any banker's lien) that the
Lender may have.
SECTION 9.4 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 Lender of the Loans and the execution
and delivery to the Lender of this Agreement, the Note and the other Loan
Documents and shall continue in full force and effect so long as any of the
Credit Obligations remain outstanding.
SECTION 9.5 EXPENSES. (a) The Borrowers shall pay all reasonable out-of-
--------
pocket expenses of the Lender, including fees and disbursements of counsel for
the Lender, in connection with the preparation of the Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder (including those in connection with
collection and other enforcement proceedings resulting therefrom), other than
expenses due to the Lender's own gross negligence or willful misconduct. Any
amount paid or advanced by the Lender under this section or the other Loan
Documents not immediately reimbursed to the Lender 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 95 shall survive the payment in full of the
Credit Obligations and the termination of this Agreement.
SECTION 9.6 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 9.7 SUBMISSION TO JURISDICTION. Each Borrower irrevocably (a)
--------------------------
acknowledges that this Agreement will be accepted by the Lender 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,
36
<PAGE>
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 92; (f) agrees that service in accordance with this Section 97 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 97 shall limit or restrict the Lender's right to serve process or bring
Agreement Actions in manners and in courts otherwise than as herein provided.
SECTION 9.8 TERMINATION. The termination of this Agreement shall not
-----------
affect any rights of the Borrowers or the Lender or any obligation of the
Borrowers or the Lender, 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 Lender for the benefit of
the Lender 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 Lender with an indemnification satisfactory to
the Lender 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 otherwise provided herein.
Notwithstanding the foregoing, if after receipt of any payment of all or any
part of the Credit Obligations, the Lender is 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 Lender
harmless for, the amount of such payment surrendered until the Lender 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 Lender in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Lender's rights under
this Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
37
<PAGE>
SECTION 9.9 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, the internal laws and judicial decisions
of the State of Alabama.
SECTION 9.10 INDEMNIFICATION. In consideration of the execution and
---------------
delivery of this Agreement by the Lender, and so long as the Lender has
fulfilled its obligations hereunder, each of the Borrowers hereby indemnifies,
exonerates and holds the Lender and its 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 Borrower,
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 Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 9.11 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 9.12 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;
38
<PAGE>
provided, however, that the Borrowers may not assign or transfer their rights or
obligations hereunder without the prior written consent of the Lender. The
Lender may not assign or transfer its interest hereunder except as otherwise
provided in this Agreement.
SECTION 9.13 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 9.14 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
Lender 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 9.15 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 resolved, it shall be
resolved solely in accordance with the provisions of this Section 915.
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 915, 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.
39
<PAGE>
(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 915 shall limit any right that any party may
otherwise have to seek to obtain preliminary injunctive relief in order to
preserve the status quo pending the disposition of any such arbitration
proceeding.
40
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers and the Lender 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:
451 Industrial Lane
Birmingham, Alabama 35211
FAX: (205) 912-7293
Attention: Chief Financial Officer
<PAGE>
AMSOUTH BANK
By: ____________________________________________
Its Senior Vice President
Hand Delivery Address:
7th Floor, AmSouth-Sonat Tower
1900 Fifth Avenue North
Birmingham, Alabama 35203
FAX: (205) 801-0157
Attention: Regional Banking Department
Mailing Address:
Post Office Box 11007
Birmingham, Alabama 35288
FAX: (205) 801-0157
Attention: Regional Banking Department
<PAGE>
EXHIBIT 13.1
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
January 30, January 31, February 1, February 3, January 28,
1999 1998 1997 1996 1995
--------------- --------------- -------------- --------------- ------------
(52 Weeks) (52 Weeks) (52 Weeks) (53 Weeks) (52 Weeks)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA :
Net sales $ 143,350 $ 113,563 $ 86,401 $ 67,077 $ 52,266
Cost of goods sold, including warehouse,
distribution, and store occupancy costs 100,409 78,714 60,017 46,642 36,225
--------------- --------------- -------------- --------------- ------------
Gross profit 42,941 34,849 26,384 20,435 16,041
Store operating, selling, and administrative
expenses 28,720 22,947 17,339 (1) 13,471 10,453
Depreciation and amortization 3,056 2,286 1,821 1,322 1,066
--------------- --------------- -------------- --------------- ------------
Operating Income 11,165 9,616 7,224 5,642 4,522
Interest expense, net 141 8 2,642 1,685 (2) 654
--------------- --------------- -------------- --------------- ------------
Income before provision for income
taxes and extraordinary item 11,024 9,608 4,582 3,957 3,868
Provision for income taxes 4,234 3,675 1,752 1,514 1,479
--------------- --------------- -------------- --------------- ------------
Income before extraordinary item 6,790 5,933 2,830 2,443 2,389
Extraordinary item, net - - (1,093)(3) - -
--------------- --------------- -------------- --------------- ------------
Net income $ 6,790 $ 5,933 $ 1,737 $ 2,443 $ 2,389
=============== =============== ============== =============== ============
Earnings per common share:
Basic:
Income before extraordinary item $ 1.06 $ 0.95 $ 0.62 $ 0.42 $ 0.37
Extraordinary item, net - - (0.24) (3) - -
--------------- --------------- -------------- --------------- ------------
Net income $ 1.06 $ 0.95 $ 0.38 $ 0.42 $ 0.37
=============== =============== ============== =============== ============
Diluted:
Income before extraordinary item $ 1.04 $ 0.93 $ 0.61 $ 0.42 $ 0.37
Extraordinary item, net - - (0.24) (3) - -
--------------- --------------- -------------- --------------- ------------
Net income $ 1.04 $ 0.93 $ 0.37 $ 0.42 $ 0.37
=============== =============== ============== =============== ============
Weighted average shares outstanding:
Basic 6,403,922 6,227,415 4,552,118 5,820,763 (2) 6,504,521
Diluted 6,557,273 6,362,755 4,671,268 5,838,267 (2) 6,504,521
SELECTED OPERATING DATA :
- -----------------------
Number of stores open at end of period:
Hibbett Sports 156 107 77 56 52
Sports & Co. 4 4 4 3 -
Sports Additions 11 9 8 8 8
--------------- --------------- -------------- --------------- ------------
Total 171 120 89 67 60
=============== =============== ============== =============== ============
BALANCE SHEET DATA :
- ------------------
Working capital $ 29,127 $ 25,649 $ 16,280 $ 10,907 $ 7,459
Total assets 68,552 53,366 40,358 36,702 22,787
Total debt - - - (3) 31,912 (2) 5,328
Stockholders' investment (deficit) 45,260 38,155 26,512 (3) (8,093) (2) 8,259
</TABLE>
<PAGE>
FOOTNOTES (DOLLARS IN THOUSANDS):
(1) Includes a $513 pre-tax gain on the sale of the Company's former
headquarters and distribution facility and a one-time pre-tax compensation
expense of $462 related to stock options issued on August 1, 1996.
(2) In November 1995, the Company completed the Recapitalization. The
Recapitalization included the repurchase and retirement of 5,609,836 shares
of common stock for cash and debt and the issuance of 2,886,721 new shares
of common stock and debt in exchange for cash. The Recapitalization
resulted in a substantial increase in total debt outstanding and a deficit
in stockholders' investment.
(3) During the third quarter of fiscal 1997 ended November 2, 1996, the Company
completed its initial public offering with net proceeds of $32,868. In
connection therewith, a substantial portion of the Company's long-term debt
was repaid resulting in an extraordinary loss of $1,093 (net of applicable
tax benefit of $677).
16
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
OVERVIEW
Hibbett is a rapidly-growing operator of full-line sporting goods stores in
small to mid-sized markets in nineteen states, predominantly in the Southeast.
Hibbett's stores offer a broad assortment of quality athletic equipment,
footwear and apparel at competitive prices with superior customer service. The
Company's merchandise assortment features a core selection of brand name
merchandise emphasizing team and individual sports complemented by a selection
of localized apparel and accessories designed to appeal to a wide range of
customers within each market. The Company believes that its stores are among the
primary retail distribution alternatives for brand name vendors that seek to
reach Hibbett's target markets.
As of January 30, 1999, the Company operated 156 Hibbett Sports stores as
well as eleven smaller-format Sports Additions athletic shoe stores and four
larger-format Sports & Co. superstores. Hibbett's primary retail format and
growth vehicle is Hibbett Sports; a 5,000 square foot store located primarily in
enclosed malls as well as dominant strip center locations. Although competitors
in some markets may carry product lines and national brands similar to Hibbett,
the Company believes that its Hibbett Sports stores are typically the primary,
full-line sporting goods retailers in their markets due to, among other factors,
the extensive selection of traditional team and individual sports merchandise
offered and a high level of customer service.
Beginning in fiscal 1994, Hibbett accelerated its store-opening rate to
approximately 10 stores per year. Since then, the Company has further
accelerated its rate of new store openings to take advantage of the growth
opportunities in its target markets. From fiscal 1995 through fiscal 1998, the
Company substantially increased its store base, growing from 49 to 120 stores.
In fiscal 1999, the Company opened 51 new Hibbett Sports stores and two Sports
Additions stores. The Company closed two Hibbett Sports stores in fiscal 1999.
The Company's expansion strategy is to continue to open new Hibbett Sports
stores in its target markets. The Company plans to open approximately 55
Hibbett Sports stores in fiscal 2000.
In fiscal 1996 and 1997, the Company increased its staffing levels in
finance, merchandising, real estate, distribution and field management to
support its expansion plans. In addition, the Company moved into a new
headquarters and distribution center in January 1996 which has significant
expansion potential to support the Company's growth for the foreseeable future.
In anticipation of continued growth, the Company has begun planning an expansion
of the distribution center to be completed by the end of fiscal 2000.
In October 1996, the Company completed its initial public offering of
2,300,000 shares of common stock at the initial public offering price of $16.00
per share. The net proceeds to the Company of approximately $33.0 million were
used to repay the subordinated notes and accrued interest thereon, to repay the
term loan and accrued interest thereon, and to reduce borrowings under the
revolving loan agreement.
In October 1997, the Company completed a secondary public offering of
1,133,197 shares of common stock at the offering price of $27.75 per share. Of
the 1,133,197 shares of common stock offered, 933,197 shares were offered by
certain selling shareholders and 200,000 shares were offered by the Company.
The net proceeds to the Company of approximately $4.8 million were used to
reduce borrowings under the revolving credit facility and for working capital
and general corporate purposes.
The Company operates on a 52 or 53 week fiscal year ending on the Saturday
nearest to January 31 of each year. The consolidated statements of operations
for the fiscal years ended January 30, 1999, January 31, 1998 and February 1,
1997, include 52 weeks of operations. Hibbett is incorporated under the laws of
the State of Delaware.
17
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth consolidated statements of operations
expressed as a percentage of net sales for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------------
January 30, January 31, February 1,
1999 1998 1997
---------------- ---------------- -----------------
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Cost of goods sold, including warehouse,
distribution, and store occupancy costs 70.0 69.3 69.5
----- ----- -----
Gross profit 30.0 30.7 30.5
Store operating, selling, and admin. expenses 20.0 20.2 20.1
Depreciation and amortization 2.1 2.0 2.1
----- ----- -----
Operating income 7.9 8.5 8.3
Interest expense, net 0.1 0.0 3.0
----- ----- -----
Income before provision for income taxes
and extraordinary item 7.8 8.5 5.3
Provision for income taxes 3.0 3.3 2.0
----- ----- -----
Income before extraordinary item 4.8 5.2 3.3
Extraordinary item, net 0.0 0.0 (1.3)
----- ----- -----
Net income 4.8% 5.2% 2.0%
====== ====== ======
</TABLE>
FISCAL 1999 COMPARED TO FISCAL 1998
Net sales. Net sales increased $29.8 million, or 26.2%, to $143.4 million
for the fifty-two weeks ended January 30, 1999, from $113.6 million for the
fifty-two weeks ended January 31, 1998. The increase is attributable to the
opening of fifty-one Hibbett Sports stores, two Sports Additions stores, and a
2.7% increase in comparable store net sales. The increase in comparable store
net sales was due primarily to increased equipment sales as well as increased
apparel and accessory sales. New stores and stores not in the comparable store
net sales calculation accounted for $27.5 million of the increase in net sales
and increases in comparable store net sales contributed $2.3 million. During
fiscal 1999, the Company also closed two Hibbett Sports stores. Comparable
store net sales data for the period reflect sales for the Company's traditional
format stores open throughout the period and the corresponding period of the
prior fiscal year.
Gross profit. Cost of goods sold includes the cost of inventory, occupancy
costs for stores and occupancy and operating costs for the distribution center.
Gross profit was $42.9 million, or 30.0% of net sales, in the fifty-two weeks
ended January 30, 1999, as compared to $34.9 million, or 30.7% of net sales, in
the prior fiscal year. The decrease in gross profit as a percent to sales was
primarily the result of lower apparel product margins in the fourth quarter and
higher store occupancy costs as a percentage of net sales as a result of the
increased number of new stores in the store base. Lower apparel product margins
were primarily the result of higher markdowns on winter apparel due to unusual
weather patterns during the fourth quarter.
Store operating, selling and administrative expenses. Store operating,
selling and administrative expenses were $28.7 million, or 20.0% of net sales,
in fiscal 1999 as compared to $23.0 million, or 20.2% of net sales, in fiscal
1998. The decrease in store operating, selling and administrative expenses as a
percentage of net sales in fiscal 1999 is primarily attributable to improved
leveraging of administrative costs over increased sales.
18
<PAGE>
Depreciation and amortization. Depreciation and amortization as a
percentage of net sales increased slightly to 2.1% in the fifty-two weeks ended
January 30, 1999 from 2.0% in the prior year due to the increase in the number
of new stores in the store base.
Interest expense, net. Net interest expense for the fifty-two weeks ended
January 30, 1999 was $141,000 compared to $8,000 in the prior year period. The
increase is attributable to higher levels of borrowing on the Company's
revolving credit facility in the current fiscal year to fund new store openings.
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales. Net sales increased $27.2 million, or 31.4%, to $113.6 million
for the fifty-two weeks ended January 31, 1998, from $86.4 million for the
fifty-two weeks ended February 1, 1997. The increase is attributable to the
opening of thirty-one Hibbett Sports stores, two Sports Additions stores, and a
6.4% increase in comparable store net sales. The increase in comparable store
net sales was due primarily to increased ladies and kids footwear and apparel
sales as well as increased equipment sales and improved inventory processing at
the distribution center. New stores and stores not in the comparable store net
sales calculation accounted for $23.1 million of the increase in net sales and
increases in comparable store net sales contributed $4.1 million. During fiscal
1998, the Company also closed one Hibbett Sports store and one Sports Additions
store.
Gross profit. Cost of goods sold includes the cost of inventory, occupancy
costs for stores and occupancy and operating costs for the distribution center.
Gross profit was $34.9 million, or 30.7% of net sales, in the fifty-two weeks
ended January 31, 1998, as compared to $26.4 million, or 30.5% of net sales, in
the prior fiscal year. The increase in gross profit as a percent to sales was
the result of a slightly higher product margin combined with improved leveraging
of warehouse and distribution costs over higher sales.
Store operating, selling and administrative expenses. Store operating,
selling and administrative expenses were $23.0 million, or 20.2% of net sales,
in fiscal 1998 as compared to $17.3 million, or 20.1% of net sales, in fiscal
1997. Lower advertising costs in fiscal 1998 as a percent of sales were offset
by higher public company related costs in the Company's first full year as a
public company, as well as the costs associated with the opening of 33 new
stores as compared to 22 new stores in the prior year.
Depreciation and amortization. Depreciation and amortization as a
percentage of net sales declined slightly to 2.0% in the fifty-two weeks ended
January 31, 1998 from 2.1% in the prior year due to the increase in net sales.
Interest expense, net. The $2.6 million decrease in net interest expense
for the fifty-two weeks ended January 31, 1998 compared to the prior year period
is primarily the result of the repayment of long-term debt with the proceeds of
the initial public offering in October 1996.
FISCAL 1997 COMPARED TO FISCAL 1996
Net sales. Net sales increased $19.3 million, or 28.8%, to $86.4 million
for the fifty-two weeks ended February 1, 1997, from $67.1 million for the
fifty-three weeks ended February 3, 1996. New stores and stores not in the
comparable store net sales calculation accounted for $14.3 million of the
increase in net sales and increases in comparable store net sales contributed
$5.0 million. Excluding the effect of the additional week of sales in the prior
year period, net sales increased 30.4%. The increase in sales in fiscal 1997 is
attributable to the opening of twenty-one Hibbett Sports stores and one Sports &
Co. superstore and a 10.2% increase in comparable store net sales for the 52-
week comparable period. The increase in comparable store net sales was due
primarily to increased footwear sales and improved inventory processing at the
new distribution center.
Gross profit. Gross profit was $26.4 million, or 30.5% of net sales, in the
fifty-two weeks ended February 1, 1997, as compared to $20.4 million, or 30.5%
of net sales, in the prior fiscal year. Improved
19
<PAGE>
leveraging of store occupancy costs over higher sales was offset by higher
markdowns in the current year.
Store operating, selling and administrative expenses. Store operating,
selling and administrative expenses for the fifty-two weeks ended February 1,
1997 include a net gain of $533,000 on the disposal of assets which primarily
relates to the $513,000 gain on the sale of the former headquarters and
distribution facility. The net gain was substantially offset by a one-time
compensation expense of approximately $462,000 related to the issuance of stock
options on August 1, 1996. Excluding these items, store operating, selling and
administrative expenses were $17.4 million, or 20.1% of net sales, for the
fifty-two weeks ended February 1, 1997, as compared to $13.5 million, or 20.1%
of net sales, for the fifty-three weeks in the year ago period.
Depreciation and amortization. Depreciation and amortization as a
percentage of net sales increased slightly to 2.1% in the fifty-two weeks ended
February 1, 1997 from 2.0% in the prior year.
Interest expense. The $957,000 increase in interest expense for the fifty-
two weeks ended February 1, 1997 compared to the prior year is due primarily to
the interest expense associated with the subordinated notes which were issued in
connection with the Recapitalization in November 1995 (see Note 2 to the
Consolidated Financial Statements) and, to a lesser extent, to an increase in
borrowings under the revolving loan agreement to fund new store openings. In
connection with the initial public offering, the Company repaid a substantial
portion of its long-term debt.
Extraordinary item, net. The $1.1 million extraordinary item is the result
of the early extinguishment of debt with the proceeds of the initial public
offering. This item is shown net of the applicable income tax benefit of
$677,000.
LIQUIDITY AND CAPITAL RESOURCES
The Company's capital requirements relate primarily to new store openings
and working capital requirements. The Company's working capital requirements are
somewhat seasonal in nature and typically reach their peak near the end of the
third and the beginning of the fourth quarter of its fiscal year. Historically,
the Company has funded its cash requirements primarily through cash flow from
operations and borrowings under its revolving loan facilities.
Net cash provided by operating activities has historically been driven by
net income levels combined with fluctuations in inventory and accounts payable
balances. Income before extraordinary item has increased in each of the last
three fiscal years. In addition, the Company has continued to increase its
inventory levels throughout these periods as the number of stores has increased.
These inventory increases were primarily financed with cash from operations in
each of the last three fiscal years. These activities resulted in cash flows
provided by operating activities of $2.6 million, $1.5 million, and $1.8 million
in fiscal 1999, fiscal 1998, and fiscal 1997, respectively.
With respect to cash flows from investing activities, capital expenditures
for fiscal 1999 were $6.3 million compared with $4.6 million in fiscal 1998 and
$4.3 million in fiscal 1997. The higher capital expenditures in fiscal 1999
resulted primarily from the opening of 51 new Hibbett Sports stores and two
Sports Additions stores as compared to 33 new Hibbett Sports stores in fiscal
1998. During fiscal 1997, the Company completed the sale-leaseback of its new
headquarters and distribution center and the sale of the former headquarters and
warehouse facilities. The Company used the proceeds of $5.3 million to (1) repay
$4.3 million then outstanding under the senior subordinated notes issued to
temporarily finance the new headquarters and distribution center, and (2) to
fund its working capital requirements.
The Company estimates capital expenditures in fiscal 2000 to be
approximately $7.3 million which will fund the opening of approximately 55
Hibbett Sports stores, remodel selected existing stores, and fund headquarters
and distribution center related capital expenditures, excluding a planned
expansion to the
20
<PAGE>
distribution center. The Company anticipates the expansion will be completed by
the end of fiscal 2000 and will be incorporated into the existing long term
operating lease for the facility.
Net cash provided by (used in) financing activities was $127,000, $5.2
million and ($539,000) in fiscal 1999, fiscal 1998, and fiscal 1997,
respectively. Cash flows from financing activities have historically represented
the Company's financing of its long-term growth. Proceeds from the Company's
secondary public stock offering in October 1997 were $4.8 million. The proceeds
were used to reduce borrowings under the revolving credit facility and for
working capital and general corporate purposes. In fiscal 1997, the Company used
the net proceeds of $32.9 million from the initial public stock offering to
repay long-term debt and revolving loan borrowings.
On November 5, 1998, the Company established a new unsecured revolving
credit facility which will expire November 5, 2001 and allows borrowings up to
$25 million. The Company also established an unsecured working capital line of
credit for $5 million which is subject to annual renewal. As of January 30,1999,
the Company had no borrowings outstanding under the new facility or the working
capital line of credit. Based on its current operating and store opening plans,
the Company believes that it can adequately fund its cash needs for the
foreseeable future through borrowings under the new facility, the working line
of credit and cash generated from operations.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 130, Reporting
Comprehensive Income, which establishes standards for reporting and display of
"comprehensive income," which is the total of net income and all other non-owner
changes in stockholders' equity, and its components. This standard was adopted
in fiscal 1999 and did not have a significant impact on the Company's financial
reporting.
In June 1997, the FASB issued SFAS No. 131, Disclosures about Segments of
an Enterprise and Related Information. SFAS No. 131, which supersedes SFAS Nos.
14,18, 24 and 30, establishes new standards for segment reporting, using the
"management approach," in which reportable segments are based on the same
criteria that management disaggregates a business for making operating decisions
and assessing performance. This standard was adopted in fiscal 1999 and did not
have a significant impact on the Company's financial reporting.
In February 1998, the FASB issued SFAS No. 132, Employers' Disclosures
about Pensions and Other Post-retirement Benefits. SFAS No. 132, which
supersedes SFAS Nos. 87, 88, and 106, standardizes the disclosure requirements
for pensions and other post-retirement benefits to the extent practicable,
requires additional information on changes in the benefit obligations and fair
values of plan assets that will facilitate financial analysis, and eliminates
certain disclosures that are no longer as useful as they were when SFAS Nos. 87,
88 and 106, were issued. This standard was adopted in fiscal 1999 and did not
have a significant impact on the Company's financial reporting.
The American Institute of Certified Public Accountants ("AICPA"), has
issued Statement of Position ("SOP"), 98-1, Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use. This statement requires
capitalization of external direct costs of materials and services, payroll and
payroll related costs for employees directly associated, and interest cost
during development of computer software for internal use. Capitalized software
costs should be amortized on a straight-line basis unless another systematic and
rational basis is more representative of the software's use. This statement is
not expected to have a material effect on the Company's financial statements.
The AICPA has issued SOP 98-5, Reporting on the Costs of Start-up
Activities. This statement provides guidance on the financial reporting of
start-up costs and organization costs, and requires these costs to be expensed
as incurred. The new rules are not expected to have a significant impact on the
Company's financial statements.
21
<PAGE>
DIVIDEND POLICY
The Company has never declared or paid any dividends on its common stock.
The Company currently intends to retain its future earnings to finance the
growth and development of its business and therefore does not anticipate
declaring or paying cash dividends on its common stock for the foreseeable
future. Any future decision to declare or pay dividends will be at the
discretion of the Board of Directors and will be dependent upon the Company's
financial condition, results of operations, capital requirements and other
factors as the Board of Directors deems relevant.
YEAR 2000 COMPLIANCE
During fiscal 1999, the Company has continued to evaluate its management
information systems to identify and address Year 2000 issues. In connection
therewith, the Company has classified its Year 2000 emphasis into five areas:
1. Information systems that are critical to daily operations (receiving
and processing of merchandise, executing sales at store level, and
processing payroll and other financial accounting functions, etc.)
2. Information systems that are important but not critical to daily
operations (tracking supply inventories, electronically sending
purchase orders, etc.)
3. Customized, internally developed programs or interfaces with the above
mentioned systems (radio frequency system in the warehouse, sales
audit system, etc.)
4. Non information technology items (phone system, security system,
warehouse conveyors, heating and air systems, etc.)
5. Third party (vendor) compliance
The Company has classified its Year 2000 implementation program into four areas
1. Evaluation and Initial Assessment
2. Remediation/Reprogramming
3. Testing
4. Contingency Planning
The following table outlines the Company's current status regarding the
first two areas of its Year 2000 implementation program:
<TABLE>
<CAPTION>
Percent Complete
--------------------------------------------------
Evaluation & Remediation &
Classification/ Program Assessment Reprogramming
- --------------------------------------------------- ---------------------- ----------------------
<S> <C> <C>
1. Critical Systems:
----------------
Merchandising & Distribution 100% 100%
Financial & Payroll 100% 100%
Point of Sale/Store Registers 95% 70%
Mainframe Processing 100% 100%
2. Important but not critical systems 95% 80%
3. Custom developed programs & interfaces 100% 100%
4. Non Information Technology items 95% 60%
5. Third Party Compliance 95% 20%
</TABLE>
22
<PAGE>
The Company has plans in place to complete its Year 2000 implementation,
including testing of all systems, by the middle of calendar year 1999. The
Company plans to continue to rely primarily on internal resources in order to
complete these steps.
The Company's financial, merchandising and distribution systems are third
party vendor software programs which have been recently upgraded and are
certified as Year 2000 compliant by the software vendors. These upgrades were
previously planned and were not accelerated due to Year 2000 issues.
The Company's point of sale system operates the cash registers in the
stores. The registers run on a personal computer system using third party
software. The software has been upgraded in order to accept credit cards with
expiration dates beyond December 31, 1999, and all other significant date
sensitive applications except for layaway transactions which are not material to
the Company. The point of sale operating system and networking system is in the
process of being upgraded to be Year 2000 compliant.
The Company has not deferred any significant information technology
projects in order to address the Year 2000 issue.
Based on present information, the Company believes that its current plans
as outlined above will substantially mitigate the risk of a material disruption
in the Company's operations due to internal Year 2000 factors. However,
possible consequences of the Company not being Year 2000 compliant include, but
are not limited to, loss of revenues, loss of communication capability with
stores, inability to process or quantify merchandise, and inability to engage in
other operational and financial activities.
At the present time, the Company has not established a contingency plan for
possible Year 2000 issues. The Company expects to consider contingency plans
based on the results of its Year 2000 testing and its assessment of related
risks.
Additionally, the Company is in the process of communicating with third
parties in order to assess their Year 2000 readiness and the extent to which the
Company may be vulnerable to any third parties' failure to remediate their Year
2000 issues. Many of these parties have stated their ability to supply the
Company will not be affected by the Year 2000 issue. Management believes that
the Company's largest vendor, Nike, has made significant progress toward their
Year 2000 compliance and does not expect any material disruption therefrom.
However, the Company cannot assure timely compliance of third parties, including
any other material vendors, and may be adversely affected by failure of a
significant third party to become Year 2000 compliant.
Approximately $145,000 has been expended to date related to Year 2000
compliance. The Company currently expects that the total costs of Year 2000
compliance for the Company's current systems will not exceed $185,000, which
includes the lease or purchase of a system dedicated for Year 2000 testing.
These costs are not expected to have a significant impact on the Company's
financial position or results of operations.
The costs associated with Year 2000 compliance are based on management's
current views with respect to future events and may be updated as additional
information becomes available. Please refer to the Special Note Regarding
Forward Looking Statements.
MARKET RISK
The Company's financial condition, results of operations and cash flows are
subject to market risk from interest rate fluctuations on its revolving credit
facility and working capital line of credit, each of which bears interest at
rates that vary with LIBOR, prime or quoted cost of funds rates. The average
amount of borrowings outstanding under these agreements during fiscal 1999 was
$4,550,992, the maximum amount outstanding was $11,024,717 and the weighted
average interest rate was 6.49%. A
23
<PAGE>
10% increase or decrease in market interest rates would not have a material
impact on the Company's financial condition, results of operations or cash
flows.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
The statements contained in this report that are not purely historical or
which might be considered an opinion or projection concerning the Company or its
business, whether express or implied, are forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995. These
statements may include statements regarding the Company's expectations,
intentions, plans or strategies regarding the future, including statements
related to the Year 2000 issue. All forward-looking statements included in this
document are based upon information available to the Company on the date hereof,
and the Company assumes no obligation to update any such forward-looking
statements. It is important to note that the Company's actual results could
differ materially from those described or implied in such forward-looking
statements because of, among other factors, the ability of the Company to
execute its expansion plans, a shift in demand for the merchandise offered by
the Company, the Company's ability to obtain brand name merchandise at
competitive prices, the effect of regional or national economic conditions and
the effect of competitive pressures from other retailers. In addition, the
reader should consider the risk factors described from time to time in the
Company's other documents and reports, including the factors described under
"Risk Factors" in the Company's Registration Statement on Form S-1, filed with
the Securities and Exchange Commission on October 1, 1997, and any amendments
thereto.
QUARTERLY FLUCTUATIONS
The Company has historically experienced and expects to continue to
experience seasonal fluctuations in its net sales and operating income. The
Company's net sales and operating income are typically higher in the fourth
quarter due to sales increases during the holiday selling season. However, the
seasonal fluctuations are mitigated by the strong product demand in the spring,
summer and back-to-school sales periods. The Company's quarterly results of
operations may also fluctuate significantly as a result of a variety of factors,
including the timing of new store openings, the amount and timing of net sales
contributed by new stores, the level of pre-opening expenses associated with new
stores, the relative proportion of new stores to mature stores, merchandise mix,
the relative proportion of stores represented by each of the Company's three
store concepts and demand for apparel and accessories driven by local interest
in sporting events.
24
<PAGE>
The following tables set forth certain unaudited financial data for the quarters
indicated:
UNAUDITED QUARTERLY FINANCIAL DATA
(Dollar amounts in thousands, except per share amounts)
<TABLE>
<CAPTION>
Fiscal Year Ended January 30, 1999
----------------------------------------------------------------
First Second Third Fourth
(13 Weeks) (13 Weeks) (13 Weeks) (13 Weeks)
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 33,321 $ 32,524 $ 35,988 $ 41,517
Gross profit 10,163 9,617 10,913 12,248
Operating income 2,964 2,185 2,874 3,142
Net income $ 1,858 $ 1,352 $ 1,739 $ 1,841
============= ============= ============= =============
Basic earnings per common share:
Net income $ 0.29 $ 0.21 $ 0.27 $ 0.29
============= ============= ============= =============
Diluted earnings per common share:
Net income $ 0.28 $ 0.21 $ 0.27 $ 0.28
============= ============= ============= =============
<CAPTION>
Fiscal Year Ended January 31, 1998
----------------------------------------------------------------
First Second Third Fourth
(13 Weeks) (13 Weeks) (13 Weeks) (13 Weeks)
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 26,165 $ 26,393 $ 27,797 $ 33,208
Gross profit 8,039 7,838 8,491 10,481
Operating income 2,281 1,611 2,193 3,531
Net income $ 1,424 $ 986 $ 1,350 $ 2,173
============= ============= ============= =============
Basic earnings per common share:
Net income $ 0.23 $ 0.16 $ 0.22 $ 0.34
============= ============= ============= =============
Diluted earnings per common share:
Net income $ 0.23 $ 0.16 $ 0.21 $ 0.33
============= ============= ============= =============
</TABLE>
In the opinion of the Company's management, this unaudited information has been
prepared on the same basis as the audited information presented elsewhere herein
and includes all adjustments necessary to present fairly the information set
forth therein. The operating results from any quarter are not necessarily
indicative of the results to be expected for any future period.
<PAGE>
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
January 30, January 31,
1999 1998
------------------ -----------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 945 $ 4,498
Accounts receivable, net 2,144 1,839
Inventories 47,694 33,267
Prepaid expenses and other 802 603
Refundable income taxes 96 47
Deferred income taxes 738 606
------------------ -----------------
Total current assets 52,419 40,860
------------------ -----------------
PROPERTY AND EQUIPMENT:
Land 24 24
Buildings 216 216
Equipment 9,465 6,903
Furniture and fixtures 7,018 5,341
Leasehold improvements 11,762 8,864
Construction in progress 194 1,242
------------------ -----------------
28,679 22,590
Less accumulated depreciation & amortization 13,273 10,475
------------------ -----------------
Total property and equipment 15,406 12,115
------------------ -----------------
NONCURRENT ASSETS:
Deferred income taxes 505 364
Other, net 222 27
------------------ -----------------
Total noncurrent assets 727 391
------------------ -----------------
Total Assets $ 68,552 $ 53,366
================== =================
LIABILITIES AND STOCKHOLDERS' INVESTMENT
CURRENT LIABILITIES:
Accounts payable $ 16,233 $ 10,951
Accrued income taxes 2,477 860
Accrued expenses:
Payroll-related 2,638 1,813
Other 1,944 1,587
------------------ -----------------
Total current liabilities 23,292 15,211
------------------ -----------------
LONG-TERM DEBT - -
------------------ -----------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' INVESTMENT:
Preferred Stock, $.01 par value, 1,000,000 shares
authorized, no shares outstanding - -
Common Stock, $.01 par value, 12,000,000 shares
authorized, 6,413,780 and 6,393,977 shares issued
and outstanding at January 30, 1999 and
January 31, 1998, respectively 64 64
Paid-in capital 53,996 53,681
Retained earnings (deficit) (8,800) (15,590)
------------------ -----------------
Total stockholders' investment 45,260 38,155
------------------ -----------------
Total Liabilities and Stockholders' Investment $ 68,552 $ 53,366
================== =================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED BALANCE
SHEETS.
<PAGE>
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Fiscal Year Ended
-----------------------------------------------------------
January 30, January 31, February 1,
1999 1998 1997
------------------ ----------------- -----------------
<S> <C> <C> <C>
Net sales $ 143,350 $ 113,563 $ 86,401
Cost of goods sold, including warehouse,
distribution, and store occupancy costs 100,409 78,714 60,017
------------------ ----------------- -----------------
Gross profit 42,941 34,849 26,384
Store operating, selling, and administrative
expenses 28,720 22,947 17,339
Depreciation and amortization 3,056 2,286 1,821
------------------ ----------------- -----------------
Operating income 11,165 9,616 7,224
Interest expense, net 141 8 2,642
------------------ ----------------- -----------------
Income before provision for income taxes
and extraordinary item 11,024 9,608 4,582
Provision for income taxes 4,234 3,675 1,752
------------------ ----------------- -----------------
Income before extraordinary item 6,790 5,933 2,830
Extraordinary item, net of income tax
benefit of $677 - - (1,093)
------------------ ----------------- -----------------
Net income $ 6,790 $ 5,933 $ 1,737
================== ================= =================
Earnings per common share:
Basic:
Income before extraordinary item $ 1.06 $ 0.95 $ 0.62
Extraordinary item, net - - (0.24)
------------------ ----------------- -----------------
Net income $ 1.06 $ 0.95 $ 0.38
================== ================= =================
Diluted:
Income before extraordinary item $ 1.04 $ 0.93 $ 0.61
Extraordinary item, net - - (0.24)
------------------ ----------------- -----------------
Net income $ 1.04 $ 0.93 $ 0.37
================== ================= =================
Weighted average shares outstanding:
Basic 6,403,922 6,227,415 4,552,118
================== ================= =================
Diluted 6,557,273 6,362,755 4,671,268
================== ================= =================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED STATEMENTS.
<PAGE>
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' INVESTMENT
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Common Stock Retained
----------------------------------
Number of Paid-In Earnings
Shares Amount Capital (Deficit)
--------------- ----------- -------------- --------------
<S> <C> <C> <C> <C>
BALANCE, February 3, 1996 23,389,000 $ 234 $ 14,933 $ (23,260)
Net income - - - 1,737
Retroactive effect of 1-for-6.1 reverse stock split (19,554,739) (196) 196 -
Initial public offering of common stock, net
of offering costs of $1,356 2,300,000 23 32,845 -
--------------- ----------- -------------- --------------
BALANCE, February 1, 1997 6,134,261 61 47,974 (21,523)
Net income - - - 5,933
Secondary public offering of common stock,
net of offering costs of $449 200,000 2 4,815 -
Issuance of shares from the employee stock
purchase plan and the exercise of stock options 59,716 1 892 -
--------------- ----------- -------------- --------------
BALANCE, January 31, 1998 6,393,977 64 53,681 (15,590)
Net income - - - 6,790
Issuance of shares from the employee stock
purchase plan and the exercise of stock options 19,803 - 315 -
--------------- ----------- -------------- --------------
BALANCE, January 30, 1999 6,413,780 $ 64 $ 53,996 $ (8,800)
=============== =========== ============== ==============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED STATEMENTS.
<PAGE>
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Fiscal Year Ended
------------------------------------------------------------
January 30, January 31, February 1,
1999 1998 1997
------------------- ----------------- -----------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 6,790 $ 5,933 $ 1,737
------------------- ----------------- -----------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Extraordinary item - - 1,770
Depreciation and amortization 3,056 2,286 1,969
Deferred income taxes (273) (23) (101)
(Gain) loss on disposal of assets 20 31 (533)
Interest expense funded through additional debt - - 14
(Increase) decrease in assets:
Accounts receivable, net (305) 258 (756)
Inventories (14,427) (8,746) (3,816)
Prepaid expenses and other (199) (120) 271
Refundable income taxes (49) 81 291
Other noncurrent assets (237) (12) 9
Increase in liabilities:
Accounts payable 5,282 570 10
Accrued income taxes 1,805 424 436
Accrued expenses 1,182 833 517
------------------- ----------------- -----------------
Total adjustments (4,145) (4,418) 81
------------------- ----------------- -----------------
Net cash provided by operating activities 2,645 1,515 1,818
------------------- ----------------- -----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (6,340) (4,548) (4,308)
Proceeds from sale of property 15 14 5,267
------------------- ----------------- -----------------
Net cash provided by (used in) investing activities (6,325) (4,534) 959
------------------- ----------------- -----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common shares in
public offering - 4,817 32,868
Repayment of subordinated and senior subordinated notes
payable to stockholders - - (20,267)
Revolving loan borrowings and repayments, net - - (12,140)
Repayment of term loan - - (1,000)
Proceeds from options exercised and purchase of shares
under the employee stock purchase plan 127 431 -
------------------- ----------------- -----------------
Net cash provided by (used in) financing activities 127 5,248 (539)
------------------- ----------------- -----------------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS (3,553) 2,229 2,238
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 4,498 2,269 31
------------------- ----------------- -----------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 945 $ 4,498 $ 2,269
=================== ================= =================
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Cash paid during the year for:
Interest $ 235 $ 43 $ 3,006
=================== ================= =================
Income taxes, net of refunds $ 2,596 $ 3,153 $ 846
=================== ================= =================
SUPPLEMENTAL DISCLOSURES OF NONCASH FINANCING
ACTIVITIES:
Noncash recognition of paid-in capital related to exercise
of stock options $ - $ 462 $ -
=================== ================= =================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED STATEMENTS.
<PAGE>
HIBBETT SPORTING GOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BUSINESS
Hibbett Sporting Goods, Inc. (the "Company") is an operator of full-line
sporting goods retail stores in small to mid-sized markets in the southeastern
United States. The Company's fiscal year ends on the Saturday closest to
January 31 of each year. The consolidated statements of operations for fiscal
years ended January 30, 1999, January 31, 1998 and February 1, 1997, include 52
weeks of operations. The Company's merchandise assortment features a core
selection of brand name merchandise emphasizing team and individual sports
complemented by a selection of localized apparel and accessories designed to
appeal to a wide range of customers within each market.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements of the Company include its accounts
and the accounts of all wholly owned subsidiaries. All significant intercompany
balances and transactions have been eliminated in consolidation.
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect (1) the reported amounts of certain assets and
liabilities and disclosure of certain contingent assets and liabilities at the
date of the financial statements, and (2) the reported amounts of certain
revenues and expenses during the reporting period. Actual results could differ
from those estimates.
CONSOLIDATED STATEMENTS OF CASH FLOWS
For purposes of the consolidated statements of cash flows, the Company
considers all short-term, highly liquid investments with original maturities of
three months or less to be cash equivalents.
INVENTORIES
Inventories are valued at the lower of cost or market using the retail
inventory method of accounting, with cost determined on a first-in, first-out
basis and market based on the lower of replacement cost or estimated realizable
value. The Company's business is dependent to a significant degree upon close
relationships with its vendors. During fiscal 1999, the company's largest
vendor, Nike, represented approximately 36% of its purchases.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. It is the Company's policy to
depreciate assets acquired prior to January 28, 1995 using accelerated and
straight-line methods over the estimated service lives (3 to 10 years for
equipment, 5 to 10 years for furniture and fixtures, and 10 to 31.5 years for
buildings) and to amortize leasehold improvements using the straight-line method
over the periods of the applicable leases. Depreciation on assets acquired
subsequent to January 28, 1995 is provided using the straight-line method over
the estimated service lives (3 to 5 years for equipment, 7 years for furniture
29
<PAGE>
and fixtures, and 39 years for buildings) or, in the case of leasehold
improvements, 10 years or over the lives of the respective leases, if shorter.
Maintenance and repairs are charged to expense as incurred. Costs of
renewals and betterments are capitalized by charges to property accounts and are
depreciated using applicable annual rates. The cost and accumulated
depreciation of assets sold, retired, or otherwise disposed of are removed from
the accounts, and the related gain or loss is credited or charged to income.
STORE OPENING COSTS
Non-capital expenditures incurred in preparation for opening new retail
stores are expensed in the period each store opens.
STOCK-BASED COMPENSATION
Compensation cost is measured under the intrinsic value method in
accordance with Accounting Principles Bulletin No. 25. Pro forma disclosures of
net income and earnings per share are presented as if the fair value method had
been applied, as required under Statement of Financial Accounting Standards
("SFAS") No. 123.
FAIR VALUE OF FINANCIAL INSTRUMENTS
In preparing disclosures about the fair value of financial instruments,
management considers that the carrying amount approximates fair value for cash
and cash equivalents, receivables, short-term borrowings and accounts payable,
because of the short maturities of those instruments.
ADVERTISING COSTS
Costs incurred for producing and communicating advertising are expensed
when incurred.
EARNINGS PER SHARE
Basic earnings per share ("EPS") excludes dilution and is computed by
dividing net income by the weighted average number of common shares outstanding
for the period. Diluted EPS reflects the potential dilution that could occur if
securities or other contracts to issue common stock are exercised or converted
into common stock or resulted in the issuance of common stock that then shared
in earnings. Diluted EPS has been computed based on the weighted average number
of shares outstanding, including the effect of outstanding stock options, if
dilutive, in each respective year.
A reconciliation of the weighted average shares for basic and diluted EPS
is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-------------------------------------------------------------------------
JANUARY 30, 1999 JANUARY 31, 1998 FEBRUARY 1, 1997
--------------------- --------------------- ----------------------
<S> <C> <C> <C>
Weighted average shares outstanding:
Basic 6,403,922 6,227,415 4,552,118
Dilutive effect of stock options outstanding 153,351 135,340 119,150
--------------------- --------------------- ----------------------
Diluted 6,557,273 6,362,755 4,671,268
===================== ===================== ======================
</TABLE>
All earnings per share, weighted average shares outstanding, stock options
and stock option per share amounts have been retroactively restated for all
periods presented to reflect the 1-for-6.1 reverse stock split discussed in Note
2. Supplemental basic earnings per share for fiscal 1997 is calculated by
dividing net income after adjustment for applicable interest expense of
$1,491,000 (net of tax), by the
30
<PAGE>
adjusted number of weighted average shares outstanding (6,134,261 shares after
giving effect to the number of shares to repay $31,012,000 of debt).
Supplemental basic earnings per share before and after the extraordinary item
for the fiscal year ended February 1, 1997 was $ .70 and $ .53, respectively.
ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS
The Company continually evaluates whether events and circumstances have
occurred that indicate the remaining balance of long-lived assets and
intangibles may be impaired and not recoverable. The Company's policy is to
recognize any impairment loss on long-lived assets as a charge to current income
when certain events or changes in circumstances indicate that the carrying value
of the assets may not be recoverable.
PRIOR YEAR RECLASSIFICATION
Certain prior year amounts have been reclassified to conform to the current
year presentation.
2. STOCKHOLDERS' INVESTMENT TRANSACTIONS
On November 1, 1995, the Company's Board of Directors approved a series of
equity and debt transactions which resulted in a recapitalization of the Company
and a change in controlling ownership of the common stock outstanding (the
"Recapitalization"). In connection with the Recapitalization, the Company's
Board of Directors (i) increased the number of authorized shares of common stock
from 3,000,000 to 50,000,000 shares, (ii) declared a 38.687189-for-1 stock
split, (iii) approved the repurchase and retirement of 34,220,000 shares
(5,609,836 shares after giving retroactive effect to the 1-for-6.1 reverse stock
split discussed below) of common stock for $1.00 per share ($6.10 per share
after giving retroactive effect to the 1-for-6.1 reverse stock split discussed
below) with $22,250,000 cash and the issuance of $13,051,000 of debt (including
unamortized debt discount), and (iv) approved the issuance of 17,609,000 new
shares (2,886,721 shares after giving effect of the 1-for-6.1 reverse stock
split discussed below) of common stock at $1.00 per share ($6.10 per share after
giving retroactive effect to the 1-for-6.1 reverse stock split discussed below)
and $7,074,000 of debt (including unamortized debt discount) for $24,250,000
cash. Expenses of $2,506,000 were incurred in connection with the
Recapitalization and reduced paid-in capital.
On September 13, 1996, the Company's Board of Directors approved a 1-for-
6.1 reverse stock split of the Company's Common Stock. In addition, the Board of
Directors approved a plan of reorganization which included (i) reincorporating
the Company in the state of Delaware, (ii) decreasing the number of authorized
shares of common stock from 50,000,000 to 12,000,000 shares, and (iii)
authorizing 1,000,000 shares of preferred stock, par value $.01 per share.
All references in the financial statements to weighted average shares
outstanding, earnings per share, and stock options have been restated to reflect
the above stock splits and the reverse stock split.
In October 1996, the Company completed its initial public offering of
2,300,000 shares of common stock at the initial public offering price of $16 per
share. The net proceeds to the Company of $32,868,000 were used to repay the
subordinated notes and accrued interest thereon, to repay the term loan and
accrued interest thereon, and to reduce borrowings under the revolving loan
agreement.
In October 1997, the Company and certain shareholders completed a public
offering of 200,000 primary shares and 933,197 secondary shares at a price of
$27.75 per share. The Company's net proceeds of $4,817,000 were used to reduce
borrowings under the revolving credit facility and for working capital and
general corporate purposes.
31
<PAGE>
3. LONG-TERM DEBT
From October 1996 until November 5, 1998, the Company maintained an
unsecured $20 million revolving credit facility. In November 1998, the Company
established (i) a new $25 million unsecured revolving credit facility which will
expire November 5, 2001, and (ii) a $5 million unsecured working capital line of
credit which is subject to annual renewal (collectively, the "Debt Agreements").
There were no amounts outstanding under the Debt Agreements at January 30, 1999.
The average amount of borrowings outstanding under the applicable loan
agreements during fiscal 1999 was $4,550,992, the maximum amount outstanding was
$11,024,717, and the weighted average interest rate was 6.49%. The average
amount of borrowings outstanding under the prior facility during fiscal 1998 was
$1,652,450, the maximum amount outstanding was $4,394,250, and the weighted
average interest rate was 6.93%. There were no borrowings outstanding under the
prior facility at January 31, 1998.
The Company's Debt Agreements contain certain restrictive covenants common
to such agreements. The Company was in compliance with respect to all of its
covenants at January 30, 1999.
As part of the Recapitalization, in November 1995, the Company issued to
stockholders subordinated notes and senior subordinated bridge notes totaling
$20,125,000 with an original issue discount of $1,514,000 related solely to the
stockholders' subordinated notes. A portion of the proceeds of these borrowings
were utilized to retire existing debt. In January 1996, the Company issued
$128,000 of additional notes as satisfaction for interest on the Company's
bridge notes. The Company repaid the senior subordinated bridge notes in
February 1996. In connection with the Company's initial public offering in
October 1996, the subordinated notes were repaid. The repayment resulted in a
loss of $1,093,000 (net of the applicable income tax benefit of $677,000) which
is classified as an extraordinary item in the accompanying statement of
operations.
4. LEASES
The Company leases the premises for its retail sporting goods stores under
operating leases which expire in various years through the year 2008. Many of
these leases contain renewal options and require the Company to pay executory
costs (such as property taxes, maintenance, and insurance). Rental payments
typically include minimum rentals plus contingent rentals based on sales.
In February 1996, the Company entered into a sale-leaseback transaction to
finance its new warehouse and office facilities. The sales price of $4,700,000
approximated the book value of the facility after considering transaction
expenses. The related lease term is for 15 years at $476,000 per year and is
structured as an operating lease.
Minimum future rental payments under noncancelable operating leases having
remaining terms in excess of one year as of January 30, 1999 are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDING
------------------
<S> <C>
2000 $ 9,059,000
2001 8,371,000
2002 7,755,000
2003 6,706,000
2004 4,752,000
Thereafter 9,564,000
-----------
$46,207,000
===========
</TABLE>
32
<PAGE>
Rental expense for all operating leases consisted of the following:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
-----------------------------------------------------
<S> <C> <C> <C>
Minimum rentals $8,049,500 $5,645,000 $4,365,000
Contingent rentals 790,000 822,500 682,000
---------- ---------- ----------
$8,839,500 $6,467,500 $5,047,000
========== ========== ==========
</TABLE>
5. PROFIT-SHARING PLAN
The Company maintains a 401(k) profit sharing plan (the "Plan") which
permits participants to make pretax contributions to the Plan. The Plan covers
all employees who have completed one year of service and who are at least 21
years of age. Participants of the Plan may voluntarily contribute from 2% to
15% of their compensation within certain dollar limits as allowed by law. These
elective contributions are made under the provisions of Section 401(k) of the
Internal Revenue Code which allows deferral of income taxes on the amount
contributed to the Plan. The Company's contribution to the Plan equals (1) an
amount determined at the discretion of the Board of Directors plus (2) a
matching contribution equal to a discretionary percentage of up to 6% of a
participant's compensation. Contribution expense for fiscal years 1999, 1998,
and 1997 was $397,000, $303,000, and $238,000, respectively.
6. RELATED-PARTY TRANSACTIONS
The Company's majority stockholder provides financial advisory services to
the Company for an annual fee of $200,000. Such services include, but are not
necessarily limited to, advice and assistance concerning any and all aspects of
the operation, planning, and financing of the Company. Management fee expense
under this arrangement was $200,000 in fiscal 1999, fiscal 1998 and fiscal 1997.
Subordinated notes payable to stockholders, net of the related unamortized
debt discount, were outstanding and included in long-term debt in the amount of
$18,772,000 at February 3, 1996. Related to these notes, the Company incurred
approximately $1,355,000 of interest expense in fiscal 1997.
The Company maintains a sublease for one store with an entity that is
controlled by a minority stockholder which expires in June 2008. Minimum lease
payments were $190,800 in fiscal 1999, fiscal 1998 and fiscal 1997. Future
minimum lease payments under this noncancelable sublease aggregate $1,796,700.
The Company leased its previous warehouse and office facilities under a
lease-purchase agreement that was fully paid in a previous year. Subsequent to
February 3, 1996, the Company sold an assignment of its interest in the lease on
this property to a related party for $850,000, which resulted in a gain of
approximately $513,000 in the fiscal year ended February 1, 1997.
33
<PAGE>
7. INCOME TAXES
A summary of the components of the provision for income taxes is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
-----------------------------------------------------
<S> <C> <C> <C>
Federal:
Current $3,878,000 $3,211,000 $1,650,000
Deferred (190,000) (19,000) (90,000)
------------ ------------ ------------
3,688,000 3,192,000 1,560,000
------------ ------------ ------------
State:
Current 629,000 487,000 203,000
Deferred (83,000) (4,000) (11,000)
------------ ------------ ------------
546,000 483,000 192,000
------------ ------------ ------------
Provision for income taxes $4,234,000 $3,675,000 $1,752,000
============ ============ ============
</TABLE>
The provision for income taxes differs from the amounts computed by applying
federal statutory rates due to the following:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
-----------------------------------------------
<S> <C> <C> <C>
Tax provision computed at the federal
statutory rate (34%) $3,748,000 $3,267,000 $1,558,000
Effect of state income taxes, net of
benefits 439,000 393,000 151,000
Other 47,000 15,000 43,000
---------- ---------- ----------
$4,234,000 $3,675,000 $1,752,000
========== ========== ==========
</TABLE>
Temporary differences which create deferred tax assets are detailed below:
<TABLE>
<CAPTION>
JANUARY 30, 1999 JANUARY 31, 1998
------------------------------------------------------------------
CURRENT NONCURRENT CURRENT NONCURRENT
------------------------------------------------------------------
<S> <C> <C> <C> <C>
Depreciation $ --- $ 505,000 $ --- $ 364,000
Inventory 269,000 --- 90,000 ---
Accruals 570,000 --- 560,000 ---
Other (101,000) --- (44,000) ---
---------- --------- --------- ----------
Deferred tax asset $ 738,000 $ 505,000 $ 606,000 $ 364,000
========== ========= ========= ==========
</TABLE>
The Company has not recorded a valuation allowance for deferred tax assets as
realization is considered more likely than not.
34
<PAGE>
8. STOCK OPTION AND STOCK PURCHASE PLANS
Stock Option Plans
The Company utilizes the intrinsic value method of accounting for stock
option grants. As the option exercise price is generally equal to the fair
value of the shares of common stock at the date of the option grant, no
compensation cost is recognized.
The Hibbett Sporting Goods, Inc. Employee Stock Option Plan, as amended
(the "Original Option Plan") authorizes the granting of stock options for the
purchase of up to 66,352 shares of common stock. Options granted vest over a
three-year period for 25,369 shares and a five-year period for 40,983 shares and
expire on the tenth anniversary of the date of grant. As of January 30, 1999,
53,268 of these options were outstanding.
In fiscal 1997, the Company adopted the Hibbett Sporting Goods, Inc. 1996
Stock Option Plan, as amended (the "1996 Option Plan"). The 1996 Option Plan
authorized the granting of stock options for the purchase of up to 238,566
shares of common stock. At the annual meeting of shareholders on June 9, 1998,
the 1996 Option Plan was amended to provide for an additional 300,000 shares of
common stock to be reserved for future grants of stock options. Options granted
vest over a five-year period and expire on the tenth anniversary of the date of
grant. As of January 30, 1999, a total of 280,870 shares of the Company's
authorized and unissued common stock were reserved for future grants under the
1996 Option Plan, and options for 249,303 shares were outstanding at that date.
On August 1, 1996, the Company entered into an agreement with a minority
shareholder and granted options for 70,820 shares which became exercisable six
months after October 17, 1996, the date of the Company's initial public
offering.
A summary of the status of the Company's stock option plans is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------------------------------------------------------------
JANUARY 30, 1999 JANUARY 31, 1998 FEBRUARY 1, 1997
-------------------------- -------------------------- --------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
-------------------------- -------------------------- --------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 244,088 $10.83 265,086 $ 9.42 66,352 $ 4.49
Granted 77,000 27.71 52,500 15.00 199,016 11.07
Exercised (16,579) 3.73 (70,820) 8.48 --- ---
Forfeited (1,938) 20.25 (2,678) 14.15 (282) 13.12
---------------------- ---------------------- ----------------------
Outstanding at end of year 302,571 $15.46 244,088 $10.83 265,086 $ 9.42
====================== ====================== ======================
Exerciseable at end of year 93,749 $ 9.75 58,503 $ 7.62 16,652 $ 3.96
======== ======== ========
Weighted average market
value of options granted $27.71 $15.00 $14.99
======== ======== ========
</TABLE>
35
<PAGE>
The following table summarizes information about stock options outstanding at
January 30, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------------------------------ ---------------------------------------
Weighted
Number Average Number
Outstanding at Remaining Weighted Exercisable at Weighted
Range of January 30, Contractual Average January 30, Average
Exercise Price 1999 Life (Years) Exercise Price 1999 Exercise Price
- -------------------- ------------------ ---------------- ------------------- ------------------ -----------------
<S> <C> <C> <C> <C> <C>
$1.89 to $6.10 96,314 6.8 $ 5.56 52,980 $ 5.12
$15.00 to $16.00 130,057 7.9 $15.61 40,769 $15.76
$26.88 to $28.00 76,200 9.3 $27.71 --- ---
</TABLE>
Compensation costs of $50,000 were accrued in fiscal 1999 and 1998, and
$500,000 was accrued in fiscal 1997, related to the difference in the estimated
market value of the stock and the nonqualified option exercise price, including
the related tax benefit. As these options are exercised, the excess of the
proceeds and accruals over the par value is credited to paid-in capital.
Additionally, the tax benefit associated with 1) the exercise of nonqualified
stock options and 2) disqualifying dispositions of shares acquired in the
Company's option plans, is also credited to paid-in capital and amounted to
$188,000 in fiscal 1999.
If the Company had recorded compensation costs in accordance with SFAS No.
123 under the fair value based method (using the Black-Scholes option pricing
model), the Company's net income and earnings per share would have been reduced
to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
---------------------------------------------------
<S> <C> <C> <C>
Net income--as reported $ 6,790 $ 5,933 $ 1,737
Net income--pro forma 6,499 5,778 1,597
Diluted earnings per share--as reported 1.04 .93 .37
Diluted earnings per share--pro forma .99 .91 .34
</TABLE>
The weighted average assumptions for determining compensation costs under
the fair value method include (i) a risk-free interest rate based on zero-coupon
governmental issues on each grant date with the maturity equal to the expected
term of the options ( 5.5%, 6.5% and 6.1% for fiscal 1999, 1998 and 1997,
respectively), (ii) an expected forfeiture rate of 4.4%, (iii) an expected stock
volatility of 65%, and (iv) no expected dividend yield. The weighted average
fair value of options granted in fiscal 1999, fiscal 1998 and fiscal 1997 was
$15.98, $8.08 and $6.59, respectively.
Other Plans
On September 13, 1996, the Company adopted an Employee Stock Purchase Plan
and Outside Director Stock Plan reserving 75,000 shares and 50,000 shares of the
Company's common stock, respectively, for purchase by the employees and
directors at 85% and 100% of the fair value of the common stock, respectively.
On January 29, 1999, January 30, 1998 and January 10, 1997, the Company granted
7,500, 5,000 and 10,000 options, respectively, at exercise prices of $17.75,
$22.56 and $12.13 (market value at the date of grant) respectively, under the
Outside Director Stock Plan. These options vest immediately and expire on the
earlier of the tenth anniversary of the grant or one year from the date on which
the director is no longer eligible. The Employee Stock Purchase Plan became
effective on April 1, 1997, and as of January 30, 1999, 5,734 shares have been
issued.
36
<PAGE>
9. COMMITMENTS AND CONTINGENCIES
The Company is a party to various legal proceedings incidental to its
business. In the opinion of management, after consultation with legal counsel,
the ultimate liability, if any, with respect to those proceedings is not
presently expected to materially affect the financial position or results of
operations of the Company.
37
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Hibbett Sporting Goods, Inc.:
We have audited the accompanying consolidated balance sheets of HIBBETT
SPORTING GOODS, INC. (a Delaware corporation) AND SUBSIDIARIES as of January 30,
1999 and January 31, 1998, and the related consolidated statements of
operations, stockholders' investment, and cash flows for each of the three
fiscal years in the period ended January 30, 1999. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Hibbett Sporting Goods, Inc.
and subsidiaries as of January 30, 1999 and January 31, 1998, and the results of
their operations and their cash flows for each of the three fiscal years in the
period ended January 30, 1999, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Birmingham, Alabama
March 11, 1999
38
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
reports included in this Form 10-K, into Hibbett Sporting Goods, Inc.'s
previously filed Registration Statements File Nos. 333-21299, 333-21301, 333-
21303, and 333-21305.
ARTHUR ANDERSEN LLP
Birmingham, Alabama
April 22, 1999
39
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE FINANCIAL
STATEMENTS OF HIBBETT SPORTING GOODS, INC. FOR THE YEAR TO DATE PERIOD ENDED
JANUARY 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-30-1999
<PERIOD-START> FEB-01-1998
<PERIOD-END> JAN-30-1999
<CASH> 945
<SECURITIES> 0
<RECEIVABLES> 2,368
<ALLOWANCES> 224
<INVENTORY> 47,694
<CURRENT-ASSETS> 52,419
<PP&E> 28,679
<DEPRECIATION> 13,273
<TOTAL-ASSETS> 68,552
<CURRENT-LIABILITIES> 23,292
<BONDS> 0
0
0
<COMMON> 64
<OTHER-SE> 45,196
<TOTAL-LIABILITY-AND-EQUITY> 68,552
<SALES> 143,350
<TOTAL-REVENUES> 143,350
<CGS> 100,409
<TOTAL-COSTS> 100,409
<OTHER-EXPENSES> 31,776
<LOSS-PROVISION> 85
<INTEREST-EXPENSE> 141
<INCOME-PRETAX> 11,024
<INCOME-TAX> 4,234
<INCOME-CONTINUING> 6,790
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,790
<EPS-PRIMARY> 1.06
<EPS-DILUTED> 1.04
</TABLE>
