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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 1-9482
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HANCOCK FABRICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 64-0740905
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3406 WEST MAIN ST., TUPELO, MS 38801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(662) 842-2834
Securities Registered Pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
--------------------- -----------------------
Common Stock ($.01 par value) New York Stock Exchange
Rights New York Stock Exchange
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 reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the 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. [ ]
As of April 15, 1999, there were 18,730,141 shares of Hancock Fabrics, Inc. $.01
par value common stock held by non-affiliates with an aggregate market value of
$111,210,212. As of April 15, 1999, there were 19,129,597 shares of Hancock
Fabrics, Inc. $.01 par value common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the 1998 Annual Report
to Shareholders Parts I, II, and IV
Portions of the Proxy Statement
for the 1999 Annual meeting of
shareholders Part III
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1998 ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I Page
----
<S> <C> <C>
Item 1. Business.......................................... 4
Item 2. Properties........................................ 6
Item 3. Legal Proceedings................................. 7
Item 4. Submission of Matters to a Vote
of Security Holders.............................. 7
Executive Officers of Registrant........................... 8
PART II
Item 5. Market for the Registrant's Common Stock and
Related Stockholder Matters...................... 9
Item 6. Selected Financial Data........................... 9
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations.............. 9
Item 8. Financial Statements and Supplementary Data....... 9
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure........... 9
PART III
Item 10. Directors and Executive Officers of Registrant.... 10
Item 11. Executive Compensation............................ 10
Item 12. Security Ownership of Certain Beneficial Owners
and Management................................... 10
Item 13. Certain Relationships and Related Transactions.... 10
PART IV
Item 14. Exhibits, Financial Statement Schedules and
Reports on Form 8-K.............................. 11
Signatures................................................. 17
</TABLE>
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PART I
ITEM 1. BUSINESS
Hancock Fabrics, Inc.,(the Company, which may be referred to as we, us, or our)
was incorporated in 1987 as a successor to the retail and wholesale fabric
business of Hancock Textile Co., Inc., a Mississippi corporation and a wholly
owned subsidiary of Lucky Stores, Inc., a Delaware corporation ("Lucky").
Founded in 1957, we operated as a private Company until 1972 when we were
acquired by Lucky. We became a publicly owned company as a result of the
distribution of shares of common stock to the shareholders of Lucky on May 4,
1987.
The Company is engaged in the retail and wholesale fabric business, selling
fabrics and related accessories to the home sewing and home decorating market
and at wholesale to independent retailers. We are one of the largest fabric
retailers in the United States. At January 31, 1999, we operated 462 fabric
stores in 40 states. As a wholesaler of fabrics and related items, we sell to
independent retail fabric stores through the wholesale distribution facility in
Tupelo, Mississippi.
OPERATIONS
Our stores offer a wide selection of apparel fabrics, notions (which include
sewing aids and accessories such as zippers, buttons, threads and
ornamentation), patterns, quilting materials and supplies, home decorating
products (which include drapery and upholstery fabrics), craft items and related
supplies. Each of our retail stores maintains an inventory that includes cotton,
woolen and synthetic staple fabrics such as broadcloth, poplin, gaberdine,
unbleached muslin and corduroy, as well as seasonal and current fashion fabrics.
Our stores are primarily located in neighborhood shopping centers. The number of
stores decreased by 19 in 1998.
As a wholesaler, we sell to
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over 100 independent retailers in markets in which the Company has elected not
to open our own stores. These wholesale customers accounted for approximately 2%
of our total sales for the fiscal year ended January 31, 1999.
MARKETING
We principally serve the home sewing and home decorating markets, which largely
consist of women who make clothing for their families and decorations for their
homes or who hire professional home seamstresses to sew for them. Quilters,
crafters and hobbyists also comprise a portion of the base of customers, as do
consumers of bridal, party, prom and special occasion merchandise.
We offer our customers a wide selection of products at prices that we believe
are generally lower than the prices charged by our competitors. In addition to
staple fabrics and notions for clothing and home decoration, we provide a
variety of seasonal and current fashion apparel merchandise.
We use promotional advertising, primarily through newspapers, direct mail and
television, to reach target customers. We mail six to ten direct mail promotions
each year to approximately 1.2 million households, including the "Directions"
magazine which contains discount coupons, sewing instructions, fashion ideas and
product advertisements.
During 1994, we entered into an agreement with the Home and Garden Television
Network to sponsor a weekly sewing show called "Sew Perfect(TM)." The program,
which reaches over 50 million U.S. households, is designed for the beginning and
intermediate skilled seamstress.
DISTRIBUTION AND SUPPLY
Our retail stores and wholesale customers are served by our 525,000 square foot
warehouse, distribution and headquarters facility in Tupelo, Mississippi. This
facility is adequate for the near term and has no major expansion plans for
1999.
Contract trucking firms, common carriers and parcel delivery are used to deliver
merchandise from our warehouse to our retail stores and wholesale customers.
Substantially all of the deliveries direct to our stores and wholesale customers
from vendors are made by common carriers.
Bulk quantities of fabric are purchased from domestic and foreign mills, fabric
jobbers and importers. We have no long-term contracts for the
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purchase of merchandise and did not purchase more than 5% of our merchandise
from any one supplier during the fiscal year ended January 31, 1999. We have
experienced no difficulty in maintaining satisfactory sources of supply.
COMPETITION
We are among the largest fabric retailers in the United States. We principally
compete with other national and regional fabric store chains on the basis of
price, selection, quality, service and location.
Our competition has changed significantly in recent years due to rapid expansion
that began in the fabric industry in the late 1980's which ultimately led to
financial difficulties for many of our competitors and to significant industry
consolidation. Store closings and associated inventory liquidations by
competitors continued during the first half of 1998, as the piece goods retail
capacity adjusted more closely to customer demand.
SEASONALITY
Our business is slightly seasonal. Peak sales periods occur during the fall and
pre-Easter weeks, while the lowest sales periods occur during the summer and
the month of January.
EMPLOYEES
At January 31, 1999, we employed approximately 6,500 people on a full-time and
part-time basis, approximately 6,200 of whom work in our retail stores. The
remainder work in the Tupelo warehouse, distribution and headquarters facility.
GOVERNMENT REGULATION
The Company is subject to the Fair Labor Standards Act, which governs such
matters as minimum wages, overtime and other working conditions. A significant
number of our employees are paid at rates related to Federal and state minimum
wages and, accordingly, any increase in the minimum wage would affect our labor
cost.
ITEM 2. PROPERTIES
The Company's 462 retail stores average approximately 12,600 square feet and are
located principally in neighborhood shopping centers.
With the exception of four (4) owned locations, our retail stores are leased.
The original lease terms generally range from 10 to 20 years and most leases
contain one or more renewal options, usually of
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five years in length. At January 31, 1999, the remaining terms of the leases for
stores in operation, including renewal options, averaged approximately 12 years.
During 1999, 67 store leases will expire. We are currently negotiating renewals
on certain of these leases.
The 525,000 square foot warehouse, distribution and headquarters facility in
Tupelo, Mississippi is owned by the Company and is not subject to any mortgage
or similar encumbrance. We also own approximately 46 acres of land adjacent to
our Tupelo facility, providing room for future expansion.
Reference is made to the information contained in Note 7 to the Consolidated
Financial Statements included in the accompanying 1998 Annual Report to
Shareholders for information concerning our long-term obligations under leases.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to several legal proceedings and claims. Although the
outcome of such proceedings and claims cannot be determined with certainty, we
are of the opinion that it is unlikely that these proceedings and claims will
have a material effect on the financial condition or operating results of the
Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable
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Executive Officers of the Company
<TABLE>
<CAPTION>
Office Presently Held and Business
Name Age Experience During Past Five Years
- ---- --- ----------------------------------
<S> <C> <C>
Larry G. Kirk 52 Chairman of the Board and Chief
Executive Officer from June 1997,
Chief Executive Officer and President
from June 1996, President and Chief
Financial Officer prior thereto,
Director from December 1990.
Jack W. Busby, Jr. 56 President, Chief Operating Officer
and Director from June 1997.
Executive Vice President and Chief
Operating Officer from June 1996;
Executive Vice President and Director
of Retail Operations prior thereto.
Bruce D. Smith 40 Senior Vice President, Chief
Financial Officer and Treasurer from
March 1997, Senior Vice President
from November 1996. Prior thereto,
Executive Vice President and Chief
Financial Officer with Fred's, Inc.
</TABLE>
The term of each of the officers expires June 7, 1999.
There are no family relationships among the executive officers.
There are no arrangements or understandings pursuant to which any person was
selected as an officer.
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PART II
ITEM 5: MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS
The Company's common stock and the associated common stock purchase rights are
listed on the New York Stock Exchange and trade under the symbol HKF. Additional
information required by this item is incorporated by reference from the table
"Quarterly Financial Data" on page 8 and the table "Market Information" on page
25 of the 1998 Annual Report to Shareholders.
ITEM 6. SELECTED FINANCIAL DATA
Historical financial information is incorporated by reference from the table
"Five-Year Summary of Significant Financial Information" on page 8 of the 1998
Annual Report to Shareholders.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Management's discussion and analysis of financial condition and results of
operations is incorporated by reference from pages 9 to 11 of the 1998 Annual
Report to Shareholders.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Information required by this item is incorporated by reference from the "Report
of Independent Accountants" found on page 21 and from the consolidated financial
statements on pages 12-21 of the 1998 Annual Report to Shareholders.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
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PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information about the Directors of the Company is incorporated by reference from
the discussion under Item 1 of our Proxy Statement for the 1999 Annual Meeting
of Shareholders. The balance of the response to this item is contained in the
discussion entitled "Executive Officers of the Company" in Part I of this
report.
ITEM 11: EXECUTIVE COMPENSATION
Information about executive compensation is incorporated by reference from the
discussion under the heading "Compensation of Executive Officers and Directors"
in our Proxy Statement for the 1999 Annual Meeting of Shareholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information about security ownership of certain beneficial owners and management
is incorporated by reference from the table on page 2 of the Proxy Statement for
the 1999 Annual Meeting of Shareholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information about certain relationships and related transaction concerning
"Executive Officers of the Registrant" is included in Part I.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
Pages in the 1998
Annual Report to
14 (a) (1) Financial Statements Shareholders
-----------------
Report of Independent Accountants................ 21
Consolidated Statement of Earnings............... 12
Consolidated Balance Sheet ...................... 13
Consolidated Statement of Cash Flows ............ 14
Consolidated Statement of Shareholders' Equity... 15
Notes to Consolidated Financial Statements....... 16-21
14 (a) (2) Consolidated Financial Statement Schedules
All schedules are omitted because they are not applicable or the
required information is shown in the consolidated financial statements.
Supplementary data:
Selected Quarterly Financial Data................ 8
14 (a) (3)
3.1 e Certificate of Incorporation of Registrant.
3.2 h By-Laws of Registrant.
4.1 c Certificate of Incorporation of Registrant.
4.2 h By-Laws of Registrant.
4.3 b Rights Agreement between Registrant and
C & S/Sovran Trust Company (Georgia), N.A.,
as amended March 14, 1991 and restated as of
April 2, 1991.
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4.4 e Amendment to Rights Agreement between Registrant
and NationsBank of Georgia, N.A.(formerly C & S/
Sovran Trust Company (Georgia), N.A.) dated June 25,
1992.
4.5 e Agreement between Registrant and Continental
Stock Transfer & Trust Company (as Rights Agent)
dated as of July 16, 1992.
4.6 f Credit Agreement among Registrant and
NationsBank of Georgia, National Association, as
Agent and Lenders as Signatories Hereto
("Credit Agreement") dated as of September 20, 1993.
4.7 Credit Agreement among Registrant and Wachovia Bank
as Agent and Lenders as Signatories Hereto
("Wachovia Credit Agreement") dated as of April 16,
1999.
10.1 f Credit Agreement dated as of September 20, 1993.
10.2 h Amendment to Credit Agreement dated as of May
31, 1995.
10.3 j Amendment to Credit Agreement dated as of April 1,
1998.
10.4 Amendment to Credit Agreement dated as of June 10,
1998.
10.5 Wachovia Credit Agreement dated as of April 16,
1999, incorporated by reference to Exhibit 4.7
filed herewith.
10.6 Termination of Credit Agreement among Registrant and
NationsBank of Georgia, National Association, as
Agent dated as of April 16, 1999.
10.7 h Form of Indemnification Agreements dated June 8,
1995 between Registrant and each of Jack W. Busby,
Jr., R. Randolph Devening, Don L. Fruge, Larry G.
Kirk and Donna L. Weaver.
10.8 h Form of Indemnification Agreements dated June 8,
1995 between Registrant and each of Dean W.
Abraham, Bradley A. Berg, Larry D. Fair, James A.
Gilmore, David A. Lancaster, Billy M. Morgan, James
A. Nolting, William D. Smothers, and Carl W.
Zander.
10.9 i Form of Indemnification Agreement dated June 13,
1996 between the Registrant and each of Tom R.
Collins, Jeffie L. Gatlin, Ellen J. Kennedy, Bruce
E. Rockstad and William A. Sheffield, Jr.
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10.10 i Indemnification Agreement between Registrant and
Bruce D. Smith dated as of December 10, 1996.
10.11 j Indemnification Agreement between Registrant and
Phil L. Munie dated as of March 13, 1997.
10.12 b * Agreement between Registrant and Jack W. Busby, Jr.
dated as of June 9, 1988.
10.13 b * Agreement to Secure Certain Contingent Payments
between Registrant and Jack W. Busby, Jr. dated as
of June 9, 1988.
10.14 a * Agreement between Registrant and Larry G. Kirk dated
as of June 9, 1988.
10.15 a * Agreement to Secure Certain Contingent Payments
between Registrant and Larry G. Kirk dated as of June
9, 1988.
10.16 h * Form of Amendment, Extension and Restatement of
Severance Agreement between Registrant and
each of Jack W. Busby, Jr. and Larry G. Kirk dated
as of March 14, 1996.
10.17 i * Amendment to Deferred Compensation Agreement,
Severance Agreement, and Agreement to Secure Certain
Contingent Payments between Registrant and Larry G.
Kirk dated as of June 13, 1996.
10.18 i * Amendment to Deferred Compensation, and Agreement
to Secure Certain Contingent Payments between
Registrant and Jack W. Busby, Jr., dated as of June
13, 1996.
10.19 i * Agreement between Registrant and Bruce D. Smith
dated as of December 10, 1996.
10.20 i * Severance Agreement between Registrant and Bruce D.
Smith dated as of December 10, 1996.
10.21 i * Agreement to Secure Certain Contingent Payments
between Registrant and Bruce D. Smith dated as of
December 10, 1996.
10.22 g * Supplemental Retirement Plan, as amended.
10.23 d * 1987 Stock Option Plan, as amended.
10.24 i * 1996 Stock Option Plan.
10.25 c * Extra Compensation Plan.
10.26 a * 1989 Restricted Stock Plan.
10.27 i * 1995 Restricted Stock Plan.
10.28 h * 1991 Stock Compensation Plan for Nonemployee
Directors, as amended.
10.29 * Officer Incentive Compensation Plan.
11 Computation of Earnings Per Share.
13 Portions of the Hancock Fabrics, Inc. 1998 Annual
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Report to Shareholders (for the fiscal year ended
January 31, 1999) incorporated by reference in this
filing.
21 Subsidiaries of the Registrant.
23 Consent of PricewaterhouseCoopers LLP.
27 Financial Data Schedule (for SEC use only)
- ------------
a Incorporated by reference from Registrant's Form 10-K dated April
26, 1990 as filed with the Securities and Exchange Commission.
b Incorporated by reference from Registrant's Form 10-K dated
April 26, 1991 as filed with the Securities and Exchange
Commission.
c Incorporated by reference from Registrant's Form 10-K dated
April 27, 1992 as filed with the Securities and Exchange
Commission.
d Incorporated by reference from Registrant's Form 10-Q dated
June 12, 1992 as filed with the Securities and Exchange
Commission.
e Incorporated by reference from Registrant's Form 10-K dated
April 26, 1993 as filed with the Securities and Exchange
Commission.
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f Incorporated by reference from Registrant's Form 10-K dated
April 27, 1994 as filed with the Securities and Exchange
Commission.
g Incorporated by reference from Registrant's Form 10-K dated
April 24, 1995 as filed with the Securities and Exchange
Commission.
h Incorporated by reference from Registrant's Form 10-K dated
April 22, 1996 as filed with the Securities and Exchange
Commission.
i Incorporated by reference from Registrant's Form 10-K dated
April 22, 1997 as filed with the Securities and Exchange
Commission.
j Incorporated by reference from Registrant's Form 10-K dated
April 27, 1998 as filed with the Securities and Exchange
Commission.
* Denotes management contract or compensatory plan or arrangement.
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the registrant during the last quarter of
the period covered by this report.
Shareholders may obtain copies of any of these exhibits by writing to the
Secretary at the executive offices of the Company. Please include payment in the
amount of $1.00 for each document, plus $.25 for each page ordered, to cover
copying, handling and mailing charges.
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UNDERTAKING IN CONNECTION WITH
REGISTRATION STATEMENTS ON FORM S-8
For purposes of complying with the amendments to the rules governing Form S-8
(effective July 13, 1990) under the Securities Act of 1933 (the "Act"), the
undersigned registrant hereby undertakes as follows, which undertaking shall be
incorporated by reference into registrant's Registration Statements on Form S-8
Nos. 33-17215 (filed September 15, 1987), 33-29138 (filed June 12, 1989),
333-32295 (filed July 28, 1997) and 333-32229 (filed July 28, 1997):
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 512(h) of Regulation S-K, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 30th day of April,
1999.
HANCOCK FABRICS, INC
By /s/ Larry G. Kirk
-------------------------
Larry G. Kirk
Chairman of the Board and
Chief Executive Officer
By /s/ Bruce D. Smith
-------------------------
Bruce D. Smith
Senior Vice President
And Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed by the following persons on behalf of the registrant and in the
capacities indicated on this 30th day of April, 1999
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Larry G. Kirk Chairman of the Board, Chief Executive
- ---------------------------- Officer and Director
(Larry G. Kirk)
/s/ Jack W. Busby, Jr. President, Chief Operating Officer and
- ---------------------------- Director
(Jack W. Busby, Jr.)
/s/ R. Randolph Devening Director
- ----------------------------
(R. Randolph Devening)
/s/ Don L. Fruge Director
- ----------------------------
(Don L. Fruge)
/s/ Donna L. Weaver Director
- ----------------------------
(Donna L. Weaver)
</TABLE>
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EXHIBIT 4.7 & 10.5
$60,000,000
CREDIT AGREEMENT
dated as of
April 16, 1999
among
HANCOCK FABRICS, INC.
The Banks Listed Herein
and
WACHOVIA BANK, N.A.,
as Agent
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.01. Definitions........................................................................................1
SECTION 1.02. Accounting Terms and Determinations...............................................................15
SECTION 1.03. Use of Defined Terms..............................................................................15
SECTION 1.04. Terminology.......................................................................................15
SECTION 1.05. References........................................................................................15
ARTICLE II THE CREDITS..........................................................................................16
SECTION 2.01. Commitments to Make Syndicated Loans..............................................................16
SECTION 2.02. Method of Borrowing Syndicated Loans..............................................................16
SECTION 2.03. Money Market Loans................................................................................18
SECTION 2.04. Notes.............................................................................................21
SECTION 2.05. Maturity of Loans.................................................................................21
SECTION 2.06. Interest Rates....................................................................................22
SECTION 2.07. Fees..............................................................................................24
SECTION 2.08. Optional Termination or Reduction of Commitments..................................................26
SECTION 2.09. Mandatory Termination of Commitments..............................................................26
SECTION 2.10. Optional Prepayments..............................................................................26
SECTION 2.11. Mandatory Prepayments.............................................................................26
SECTION 2.12. General Provisions as to Payments.................................................................27
SECTION 2.13. Computation of Interest and Fees..................................................................28
ARTICLE III CONDITIONS TO BORROWINGS............................................................................28
SECTION 3.01. Conditions to First Borrowing.....................................................................28
SECTION 3.02. Conditions to All Borrowings......................................................................29
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................................................30
SECTION 4.01. Corporate Existence and Power.....................................................................30
SECTION 4.02. Corporate and Governmental Authorization; No Contravention........................................31
SECTION 4.03. Binding Effect....................................................................................31
SECTION 4.04. Financial Information.............................................................................31
SECTION 4.05. Litigation........................................................................................31
SECTION 4.06. Compliance with ERISA.............................................................................31
SECTION 4.07. Taxes.............................................................................................32
SECTION 4.08. Subsidiaries......................................................................................32
SECTION 4.09. Not an Investment Company.........................................................................32
SECTION 4.10. Public Utility Holding Company Act................................................................32
SECTION 4.11. Ownership of Property; Liens......................................................................32
SECTION 4.12. No Default........................................................................................32
SECTION 4.13. Full Disclosure...................................................................................33
</TABLE>
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<TABLE>
<S> <C>
SECTION 4.14. Environmental Matters............................................................................33
SECTION 4.15. Compliance with Laws..............................................................................33
SECTION 4.16. Capital Stock.....................................................................................33
SECTION 4.17. Margin Stock......................................................................................34
SECTION 4.18. Insolvency........................................................................................34
SECTION 4.19. Compliance with Year 2000 Plan....................................................................34
SECTION 4.20. Insurance.........................................................................................34
ARTICLE V COVENANTS.............................................................................................34
SECTION 5.01. Information.......................................................................................35
SECTION 5.02. Inspection of Property, Books and Records.........................................................36
SECTION 5.03. Ratio of Consolidated Debt to Consolidated EBITDA.................................................37
SECTION 5.04. Minimum Consolidated Net Worth....................................................................37
SECTION 5.05. Inventory.........................................................................................37
SECTION 5.06. Fixed Charges Coverage............................................................................37
SECTION 5.07. Loans or Advances.................................................................................37
SECTION 5.08. Investments.......................................................................................37
SECTION 5.09. Negative Pledge...................................................................................38
SECTION 5.10. Maintenance of Existence..........................................................................38
SECTION 5.11. Dissolution.......................................................................................38
SECTION 5.12. Consolidations, Mergers and Sales of Assets.......................................................38
SECTION 5.13. Use of Proceeds...................................................................................38
SECTION 5.14. Compliance with Laws; Payment of Taxes............................................................39
SECTION 5.15. Insurance.........................................................................................39
SECTION 5.16. Change in Fiscal Year.............................................................................39
SECTION 5.17. Maintenance of Property...........................................................................39
SECTION 5.18. Environmental Notices.............................................................................39
SECTION 5.19. Environmental Matters.............................................................................39
SECTION 5.20. Environmental Release.............................................................................40
SECTION 5.21. Transactions with Affiliates......................................................................40
SECTION 5.22 Y2K Plan..........................................................................................40
ARTICLE VI DEFAULTS.............................................................................................40
SECTION 6.01. Events of Default.................................................................................40
SECTION 6.02. Notice of Default.................................................................................43
ARTICLE VII THE AGENT...........................................................................................43
SECTION 7.01. Appointment, Powers and Immunities................................................................43
SECTION 7.02. Reliance by Agent.................................................................................44
SECTION 7.03. Defaults..........................................................................................44
SECTION 7.04. Rights of Agent and its Affiliates as a Bank......................................................44
SECTION 7.05. Indemnification...................................................................................45
SECTION 7.06. CONSEQUENTIAL DAMAGES.............................................................................45
</TABLE>
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<TABLE>
<S> <C>
SECTION 7.07. Payee of Note Treated as Owner....................................................................45
SECTION 7.08. Non-Reliance on Agent and Other Banks.............................................................45
SECTION 7.09. Failure to Act....................................................................................46
SECTION 7.10. Resignation or Removal of Agent...................................................................46
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION..............................................................46
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair..........................................46
SECTION 8.02. Illegality........................................................................................47
SECTION 8.03. Increased Cost and Reduced Return.................................................................47
SECTION 8.04. Base Rate Loans Substituted for Affected Loans....................................................49
SECTION 8.05. Compensation......................................................................................49
ARTICLE IX MISCELLANEOUS........................................................................................50
SECTION 9.01. Notices...........................................................................................50
SECTION 9.02. No Waivers........................................................................................50
SECTION 9.03. Expenses; Documentary Taxes; Indemnification......................................................51
SECTION 9.04. Setoffs; Sharing of Set-Offs......................................................................51
SECTION 9.05. Amendments and Waivers............................................................................52
SECTION 9.06. Margin Stock Collateral...........................................................................53
SECTION 9.07. Successors and Assigns............................................................................53
SECTION 9.08. Confidentiality...................................................................................55
SECTION 9.09. Representation by Banks...........................................................................55
SECTION 9.10. Obligations Several...............................................................................55
SECTION 9.11. Survival of Certain Obligations...................................................................56
SECTION 9.12. Georgia Law.......................................................................................56
SECTION 9.13. Severability......................................................................................56
SECTION 9.14. Interest..........................................................................................56
SECTION 9.15. Interpretation....................................................................................56
SECTION 9.16. Consent to Jurisdiction...........................................................................56
SECTION 9.17. Counterparts......................................................................................57
</TABLE>
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<PAGE> 5
CREDIT AGREEMENT
AGREEMENT dated as of April 16, 1999 among HANCOCK FABRICS, INC., the
BANKS listed on the signature pages hereof and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii)any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii)any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in such
capacity.
"Agent's Letter Agreement" means that certain letter agreement, dated
as of March 22, 1999, between the Borrower and the Agent relating to the
structure of the Loans, and certain fees from time to time payable by the
Borrower to the Agent, together with all amendments and modifications thereto.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Anniversary Date" shall mean either the First Anniversary Date or the
Second Anniversary Date, as the context shall require.
"Applicable Facility Fee Rate" has the meaning set forth in Section
2.07(a).
"Applicable Margin" has the meaning set forth in Section 2.06(a).
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<PAGE> 6
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed
in accordance with Section 9.07(c) in the form attached hereto as Exhibit J.
"Authority" has the meaning set forth in Section 8.02.
"Average Inventory" means, for any Fiscal Quarter, the sum of (i) the
costs of consolidated inventories of the Borrower and its Consolidated
Subsidiaries at the beginning of such Fiscal Quarter and (ii) the costs of
Consolidated Inventories of the Borrower and its Consolidated Subsidiaries at
the end of such Fiscal Quarter, divided by 2.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half
of one percent above the Federal Funds Rate for such day. For purposes of
determining the Base Rate for any day, changes in the Prime Rate and the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear interest at a
rate based upon the Base Rate.
"Borrower" means Hancock Fabrics, Inc., a Delaware corporation, and its
successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by, in the case of a Syndicated Borrowing, the Banks,
or, in the case of a Money Market Borrowing, one or more of the Banks, in each
case pursuant to Article II. A Borrowing is a "Syndicated Borrowing if such
Loans are Syndicated Loans or a "Money Market Borrowing" if such Loans are Money
Market Loans. A Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate
Loans or a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
"Capital Stock" means any nonredeemable capital stock of the Borrower
or any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C.ss.9601 et seq. and its implementing regulations and
amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
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<PAGE> 7
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means April 16, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, or (ii) as to any
Bank which enters into an Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated EBITDA" for any period means the sum of (i) Consolidated
Net Income, (ii) taxes on income, (iii) Consolidated Interest Expense, (iv)
Depreciation, (v) amortization expenses and (vi) LIFO Charges, all determined
with respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis for such period and in accordance with GAAP; provided that if such period
includes the Fiscal Quarter ending January 31, 1999, Consolidated EBITDA as so
determined shall be increased by the Non-Operating Lease Charge. In determining
Consolidated EBITDA for any period, (i) any Consolidated Subsidiary acquired
during such period by the Borrower or any other Consolidated Subsidiary shall be
included on a pro forma, historical basis as if it had been a Consolidated
Subsidiary during such entire period and (ii) any amounts which would be
included in a determination of Consolidated EBITDA for such period with respect
to assets acquired during such period by the Borrower or any Consolidated
Subsidiary shall be included in the determination of Consolidated EBITDA for
such period and the amount thereof shall be calculated on a pro forma,
historical basis as if such assets had been acquired by the Borrower or such
Consolidated Subsidiary prior to the first day of such period.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense for such period, and (ii) all payment obligations
of the Borrower and its Consolidated Subsidiaries for such period under all
operating leases and rental agreements.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
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<PAGE> 8
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i)extraordinary items and (ii)any equity interests of the
Borrower or any Subsidiary in the unremitted earnings of any Person that is not
a Subsidiary.
"Consolidated Net Worth" means, at any time, Stockholders' Equity as
set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Cost of Goods Sold" means, for any Fiscal Quarter, the consolidated
cost of goods sold of the Borrower and its Consolidated Subsidiaries for such
Fiscal Quarter. In determining Cost of Goods Sold for any period, (i) any
Consolidated Subsidiary acquired during such period by the Borrower or any other
Consolidated Subsidiary shall be included on a pro forma, historical basis as if
it had been a Consolidated Subsidiary during such entire period and (ii) any
amounts which would be included in a determination of Cost of Goods Sold for
such period with respect to assets acquired during such period by the Borrower
or any Consolidated Subsidiary shall be included in the determination of Cost of
Goods Sold for such period and the amount thereof shall be calculated on a pro
forma, historical basis as if such assets had been acquired by the Borrower or
such Consolidated Subsidiary prior to the first day of such period.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts drawn under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid under a letter of credit or similar instrument with an
expiration date more than one year from such date, (viii) all Debt of others
secured by a Lien on any asset
4
<PAGE> 9
of such Person, whether or not such Debt is assumed by such Person, (ix) all
Debt of others Guaranteed by such Person, and (x) all obligations of such Person
with respect to interest rate protection agreements, foreign currency exchange
agreements or other hedging agreements (valued as the termination value thereof
computed in accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable hedging agreement, if
any).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of
2% plus the then highest interest rate (including the Applicable Margin) which
may be applicable to any Loans hereunder (irrespective of whether any such type
of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such period, as
determined in accordance with GAAP.
"Dividends" means for any period the sum of all dividends paid or
declared during such period in respect of any Capital Stock and Redeemable
Preferred Stock (other than dividends paid or payable in the form of additional
Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia are authorized or required by law
to close.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or
5
<PAGE> 10
to emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment, including, without limitation, ambient air, surface
water, groundwater or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear interest at a
rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Facility Fee Determination Date" has the meaning set forth in Section
2.07(a).
"Facility Fee Payment Date" means each March 31, June 30, September 30
and December 31.
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<PAGE> 11
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th 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 New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Agent.
"First Anniversary Date" means April 16, 2000.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.02, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i)to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii)entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss.6901 et seq. and its implementing regulations and amendments,
or in any applicable state or local law or regulation, (b) any "hazardous
substance", "pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
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<PAGE> 12
"Income Available for Fixed Charges" for any period means the sum of
(i) Consolidated Net Income, (ii) taxes on income, (iii) Consolidated Fixed
Charges, (iv) Depreciation, (v) amortization expenses and (vi) LIFO Charges, all
determined with respect to the Borrower and its Consolidated Subsidiaries on a
consolidated basis for such period and in accordance with GAAP; provided that if
such period includes the Fiscal Quarter ending January 31, 1999, Income
Available for Fixed Charges as so determined shall be increased by the
Non-Operating Lease Charge.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be extended
to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause(c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be extended to
the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(3) with respect to each Money Market Borrowing, the period commencing on
the date of such Borrowing and ending 7 to 180 days thereafter, as the Borrower
may indicate in the applicable Money Market Quote Request; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be extended to
the next succeeding Domestic Business Day; and
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<PAGE> 13
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement (excluding
consignment sales), capital lease or other title retention agreement relating to
such asset.
"LIFO Charges" means deductions from Net Income of the Borrower or any
of its Consolidated Subsidiaries because of LIFO accounting methods.
"Loan" means a Syndicated Loan or a Money Market Loan and "Loans" means
Syndicated Loans or Money Market Loans, or any or all of them, as the context
shall require.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Margin Stock" means "margin stock" as defined in Regulation T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial
9
<PAGE> 14
condition, operations, business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Agent or the Banks under the Loan Documents, or the ability of the Borrower to
perform its obligations under the Loan Documents to which it is a party, as
applicable, or (c) the legality, validity or enforceability of any Loan
Document.
"Money Market Loan" means a Loan which bears or is to bear interest at
a Money Market Rate.
"Money Market Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit B hereto, evidencing the obligation of the
Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto and "Money
Market Note" means any one of such Money Market Notes.
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in Section
2.03(b).
"Money Market Rate" has the meaning set forth in Section
2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Net Proceeds of Capital Stock/Conversion of Debt" means any and all
proceeds (whether cash or non-cash) or other consideration received by the
Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock (including, without limitation, the aggregate amount of any and all Debt
converted into Capital Stock), after deducting therefrom all reasonable and
customary costs and expenses incurred by the Borrower or such Consolidated
Subsidiary directly in connection with the issuance of such Capital Stock.
"Non-Operating Lease Charge" means the amount taken as a charge by the
Borrower for non-operating store leases during the Fiscal Quarter ending January
31, 1999.
"Note" means a Syndicated Note or a Money Market Note and "Notes" means
Syndicated Notes or Money Market Notes, or any or all of them, as the context
shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
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<PAGE> 15
"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means the acquisition of shares of capital
stock of any Person by the Borrower or any Subsidiary of the Borrower if: (A)
immediately after giving effect to such acquisition (i) such Person is a
Consolidated Subsidiary; (ii) the Borrower controls such Person directly or
indirectly through a Subsidiary; and (iii) no Default shall have occurred and be
continuing; (B) the line or lines of business engaged in by such Person are
substantially the same as the lines of business engaged in by the Borrower and
its Subsidiaries on the Closing Date; (C) such acquisition is made on a
negotiated basis with the approval of the Board of Directors of the Person to be
acquired; and (D) the aggregate amount of acquisitions made in any Fiscal Year
shall not exceed $20,000,000.
"Permitted Investments" means:
(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 or A2 or
higher by Moody's Investors Service, Inc.;
(3) a certificate of deposit or eligible banker's acceptances 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) a certificate of deposit 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) the capital stock of and partnership interests in, and loans made by
the Borrower to Subsidiaries;
(6) prime 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, or P-1 or higher by Moody's Investors Service, Inc.;
(7) repurchase agreements and tax-exempt municipal bonds having a maturity
of less than one year, in each case having a rating, or that is the full
recourse obligation of a person
11
<PAGE> 16
whose senior debt is rated, A or higher by Standard & Poor's or A2 or higher by
Moody's Investors Service, Inc.; and
(8) any other investment having a rating of A or higher or A-1 or higher by
Standard & Poor's or A2 or higher of P-1 or higher by Moody's Investors Service,
Inc.
"Permitted Liens" means:
(1) taxes, assessments and other governmental charges that are not
delinquent or that are being contested in good faith by appropriate proceedings
duly pursued;
(2) mechanics', materialmen's, contractor's liens or 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;
(3) restrictions, exceptions, reservations, easements, conditions,
limitations and other matters of record other than Liens that do not have a
materially adverse effect on the value or utility of the property;
(4) Liens in favor of the Agent, if any, for the benefit of the Banks under
this Agreement;
(5) Liens and other matters approved in writing by the Required Banks; and
(6) Liens in favor of landlords, the amount secured by which landlords'
Liens, in the aggregate, could not reasonably be expected to have or cause a
Material Adverse Effect.
"Person" means an individual, a corporation, a limited liability
company, a partnership (including without limitation, a joint venture), an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
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<PAGE> 17
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Quotation Date" has the meaning set forth in Section 2.03(b).
"Rate Determination Date" has the meaning set forth in Section 2.06(a).
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Termination Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the Notes.
"Second Anniversary Date" means April 16, 2001.
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (A) purchases of treasury
stock, (B) valuation allowances, (C) receivables due from an employee stock
ownership plan, (D) employee stock ownership plan debt guarantees, and (E)
translation adjustments for foreign currency transactions.
"Syndicated Loan" means a Base Rate Loan or a Euro-Dollar Loan and
Syndicated Loans means Base Rate Loans or Euro-Dollar Loans, or any or all of
them, as the context shall require.
"Subsidiary" means 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 the Borrower.
"Syndicated Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto and Syndicated
"Note" means any one of such Syndicated Notes.
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<PAGE> 18
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means April 16, 2002, or if such date is extended
pursuant to Section 2.05(b), the date to which extended; provided that (i) in
the event the Required Banks, but not all of the Banks, elect to extend the
Termination Date in accordance with Section 2.05(a), the Termination Date
applicable to the Commitment of each Bank that has not elected to extend the
Termination Date shall not be extended, and (ii) in no event shall the
Termination Date be extended to a date later than April 16, 2004.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Total Unused Commitments" means at any date, an amount equal to: (i)
the aggregate amount of the Commitments of all of the Banks at such time, less
(ii) the aggregate outstanding principal amount of the Loans of all of the Banks
at such time.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal amount
of its Loans.
"Wachovia" means Wachovia Bank, N.A., a national banking association
and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" as used herein means that (a) the
Borrower's and its Subsidiaries' hardware and software systems with respect to
the operation of its business and its general business plan will (i) handle date
information involving any and all dates before, during and/or after January 1,
2000, including accepting input, providing output and performing date
calculations in whole or in part, (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after January 1,
2000 and without any change in performance, and (iii) store and provide date
input information without creating any ambiguity as to the century, and (b) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) above.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent
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<PAGE> 19
(except for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in GAAP) with the most recent
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks, unless with respect to any such change
concurred in by the Borrower's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.04. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05. References. Unless otherwise indicated, references in
this Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are
references to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Make Syndicated Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Syndicated Loans
to the Borrower from time to time before the Termination Date; provided that,
immediately after each such Syndicated Loan is made, the aggregate outstanding
principal amount of Syndicated Loans by such Bank shall not exceed the amount of
its Commitment, provided further that the aggregate principal amount of all
Syndicated Loans, together with the aggregate principal amount of all Money
Market Loans, at any one time outstanding shall not exceed the aggregate amount
of the Commitments of all of the Banks at such time. Each Syndicated Borrowing
under this Section shall be in an aggregate principal amount of $5,000,000 or
any larger multiple of $1,000,000 (except that any such Syndicated Borrowing may
be in the aggregate amount of the Unused Commitments) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.10, prepay Syndicated Loans and reborrow under
this Section at any time before the Termination Date.
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<PAGE> 20
SECTION 2.02. Method of Borrowing Syndicated Loans. (a) The Borrower
shall give the Agent notice in the form attached hereto as Exhibit K (a "Notice
of Borrowing") prior to 11:00 A.M. (Atlanta, Georgia time) on or before the day
of each Base Rate Borrowing and at least 3 Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
A Notice of Borrowing may be submitted by the Borrower no more frequently than 3
times in each calendar week.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Syndicated Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 1:00 P.M. (Atlanta, Georgia time) on the date of
each Syndicated Borrowing, each Bank shall (except as provided in subsection (d)
of this Section) make available its ratable share of such Syndicated Borrowing,
in Federal or other funds immediately available in Atlanta, Georgia, to the
Agent at its address referred to in or specified pursuant to Section 9.01.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address. Unless the
Agent receives notice from a Bank, at the Agent's address referred to in Section
9.01, no later than 4:00 P.M. (local time at such address) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Syndicated Loan in connection with such Syndicated Borrowing,
the Agent shall be entitled to assume that such Bank will make a Syndicated Loan
in connection with such Syndicated Borrowing and, in reliance on such
assumption, the Agent may (but shall not be obligated to) make available such
Bank's ratable share of such Syndicated Borrowing to the Borrower for the
account of such Bank. If the Agent makes such Bank's ratable share available to
the Borrower and such Bank does not in fact make its ratable share of such
Syndicated Borrowing available on such date, the Agent shall be entitled to
recover such Bank's ratable share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any account of the Borrower
maintained with the Agent), together with interest thereon for each day during
the period from the date of such Syndicated Borrowing until such sum shall be
paid in full at a rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds to cover such
amount for each
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<PAGE> 21
such day during such period, provided that any such payment by the Borrower of
such Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Syndicated Loan included in such Syndicated Borrowing for purposes of
this Agreement.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Syndicated Loan from
such Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (c) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, as the case
may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify whether
the Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, such Loans shall be made as Base Rate Loans. If the Borrower is otherwise
entitled under this Agreement to repay any Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Borrowing shall
be deemed to be made on the date such Loans mature in an amount equal to the
principal amount of the Loans so maturing, and the Loans comprising such new
Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, (i)
there shall not be more than 8 different Interest Periods outstanding at the
same time (for which purpose Interest Periods described in different numbered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous) and (ii) the proceeds
of any Base Rate Borrowing shall be applied first to repay the unpaid principal
amount of all Base Rate Loans (if any) outstanding immediately before such Base
Rate Borrowing.
SECTION 2.03. Money Market Loans. (a) In addition to making Syndicated
Borrowings, the Borrower may, as set forth in this Section, request the Banks to
make offers to make Money Market Loans to the Borrower. The Banks may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section,
provided that:
(i) there may be no more than 8 different Interest Periods for
both Syndicated Loans and Money Market Loans outstanding at the same
time (for which purpose Interest Periods described in different
numbered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are
coterminous); and
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<PAGE> 22
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans,
at any one time outstanding shall not exceed the aggregate amount of
the Commitments of all of the Banks at such time.
(b) When the Borrower wishes to request offers to make Money Market
Loans, it shall give the Banks notice substantially in the form of Exhibit E
hereto (a "Money Market Quote Request") so as to be received no later than 11:00
A.M. (Atlanta, Georgia time) on the second Domestic Business Day prior to the
date of the Money Market Borrowing proposed therein (or such other time and date
as the Borrower and the Banks may agree), specifying:
(i) the proposed date of such Money Market Borrowing, which
shall be a Domestic Business Day (the "Quotation Date");
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $5,000,000 (and in larger multiples of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
to be violated; and
(iii) the duration of the Interest Period applicable thereto,
which shall be 7 to 180 days.
The Borrower may request offers to make Money Market Loans for up to
two different Interest Periods in a single Money Market Quote Request; provided
that the request for each separate Interest Period shall be deemed to be a
separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, the Borrower
shall not deliver a Money Market Quote Request more frequently than once in any
period of 5 consecutive Domestic Business Days.
(c) (i) Each Bank may, but shall have no obligation to, submit a Money
Market Quote containing an offer to make a Money Market Loan in response to any
Money Market Quote Request; provided that, if the Borrower's request under
Section 2.03(b) specified more than one Interest Period, such Bank may, but
shall have no obligation to, make a single submission containing a separate
offer for each such Interest Period and each such separate offer shall be deemed
to be a separate Money Market Quote. Each Money Market Quote must be submitted
to the Borrower not later than 10:00 A.M. (Atlanta, Georgia time) on the
Quotation Date (or such other time and date as the Borrower and the Banks may
agree). Subject to Section 6.01, any Money Market Quote so made shall be
irrevocable except with the written consent of the Banks.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit F hereto and shall specify:
(A) the proposed date of the Money Market Borrowing
and the duration of the Interest Period therefor, which shall
be 7 to 180 days;
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<PAGE> 23
(B) the maximum principal amount of the Money Market
Loan which the quoting Bank is willing to make for the
applicable Interest Period, which principal amount (x) may be
greater than or less than the Commitment of the quoting Bank,
(y) shall be at least $5,000,000 or a larger multiple of
$1,000,000, and (z) may not exceed the principal amount of the
Money Market Borrowing for which offers were requested;
(C) the rate of interest per annum (rounded, if
necessary, to the nearest 1/100th of 1%) (the "Money Market
Rate") offered for each such Money Market Loan; and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Banks and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Money Market Quote
Request (other than setting forth the maximum principal amount of the Money
Market Loan which the quoting Bank is willing to make for the applicable
Interest Period).
(d) Not later than 11:00 A.M. (Atlanta, Georgia time) on the Quotation
Date (or such other time and date as the Borrower and the Banks may agree), the
Borrower shall notify the Banks and the Agent of its acceptance or nonacceptance
of the offers so notified to it pursuant to Section 2.03(c). In the case of
acceptance, such notice shall specify the aggregate principal amount of offers
for each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part (provided that any Money Market Quote accepted
in part from any Bank shall not be less than the amount set forth in the Money
Market Quote of such Bank as the minimum principal amount of the Money Market
Loan such Bank was willing to make for the applicable Interest Period); provided
that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $5,000,000 (and in larger multiples of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
to be violated;
(iii) acceptance of offers may only be made in ascending order
of Money Market Rates; and
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<PAGE> 24
(iv) the Borrower may not accept any offer that fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation, Section
2.03(a)).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (in multiples of $100,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been
accepted shall, not later than 1:00 P.M. (Atlanta, Georgia time) on the
Quotation Date, make the amount of such Loan available to the Borrower on such
date by depositing the same, in immediately available funds, in an account of
the Borrower as directed by the Borrower. The Borrower shall notify the Agent by
3:00 p.m. (Atlanta, Georgia time) in the form attached hereto as Exhibit L.
SECTION 2.04. Notes. (a) The Syndicated Loans of each Bank shall be
evidenced by a single Syndicated Note payable to the order of such Bank for the
account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower shall be
evidenced by a single Money Market Note payable to the order of such Bank for
the account of its Lending Office.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Agent shall deliver such Notes to such Bank. Each Bank shall record, and prior
to any transfer of its Notes shall endorse on the schedule forming a part
thereof appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and amount of each
payment of principal made by the Borrower with respect thereto and whether, in
the case of such Bank's Syndicated Note, such Syndicated Loan is a Base Rate
Loan or Euro-Dollar Loan, and such schedule shall constitute rebuttable
presumptive evidence of the principal amount owing and unpaid on such Bank's
Notes; provided that the failure of any Bank to make, or any error in making,
any such recordation or endorsement shall not affect the obligation of the
Borrower hereunder or under the Notes or the ability of any Bank to assign its
Notes. Each Bank is hereby irrevocably authorized by the Borrower so to endorse
its Notes and to attach to and make a part of any Note a continuation of any
such schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
(b) The Borrower shall have the right, on the First Anniversary Date
and the Second Anniversary Date, to request an extension of the Termination Date
for a period of one year each, on the terms and conditions set forth in this
paragraph. Upon written request of the
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<PAGE> 25
Borrower, which shall be made in writing and delivered to the Agent on a
Domestic Business Day no fewer than 60 days prior to the applicable Anniversary
Date, the Banks and the Agent in their sole and absolute discretion may (but
shall not be obligated to) extend the then effective Termination Date for a
period of one year. The terms of any extension of the Termination Date shall be
independently negotiated among the Borrower, the Banks and the Agent at the time
of the extension request, provided that the terms of the extension may be the
same as those in effect prior to any extension should the Borrower, the Banks
and the Agent so agree; provided, further, that should the terms of the
extension be other than those in effect prior to the extension, then the Loan
Documents shall be amended to the extent necessary to incorporate any such
different terms. In the event that a Bank chooses to extend the Termination Date
for such a one year period, notice shall be given by such Bank to the Borrower
and the Agent not more than 30, nor fewer than 15, days prior to the applicable
Anniversary Date; provided that the Termination Date shall not be extended with
respect to any of the Banks (regardless of whether any relevant Bank has
delivered a favorable extension notice) unless the Required Banks have delivered
favorable extension notices and are willing to extend the Termination Date and
either (i) the remaining Banks shall on the Termination Date applicable to the
Commitment of each Bank that has not elected to extend the Termination Date (a
"Terminating Bank") purchase ratable assignments (without any obligations so to
do) from each Terminating Bank (in the form of an Assignment and Acceptance) in
accordance with their respective percentage of the remaining aggregate amount of
the Commitments; provided that such remaining Banks shall be provided such
opportunity (which opportunity shall allow such Banks at least 5 Domestic
Business Days in which to make a decision) prior to the Borrower finding another
bank pursuant to the immediately succeeding clause (ii); and provided, further,
that should any of the remaining Banks elect not to purchase such an assignment,
then such other remaining Banks shall be entitled to purchase an assignment on
the Termination Date applicable to the Commitment of each Terminating Bank from
such Terminating Bank which includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or Banks, as the case may be;
(ii) the Borrower shall find another bank, acceptable to the Agent, willing to
accept an assignment on the Termination Date applicable to the Commitment of
each Terminating Bank from such Terminating Bank (in the form of an Assignment
and Acceptance); or (iii) the Borrower shall reduce the aggregate Commitments on
the Termination Date applicable to the Commitment of each Terminating Bank in an
amount equal to the sum of the Commitments of all such Terminating Banks.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" shall be
determined quarterly based upon the ratio of Income Available for Fixed Charges
to Consolidated Fixed Charges (calculated as of the last day of each Fiscal
Quarter for the period of 4 consecutive Fiscal Quarters year ended), as follows:
<TABLE>
<CAPTION>
Ratio of Income Available for
Fixed Charges to
Consolidated Fixed Charges Base Rate Loans Euro-Dollar Loans
- -------------------------- --------------- -----------------
<S> <C> <C>
Equal to or greater than 1.80 0% .60%
Equal to or greater than 1.65
but less than 1.80 0% .80%
Equal to or greater than 1.50
But less than 1.65 0% 1.00%
Less than 1.50 0% 1.20%
</TABLE>
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<PAGE> 26
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 45 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 45 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new Rate
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date next following the
Closing Date, the Applicable Margin shall be (A) 0% for Base Rate Loans, and (B)
1.00% for Euro-Dollar Loans, (ii) in the case of any Applicable Margin
determined for the fourth and final Fiscal Quarter of a Fiscal Year, the Rate
Determination Date shall be the date which is 90 days after the last day of such
final Fiscal Quarter and such Applicable Margin shall be determined based upon
the annual audited financial statements for the Fiscal Year ended on the last
day of such final Fiscal Quarter, and (iii) if on any Rate Determination Date
the Borrower shall have failed to deliver to the Banks the financial statements
required to be delivered pursuant to Section 5.01(a) or Section 5.01(b) with
respect to the Fiscal Year or Fiscal Quarter, as the case may be, most recently
ended prior to such Rate Determination Date, then for the period beginning on
such Rate Determination Date and ending on the earlier of (A) the date on which
the Borrower shall deliver to the Banks the financial statements to be delivered
pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, or (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Margin shall be determined
as if the ratio of Income Available for Fixed Charges to Consolidated Fixed
Charges was less than 1.50 at all times during such period. Any change in the
Applicable Margin on any Rate Determination Date shall result in a corresponding
change, effective on and as of such Rate Determination Date, in the interest
rate applicable to each Syndicated Loan outstanding on such Rate Determination
Date; provided, that: (i) for Euro-Dollar Loans, changes in Applicable Margin
shall only be effective for Interest Periods commencing on or after such Rate
Determination Date; and (ii) no Applicable Margin shall be decreased pursuant to
this Section 2.06 if a Default is in existence on such Rate Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
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<PAGE> 27
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin plus the applicable Adjusted
London Interbank Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day thereof. Any
overdue principal of and, to the extent permitted by applicable law, overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Banker's Association for the purpose of displaying London Interbank
Offered Rates for U.S. dollar deposits) determined as of 1:00 p.m. New York City
time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Rate for such Loan quoted by the Bank making
such Loan in accordance with Section 2.03. Such interest shall be payable for
such Interest Period on the last day thereof and, if such Interest Period is
longer than 90 days, at intervals of 90 days after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Money Market Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
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(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopy of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) shall bear interest at the Default Rate.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent for the
ratable account of each Bank a facility fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Commitment, times (ii) a
per annum percentage equal to the Applicable Facility Fee Rate. Such facility
fee shall accrue from and including the Closing Date to and including the
Termination Date. Facility fees shall be payable quarterly in arrears on the
first Facility Fee Payment Date following each Facility Fee Determination Date
and on the Termination Date; provided that should the Commitments be terminated
at any time prior to the Termination Date for any reason, the entire accrued and
unpaid facility fee shall be paid on the date of such termination. The
"Applicable Facility Fee Rate" shall be determined quarterly based upon the
ratio of Income Available for Fixed Charges to Consolidated Fixed Charges
(calculated as of the last day of each Fiscal Quarter for the period of 4
consecutive Fiscal Quarters then ended) as follows:
<TABLE>
<CAPTION>
Ratio of Income Available for Fixed Charges
To Consolidated Fixed Charges Applicable Facility Fee Rate
- ----------------------------- ----------------------------
<S> <C>
Equal to or greater than 1.80 .15%
Equal to or greater than 1.65
But less than 1.80 .20%
Equal to or greater than 1.50
But less than 1.65 .25%
Less than 1.50 .30%
</TABLE>
The Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the "Facility Fee Determination Date") which is 45 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Facility Fee Rate so determined shall remain effective from
such Facility Fee Determination Date until the date which is 45 days after the
last day of the Fiscal Quarter in which such Facility Fee Determination Date
falls (which latter date shall be a new Facility Fee Determination Date);
provided that (i) for the period from and including the Closing Date to but
excluding the Facility Fee Determination Date next following the Closing Date,
the Applicable Facility Fee Rate shall be .25%; (ii) in the case of any
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Applicable Facility Fee Rate determined for the fourth and final Fiscal Quarter
of a Fiscal Year, the Facility Fee Determination Date shall be the date which is
90 days after the last day of such final Fiscal Quarter and such Applicable
Facility Fee Rate shall be determined based upon the annual audited financial
statements for the Fiscal Year ended on the last day of such final Fiscal
Quarter, and (iii) if on any Facility Fee Determination Date the Borrower shall
have failed to deliver to the Banks the financial statements required to be
delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the
Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to
such Facility Fee Determination Date, then for the period beginning on such
Facility Fee Determination Date and ending on the earlier of (A) the date on
which the Borrower shall deliver to the Banks the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Facility Fee Rate shall be
determined as if the ratio of Income Available for Fixed Charges to Consolidated
Fixed Charges was less than 1.50 at all times during such period; provided that
the Applicable Facility Fee Rate shall not be decreased on any Facility Fee
Determination Date pursuant to this Section 2.07 if a Default is in existence on
such Facility Fee Determination Date.
(b) The Borrower shall pay to the Agent, for the account and sole
benefit of the Agent, such fees and other amounts at such times as set forth in
the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the Agent,
terminate at any time, or proportionately reduce from time to time by an
aggregate amount of at least $5,000,000 or any larger multiple of $1,000,000,
the Commitments; provided, however, no such termination or reduction shall be in
an amount greater than the Total Unused Commitments on the date of such
termination or reduction. If the Commitments are terminated in their entirety,
all accrued fees (as provided under Section 2.07) shall be payable on the
effective date of such termination.
SECTION 2.09. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrower may, upon at least
1 Domestic Business Day's notice to the Agent, prepay any Base Rate Borrowing in
whole at any time, or from time to time in part in amounts aggregating at least
$5,000,000, or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Base Rate
Loans of the several Banks included in such Base Rate Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan or any Money
Market Loan prior to the last day of an Interest Period applicable thereto.
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<PAGE> 30
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. On each date on which the
Commitments are reduced or terminated pursuant to Section 2.08 or Section 2.09,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amounts due under
Section 8.05(a)), as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced or terminated. Each such payment or prepayment shall
be applied to repay or prepay ratably the Loans of the several Banks; provided
that such prepayment shall be applied, first, to Syndicated Loans outstanding on
the date of such prepayment (in direct order of maturity) and then, to the
extent necessary, to Money Market Loans outstanding on the date of such
prepayment (in direct order of maturity).
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of facility
fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time) on the date
when due, in Federal or other funds immediately available in Atlanta, Georgia,
to the Agent at its address referred to in Section 9.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or the Money Market Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other amounts
to be made by the Borrower pursuant to this Agreement with respect to any Loan
or fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrower is required by applicable law to make
any such withholding or deduction of Taxes with respect to any Loan or fee or
other amount, the
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<PAGE> 31
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such deduction
or withholding is made all receipts and other documents evidencing such payment
and shall pay to such Bank additional amounts as may be necessary in order that
the amount received by such Bank after the required withholding or other payment
shall equal the amount such Bank would have received had no such withholding or
other payment been made. If no withholding or deduction of Taxes are payable in
respect of any Loan or fee relating thereto, the Borrower shall furnish any
Bank, at such Bank's request, a certificate from each applicable taxing
authority or an opinion of counsel acceptable to such Bank, in either case
stating that such payments are exempt from or not subject to withholding or
deduction of Taxes. If the Borrower fails to provide such original or certified
copy of a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower hereby agrees to compensate such Bank for,
and indemnify them with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.12, it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided, however, if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.12 shall be applicable with respect to any Participant,
Assignee or other Transferee, and any calculations required by such provisions
(i) shall be made based upon the circumstances of such Participant, Assignee or
other Transferee, and (ii) constitute a continuing agreement and shall survive
the termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on
Base Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans and interest on Money Market Loans
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed, calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Facility fees and
any other fees payable hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of
each Bank to make a Loan on the occasion of the first Borrowing is subject to
the satisfaction of the conditions set forth in Section 3.02 and the following
additional conditions:
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<PAGE> 32
(a) receipt by the Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such party or
(ii) a facsimile transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to the Agent;
(b) receipt by the Agent of a duly executed Syndicated Note
and a duly executed Money Market Note for the account of each Bank complying
with the provisions of Section 2.04;
(c) receipt by the Agent of an opinion (together with any
opinions of local counsel relied on therein) of Waring Cox, PLC, counsel for the
Borrower, dated as of the Closing Date, substantially in the form of Exhibit C
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Agent or any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Womble Carlyle
Sandridge & Rice, PLLC, special counsel for the Agent, dated as of the Closing
Date, substantially in the form of Exhibit D hereto and covering such additional
matters relating to the transactions contemplated hereby as the Agent may
reasonably request;
(e) receipt by the Agent of a certificate (the "Closing
Certificate"), dated the date of the first Borrowing, substantially in the form
of Exhibit G hereto, signed by a principal financial officer of the Borrower, to
the effect that (i)no Default has occurred and is continuing on the date of the
first Borrowing and (ii)the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first Borrowing
hereunder;
(f) receipt by the Agent of all documents which the Agent or
any Bank may reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement and the Notes, and
any other matters relevant hereto, all in form and substance satisfactory to the
Agent, including without limitation a certificate of incumbency of the Borrower
(the "Officer's Certificate"), signed by the Secretary or an Assistant Secretary
of the Borrower, substantially in the form of Exhibit H hereto, certifying as to
the names, true signatures and incumbency of the officer or officers of the
Borrower authorized to execute and deliver the Loan Documents, and certified
copies of the following items: (i) the Borrower's Certificate of Incorporation,
(ii) the Borrower's Bylaws, (iii) a certificate of the Secretary of State of the
State of Delaware as to the good standing of the Borrower as a Delaware
corporation, and (iv) the action taken by the Board of Directors of the Borrower
authorizing the Borrower's execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party;
(g) receipt by the Agent of a Notice of Borrowing (in the case
of a Syndicated Borrowing) or by the Banks of a Money Market Quote Request (in
the case of a Money Market Borrowing); and
(h) receipt by the Agent of such other documents or items as
the Agent, the Banks or their counsel may reasonably request.
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<PAGE> 33
SECTION 3.02. Conditions to All Borrowings. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions:
(a) either (i) receipt by the Agent of Notice of Borrowing as
required by Section 2.02 (if such Borrowing is a Syndicated Borrowing), or (ii)
compliance with the provisions of Section 2.03 (if such Borrowing is a Money
Market Borrowing);
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing (i) the
aggregate outstanding principal amount of the Syndicated Loans of each Bank will
not exceed the amount of its Commitment and (ii) the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of the
Commitments of all of the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c) and (d) of this Section; provided that such
Borrowing shall not be deemed to be such a representation and warranty to the
effect set forth in Section 4.04(b) as to any event, act or condition having a
Material Adverse Effect which has theretofore been disclosed in writing by the
Borrower to the Banks if the aggregate outstanding principal amount of the Loans
immediately after such Borrowing will not exceed the aggregate outstanding
principal amount thereof immediately before such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary (except where the failure to be so qualified could not reasonably
be expected to have or cause a Material Adverse Effect), and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
(collectively, "Permits") required to carry on its business as now conducted
(except such Permits the absence of which could not reasonably be expected to
have or cause a Material Adverse Effect).
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SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a)The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of February
1, 1998, and the related consolidated statements of income, shareholders' equity
and cash flows for the Fiscal Year then ended, reported on by Price Waterhouse
LLP, copies of which have been delivered to each of the Banks, and the unaudited
consolidated financial statements of the Borrower for the interim period ended
November 1, 1998, copies of which have been delivered to each of the Banks,
fairly present, in conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such periods stated.
(b) Since February 1, 1998, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity or enforceability
of, or could impair the ability of the Borrower to perform its obligations
under, this Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
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<PAGE> 35
(b) Neither the Borrower nor any member of the Controlled
Group is or has in the past 10 years been obligated to contribute to any
Multiemployer Plan.
SECTION 4.07. Taxes. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Subsidiary have been paid (except for such
taxes the payment of which state being contested by the Borrower or such
Subsidiary in good faith pursuant to appropriate proceedings and with respect to
which the Borrower has established adequate reserves in accordance with GAAP).
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate. United States income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the Fiscal
Year ended February 2, 1997.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary (except where the failure to be so qualified
could not reasonably be expected to have or cause a Material Adverse Effect),
and has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted. The
Borrower has no Subsidiaries except those Subsidiaries listed on Schedule 4.08,
which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
SECTION 4.09. Not an Investment Company. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.09.
SECTION 4.12. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could reasonably be expected to have or cause a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
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<PAGE> 36
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all facts
which could reasonably be expected to have or cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the Borrower
nor any Subsidiary is subject to any Environmental Liability which could
reasonably be expected to have or cause a Material Adverse Effect and neither
the Borrower nor any Subsidiary has been designated as a potentially responsible
party under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss.300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of the Borrower, at or from any adjacent site
or facility, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, and managed or otherwise handled in
minimal amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and Affiliates,
has procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in connection
with the operation of the Properties and the Borrower's, and each of its
Subsidiary's and Affiliate's, respective businesses.
SECTION 4.15. Compliance with Laws. The Borrower and each
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws could not reasonably be expected to have or cause, alone or in the
aggregate, a Material Adverse Effect.
SECTION 4.16. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of the
issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim.
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SECTION 4.17. Margin Stock. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation X.
SECTION 4.18. Insolvency. After giving effect to the execution
and delivery of the Loan Documents and the making of the Loans under this
Agreement, the Borrower will not be "insolvent," within the meaning of such term
as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.19. Compliance with Year 2000 Plan. The Borrower has
developed and has delivered to the Agent a comprehensive plan (the "Y2K Plan")
for ensuring that the Borrower's and its Subsidiaries' software and hardware
systems which impact or affect in any way the business operations of the
Borrower and its Subsidiaries will be Year 2000 Compliant and Ready. The
Borrower and its Subsidiaries have met the Y2K Plan milestones such that all
hardware and software systems will be Year 2000 Compliant and Ready in
accordance with the Y2K Plan.
SECTION 4.20 Insurance. The Borrower maintains and each
Subsidiary maintains (either in the name of the Borrower or in such Subsidiary's
own name), with financially secure and reputable insurance companies, insurance
on all its Properties in at least such amounts and against at least such risks
as are usually insured against in the same general area by companies of
established repute engaged in the same or similar business.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by Price Waterhouse Coopers LLP or other
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independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Required Banks;
(b) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each case
in comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting officer of
the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit I (a "Compliance Certificate"), of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.03
through 5.06, inclusive, Section 5.08 and Section 5.12 on the date of such
financial statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;
(d) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
(g) if and when the Borrower or any member of the Controlled
Group (i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii)receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii)receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
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(h) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a claim
against the Borrower and/or any Subsidiary for $1,000,000 or more in excess of
amounts covered in full by applicable insurance; and
(i) simultaneously with the delivery of each set of annual and
quarterly financial statements referred to in clauses (a) and (b) above, a
statement of the chief executive officer, treasurer, chief financial officer, or
chief technology officer of the Borrower to the effect that nothing has come to
his/her attention to cause him/her to believe that the Y2K Plan milestones have
not been met in a manner such that the Borrower's and its Subsidiaries' hardware
and software systems will not be Year 2000 Compliant and Ready in accordance
with the Y2K Plan;
(j) within 5 Business Days after the Borrower becomes aware of
any deviations from the Y2K Plan which would cause compliance with the Y2K Plan
to be delayed or not achieved, a statement of the chief executive officer,
treasurer, chief financial officer, or chief technology officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(k) promptly upon the receipt thereof, a copy of any third
party assessments of the Borrower's Y2K Plan together with any recommendations
made by such third party with respect to Year 2000 compliance; and
(l) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of an
Event of Default and at the Borrower's expense after the occurrence of an Event
of Default to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case during regular business
hours and as often as may reasonably be desired.
SECTION 5.03. Ratio of Consolidated Debt to Consolidated
EBITDA. As of the end of each Fiscal Quarter, beginning with the Fiscal Quarter
ending January 31, 1999, the ratio of Consolidated Debt as of the end of such
Fiscal Quarter to Consolidated EBITDA for the period of 4 consecutive Fiscal
Quarters then ended shall be less than (a) 2.25 to 1.00, if such Fiscal Quarter
is the first Fiscal Quarter or the fourth Fiscal Quarter of a Fiscal Year or (b)
2.75
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to 1.00, if such Fiscal Quarter is the second Fiscal Quarter or the third Fiscal
Quarter of a Fiscal Year.
SECTION 5.04. Minimum Consolidated Net Worth. Consolidated Net
Worth will at no time be less than $69,000,000 plus the sum of (i) 25% of the
cumulative Reported Net Income of the Borrower and its Consolidated Subsidiaries
during any period after January 31, 1999 (taken as one accounting period),
calculated quarterly but excluding from such calculations of Reported Net Income
for purposes of this clause (i) any quarter in which the Consolidated Net Income
of the Borrower and its Consolidated Subsidiaries is negative, and (ii) 100% of
the cumulative Net Proceeds of Capital Stock received during any period after
January 31, 1999, calculated quarterly.
SECTION 5.05. Inventory. As of the last day of each Fiscal
Quarter, beginning with the Fiscal Quarter ending January 31, 1999, the product
of (a) Average Inventory for such Fiscal Quarter times (b) .25, shall not exceed
the Cost of Goods Sold.
SECTION 5.06. Fixed Charges Coverage. At the end of each
Fiscal Quarter, beginning with the Fiscal Quarter ending January 31, 1999, the
ratio of Income Available for Fixed Charges for the period of 4 consecutive
Fiscal Quarters then ended to Consolidated Fixed Charges for the period of 4
consecutive Fiscal Quarters then ended, shall be greater than (a) 1.40 to 1.00
for each Fiscal Quarter ending on or before October 29, 2000, and (b) 1.50 to
1.00 for each Fiscal Quarter thereafter.
SECTION 5.07. Loans or Advances. Neither the Borrower nor any
of its Subsidiaries shall make loans or advances to any Person except loans or
advances constituting Permitted Investments.
SECTION 5.08. Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by Section
5.07 and except (a) Permitted Investments and (b) other Investments in an
aggregate amount not exceeding $500,000.
SECTION 5.09. Negative Pledge. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement as described on Schedule 5.09 hereto;
and
(b) Permitted Liens.
SECTION 5.10. Maintenance of Existence. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and
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maintained except, with respect to a Subsidiary, through corporate
reorganization to the extent permitted by Section 5.12.
SECTION 5.11. Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part, except through corporate reorganization to the extent permitted by
Section 5.12.
SECTION 5.12. Consolidations, Mergers and Sales of Assets. The
Borrower will not, nor will it permit any Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that (a)the Borrower may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii)the Borrower is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b)Subsidiaries of the Borrower may merge with one
another or with the Borrower, and (c) the foregoing limitation on the sale,
lease or other transfer of assets and on the discontinuation or elimination of a
business line or segment shall not prohibit, during any Fiscal Quarter, a
transfer of assets or the discontinuance or elimination of a business line or
segment (in a single transaction or in a series of related transactions) unless
the aggregate assets to be so transferred or utilized in a business line or
segment to be so discontinued, when combined with all other assets transferred,
and all other assets utilized in all other business lines or segments
discontinued, during such Fiscal Quarter and the immediately preceding seven
Fiscal Quarters, either (x) constituted more than 10% of Consolidated Total
Assets at the end of the eighth Fiscal Quarter immediately preceding such Fiscal
Quarter, or (y) contributed more than 10% of Consolidated Operating Profits
during the 8 consecutive Fiscal Quarters immediately preceding such Fiscal
Quarter.
SECTION 5.13. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary (i) in connection with,
either directly or indirectly, any tender offer for, or other acquisition of,
stock of any corporation with a view towards obtaining control of such other
corporation (other than Permitted Acquisitions), (ii) directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, or (iii) for any purpose in violation of any
applicable law or regulation. The proceeds of the Loans will be used by the
Borrower exclusively for general corporate purposes.
SECTION 5.14. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien (other than a Permitted Lien) against the property of the Borrower or any
Subsidiary, except liabilities being contested in good faith by appropriate
proceedings diligently pursued and against which, if requested by the Agent, the
Borrower shall have set up reserves in accordance with GAAP.
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SECTION 5.15. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
SECTION 5.16. Change in Fiscal Year. The Borrower will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.17. Maintenance of Property. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its properties and assets in
good condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.18. Environmental Notices. The Borrower shall
furnish to the Banks and the Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Properties or any
adjacent property, and all facts, events, or conditions that could lead to any
of the foregoing.
SECTION 5.19. Environmental Matters. The Borrower and its
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed, managed or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all applicable
Environmental Requirements.
SECTION 5.20. Environmental Release. The Borrower agrees that
upon the occurrence of an Environmental Release at or on any of the Properties
it will act immediately to investigate the extent of, and to take appropriate
remedial action to eliminate, such Environmental Release, whether or not ordered
or otherwise directed to do so by any Environmental Authority.
SECTION 5.21. Transactions with Affiliates. Neither the
Borrower nor any of its Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Borrower or such Subsidiary (which
Affiliate is not the Borrower or a Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are
fully disclosed to the Agent and the Banks, consented to in writing by the
Required Banks, and are no less favorable to Borrower or such Subsidiary than
would be obtained in a comparable arm's length transaction with a Person which
is not an Affiliate.
SECTION 5.22 Y2K Plan. The Borrower will meet the milestones
contained in the Y2K Plan and will have all critical hardware and software
systems Year 2000 Compliant and
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Ready (including all internal and external testing) on or before July 31, 1999.
All non-critical systems will be Year 2000 Compliant and Ready on or before
October 31, 1999.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within five Domestic
Business Days after such interest shall become due, or shall fail to pay any fee
or other amount payable hereunder within five Domestic Business Days after such
fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.13, inclusive, or Section 5.16 or 5.20
or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement (other
than those covered by clause (a) or (b) above) for thirty days after the earlier
of (i) the first day on which the Borrower has knowledge of such failure or (ii)
written notice thereof has been given to the Borrower by the Agent at the
request of any Bank; or
(d) any representation, warranty, certification or statement
made or deemed made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Notes) in an aggregate
principal amount in excess of $2,500,000 when due or within any applicable grace
period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate principal amount in excess of $2,500,000 or the
mandatory prepayment or purchase of such Debt by the Borrower (or its designee)
or such Subsidiary (or its designee) prior to the scheduled maturity thereof, or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holders of such Debt or any Person acting on such holders' behalf to
accelerate the maturity thereof or require the mandatory prepayment or purchase
thereof prior to the scheduled maturity thereof, without regard to whether such
holders or other Person shall have exercised or waived their right to do so; or
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(g) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or the Borrower or any other member of the Controlled Group shall
enter into, contribute or be obligated to contribute to, terminate or incur any
withdrawal liability with respect to, a Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue unsatisfied
and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or
any Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower or any Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain unsatisfied and unstayed for a period of 25
days after the date of filing; or
(l) (i) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934) of 20% or more of the outstanding
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shares of the voting stock of the Borrower; or (ii) as of any date a majority of
the Board of Directors of the Borrower consists of individuals who were not
either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A), or (C) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A) and individuals described in clause (B); or
(m) the occurrence of any event, act or condition which the
Required Banks determine either does cause, or has a reasonable probability of
causing, a Material Adverse Effect;
then, and in every such event, the Agent shall (i)if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Required Banks, by notice to
the Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Notes (together with all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that if
any Event of Default specified in clause (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon automatically terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. Notwithstanding the
foregoing, the Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
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certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telefax, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
non-payment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to Section 9.05) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Banks, 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
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
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SECTION 7.04. Rights of Agent and its Affiliates as a Bank.
With respect to any Loan made by Wachovia or an Affiliate of Wachovia, such
Affiliate and Wachovia in their capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Wachovia (or in Wachovia's case, acting as
the Agent), and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include such Affiliate of Wachovia or Wachovia in its individual
capacity. Such Affiliate and Wachovia may (without having to account therefor to
any Bank) accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower (and any of its
Affiliates) as if they were not an Affiliate of the Agent or the Agent,
respectively; and such Affiliate and Wachovia may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and Wachovia) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however, that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the provisions of Section 9.07(c) have
been satisfied. Any requests, authority or consent of any Person who at the time
of making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
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SECTION 7.08. Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Agent by reason of
taking, continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which has
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding Euro-Dollar Loans for such Interest
Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date of
any Borrowing of Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such authority, bank or agency being referred to as an "Authority" and any such
event being referred to as a "Change of Law"), or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any Authority shall make it unlawful or impossible for any Bank (or
its Lending Office) to make, maintain or fund its Euro-Dollar Loans and such
Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to
the other Banks and the Borrower, whereupon until such Bank notifies the
Borrower and the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of such Bank, together with accrued interest thereon and any
amount due such Bank pursuant to Section 8.05(a). Concurrently with prepaying
each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an
equal principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar
Loans, its Notes or its obligation to make Euro-Dollar Loans,
or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its
Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its
obligation to make Euro-Dollar Loans (except for changes in
the rate of tax on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage) against
assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending
Office) or the London interbank market any other condition
affecting its Euro-Dollar Loans, its Notes or its obligation
to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
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(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i)the obligation of any Bank to make or maintain
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in such case
interest and principal on such Loans shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09,
Section 2.10, Section 8.02 or otherwise) of a Euro-Dollar Loan or a Money Market
Loan on a date other than the last day of an Interest Period for such
Euro-Dollar Loan or Money Market Loan, as the case may be;
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(b) any failure by the Borrower to prepay a Euro-Dollar Loan
or a Money Market Loan on the date for such prepayment specified in the relevant
notice of prepayment hereunder;
(c) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02; or
(d) any failure by the Borrower to borrow a Money Market Loan
(with respect to which the Borrower has accepted a Money Market Quote) on the
date for the Money Market Borrowing of which such Money Market Loan is a part
specified in the applicable Money Market Quote Request delivered pursuant to
Section 2.03;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market (if such Loan is a Euro-Dollar Loan).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its address
or telecopy number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopy number specified in this Section and the telecopy machine used by the
sender provides a written confirmation that such telecopy has been so
transmitted or receipt of such telecopy transmission is otherwise confirmed,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, and (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
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and remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all out-of-pocket expenses incurred by the Agent or any Bank, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
(c) The Borrower shall indemnify the Agent, the Banks and each
Affiliate thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Agent or any of the Banks to enforce this Agreement or any
of the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection with
any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
SECTION 9.04. Setoffs; Sharing of Set-Offs. (a) The Borrower
hereby grants to each Bank, as security for the full and punctual payment and
performance of the obligations of the Borrower under this Agreement, a
continuing lien on and security interest in all deposits and other sums credited
by or due from such Bank to the Borrower or subject to withdrawal by the
Borrower; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, each Bank may at any time upon or after
the occurrence of any Event of Default, and without notice to the Borrower, set
off the whole or any portion or portions of any or all such deposits and other
sums against such obligations, whether or not any other Person or Persons could
also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Syndicated
Notes held by it which is greater than the
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proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Syndicated Notes held by such
other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Syndicated Notes held by the other Banks
owing to such other Banks, and/or such other adjustments shall be made, as may
be required so that all such payments of principal and interest with respect to
the Syndicated Notes held by the Banks owing to such other Banks shall be shared
by the Banks pro rata; provided that (i) nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness (including, without limitation, Money Market Loans) of the Borrower
other than its indebtedness under the Syndicated Notes, and (ii) if all or any
portion of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be rescinded
and such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount equal
to such other Bank's ratable share (according to the proportion of (x) the
amount of such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Syndicated Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) change the Commitment of any Bank or
subject any Bank to any additional obligation, (ii) change the principal of or
reduce the rate of interest on any Loan or reduce any fees hereunder, (iii)
change the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) change the amount of principal or reduce the amount of
interest or fees due on any date fixed for the payment thereof, (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the percentage of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement, (vi) change the manner of application of any payments made under this
Agreement or the Notes, (vii) release or substitute all or any substantial part
of the collateral (if any) held as security for the Loans, or (viii) release any
guaranty given to support payment of the Loans.
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement unless each Bank shall be informed thereof by the Borrower and
shall be afforded an opportunity of considering the same and shall be supplied
by the Borrower with sufficient information to enable it to make an informed
decision with respect thereto. Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on which the
same shall have been executed and
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delivered by the requisite percentage of Banks. The Borrower will not, directly
or indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any Bank (in its
capacity as such) as consideration for or as an inducement to the entering into
by such Bank of any waiver or amendment of any of the terms and provisions of
this Agreement unless such remuneration is concurrently paid, on the same terms,
ratably to all such Banks.
SECTION 9.06. Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.07. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i)the change
of any date fixed for the payment of principal of or interest on the related
Loan or Loans, (ii) the change of the amount of any principal or reduce the
amount of any interest or fees due on any date fixed for the payment thereof
with respect to the related Loan or Loans, (iii) the change of the principal of
the related Loan or Loans, (iv) any reduction in the rate at which either
interest is payable thereon or (if the Participant is entitled to any part
thereof) commitment fee is payable hereunder from the rate at which the
Participant is entitled to receive interest or commitment fee (as the case may
be) in respect of such participation, (v) the release or substitution of all or
any substantial part of the collateral (if any) held as security for the Loans,
or (vi) the release of any guaranty given to support payment of the Loans. Each
Bank selling a participating interest in any Loan, Note, Commitment or other
interest under this Agreement shall, within 10 Domestic Business Days of such
sale, provide the Borrower and the Agent with written notification stating that
such sale has occurred and identifying the Participant and the interest
purchased by such Participant. The Borrower agrees that each Participant shall
be entitled to the benefits of Article VIII with respect to its participation in
Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations
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under this Agreement, the Notes and the other Loan Documents, and such Assignee
shall assume all such rights and obligations, pursuant to an Assignment and
Acceptance in the form attached hereto as Exhibit J, executed by such Assignee,
such transferor Bank and the Agent (and, in the case of: (i) an Assignee that is
not then a Bank or an Affiliate of a Bank; and (ii) an assignment not made
during the existence of a Default or an Event of Default, by the Borrower);
provided that (i) no interest may be sold by a Bank pursuant to this paragraph
(c) unless the Assignee shall agree to assume ratably equivalent portions of the
transferor Bank's Commitment, (ii) if the Assignee is not then a Bank, the
amount of the Commitment of the assigning Bank being assigned pursuant to such
assignment (determined as of the effective date of the assignment) shall be
equal to or more than $5,000,000, (iii) no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank without the consent of the Borrower, which consent shall not
be unreasonably withheld, provided that the Borrower's consent shall not be
necessary with respect to any assignment made during the existence of a Default
or an Event of Default; and (iv) no interest may be sold by a Bank pursuant to
this paragraph (c) to any Assignee that is not then a Bank or an Affiliate of a
Bank, without the consent of the Agent, which consent shall not be unreasonably
withheld, provided, that although the Agent's consent may not be necessary with
respect to an Assignee that is then a Bank or an Affiliate of a Bank, no such
assignment shall be effective until the conditions set forth in the following
sentence are satisfied. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Agent and (if applicable) the Borrower,
(B) delivery of an executed copy of the Assignment and Acceptance to the
Borrower and the Agent, (C) payment by such Assignee to such transferor Bank of
an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, and (D) payment by the assigning Bank to the Agent of a
processing and recordation fee of $1,500 (if such Assignee is then a Bank or an
Affiliate of a Bank) or $3,500 (if such Assignee is not then a Bank or an
Affiliate of a Bank), such Assignee shall for all purposes be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank under
this Agreement (including, without limitation, the rights of a Bank under
Section 2.03) to the same extent as if it were an original party hereto with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an Assignee pursuant to
this paragraph (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession concerning the
Borrower which has been delivered to such Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by
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reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
SECTION 9.08. Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided, however, that nothing herein
shall prevent any Bank from disclosing such information (i) to any other Bank,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Bank, (iv) which has been publicly disclosed, (v) to the extent reasonably
required in connection with any litigation to which the Agent, any Bank or their
respective Affiliates may be a party, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors and (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights hereunder
which has agreed in writing to be bound by the provisions of this Section 9.08.
SECTION 9.09. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided,
however, that, subject to Section 9.07, the disposition of the Note or Notes
held by that Bank shall at all times be within its exclusive control.
SECTION 9.10. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
53
<PAGE> 58
SECTION 9.11. Survival of Certain Obligations. Sections
8.03(a), 8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder,
shall survive, and shall continue to be enforceable notwithstanding, the
termination of this Agreement and the Commitments and the payment in full of the
principal of and interest on all Loans.
SECTION 9.12. Georgia Law. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Bank by the Borrower or inadvertently received by any
Bank, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the Borrower
not pay and the Banks not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by the Borrower
under applicable law.
SECTION 9.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. Consent to Jurisdiction. The Borrower (a)
submits to personal jurisdiction in the State of Georgia, the courts thereof and
the United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
54
<PAGE> 59
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
HANCOCK FABRICS, INC.
By: ___________________________(SEAL)
Title:
3406 West Main Street
Tupelo, Mississippi 38803
Attention: Bruce D. Smith
Telecopy number: (601) 842-2834
Telephone number: (601) 842-2834 (Ext. 112)
55
<PAGE> 60
COMMITMENTS WACHOVIA BANK, N.A., as Agent and as a Bank
$25,000,000
By: ___________________________ (SEAL)
Title:
Lending Office
--------------
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Karin Reel
Telecopy number: (404) 332-5016
Telephone number: (404) 332-5187
Notice address for the Agent:
-----------------------------
Wachovia Bank, N. A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Manager, Syndication Loan
Services
Telecopy number: (404) 332-5144
Telephone number: (404) 332-4008
56
<PAGE> 61
$15,000,000 SUNTRUST BANK ATLANTA
By:___________________________ (SEAL)
Title:
Lending Office
303 Peachtree Street, N.E.
MC 126
Atlanta, Georgia 30308
Attention: Laura Kohn
Telecopy number: (404) 575-8594
Telephone number: (404) 588-7705
57
<PAGE> 62
$15,000,000 UNION PLANTERS BANK,
NATIONAL ASSOCIATION
By:___________________________ (SEAL)
Title:
Lending Office
6200 Poplar Avenue
HQ4
Memphis, Tennessee 38119
Attention: Leonard McKinnon
Telecopy number: (901) 580-5451
Telephone number: (901) 580-5481
58
<PAGE> 63
$5,000,000 BANCORPSOUTH BANK
By:___________________________ (SEAL)
Title:
Lending Office
One Mississippi Plaza
Tupelo, Mississippi 38802
Attention: Coy Livingston
Telecopy number: (601) 680-2261
Telephone number: (601) 680-2310
TOTAL COMMITMENTS:
$60,000,000
59
<PAGE> 64
SCHEDULE 4.08
Existing Subsidiaries
Name of Subsidiary Jurisdiction of Incorporation
------------------ -----------------------------
HF Enterprises, Inc. Delaware
HF Resources, Inc. Delaware
HF Merchandising, Inc. Delaware
Hancock Fabrics of MI, Inc. Delaware
60
<PAGE> 65
SCHEDULE 5.09
Existing Liens
None
61
<PAGE> 66
EXHIBIT A
SYNDICATED NOTE
$____________ Atlanta, Georgia
April 16, 1999
For value received, HANCOCK FABRICS, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of ______________
(the "Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Syndicated Note on the dates and at the rate or rates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303, or such other address as may be specified from time to time pursuant to
the Credit Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make, or any error of the Bank in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Syndicated Notes referred to in the
Credit Agreement dated as of April 16, 1999 among the Borrower, the banks listed
on the signature pages thereof and their successors and assigns and Wachovia
Bank, N.A., as Agent (as the same may be amended or modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment and the repayment hereof and the acceleration of the maturity
hereof.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
62
<PAGE> 67
The Borrower agrees, in the event that this note or any
portion hereof is collected by law or through an attorney at law, to pay all
reasonable costs of collection, including, without limitation, reasonable
attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Note to be duly executed under seal, by its duly authorized officer as of the
day and year first above written.
HANCOCK FABRICS, INC.
By: ______________________________(SEAL)
Title:
63
<PAGE> 68
Syndicated Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Type Amount Amount of
of Interest of Principal Maturity Notation
Date Loan* Rate Loan Repaid Date Made By
- ---- ----- ---- ---- ------ ---- -------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
==============================================================================
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
==============================================================================
</TABLE>
- ----------
* I.e., a Base Rate or Euro-Dollar Loan.
64
<PAGE> 69
EXHIBIT B
MONEY MARKET NOTE
$60,000,000 Atlanta, Georgia
April 16, 1999
For value received, HANCOCK FABRICS, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of SIXTY
MILLION and No/100 Dollars ($60,000,000.00), or such lesser amount as shall
equal the unpaid principal amount of each Money Market Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of this Money Market Note on the
dates and at the rate or rates provided for in the Credit Agreement. Interest on
any overdue principal of and, to the extent permitted by law, overdue interest
on the principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303, or such other address as may be specified
from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make, or any error of the Bank in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Money Market Notes referred to in the
Credit Agreement dated as of April 16, 1999 among the Borrower, the banks listed
on the signature pages thereof and their successors and assigns and Wachovia
Bank, N.A., as Agent (as the same may be amended or modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment and the repayment hereof and the acceleration of the maturity
hereof.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
1
<PAGE> 70
The Borrower agrees, in the event that this note or any portion
hereof is collected by law or through an attorney at law, to pay all reasonable
costs of collection, including, without limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Money Market Note
to be duly executed under seal, by its duly authorized officer as of the day and
year first above written.
HANCOCK FABRICS, INC.
By: ______________________________(SEAL)
Title:
2
<PAGE> 71
Money Market Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Amount Amount of
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
- ---- ---- ---- ------ ---- -------
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 72
EXHIBIT C
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Dear Sirs:
We have acted as counsel for Hancock Fabrics, Inc. (the
"Borrower") in connection with the Credit Agreement (the "Credit Agreement")
dated as of April 16, 1999 among the Borrower, the banks listed on the signature
pages thereof and Wachovia Bank, N.A., as Agent. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent. As to
questions of fact relating to the Borrower material to such opinions, we have
relied upon representations of appropriate officers of the Borrower.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
all corporate powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes (i) are within the Borrower's corporate powers,
(ii) have been duly authorized by all necessary corporate action, (iii) require
no action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to our knowledge is binding upon the Borrower and (v)
to our knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
1
<PAGE> 73
3. The Credit Agreement constitutes a valid and binding agreement
of the Borrower, enforceable against the Borrower in accordance with its terms,
and the Notes constitute valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of ______________ and do
not purport to be experts on any laws other than the laws of the United States,
the corporate laws of the State of Delaware and the State of ___________, and
this opinion is rendered only with respect to such laws. We have made no
independent investigation of the laws of any other jurisdiction.
We express no opinion as to the laws of any jurisdiction wherein
any Bank may be located which limits rates of interest which may be charged or
collected by such Bank other than in paragraph 3 with respect to the State of
________________.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you or any Assignee,
Participant or other Transferee under the Credit Agreement, without our prior
written consent.
Very truly yours,
2
<PAGE> 74
EXHIBIT D
OPINION OF
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
SPECIAL COUNSEL FOR THE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of April 16, 1999 among Hancock Fabrics Inc.,
a Delaware corporation (the "Borrower"), the banks listed on the signature pages
thereof (the "Banks") and Wachovia Bank, N.A., as Agent (the "Agent"), and have
acted as special counsel for the Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of the
Notes by or on behalf of the Borrower, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations
1
<PAGE> 75
generally; (ii)rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and (iii)the
enforceability of certain of the remedial, waiver and other provisions of the
Credit Agreement and the Notes may be further limited by the laws of the State
of Georgia; provided, however, such additional laws do not, in our opinion,
substantially interfere with the practical realization of the benefits expressed
in the Credit Agreement and the Notes, except for the economic consequences of
any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction except the State of Georgia. We
express no opinion as to the effect of the compliance or noncompliance of the
Agent or any of the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the legal or regulatory
status or the nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
WOMBLE CARLYLE SANDRIDGE & RICE,
A Professional Limited Liability Company
By: ____________________________
James E. Lilly, a Member
2
<PAGE> 76
EXHIBIT E
MONEY MARKET QUOTE REQUEST
[Date]
To: [Each Bank]
From: Hancock Fabrics, Inc.
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement (the "Credit
Agreement") dated as of April 16, 1999, among Hancock Fabrics, Inc., the banks
listed on the signature pages thereof and Wachovia Bank, N.A., as Agent, we
hereby give notice that we request Money Market Quotes for the following
proposed Money Market Borrowing(s)
Date of Borrowing:
Principal Amount* Interest Period**
- ----------------- -----------------
Terms used herein have the meanings assigned to them in the Credit Agreement.
HANCOCK FABRICS, INC.
By:________________________________
Title:
- ----------
* Amount must be $5,000,000 or a larger multiple of $1,000,000
** A period of 7 to 180 days.
1
<PAGE> 77
EXHIBIT F
MONEY MARKET QUOTE
Hancock Fabrics, Inc.
3406 West Main Street
Tupelo, Mississippi 38803
Attention: ______________
Re: Money Market Quote to Hancock Fabrics, Inc. (the "Borrower")
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (the "Credit Agreement") dated as of April
16, 1999, among Hancock Fabrics, Inc., the banks listed on the signature pages
thereof (the "Banks") and Wachovia Bank, N.A., as Agent. Terms defined in the
Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated ______________,
19__, we hereby make the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: (1)*
4. We hereby offer to make Money Market Loan(s) in the following
minimum and maximum principal amounts, for the following Interest Periods and at
the following rates:
Minimum Maximum
Principal Principal Interest
Amount(2) Amount(2) Period(3) Interest Rate
--------- --------- -------- -------------
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
1
<PAGE> 78
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for which
any offer(s) [is] [are] accepted, in whole or in part (subject to the third
sentence of Section 2.03(d) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:_______________________________
Authorized Officer
_________________________
- --------------------------
1 As specified in the related Money Market Quote Request.
2 The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger multiple of $1,000,000
3 A period of 7 to 180 days.
2
<PAGE> 79
EXHIBIT G
CLOSING CERTIFICATE
OF
HANCOCK FABRICS, INC.
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of April 16, 1999, among Hancock Fabrics, Inc. (the "Borrower"),
Wachovia Bank, N.A., as Agent and as a Bank, and certain other Banks listed on
the signature pages thereof. Capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
___________________, the duly authorized ____________________ of the Borrower,
hereby certifies to the Agent and the Banks that: (i) no Default has occurred
and is continuing on the date hereof; and (ii) the representations and
warranties of the Borrower contained in Article IV of the Credit Agreement are
true on and as of the date hereof.
Certified as of the 16th day of April, 1999.
HANCOCK FABRICS, INC.
-------------------------------------
Name:
Title:
1
<PAGE> 80
EXHIBIT H
HANCOCK FABRICS, INC.
SECRETARY'S CERTIFICATE
The undersigned, ______________________________, _____________
Secretary of Hancock Fabrics, Inc., a Delaware corporation (the "Borrower"),
hereby certifies that he has been duly elected, qualified and is acting in such
capacity and that, as such, he is familiar with the facts herein certified and
is duly authorized to certify the same, and hereby further certifies, in
connection with the Credit Agreement dated as of April 16, 1999 among the
Borrower, Wachovia Bank, N.A., as Agent and as a Bank, and certain other Banks
listed on the signature pages thereof that:
1. Attached hereto as Exhibit A is a complete and correct copy of
the Certificate of Incorporation of the Borrower as in full force and effect on
the date hereof as certified by the Secretary of State of the State of Delaware,
the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of
the Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of
the resolutions duly adopted by the Board of Directors of the Borrower on
___________ __, 19__ approving, and authorizing the execution and delivery of,
the Credit Agreement, the Notes (as such term is defined in the Credit
Agreement) and the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions have not been
repealed or amended and are in full force and effect, and no other resolutions
or consents have been adopted by the Board of Directors of the Borrower in
connection therewith.
4. ____________, who as ________________________ of the Borrower
signed the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
he signed the Credit Agreement, the Notes and other Loan Documents to which the
Borrower is a party, and his signature appearing on the Credit Agreement, the
Notes and the other Loan Documents to which the Borrower is a party is his
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as
of the 16th day of April, 1999.
--------------------------------
Name:
Title:
1
<PAGE> 81
EXHIBIT I
COMPLIANCE CERTIFICATE
HANCOCK FABRICS, INC.
$60,000,000 CREDIT FACILITY, DATED AS OF APRIL 16, 1999
Reference is made to that certain Credit Agreement among Hancock
Fabrics, Inc., a Delaware corporation (the "Borrower"), Wachovia Bank, N.A., as
Agent (the "Agent"), and the Banks party thereto, dated as of April 16, 1999
(the "Credit Agreement"). Capitalized terms used in this certificate and the
Schedule attached hereto, unless otherwise defined herein, have the meanings
assigned to them in the Credit Agreement.
The undersigned does hereby certify to the Agent as follows:
1. He is the duly elected and serving chief financial officer of the
Borrower.
2. He has reviewed the terms of the Credit Agreement and the other Loan
Documents and has made, or has caused to be made under his supervision, a review
of the transactions and conditions of the Borrower and its Consolidated
Subsidiaries through the date on which this certificate is delivered to the
Agent. No Default or Event of Default under the Credit Agreement has occurred
and is continuing as of the date this certificate is delivered to the Agent,
except as follows:
3. The computations relating to the Borrower's financial conditions set
forth on Schedule I attached hereto were true and correct as of ___________ __,
____ (such date being the last day of the most recent Fiscal Quarter.
-----------------------------------
HANCOCK FABRICS, INC.
Chief Financial Officer
______________ __, ____
1
<PAGE> 82
EXHIBIT J
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of April 16,
1999 (together with all amendments and modifications thereto, the "Credit
Agreement") among Hancock Fabrics, Inc., a Delaware corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement) and Wachovia Bank,
N.A., as Agent (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
_____________________________________________________ (the
"Assignor") and _____________________________________________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse to
the Assignor, and the Assignee hereby purchases and assumes from the Assignor, a
______% interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the Effective Date (as defined below) (including,
without limitation, a ______% interest (which on the Effective Date hereof is
$_______________) in the Assignor's Commitment and a ______% interest (which on
the Effective Date hereof is $_______________) in the Syndicated Loans owing to
the Assignor [and a ___% interest in the Money Market Loans owing to the
Assignor] and a ______% interest in the Syndicated Note held by the Assignor
(which on the Effective Date hereof is $__________________)).
2. The Assignor (i)makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$_________________ and the aggregate outstanding principal amount of Syndicated
Loans [and Money Market Loans] owing to it (without giving effect to assignments
thereof which have not yet become effective) is $_________________; (ii)makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto; and
(iii) attaches the Note[s] referred to in paragraph 1 above and requests that
the Agent exchange such Note[s] as follows: [a new Syndicated Note dated
_______________, ____ in the principal amount of _________________ payable to
the order of the Assignee] [new Syndicated Notes as follows: a Syndicated Note
dated _________________, ____ in the principal amount of $_______________
payable to the order of the Assignor and a Syndicated Note dated ______________,
____ in the principal amount of $______________ payable to the order of the
Assignee] [and a new Money Market Note dated _______, ____ in the principal of
$_________ payable to the order of the Assignee].
1
<PAGE> 83
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04(a) thereof (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.01(a) or (b) thereof) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is a bank or financial
institution; (iv) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) specifies as its
Lending Office (and address for notices) the office set forth beneath its name
on the signature pages hereof, (vii) represents and warrants that the execution,
delivery and performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary corporate
action[, and (viii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for purposes
of determining exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement and the Notes
or such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty].*
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent [and to the Borrower for execution by the Borrower]**.
5. Upon such execution and acceptance by the Agent [and execution by the
Borrower]**, from and after the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent rights and obligations have
been transferred to it by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent its
rights and obligations have been transferred to the Assignee by this Assignment
and Acceptance, relinquish its rights (other than under Section 8.03 and Section
9.03 of the Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such execution and acceptance by the Agent [and execution by the
Borrower]**, from and after the Effective Date, the Agent shall make all
payments in respect of the interest assigned hereby to the Assignee. The
Assignor and Assignee shall make all
- ----------
* If the Assignee is organized under the laws of a jurisdiction outside the
United States.
** If the Assignee is not a Bank or an Affiliate of a Bank prior to the
Effective Date.
2
<PAGE> 84
appropriate adjustments in payments for periods prior to such acceptance by the
Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:______________________________________
Title:___________________________________
[NAME OF ASSIGNEE]
By:______________________________________
Title:___________________________________
Lending Office:
[Address]
WACHOVIA BANK, N.A., as Agent
By:______________________________________
Title:___________________________________
HANCOCK FABRICS, INC.
By:______________________________________
Title:___________________________________
3
<PAGE> 85
EXHIBIT K
NOTICE OF BORROWING
__________, ____
Wachovia Bank, N.A., as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention:_________________
Re: Credit Agreement (as amended and modified from time
to time, the "Credit Agreement") dated as of April
16, 1999 by and among Hancock Fabrics, Inc., the
Banks from time to time parties thereto, and Wachovia
Bank, N.A., as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section
2.02 of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing][Base Rate
Borrowing] in the aggregate principal amount of $___________ to be made on
________, 19__, and for interest to accrue thereon at the rate established by
the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of
the Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months].
The Borrower has caused this Notice of Borrowing to be executed
and delivered by its duly authorized officer this ___ day of __________, _____.
HANCOCK FABRICS, INC.
By: ______________________
Title: ______________________
1
<PAGE> 86
EXHIBIT L
NOTICE OF ACCEPTANCE OF MONEY MARKET QUOTES
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Re: Acceptances of Competitive Bid Quotes
[DATES]
[PERIOD]
Name of Bank Rate Quote Amount of Bid Amount Allocated
- ------------ ---------- ------------- ----------------
HANCOCK FABRICS, INC.
By:________________________________
Authorized Officer
2
<PAGE> 1
EXHIBIT 10.4
AMENDMENT AGREEMENT NO. 3
THIS AMENDMENT AGREEMENT NO. 3 (the "Amendment Agreement") is made and
entered into as of this 10th day of June, 1998 by and among HANCOCK FABRICS,
INC., a Delaware corporation (the "Borrower"), and NATIONSBANK, N.A. (formerly
NationsBank of Georgia, National Association), a national banking association,
in its capacity as Agent for each of the Lenders party to the Credit Agreement
(as defined below) (the "Agent"), and each of the undersigned Lenders. Unless
the context otherwise requires, all terms used herein without definition shall
have the respective meanings assigned thereto in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of September 20, 1993, as amended by that
certain Amendment Agreement No. 1 dated as of May 31, 1995 and further amended
by that certain Amendment Agreement No.2 dated as of April 1, 1998, whereby the
Lenders have made available to the Borrower, a $60,000,000 revolving credit
facility (as at any time hereafter amended, restated, modified or supplemented,
the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Lenders
make certain amendments to the Credit Agreement; and
WHEREAS, the Agent and the Lenders are willing to so amend the Credit
Agreement upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and conditions herein
set forth it is hereby agreed as follows:
1. Credit Agreement Amendment. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date hereof, as follows:
(a) Paragraph (1) of Section 7.8 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(1) Minimum Tangible Net Worth. The Tangible Net Worth of the Borrower and its
Subsidiaries shall not be less than $85,000,000 plus (A) 25% of its Net Income
(if positive), after taxes, on an ongoing basis for each Fiscal Quarter
beginning with the fiscal quarter ending August 2, 1998, plus (B) the aggregate
amount of all increases, if any, in its capital accounts resulting from the
issuance of capital stock or conversion of debt into capital stock or other
securities properly classified as equity in accordance with GAAP, or from the
sale or other disposition of treasury shares, from June 10, 1998 through the
date of determination minus Excess Common Stock Repurchases."
(b) Paragraph (3) of Section 7.8 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(3) Fixed Charge Coverage Ratio. The ratio of Income Available for
Debt Service to the sum of Lease Payments and Interest Expense of the
Borrower and its Subsidiaries for the most recently completed four
(4) Fiscal Quarters shall not be less than 1.50 to 1.00."
2. Representations and Warranties. In order to induce the Agent and the
Lenders to enter into this
<PAGE> 2
Amendment Agreement, the Borrower hereby represents and warrants that the Credit
Agreement has been re-examined by the Borrower and that except as disclosed by
the Borrower in writing to the Agent as of the date hereof:
(a) The representations and warranties made by the Borrower in Article
V thereof are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the date of
the most recent consolidated financial statements of the Borrower and its
Subsidiaries delivered to the Agent under Section 7.3 thereof;
(c) The business and properties of the Borrower and its Subsidiaries
are not, and since the date of the most recent consolidated financial statements
of the Borrower and its Subsidiaries delivered to the Lender under Section 7.3
thereof, have not been, adversely affected in any substantial way as the result
of any fire, explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or acts of God or
the public enemy, or cancellation or loss of any major contracts; and
(d) After giving effect to this Amendment Agreement, no condition
exists which, upon the effectiveness of the amendment contemplated hereby, would
constitute a Default or an Event of Default on the part of the Borrower under
the Credit Agreement or the other Loan Documents, either immediately or with the
lapse of time or the giving of notice, or both.
3. Conditions Precedent. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(i) six (6) counterparts of this Amendment Agreement duly executed by
all signatories hereto;
(ii) resolutions of the Board of Directors or other governing body of
the Borrower approving this Amendment Agreement certified by the Secretary of
the Borrower; and
(iii) copies of all additional agreements, instruments and documents
which the Lender may reasonably request, such documents, when appropriate to be
certified by appropriate governmental authorities.
2
<PAGE> 3
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Agent and its counsel.
4. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
5. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
6. Counterparts. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereof, and all of which shall together constitute one
and the same instrument.
7. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF GEORGIA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF GEORGIA FOR ~
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
8. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
9. Credit Agreement: All references in any of the Loan Documents to the
Credit Agreement shall mean and include the Credit Agreement as amended hereby.
10. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders, the Agent
and their respective successors, assigns and legal representatives; provided,
however, that the Borrower, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
[signatures follow]
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
HANCOCK FABRICS, INC.
By: /s/ Bruce D. Smith
-----------------------------------
Name: Bruce D. Smith
Title: Chief Financial Officer
NATIONSBANK, N. A. (formerly NationsBank of
Georgia, National Association), as Agent for the
Lenders
By: /s/ Gregg McCrery
-----------------------------------
Name: Greg McCrery
Title: Vice President
Wachovia Bank, N. A.
By: /s/ Karin E. Reel
-----------------------------------
Name: Karin E. Reel
Title: AVP
Suntrust Bank, Atlanta
By: /s/ R. B. King
-----------------------------------
Name: Raymond B. King
Title: VP
Bank of Mississippi
By: /s/ Coy Livingston
-----------------------------------
Name: Coy Livingston
Title: Executive Vice President
<PAGE> 1
EXHIBIT 10.6
April 14, 1999
Hancock Fabrics, Inc.
3406 W. Main Street
Tupelo, Mississippi 38803
Attention: Bruce Smith
Chief Financial Officer
RE: CREDIT AGREEMENT DATED AS OF SEPTEMBER 30, 1993 (AS AMENDED BY THAT
CERTAIN AMENDMENT AGREEMENT NO. 1 DATED AS OF MAY 31, 1995, THAT CERTAIN
AMENDMENT AGREEMENT NO. 2 DATED AS OF APRIL 1, 1998 AND THAT CERTAIN
AMENDMENT AGREEMENT NO. 3 DATED AS OF JUNE 10, 1998, THE "CREDIT
AGREEMENT") AMONG HANCOCK FABRICS, INC. ("BORROWER"), NATIONSBANK, N.A.,
AS AGENT FOR THE LENDERS ("AGENT") AND THE LENDERS SIGNATORY THERETO FROM
TIME TO TIME (EACH A "LENDER" AND COLLECTIVELY THE "LENDERS")
Dear Mr. Smith:
Reference is made to the Credit Agreement. Notice is hereby provided that
effective April 16, 1999 the Credit Agreement shall be terminated and all
amounts outstanding thereunder on account of principal, interest, fees of
otherwise shall be immediately due and payable.
Please acknowledge your receipt of this notice by executing below and
delivering to the attention of the Agent an executed copy of the same.
Sincerely,
NATIONSBANK, N.A., as Agent and
As a Lender
By: /s/ E. Bradley Jones
------------------------------
Name: E. Bradley Jones
----------------------------
Title: Vice President
---------------------------
WACHOVIA BANK, N.A.
By: /s/ Karin E. Reel
-------------------------------
Name: Karin E. Reel
-----------------------------
Title: Vice President
----------------------------
<PAGE> 2
SUNTRUST BANK, ATLANTA
By: /s/ Laura Kahn
--------------------------------
Name: Laura Kahn
------------------------------
Title: Senior Vice President
-----------------------------
BANK OF MISSISSIPPI
By: /s/ Coy Livingston
--------------------------------
Name: Coy Livingston
------------------------------
Title: Executive Vice President
-----------------------------
ACKNOWLEDGED AND AGREED:
HANCOCK FABRICS, INC.
By: /s/ Bruce D. Smith
--------------------------------
Name: Bruce D. Smith
------------------------------
Title: Chief Financial Officer
-----------------------------
<PAGE> 1
Exhibit 10.29
HANCOCK FABRICS, INC.
OFFICER INCENTIVE COMPENSATION PLAN
SUMMARY DESCRIPTION
I. PURPOSE:
To align compensation with business performance and the interest of
shareholders, and to enable the Company to attract, motivate and
retain management that can contribute to the Company's long-term
success.
II. ELIGIBILITY:
- Chief Executive Officer, President, all Senior Vice Presidents
and all Vice Presidents
- Must be employed by the Company at the time of payout
- If hired or promoted to a bonus-eligible position after the
beginning of a fiscal year, the individual will be eligible to
receive a prorated bonus based upon the number of months served
in the position.
III. BONUS PAYOUT:
- As shown by Exhibit A, incentive compensation as a percentage of
salary increases for various levels of increases in earnings
before interest and taxes, computed using the first-in,
first-out method of accounting for inventories. Such earnings
(FIFO EBIT) in 1999 will be compared to a hurdle of $18 million
for purposes of computing the percentage increase. In subsequent
years, FIFO EBIT will be compared to the previous year's FIFO
EBIT for the purpose of determining the percentage increase.
- The percentages shown in Exhibit A will be used to compute a
pool, from which allocations to individual officers will be made
based on each officer's performance in relation to individual
goals.
- Payments are typically made in late February or early March
following fiscal year end.
- This plan is effective for the fiscal year ending January 30,
2000, and the Company expects that the plan will continue to be
a part of officer compensation; however, the Company does not
guarantee that the plan will not be terminated or that the terms
will not be amended in the future.
- For the officers included in this plan, participation in
compensation from the previously existing Extra Compensation
Plan will be limited to that earned on increases in FIFO EBIT up
to 10%. Incentive compensation for increases in FIFO EBIT equal
to or higher than 10% are then covered by this plan.
<PAGE> 2
EXHIBIT A
CHART OF RECOMMENDED INCENTIVE COMPENSATION
RATES FOR VARIOUS LEVELS OF EBIT INCREASE
(subject to each officer's individual performance)
<TABLE>
<CAPTION>
CEO AND SENIOR V-P V-P
PRESIDENT INCENTIVE INCENTIVE
INCENTIVE COMP AS COMP AS
INCREASE COMP AS A % OF A % OF
IN A % OF SALARY SALARY
FIFO EBIT SALARY (80% OF CEO) (60% OF CEO)
------------------------------------------------------------------------
<S> <C> <C> <C>
0.1 0.1 8.0% 6.0%
0.11 0.11 8.8% 6.6%
12% 12% 9.6% 7.2%
13% 13% 10.4% 7.8%
14% 14% 11.2% 8.4%
15% 15% 12.0% 9.0%
16% 16% 12.8% 9.6%
17% 17% 13.6% 10.2%
18% 18% 14.4% 10.8%
19% 19% 15.2% 11.4%
20% 20% 16.0% 12.0%
21% 21% 16.8% 12.6%
22% 22% 17.6% 13.2%
23% 23% 18.4% 13.8%
24% 24% 19.2% 14.4%
25% 25% 20.0% 15.0%
</TABLE>
Up through a 25% increase in EBIT, the CEO and President
incentive comp, as a percent of salary, increases 1% for every
additional 1% improvement in EBIT (.8% for Senior V-P's; .6%
for V-P's). After 25%, the incentive comp increase rate
doubles (2% for the CEO and the President; 1.6% for Senior
V-P's and 1.2% for V-P's).
<TABLE>
<CAPTION>
<S> <C> <C> <C>
26% 27% 21.6% 16.2%
27% 29% 23.2% 17.4%
28% 31% 24.8% 18.6%
29% 33% 26.4% 19.8%
30% 35% 28.0% 21.0%
31% 37% 29.6% 22.2%
32% 39% 31.2% 23.4%
33% 41% 32.8% 24.6%
34% 43% 34.4% 25.8%
35% 45% 36.0% 27.0%
36% 47% 37.6% 28.2%
37% 49% 39.2% 29.4%
38% 51% 40.8% 30.6%
39% 53% 42.4% 31.8%
40% 55% 44.0% 33.0%
</TABLE>
<PAGE> 1
HANCOCK FABRICS, INC. EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE
(unaudited)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
(dollars in thousands, except for
per share amounts) Thirteen Weeks Ended Fifty-two Weeks Ended
---------------------------- ---------------------------
January 31, February 1, January 31, February 1,
1999 1998 1999 1998
---------------------------- ---------------------------
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Basic earnings per share
Net earnings $ (2,548) $ 6,372 $ 3,556 $ 15,324
============ =========== =========== ===========
Weighted average number of common shares
outstanding during period 18,610,742 20,553,014 19,741,483 20,833,778
============ =========== =========== ===========
Basic earnings per share $ (0.14) $ 0.31 $ 0.18 $ 0.74
============ =========== =========== ===========
Diluted earnings per share
Net earnings $ (2,548) $ 6,372 $ 3,556 $ 15,324
============ =========== =========== ===========
Weighted average number of common shares
outstanding during period 18,610,742 20,553,014 19,741,483 20,833,778
Common stock equivalents 3,339 450,051 191,662 391,098
Contingently issuable shares 103,718 63,545 92,503
------------ ----------- ----------- -----------
18,614,081 21,106,783 19,996,690 21,317,379
============ =========== =========== ===========
Diluted earnings per share $ (0.14) $ 0.30 $ 0.18 $ 0.72
============ =========== =========== ===========
</TABLE>
<PAGE> 1
EXHIBIT 13
FIVE-YEAR SUMMARY OF SIGNIFICANT FINANCIAL INFORMATION
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
(IN THOUSANDS, EXCEPT PER
SHARE AND STORE AMOUNTS) 1998 1997 1996 1995 1994
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Sales $392,303 $381,910 $378,218 $364,192 $366,816
Earnings before income taxes 5,590 24,842 20,282 14,721 16,826
Net earnings 3,556 15,324 12,481 8,951 10,139
Earnings per common share
Basic .18 .74 .59 .43 .48
Diluted .18 .72 .58 .42 .48
Total assets 192,404 195,558 187,843 201,835 208,622
Capital expenditures 8,839 2,712 2,314 1,890 4,043
Long- and short-term indebtedness 29,000 10,000 3,000 30,000 37,000
Common shareholders' equity 77,152 106,691 105,273 100,421 97,089
- ---------------------------------------------------------------------------------------------
Common shares outstanding, net 18,595 21,114 21,315 21,508 21,380
Stores in operation 462 481 462 498 500
</TABLE>
QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
YEARS ENDED JANUARY 31, 1999 AND FEBRUARY 1, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
PER COMMON SHARE
----------------------------------
NET EARNINGS
GROSS NET --------------------- CASH
SALES PROFIT EARNINGS BASIC (1) DILUTED (1) DIVIDEND
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1998
First Quarter $ 97,796 $ 47,157 $ 2,107 $ .10 $ .10 $ .10
Second Quarter 85,372 41,722 442 .02 .02 .10
Third Quarter 103,058 51,112 3,555 .18 .18 .10
Fourth Quarter 106,077 50,791 (2,548) (.14) (.14) .10
- -------------------------------------------------------------------------------------------------
$392,303 $190,782 $ 3,556 $ .18 $ .18 $ .40
=================================================================================================
1997
First Quarter $ 92,000 $ 43,450 $ 2,339 $ .11 $ .11 $ .08
Second Quarter 79,954 40,073 1,689 .08 .08 .08
Third Quarter 96,459 47,973 4,924 .24 .23 .10
Fourth Quarter 113,497 55,268 6,372 .31 .30 .10
- -------------------------------------------------------------------------------------------------
$381,910 $186,764 $15,324 $ .74 $ .72 $ .36
=================================================================================================
</TABLE>
(1) Per share amounts are based on average shares outstanding during each
quarter and may not add to the total for the year.
8
<PAGE> 2
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
The following table presents the percentage of sales for the periods indicated
and percentage changes from period to period of certain items included in the
Consolidated Statement of Earnings:
<TABLE>
<CAPTION>
PERCENT CHANGE
PERCENT OF NET SALES FROM PRIOR YEAR
----------------------------- ------------------------------
1998 1997 1996 1998 1997 1996
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Sales 100.0% 100.0% 100.0% 2.7% 1.0% 3.9%
Comparable store sales (2.9%) 4.6% 4.9%
Gross margin 48.6% 48.9% 48.5%
Selling, general and
administrative expenses* 45.8% 41.5% 41.9% 13.5% .1% 4.5%
Pretax earnings* 1.4% 6.5% 5.4% (77.5%) 22.5 37.8%
Net earnings* .9% 4.0% 3.3% (76.8%) 22.8 39.4%
</TABLE>
* 1998 expenses and pretax earnings include the effect of an unusual charge
totaling $10.0 million (2.5% of sales), as discussed further below. The
impact of the charge on net earnings was $6.3 million (1.6% of sales).
1998 VS. 1997
Sales for 1998 increased $10.4 million from 1997, benefiting by $31.6 million
from the Northwest Fabrics and Crafts stores acquired in the fourth quarter of
1997. The increase was partially offset by a 2.9% decrease in comparable store
sales and a reduction of $11.2 million in sales from net store opening and
closing activity. Hancock closed 40 stores and opened 21 in 1998 resulting in a
total of 462 stores at year end.
Several factors influenced the negative comparable store sales results in 1998.
A weak spring fashion trend and numerous competitor liquidations adversely
affected comparable store sales in the first part of the year. An unseasonably
warm fall and deflation in prices for several key fall and winter items
contributed to the comparable store sales decreases in the last half of the
year.
Hancock's gross margin declined slightly due to markdowns necessary to sell
slow-moving seasonal goods and a reduction in the LIFO (last-in, first-out)
reserve of $300 thousand in 1998 compared with a $700 thousand reduction in
1997.
Selling, general and administrative expenses increased as a percentage of sales
in 1998 as the result of a $10.0 million charge consisting of $8.6 million
related to net lease obligations for stores closed at the end of 1998 and stores
committed to closing in fiscal 1999 and $1.4 million related to the write-off of
an investment. In addition, costs associated with the remodeling of over 120
stores, the change in signage in almost 200 Minnesota Fabrics, Fabric Warehouse
and Northwest Fabrics and Crafts Stores to the Hancock Fabrics tradename, and an
advertising test program all contributed to the higher selling, general and
administrative expenses. In addition, expenses as a percentage of sales were
higher due to the deleveraging of the expense base caused by the decrease in
comparable store sales. Interest expense increased by $1.1 million in 1998 due
to a higher level of average outstanding borrowings, primarily as the result of
repurchases of treasury stock.
Income tax expense decreased by $7.5 million due primarily to the decrease in
pretax earnings.
1997 VS. 1996
Sales for 1997 increased $3.7 million from 1996, benefiting by $15.5 million
from an increase in comparable store sales of 4.6%. The comparable store sales
increase was partially offset by a $6.3 million reduction in sales resulting
from 1997 having one less week than 1996 and a $5.5 million decrease from closed
stores, net of new and acquired stores. Including the acquisition of 48
Northwest Fabrics & Crafts stores at the beginning of the fourth quarter,
Hancock added 19 net stores in 1997 for a total of 481 stores at year end.
Several factors influenced the positive comparable store sales results in 1997.
New product offerings such as sewing machines and cut-to-order programs in
drapery and upholstery, strong demand for home decorating goods, store level
incentives, more productive advertising and improvement in the quality of
merchandise contributed to higher comparable sales.
9
<PAGE> 3
Hancock's gross margin declined slightly on a FIFO (first-in, first-out) basis
in 1997 due to the conversion of inventories from 43 closed stores. Reported
gross margins were higher due to a reduction in the LIFO reserve of $700
thousand compared with a $2.5 million increase in the LIFO reserve in 1996.
Selling, general and administrative expenses decreased as a percentage of sales
in 1997 as a result of expense leverage attained in 1997 from higher comparable
store sales. In addition, expenses included $1.7 million of nonrecurring
retirement related charges in 1996. These factors were more than enough to
offset higher payroll costs associated with minimum wage increases mandated in
both 1996 and 1997. Interest expense decreased by $800 thousand in 1997 due to a
lower level of average outstanding borrowings.
Income tax expense increased by $1.7 million due to the increase in pretax
earnings.
FINANCIAL POSITION
Hancock traditionally maintains a strong financial position as evidenced by the
following information as of the end of fiscal years 1998, 1997 and 1996 (dollars
in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
-------- --------- ---------
<S> <C> <C> <C>
Cash and cash equivalents $ 6,959 $ 7,057 $ 6,870
Net cash flows provided (used):
Operating activities $ 24,954 $ 17,357 $ 41,257
Investing activities $ (9,516) $ (7,436) $ (2,115)
Financing activities $(15,536) $ (9,734) $ (37,298)
Working Capital $ 98,718 $ 108,848 $ 102,958
Long-term indebtedness to total
capitalization 27.3% 8.6% 2.8%
</TABLE>
During 1998, cash flows from operations, supplemented by $19 million in
borrowings, were used to purchase property and equipment, pay dividends, and
repurchase treasury stock.
Historically, Hancock has financed the expansion of its operations with
internally generated cash flow. During 1997, cash flows from operations,
supplemented by $7 million in borrowings, were used to acquire Northwest Fabrics
& Crafts, purchase property and equipment, pay dividends and repurchase treasury
stock.
Hancock purchased treasury stock of $28.8 million, $14.2 million, and $5.5
million, in 1998, 1997 and 1996, respectively. Hancock plans to use future cash
in excess of expansion needs for the retirement of debt and the purchase of
treasury stock as market and financial conditions dictate.
CAPITAL REQUIREMENTS
Hancock's primary capital requirements are for the financing of inventories and,
to a lesser extent, for capital expenditures relating to store locations and its
distribution facility. Funds for such purposes are generated from Hancock's
operations and, if necessary, supplemented by borrowings from commercial
lenders.
Capital expenditures amounted to $8.8 million in 1998, $2.7 million in 1997 and
$2.3 million in 1996. The capital costs associated with remodeling over 120
stores, changing the signage for almost 200 stores and opening 21 new stores,
together with normal capital maintenance for stores and the distribution center,
accounted for the majority of these expenditures.
Hancock estimates that capital expenditures for 1999 will approximate $10
million. Anticipated expenditures include the costs for 30 to 35 planned new
stores, remodeling of over 130 stores, design and implementation of a new
merchandise management system and capital maintenance in the existing retail
stores and distribution center. Internally generated funds are expected to be
sufficient to finance these capital requirements.
In addition to operating cash flows, Hancock has available credit of $31 million
as of January 31, 1999 under Hancock's $60 million revolving credit facility.
Hancock believes the total of $60 million is adequate for Hancock's needs in the
near term.
10
<PAGE> 4
EFFECT OF INFLATION
The impact of inflation on labor and occupancy costs can significantly affect
Hancock's operations. Many of Hancock's employees are paid hourly rates related
to the Federal minimum wage; accordingly, any increases will affect Hancock. In
addition, payroll taxes, employee benefits and other employee related costs
continue to increase. Costs of leases for new store locations remain stable, but
renewal costs of older leases continue to increase. Taxes, maintenance and
insurance costs have also risen. Hancock believes the practice of maintaining
adequate operating margins through a combination of price adjustments and cost
controls, careful evaluation of occupancy needs and efficient purchasing
practices are the most effective tools for coping with increased costs and
expenses.
SEASONALITY
Hancock's business is slightly seasonal. Peak sales periods occur during the
fall and pre-Easter weeks, while the lowest sales periods occur during the
summer and the month of January.
YEAR 2000 IMPACT
Hancock recognizes the potential impact that the year-2000 issue may have
relative to its computer systems and has implemented an action plan to ensure
that all systems will be fully year-2000 compliant. The action plan includes a
combination of modifications that have been substantially completed internally
or through software upgrades from Hancock's software vendors. To date, the
Company is 80% complete on the remediation of its systems and expects to
complete the necessary software reprogramming and replacement no later than June
30, 1999. Implementation and testing of the modifications are approximately 70%
complete and are expected to be completed by July 31, 1999. Based on current
estimates, the total cost associated with the year-2000 issue will be less than
$100,000, all of which has been or will be expensed as incurred.
Hancock has also communicated with all of its significant merchandise suppliers
and service providers to determine the extent to which Hancock is dependent upon
those third parties' remediation of their own year-2000 issues. Although the
failure by other companies to timely convert their systems would have an
insignificant impact on Hancock's systems (because of limited interface), there
can be no assurance that such failure would not have a material impact on
Hancock's operations because of these companies' inability to supply Hancock
with merchandise or service on a timely basis.
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for certain qualifying forward-looking statements. Certain information included
herein contains statements that are forward-looking, such as statements related
to financial items and results, plans for future expansion, store remodels,
store closure and other business development activities, capital spending or
financing sources, capital structure, stability of interest rates during periods
of borrowing, the effects of regulation and competition and the year-2000 impact
on the Company's systems. Such forward-looking information involves important
risks and uncertainties that could significantly impact anticipated results in
the future. Accordingly, such results may differ materially from those expressed
in any forward-looking statements by or on behalf of Hancock. These risks and
uncertainties include, but are not limited to, those described above.
11
<PAGE> 5
CONSOLIDATED STATEMENT OF EARNINGS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
YEARS ENDED JANUARY 31, 1999, FEBRUARY 1, 1998 AND
FEBRUARY 2, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) 1998 1997 1996
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
Sales $392,303 $381,910 $378,218
Cost of goods sold 201,521 195,146 194,893
- -----------------------------------------------------------------------------------
Gross profit 190,782 186,764 183,325
- -----------------------------------------------------------------------------------
Expenses (income)
Selling, general and administrative 179,818 158,497 158,354
Depreciation and amortization 4,101 3,263 3,732
Interest expense 1,472 407 1,200
Interest income (199) (245) (243)
- -----------------------------------------------------------------------------------
Total operating and interest expenses 185,192 161,922 163,043
- -----------------------------------------------------------------------------------
Earnings before taxes 5,590 24,842 20,282
Income taxes 2,034 9,518 7,801
- -----------------------------------------------------------------------------------
Net earnings and comprehensive income $ 3,556 $ 15,324 $ 12,481
===================================================================================
Earnings per share
Basic $ .18 $ .74 $ .59
Diluted $ .18 $ .72 $ .58
===================================================================================
Weighted average shares outstanding
Basic 19,741 20,834 21,137
Diluted 19,997 21,317 21,541
===================================================================================
</TABLE>
See accompanying notes to consolidated financial statements
12
<PAGE> 6
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
JANUARY 31, 1999 AND FEBRUARY 1, 1998
(IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE AMOUNTS) 1998 1997
- -------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 6,959 $ 7,057
Receivables, less allowance for doubtful
accounts of $70 in 1998 and $107 in 1997 1,595 1,136
Inventories 142,249 149,486
Deferred tax assets 3,312
Prepaid expenses 3,775 3,806
- -------------------------------------------------------------------------------------
Total current assets 154,578 164,797
Property and equipment, at depreciated cost 23,833 18,989
Deferred tax assets 10,703 9,065
Other assets 3,290 2,707
- -------------------------------------------------------------------------------------
Total assets $ 192,404 $195,558
=====================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 36,881 $ 35,491
Accrued liabilities 14,104 16,418
Deferred tax liabilities 2,562
Income taxes 2,313 4,040
- -------------------------------------------------------------------------------------
Total current liabilities 55,860 55,949
Long-term debt obligations 29,000 10,000
Postretirement benefits other than pensions 20,334 19,746
Reserve for store closings 6,079
Other liabilities 3,979 3,172
- -------------------------------------------------------------------------------------
Total liabilities 115,252 88,867
- -------------------------------------------------------------------------------------
Commitments and contingencies (Notes 7 and 12)
Shareholders' equity:
Common stock, $.01 par value; 80,000,000 shares
authorized; 28,547,826 and 28,253,013 issued and
outstanding, respectively 285 283
Additional paid-in capital 35,133 31,382
Retained earnings 174,180 178,643
Treasury stock, at cost, 9,952,881 and
7,139,074 shares held, respectively (127,867) (99,047)
Deferred compensation on restricted
stock incentive plan (4,579) (4,570)
- -------------------------------------------------------------------------------------
Total shareholders' equity 77,152 106,691
- -------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $ 192,404 $195,558
=====================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
13
<PAGE> 7
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
YEARS ENDED JANUARY 31, 1999, FEBRUARY 1, 1998 AND
FEBRUARY 2, 1997 (IN THOUSANDS) 1998 1997 1996
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 3,556 $ 15,324 $ 12,481
Adjustments to reconcile net earnings to
cash provided by operating activities
Depreciation and amortization 4,101 3,263 3,732
LIFO charge (credit) (300) (700) 2,505
Deferred income taxes 4,236 (845) (1,025)
Amortization of deferred compensation on
restricted stock incentive plan 1,310 1,282 2,354
Loss on disposal of fixed assets 230 634
Reserve for closed stores 8,604
Write-off of investment 1,363
(Increase) decrease in assets
Receivables and prepaid expenses (428) (1,760) 149
Inventory at current cost 5,919 (813) 12,437
Other noncurrent assets 13 129 153
Increase (decrease) in liabilities
Accounts payable 1,390 498 2,420
Accrued liabilities (4,839) (115) 1,816
Current income tax obligations (1,596) (716) 2,425
Postretirement benefits other than pensions 588 583 1,379
Other liabilities 807 593 431
- ---------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 24,954 17,357 41,257
- ---------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Additions to property and equipment (8,839) (2,712) (2,314)
Proceeds from disposition of property and equipment 27 71 199
Acquisition of Northwest stores (3,986)
Other (704) (809)
- ---------------------------------------------------------------------------------------------------------
Net cash used in investing activities (9,516) (7,436) (2,115)
- ---------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net borrowings (repayments) on revolving credit agreement 19,000 7,000 (27,000)
Purchase of treasury stock (28,820) (14,227) (5,506)
Proceeds from exercise of stock options 2,235 5,069 2,035
Issuance of shares under directors' stock plan 68 78 85
Cash dividends paid (8,019) (7,654) (6,912)
- ---------------------------------------------------------------------------------------------------------
Net cash used in financing activities (15,536) (9,734) (37,298)
- ---------------------------------------------------------------------------------------------------------
Increase (decrease) in cash and cash equivalents (98) 187 1,844
Cash and cash equivalents:
Beginning of year 7,057 6,870 5,026
- ---------------------------------------------------------------------------------------------------------
End of year $ 6,959 $ 7,057 $ 6,870
=========================================================================================================
Supplemental disclosures
Cash paid during the year for:
Interest $ 1,452 $ 405 $ 1,229
Income taxes $ 4,852 $ 11,127 $ 6,506
=========================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
14
<PAGE> 8
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
YEARS ENDED JANUARY 31, 1999, FEBRUARY 1, 1998 AND FEBRUARY 2, 1997 (IN
THOUSANDS, EXCEPT NUMBER OF SHARES)
- -----------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK ADDITIONAL TREASURY STOCK DEFERRED SHARE-
--------------------- PAID-IN RETAINED ------------------- COMPEN- HOLDERS'
SHARES AMOUNT CAPITAL EARNINGS SHARES AMOUNT SATION EQUITY
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance January 28, 1996 26,962,115 $ 270 $ 18,238 $ 165,404 (5,454,097) $ (79,314) $(4,177) $100,421
Net earnings and comprehensive income 12,481 12,481
Cash dividends ($.32 per share) (6,912) (6,912)
Exercise of stock options 296,800 3 2,498 2,501
Issuance of restricted stock 115,700 1,162 (1,162)
Cancellation of restricted stock (40,600) (463) 463
Amortization and vesting of deferred
compensation on restricted stock
incentive plan (151) 2,354 2,203
Issuance of shares under directors'
stock plan 8,457 85 85
Purchase of treasury stock (573,406) (5,506) (5,506)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance February 2, 1997 27,342,472 273 21,369 170,973 (6,027,503) (84,820) (2,522) 105,273
Net earnings and comprehensive income 15,324 15,324
Cash dividends ($.36 per share) (7,654) (7,654)
Exercise of stock options 640,120 7 5,062 5,069
Issuance of restricted stock 264,600 3 3,337 (3,340)
Cancellation of restricted stock (800) (10) 10
Amortization and vesting of deferred
compensation on restricted stock
incentive plan 1,546 1,282 2,828
Issuance of shares under directors'
stock plan 6,621 78 78
Purchase of treasury stock (1,111,571) (14,227) (14,227)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance February 1, 1998 28,253,013 283 31,382 178,643 (7,139,074) (99,047) (4,570) 106,691
Net earnings and comprehensive income 3,556 3,556
Cash dividends ($.40 per share) (8,019) (8,019)
Exercise of stock options 202,250 2 2,233 2,235
Issuance of restricted stock 89,950 1,349 (1,349)
Cancellation of restricted stock (2,400) (30) 30
Amortization and vesting of deferred
compensation on restricted stock
incentive plan 131 1,310 1,441
Issuance of shares under directors'
stock plan 5,013 68 68
Purchase of treasury stock (2,813,807) (28,820) (28,820)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance January 31, 1999 28,547,826 $ 285 $ 35,133 $ 174,180 (9,952,881) $(127,867) $(4,579) $ 77,152
===================================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
15
<PAGE> 9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - DESCRIPTION OF BUSINESS
Hancock Fabrics, Inc. ("Hancock") is a retail and wholesale merchant of fabrics,
crafts and related home sewing accessories. Hancock operates 462 stores in 40
states and also supplies over 100 independent wholesale customers. The Company
is in one business segment and follows the requirements of Statement of
Financial Accounting Standards No. 131, Disclosures about Segments of an
Enterprise and Related Information.
NOTE 2 - SUMMARY OF ACCOUNTING POLICIES
CONSOLIDATED FINANCIAL STATEMENTS include the accounts of Hancock and its
wholly-owned subsidiaries. All intercompany accounts and transactions are
eliminated. Hancock maintains its financial records on a 52-53 week fiscal year
ending on the Sunday closest to January 31. Fiscal years 1998, 1997 and 1996, as
used herein, refer to the years ended January 31, 1999, February 1, 1998 and
February 2, 1997, respectively. Fiscal 1996 contained 53 weeks while fiscal 1998
and 1997 each contained 52 weeks.
USE OF ESTIMATES AND ASSUMPTIONS that affect the reported amount of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amount of revenues and expenses during
the reporting period is required by management in the preparation of the
financial statements in accordance with generally accepted accounting
principles. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS include cash on hand, amounts due from banks and
repurchase agreements having original maturities of three months or less and are
reflected as such for purposes of reporting cash flows.
INVENTORIES consist of fabrics, sewing notions and crafts held for resale and
are valued at the lower of cost or market; cost is determined by the last-in,
first-out ("LIFO") method. The current cost of inventories exceeded the LIFO
cost by approximately $40 million at January 31, 1999 and February 1, 1998.
DEPRECIATION is computed by use of the straight-line method over the estimated
useful lives of buildings, fixtures and equipment. Leasehold costs and
improvements are amortized over the lesser of their estimated useful lives or
the remaining lease term. Average depreciable lives are as follows: buildings
and improvements 15-20 years; fixtures and equipment 3-8 years; and
transportation equipment 3-5 years.
MAINTENANCE AND REPAIRS are charged to expense as incurred and major
improvements are capitalized.
ADVERTISING, including production costs, is charged to expense the first day of
the advertising period. Advertising expense for 1998, 1997 and 1996, was $19.0
million, $16.4 million and $16.2 million, respectively.
PREOPENING COSTS of new stores are charged to expense as incurred in accordance
with Statement of Position 98-5, Reporting on the Costs of Start-up Activities.
LONG-TERM INVESTMENTS are recorded using the equity method of accounting.
EARNINGS PER SHARE is presented for basic and diluted earnings per share. Basic
earnings per share excludes dilution and is computed by dividing income
available to common shareholders by the weighted-average number of common shares
outstanding for the period. Diluted earnings per share reflects the potential
dilution that could occur if securities or other contracts to issue common stock
were exercised or converted into common stock or resulted in the issuance of
common stock that then shared in the earnings of the company (see Note 11).
FINANCIAL INSTRUMENTS are evaluated pursuant to Statement of Financial
Accounting Standards No. 107, Disclosures about Fair Value of Financial
Instruments. The following methods and assumptions were used to estimate the
fair value of each class of financial instrument: cash and receivables - the
carrying amounts approximate fair value because of the short maturity of those
instruments; long-term debt - the fair value of Hancock's long-term debt is
estimated based on the current borrowing rates available to Hancock for bank
loans with similar terms and average maturities. The carrying amounts
approximate fair value because the interest rates reflect current market rates.
Throughout all years presented, Hancock did not have any financial derivative
instruments outstanding.
DEFERRED TAX LIABILITIES AND ASSETS are determined based on the difference
between the financial statement and tax bases of assets and liabilities, using
enacted tax rates in effect for the year in which the differences are expected
to reverse.
STOCK OPTIONS are accounted for using the methods prescribed by Accounting
Principles Board Opinion No. 25, Accounting for Stock Issued to Employees.
Compensation cost for stock options is measured as the excess, if any, of the
quoted market price of the Company's stock at the date of grant over the amount
an employee must pay to acquire the stock. Pro forma information regarding net
income and earnings per share as calculated under the provisions of Statement of
Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation,
is presented in Note 10.
COMPREHENSIVE INCOME is reported in accordance with Statement of Financial
Accounting Standards No. 130, Reporting Comprehensive Income. In 1998, the
Company did not have any comprehensive income items as defined by SFAS 130.
TREASURY STOCK is repurchased periodically by the Company. These treasury stock
transactions are recorded using the cost method.
STORE CLOSING RESERVES are established based on estimates of net lease
obligations and other store closing costs. During the fourth quarter of 1998,
the Company recorded a charge of $8,604,000 for revised estimates of net lease
obligations for stores closed at January 31, 1999 and stores committed to
closing in fiscal 1999. A major store repositioning effort has resulted in the
closing of 125 underperforming stores and the planned closing of 18 additional
stores in 1999. The Company has been unsuccessful in terminating its contractual
lease obligations on 35 of the 125 closed stores; therefore, Hancock engaged
real estate professionals in the fourth quarter of 1998 to expedite this
process. Based on recent estimates of subleasing potential provided by these
real estate professionals and the Company's real estate department, the Company
has revised its estimate of the time required and net cost to dispose of these
locations.
16
<PAGE> 10
NOTE 3 - ACQUISITION OF NORTHWEST FABRICS AND CRAFTS
Effective November 1, 1997, the Company purchased the assets of Northwest
Fabrics and Crafts ("Northwest") from Silas Creek Retail, L.P., pursuant to an
assignment of rights agreement between the Company and Carolina Sales, Inc. The
total consideration paid for these assets was approximately $20.9 million. This
acquisition was accounted for as a purchase; accordingly, the acquired assets
and liabilities were recorded at their estimated fair values at the date of
acquisition. The value of goodwill assigned to this acquisition was
approximately $3,100,000 including approximately $1,600,000 recorded during 1998
as a result of a reallocation of the purchase price representing a noncash
transfer from inventory. The goodwill is being amortized on a straight-line
basis over 15 years. Amortization expense for the year ended January 31, 1999
was $213,000. Operating results for Northwest have been included with those of
the Company beginning November 1, 1997.
NOTE 4 - PROPERTY AND EQUIPMENT (in thousands)
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Buildings and improvements $ 12,096 $ 11,016
Leasehold improvements 7,178 7,447
Fixtures and equipment 42,933 37,696
Transportation equipment 1,709 1,526
Construction in progress 776 195
-------- --------
64,692 57,880
Accumulated depreciation and amortization (43,737) (41,230)
-------- --------
20,955 16,650
Land 2,878 2,339
-------- --------
$ 23,833 $ 18,989
======== ========
</TABLE>
NOTE 5 - ACCRUED LIABILITIES (in thousands)
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Payroll and benefits $ 3,114 $ 6,607
Property taxes 3,687 3,663
Sales taxes 1,751 1,783
Reserve for closed stores 2,943 418
Other 2,609 3,947
-------- --------
$ 14,104 $ 16,418
======== ========
</TABLE>
NOTE 6 - LONG-TERM DEBT OBLIGATIONS (in thousands)
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Revolving credit agreement $ 29,000 $ 10,000
======== ========
</TABLE>
At January 31, 1999, Hancock had a $60 million revolving credit agreement with a
group of banks. This agreement, as amended, provides for a maturity date of
September 20, 2000 and an annual facility fee of 1/8 of 1%. Borrowings under the
revolving credit agreement bear interest at a negotiated rate, a floating rate
(the higher the federal funds rate plus 1/2% or the prime rate), a rate derived
from the Certificate of Deposit Rate or a rate derived from the London Interbank
Offered Rate. Hancock also has an arrangement to provide for $10 million in
letters of credit.
Subsequent to January 31, 1999, Hancock entered into a three year, $60 million
revolving credit arrangement with a group of banks. Borrowings under the
revolving credit agreement bear interest at a negotiated rate, a floating rate
(the higher of the federal funds rate plus 1/2% or the prime rate), a rate
derived from the Money Market Rate or a rate derived from the London Interbank
Offered Rate. This agreement replaces the agreement existing at January 31,
1999.
At January 31, 1999, the effective interest rate on the outstanding borrowings
was 5.36%. Under the most restrictive covenants of these agreements, Hancock is
required to maintain a specified consolidated tangible net worth, a debt to cash
flow ratio and a fixed charge coverage ratio.
NOTE 7 - LONG-TERM LEASES
Hancock leases its retail fabric store locations under noncancelable operating
leases expiring at various dates through 2018. Certain of the leases for store
locations provide for additional rent based on sales volume.
Rent expense consists of the following (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Minimum rent $30,489 $27,714 $28,177
Additional rent based on sales 229 189 203
------- ------- -------
$30,718 $27,903 $28,380
======= ======= =======
</TABLE>
17
<PAGE> 11
Minimum rental payments as of January 31, 1999 are as follows (in thousands):
<TABLE>
<CAPTION>
Fiscal Year
<S> <C>
1999 $ 27,983
2000 25,196
2001 21,828
2002 17,906
2003 14,382
Thereafter 43,641
--------
Total minimum lease payments $150,936
========
</TABLE>
NOTE 8 - INCOME TAXES
The components of income tax expense (benefit) are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
------- -------- -------
<S> <C> <C> <C>
Currently payable (receivable)
Federal $(2,080) $ 8,680 $ 7,467
State (122) 1,683 1,359
------- -------- -------
(2,202) 10,363 8,826
Deferred
Current 5,875 (551) 353
Noncurrent (1,639) (294) (1,378)
------- -------- -------
4,236 (845) (1,025)
------- -------- -------
$ 2,034 $ 9,518 $ 7,801
======= ======== =======
</TABLE>
The 1998 current income tax benefit relates primarily to a $14,150,000 deduction
for changes in the Company's intercompany markup on merchandise for tax
purposes. Deferred income taxes are provided in recognition of temporary
differences in reporting certain revenues and expenses for financial statement
and income tax purposes.
The current deferred tax asset (liability) is comprised of the following
(in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- -------
<S> <C> <C>
Current deferred tax assets
Inventory valuation methods $ 540 $ 1,826
Accrual for medical insurance 462 929
Accrual for workers' compensation 278 301
Other items 1,292 256
-------- -------
Gross current deferred tax assets 2,572 3,312
Current deferred tax liabilities - inventory markup (5,134)
-------- -------
$ (2,562) $ 3,312
======== =======
</TABLE>
The net noncurrent deferred tax asset is comprised of the following
(in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- ------
<S> <C> <C>
Noncurrent deferred tax assets
Postretirement benefits other than pensions $ 7,047 $ 7,347
Accrual for store closing costs 2,207
Accrual for pension liability 394 1,034
Difference in recognition of restricted stock expense 290 137
Deferred compensation liability 753 751
Other deferred deduction items 627 619
-------- -------
Gross noncurrent deferred tax assets 11,318 9,888
Noncurrent deferred tax liabilities - depreciation (615) (823)
-------- -------
$ 10,703 $ 9,065
======== =======
</TABLE>
The ultimate realization of a significant portion of this asset is dependent
upon the generation of future taxable income sufficient to offset the related
deductions.
A reconciliation of the statutory Federal income tax rate to the effective tax
rate is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Statutory Federal income tax rate 35.0% 35.0% 35.0%
State income taxes, net of Federal income tax effect 1.3 3.9 3.9
Effect of change in state rates (.9) -- --
Other 1.0 (.6) (.4)
---- ---- ----
Effective tax rate 36.4% 38.3% 38.5%
==== ==== ====
</TABLE>
18
<PAGE> 12
NOTE 9 - SHAREHOLDERS' INTEREST
AUTHORIZED CAPITAL. Hancock's authorized capital includes five million shares of
$.01 par value preferred stock, none of which have been issued.
COMMON STOCK PURCHASE RIGHTS. Hancock has entered into a Common Stock Purchase
Rights Agreement, as amended, (the "Rights Agreement"), with Continental Stock
Transfer & Trust Company as Rights Agent. The Rights Agreement, in certain
circumstances, would permit shareholders to purchase common stock at prices
which would be substantially below market value. These circumstances include the
earlier of (i) the tenth day after an announcement that a person or group has
acquired beneficial ownership of 20% or more of the Hancock shares, with certain
exceptions such as a tender offer that is approved by a majority of Hancock's
Board of Directors, or (ii) the tenth day, or such later date as set by
Hancock's Board of Directors, after a person or group commences, or announces
its intention to commence, a tender or exchange offer, the consummation of which
would result in beneficial ownership of 30% or more of the Hancock shares.
STOCK REPURCHASE PLAN. In prior years and continuing in fiscal 1998, repurchases
of almost 10,000,000 shares have been made. As of January 31, 1999, 1,518,749
shares are available for repurchase under the most recent authorization.
NOTE 10 - EMPLOYEE BENEFIT PLANS
STOCK OPTIONS. In 1996, Hancock adopted the 1996 Stock Option Plan (the "1996
Plan") which authorized the granting of options to employees for up to two
million shares of common stock at an exercise price of no less than 50% of fair
market value on the date the options are granted. The exercise price of options
granted under this Plan have equaled the fair market value on the grant date. As
of January 31, 1999, 945,800 options remain to be granted under the 1996 Plan.
The 1996 Plan was established to provide for the continued issuance of stock
options to employees when the shares available for grants under a preceding
plan, the 1987 Stock Option Plan (the "1987 Plan"), were depleted. As
promulgated in the plan prospectus, the 1987 Plan expired on March 22, 1997;
however, options granted under the 1987 Plan extend beyond the termination date.
A summary of activity in the plans for the years ended January 31, 1999,
February 1, 1998, and February 2, 1997 follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------------------- --------------------- ---------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
OPTIONS PRICE OPTIONS PRICE OPTIONS PRICE
------- ----- ------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 2,174,050 $10.20 2,212,770 $ 8.65 2,089,970 $ 7.68
Granted 426,200 12.63 651,200 13.17 493,200 10.92
Canceled (91,000) 11.85 (49,800) $10.34 (73,600) 8.94
Exercised (202,250) 8.31 (640,120) 7.85 (296,800) 5.56
--------- --------- ---------
Outstanding at end of year 2,307,000 10.76 2,174,050 10.20 2,212,770 8.65
========= ========= =========
Exercisable at end of year 1,592,200 $ 9.85 1,291,150 $ 8.62 1,578,870 $ 8.01
========= ========= =========
</TABLE>
The options outstanding at January 31, 1999 are exercisable at prices ranging
from $8.13 to $14.25 per share. The weighted average remaining contractual life
of all outstanding options was 7.60 years at January 31, 1999.
The Company applies Accounting Principles Board Opinion No. 25, Accounting for
Stock Issues to Employees, and related interpretations in accounting for its
plans. Accordingly, no compensation expense has been recognized for its
stock-based compensation plans other than for restricted stock awards. Had
compensation cost for the Company's stock option plans been determined based on
the fair value at the grant date for awards in 1998, 1997 and 1996 consistent
with the method prescribed by SFAS No. 123, Accounting for Stock-Based
Compensation, the Company's net earnings for 1998, 1997 and 1996 would have been
reduced by approximately $1.3 million, $1.1 million and $1.4 million,
respectively. Diluted earnings per share would have been reduced by $.07, $.05
and $.06 for 1998, 1997 and 1996, respectively. These pro forma results will not
be representative of the impact on future years because only grants made in
1998, 1997, and 1996 were considered. The weighted average grant-date fair value
of options granted during 1998, 1997 and 1996 was $3.71, $4.14 and $3.81,
respectively. The fair value of each option grant is estimated on the date of
the grant using the Black-Scholes option pricing model with the following
weighted-average assumptions for 1998, 1997 and 1996, respectively: dividend
yields of 2.10%, 1.72% and 2.13%; average expected volatility of .33, .34 and
.35; risk-free interest rates of 4.75%, 5.71% and 6.69%; and an average expected
life of 4.1 years.
RESTRICTED STOCK. Hancock adopted the 1989 Restricted Stock Plan under which as
many as one million shares of common stock, as adjusted, may be issued to key
employees at no cost to the employees. On December 6, 1995, Hancock adopted the
1995 Restricted Stock Plan to provide the continued issuance of restricted stock
awards to employees when the reserve of shares available for awards under the
1989 Restricted Stock Plan had been depleted. The aggregate number of shares
that may be issued or reserved for issuance pursuant to the 1995 Restricted
Stock Plan shall not exceed one million shares (subject to adjustment as
provided in the Plan). During 1998, 1997 and 1996, restricted shares of 89,950,
264,600, and 115,700, respectively, were issued to officers and key employees
under the plans. As of January 31, 1999, 499,650 shares are outstanding for
which restrictions have not been lifted. Compensation expense related to
restricted shares issued is recognized over the period for which restrictions
apply. This expense totaled $1,310,000, $1,282,000 and $2,354,000 in 1998, 1997
and 1996, respectively.
19
<PAGE> 13
RETIREMENT PLANS. Substantially all full-time employees are covered by a
trusteed, noncontributory defined benefit retirement plan maintained by Hancock.
The retirement benefits provided by this plan are primarily based on years of
service and employee compensation. Pension costs are funded by quarterly
contributions to the trust.
The following table sets forth changes in the projected benefit obligation and
changes in the fair value of Plan assets (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- ---------
<S> <C> <C>
CHANGE IN PROJECTED BENEFIT OBLIGATION
Benefit obligation at beginning of year $34,759 $30,843
Service cost 2,010 1,713
Interest cost 2,538 2,286
Benefits paid (1,701) (1,471)
Actuarial adjustments 2,487 1,388
------- -------
Benefit obligation at end of year $40,093 $34,759
======= =======
CHANGE IN PLAN ASSETS
Fair value of plan assets at beginning of year $36,869 $32,013
Actual return on plan assets 4,322 5,626
Employer contributions 2,480 701
Benefits paid (1,701) (1,471)
------- -------
Fair value of plan assets at end of year $41,970 $36,869
======= =======
</TABLE>
The funded status and the amounts recognized in Hancock's consolidated balance
sheet for defined benefit plans based on an actuarial valuation as of the
measurement dates of December 31, 1998 and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Funded status $ 1,877 $ 2,111
Unrecognized amounts (2,963) (4,770)
------- -------
Prepaid (accrued) benefit cost $(1,086) $(2,659)
======= =======
</TABLE>
Plan assets include fixed income and equity funds, comprising corporate and
government debt securities, common stock, and real estate. The unrecognized net
transition asset is being amortized over 15 years beginning in 1986.
Net periodic pension costs include the following components:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Service cost $ 2,010 $ 1,713 $ 1,703
Interest cost 2,538 2,286 2,079
Expected return on plan assets (3,404) (2,840) (2,534)
Amortization and deferrals (148) (139) (139)
------- ------- -------
Net periodic pension costs $ 996 $ 1,020 $ 1,109
======= ======= =======
</TABLE>
Actuarial assumptions used in the period-end valuations were as follows:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------ -------
<S> <C> <C> <C>
Discount rate 7.00% 7.25% 7.50%
Rate of increase in compensation levels 4.25% 4.25% 4.25%
Expected long-term rate of return on assets 9.25% 9.25% 9.00%
</TABLE>
POSTRETIREMENT BENEFITS OTHER THAN PENSIONS. Certain health care benefits are
provided by Hancock to substantially all retired employees with more than 15
years of credited service. The following table sets forth the changes in the
projected benefit obligation and changes in the fair value of plan assets (in
thousands):
<TABLE>
<CAPTION>
1998 1997
------- --------
<S> <C> <C>
CHANGE IN PROJECTED BENEFIT OBLIGATION
Benefit obligation at beginning of year $12,040 $11,753
Service cost 652 672
Interest cost 825 769
Benefits paid (379) (310)
Actuarial adjustments 427 (844)
------- -------
Benefit obligation at end of year $13,565 $12,040
======= =======
</TABLE>
The Company currently contributes to the plan as benefits are paid. The funded
status and the amounts recognized in Hancock's consolidated balance sheet for
other postretirement benefits based on an actuarial valuation as of the
measurement dates of December 31, 1998 and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- ---------
<S> <C> <C>
Funded status $(13,565) $(12,040)
Unrecognized amounts (6,769) (7,706)
-------- --------
Prepaid (accrued) benefit cost $(20,334) $(19,746)
======== ========
</TABLE>
20
<PAGE> 14
The medical care cost trend rate used in determining this obligation for
employees before age 65 is 8.39%, decreasing by .68% annually before leveling at
5.00%. For individuals 65 and over, the rate is 5.87%, decreasing by .69%
annually before leveling at 4.50%. This trend rate assumption has a significant
effect on the amounts reported. To illustrate, increasing the combined health
care cost trend by 1% would increase the accumulated postretirement benefit
obligation by $2.1 million.
The discount and the salary scale rates used in calculating the obligations are
7.00% and 4.25%, respectively, at December 31, 1998 and 7.25% and 4.25%,
respectively at December 31, 1997. Net periodic postretirement benefit costs
included the following (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Service cost $ 652 $ 672 $ 974
Interest cost 825 769 909
Expected return on plan assets
Amortization and deferrals (510) (548) (253)
----- ----- ------
Net periodic postretirement benefit costs $ 967 $ 893 $1,630
===== ===== ======
</TABLE>
Hancock's policy is to fund claims as incurred. Claims paid in 1998, 1997 and
1996 totaled $379,000, $310,000 and $252,000, respectively.
NOTE 11 - EARNINGS PER SHARE
A reconciliation of basic earnings per share to diluted earnings per share
follows (in thousands, except per share data):
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------------------------------------------------------
JANUARY 31, 1999 FEBRUARY 1, 1998 FEBRUARY 2, 1997
-----------------------------------------------------------------------------------------
NET PER SHARE NET PER SHARE NET PER SHARE
EARNINGS SHARES AMOUNT EARNINGS SHARES AMOUNT EARNINGS SHARES AMOUNT
-------- ------ ------ -------- ------ ------ -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BASIC EPS
Earnings available to
common shareholders $3,556 19,741 $.18 $15,324 20,834 $.74 $12,481 21,137 $.59
EFFECT OF DILUTIVE SECURITIES
Stock options 192 391 230
Restricted stock 64 92 174
------ ------ ------
DILUTED EPS
Earnings available to
common shareholders ------ ------ ---- ------- ------ ---- ------- ------ ----
plus conversions $3,556 19,997 $.18 $15,324 21,317 $.72 $12,481 21,541 $.58
====== ====== ==== ======= ====== ==== ======= ====== ====
</TABLE>
Certain options to purchase shares of the Company's common stock were
outstanding during the year ending January 31, 1999 but were not included in the
computation of diluted EPS because the exercise price was greater than the
average price of common shares. These options were still outstanding as of
January 31, 1999.
NOTE 12 - COMMITMENTS AND CONTINGENCIES
CONCENTRATION OF CREDIT RISK. Financial instruments which potentially subject
Hancock to concentrations of risk are primarily cash and cash equivalents.
Hancock places its cash and cash equivalents in insured depository institutions
and limits the amount of credit exposure to any one institution.
LITIGATION. Hancock is a party to several pending legal proceedings and claims.
Although the outcome of such proceedings and claims cannot be determined with
certainty, Hancock's management is of the opinion that it is unlikely that these
proceedings and claims will have a material effect on the financial condition or
operating results of Hancock.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and (PricewaterhouseCoopers Logo)
Shareholders of Hancock Fabrics, Inc.
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of earnings, of shareholders' equity and of cash flows
present fairly, in all material respects, the financial position of Hancock
Fabrics, Inc. and its subsidiaries at January 31, 1999 and February 1, 1998, and
the results of their operations and their cash flows for each of the three years
in the period ended January 31, 1999, in conformity with generally accepted
accounting principles. 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 of these
statements in accordance with generally accepted auditing standards which
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, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
/s/ Pricewaterhouse Coopers, LLP
Memphis, Tennessee
March 5, 1999
21
<PAGE> 15
SHAREHOLDER INFORMATION
Corporate Headquarters
Hancock Fabrics, Inc.
3406 West Main Street
Post Office Box 2400
Tupelo, Mississippi 38803-2400
Telephone: (662)842-2834
Web site:http://www.hancockfabrics.com
Transfer Agent and Registrar
Continental Stock Transfer & Trust Co.
2 Broadway
New York, New York 10004
Telephone (212)509-4000
Web site:http://continentalstock.com
Independent Accountants
PricewaterhouseCoopers LLP
1000 Morgan Keegan Tower
50 North Front Street
Memphis, Tennessee 38103
Form 10-K and Investor Contact
A copy of the Company's Form 10-K annual report as filed with the
Securities and exchange Commission is available to shareholders
without charge upon written request. These requests and other investor
inquiries should be directed to Mr. Bruce D. Smith, Chief Financial Officer
Hancock Fabrics, Inc., Post Office Box 2400, Tupelo, Mississippi 38803-2400.
Quarterly Financial Information
Quarterly results and management's comments will
be available to shareholders at (888)431-1997 (toll-free) or on
the Company's Web site at http://www.hancockfabrics.com
Market information
Hancock's shares are listed for trading on the New York Stock Exchange
under the symbol HKF. The following table shows the high and low
closing price for Hancock's common stock for the fiscal quarters indicated:
<TABLE>
<CAPTION>
High Low
- ---------------------------------------------------------------
<S> <C> <C>
1998
First Quarter $16.88 $14.56
Second Quarter 15.94 10.25
Third Quarter 10.81 8.69
Fourth Quarter 8.63 7.63
- ---------------------------------------------------------------
Year Ended
January 31, 1999 $16.88 $ 7.63
- ---------------------------------------------------------------
1997
First Quarter $13.13 $10.50
Second Quarter 13.75 11.75
Third Quarter 14.19 11.13
Fourth Quarter 15.56 13.69
- ---------------------------------------------------------------
Year Ended
February 1, 1998 $15.56 $10.50
- ---------------------------------------------------------------
</TABLE>
As of April 15, 1999, there were 8,096 record holders of Hancock's common stock.
25
<PAGE> 1
EXHIBIT 21
Subsidiaries of Hancock Fabrics, Inc.
<TABLE>
<CAPTION>
Names Under Which
State of Subsidiary
Name Incorporation Does Business
---- ------------- ------------------
<S> <C> <C>
Minnesota Fabrics, Inc. Minnesota Minnesota Fabrics
HF Enterprises, Inc. Delaware HF Enterprises
HF Resources, Inc. Delaware HF Resources
HF Merchandising, Inc. Delaware HF Merchandising
Hancock Fabrics of
MI, Inc. Delaware Hancock Fabrics of MI
</TABLE>
<PAGE> 1
EXHIBIT 23
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 333-32295, 333-32299, 33-17215, 33-29138 and
33-55419) of Hancock Fabrics, Inc. of our report dated March 5, 1999 appearing
on page 21 of the Annual Report to Shareholders which is incorporated in this
Annual Report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
Memphis, Tennessee
April 30, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE 1998
FORM 10-K OF HANCOCK FABRICS, INC. FOR THE YEAR ENDED JANUARY 31, 1999 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-31-1999
<PERIOD-START> FEB-02-1998
<PERIOD-END> JAN-31-1999
<CASH> 6,959
<SECURITIES> 0
<RECEIVABLES> 1,595
<ALLOWANCES> 0
<INVENTORY> 142,249
<CURRENT-ASSETS> 154,578
<PP&E> 23,833
<DEPRECIATION> 0
<TOTAL-ASSETS> 192,404
<CURRENT-LIABILITIES> 55,860
<BONDS> 0
0
0
<COMMON> 285
<OTHER-SE> 76,867
<TOTAL-LIABILITY-AND-EQUITY> 192,404
<SALES> 392,303
<TOTAL-REVENUES> 392,303
<CGS> 201,521
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 183,720
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,472
<INCOME-PRETAX> 5,590
<INCOME-TAX> 2,034
<INCOME-CONTINUING> 3,556
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,556
<EPS-PRIMARY> .18
<EPS-DILUTED> .18
</TABLE>
