DEMAND NOTE
Exhibit
10.1
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$50,000,000.00
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February
4, 2008
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FOR
VALUE RECEIVED, the undersigned,
HIBBETT SPORTS, INC., a Delaware corporation
(“Borrower”), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (“Lender”), at its office set forth on the
signature page (or at such other place as Lender may designate from time to
time), in lawful money of the United States of America and in immediately
available funds, the principal amount of $50,000,000.00 or such lesser amount
as
shall equal the aggregate unpaid principal amount of advances (each a
“Loan” and collectively the “Loans”) made by Lender to Borrower
under this Demand Note (this “Note”), and to pay interest on the unpaid
principal amount of the Loans at the rate per annum and on the dates specified
below. ▇▇▇▇▇▇▇▇ acknowledges and agrees that ▇▇▇▇▇▇ has not committed
to extend credit to Borrower and each Loan shall be made at the sole discretion
of Lender.
Each
Loan shall bear interest at a rate
per annum equal to the BBA LIBOR Daily Floating Rate plus .375%. The
BBA LIBOR Daily Floating Rate is a fluctuating rate of interest equal to the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as selected by Lender from time to time)
as
determined for each banking day at approximately 11:00 a.m. London time two
(2)
London Banking Days prior to the date in question, for U.S. Dollar deposits
(for
delivery on the first day of such interest period) with a one month term, as
adjusted from time to time in Lender’s sole discretion for reserve requirements,
deposit insurance assessment rates and other regulatory costs. If
such rate is not available at such time for any reason, then the rate for that
interest period will be determined by such alternate method as reasonably
selected by ▇▇▇▇▇▇. A “London Banking Day” is a day on which
banks in London are open for business and dealing in offshore
dollars.
Each
Loan, and accrued and unpaid
interest thereon, shall be due and payable on demand, or if no demand is sooner
made, on December 31, 2008. Interest owing on any Loan shall also be
payable monthly on the first day of each month, commencing on the first day
of
the first month after funding of such Loan and then on the first day of each
month until payment in full of such Loan. Lender may, to the extent
any payment is not made when due hereunder, charge from time to time against
any
or all of Borrower’s accounts with Lender any amount so due.
Interest
shall be computed on the basis
of a year of 360 days and the actual days elapsed (including the first day
but
excluding the last day). Overdue principal and, to the extent
permitted by applicable law, interest shall bear interest, payable upon demand,
for each day from and including the due date but excluding the date of actual
payment at a rate per annum equal to the sum of (a) the rate of interest
otherwise provided under this Note plus (b) 2%. Whenever any payment
under this Note is due on a day that is not a day Lender is open to conduct
substantially all of its business, such payment shall be made on the next
succeeding day on which Lender is open to conduct substantially all of its
business, and such extension of time shall in such case be included in the
computation of the payment of interest.
The
date, amount, interest rate, and,
if applicable, the date of demand of each Loan, and each payment of principal
and interest hereon, shall be recorded by ▇▇▇▇▇▇ on its books, which
recordations shall, in the absence of manifest error, be conclusive as to such
matters; provided, that the failure of Lender to make any such
recordation or any error therein shall not limit or otherwise affect the
obligations of the Borrower hereunder.
Borrower
may prepay each Loan, in whole
or in part, at any time or from time to time without premium or
penalty.
Notwithstanding
anything to the
contrary contained herein, if a petition shall be filed by or against the
Borrower under any law relating to bankruptcy, reorganization, or insolvency,
then the outstanding principal and accrued and unpaid interest on this Note,
together with all other amounts payable hereunder, shall become immediately
due
and payable.
Borrower
hereby waives presentment,
protest, demand, notice of demand, notice of intent to accelerate and any other
notice of any kind in connection with this Note.
Borrower
represents and warrants to
Lender that: (a) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organizations; (b) the
execution, issuance and delivery of this Note and each other document or
instrument executed and delivered in connection herewith (i) are within
Borrower’s powers, (ii) have been duly authorized, (iii) do not result in the
breach of or constitute a default under any indenture, agreement, instrument
or
undertaking to which Borrower is a party or by which it or its property may
be
bound or affected, and (iv) are not in violation of law or regulation or of
the
terms of Borrower’s organizational papers; (c) this Note and each other document
or instrument executed and delivered in connection herewith are valid, binding
and enforceable in accordance with their respective terms; (d) the proceeds
of
the Loans shall be used solely for general corporate purposes; provided,
however, that Borrower shall not use any part of the proceeds of any
Loan
to purchase or carry any margin stock (other than its own stock) within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
or to extend credit to others for the purpose of purchasing or carrying any
margin stock; and (e) the person or persons extending this Note on behalf of
Borrower are duly appointed officers or other representatives of Borrower with
authority to execute and deliver this Note on behalf of Borrower. The
request of Borrower for a Loan and the receipt by Borrower of the proceeds
thereof shall be deemed a representation by Borrower that as of the date of
such
request and receipt all representations and warranties contained herein shall
be
true and correct and with the same force and effect as though such
representations and warranties had been made on and as of the date of such
request and receipt.
No
failure or delay by ▇▇▇▇▇▇ in
exercising, and no course of dealing with respect to, any right, power, or
privilege hereunder shall operate as a waiver thereof nor shall any single
or
partial exercise of any right, power, or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies of Lender provided herein shall be
cumulative and not exclusive of any other rights or remedies provided by
law. If any provision of this Note shall be held invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
not
affect the remaining provisions hereof. Except as set forth herein or
therein, no provision of this Note may be modified or waived except by a written
instrument signed by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇. Time is of the essence of
this Note.
Borrower
will indemnify and hold Lender
harmless from any losses, liabilities, damages, judgments, and costs of any
kind
relating to or arising directly or indirectly out of (a) any inaccurate
representation made by Borrower in this Note, or (b) any breach of any of the
warranties or other obligations of Borrower under this Note. This
indemnity includes but is not limited to attorneys’ fees (including the
allocated cost of in-house counsel). This indemnity extends to
Lender, its affiliates and the partners, directors, officers, employees, agents
and advisors of Lender and of Lender’s affiliates. This indemnity
will survive repayment of ▇▇▇▇▇▇▇▇’s obligations to Lender under this
Note. All sums due to Lender pursuant to this paragraph shall be due
and payable upon demand.
This
Note shall be binding upon
Borrower and its successors and assigns and inure to the benefit of ▇▇▇▇▇▇
and
its successors and assigns, provided, however, that no obligations
or rights of Borrower hereunder can be assigned without the prior written
consent of ▇▇▇▇▇▇. Lender may
assign
to
one or more banks or other entities all or any part of, or may grant
participations to one or more banks or other entities in or to all or any part
of, this Note, any other document or instrument executed or delivered in
connection herewith or any Loan or Loans hereunder and its rights
or
obligations
hereunder or thereunder. ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ may disclose to
any assignee or purchaser, or any prospective assignee or purchaser, any and
all
information in ▇▇▇▇▇▇’s possession concerning Borrower, this Note, any guarantor
of this Note and any security for this Note.
Borrower
shall pay on demand all costs
and expenses (including reasonable attorneys’ fees and the allocated costs of
internal counsel) incurred by ▇▇▇▇▇▇ in connection with the enforcement or
attempted enforcement of this Note.
All
notices required under this Note
shall be in writing and shall be personally delivered or sent by first class
mail, postage prepaid, or by overnight courier, to Borrower or Lender, as the
case may be, at its address set forth below, or sent by facsimile to the
facsimile number set forth for such party below, or to such other addresses
or
facsimile numbers as Lender and Borrower may specify from time to time in
writing. Notices and other communications sent by (a) first class
mail shall be deemed delivered on the earlier of actual receipt or on the fourth
business day after deposit in the U.S. mail, postage prepaid, (b) overnight
courier shall be deemed delivered on the next business day after deposit with
the overnight courier, (c) other methods of hand-delivery (including telegram,
lettergram or mailgram) shall be deemed delivered when delivered, and (d)
facsimile shall be deemed delivered when transmitted.
As
used in this Note and for purposes
of Section 7-4-2 of the Official Code of Georgia Annotated, the term “interest”
does not include any fees (including, but not limited to, any loan fee, periodic
fee, unused commitment fee or waiver fee) or other charges imposed on Borrower
in connection with the indebtedness evidenced by this Note, other than the
interest described above. In no event shall the amount or rate of
interest due and payable under this Note exceed the maximum amount or rate
of
interest allowed by applicable law and, in the event any such excess payment
is
made by Borrower or received by Bank, such excess sum shall be credited as
a
payment of principal (or if no principal shall remain outstanding, shall be
refunded to the Borrower). It is the express intent hereof that
Borrower not pay and Bank not receive, directly or indirectly, interest in
excess of that which may be lawfully paid under applicable law including the
usury laws in force in the State of Georgia.
This
Note shall be governed by and
construed in accordance with the laws of the State of Georgia and the applicable
laws of the United States of America, without regard to principles of conflict
of laws.
This
paragraph, including the
subparagraphs below, is referred to as the “Dispute Resolution
Provision.” This Dispute Resolution Provision is a material
inducement for Bank and Borrower entering into this Note.
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(a)
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This
Dispute Resolution Provision concerns the resolution of any controversies
or claims between the Lender and Borrower, whether arising in contract,
tort or by statute, including but not limited to controversies or
claims
that arise out of or relate to: (i) this Note (including any
renewals, extensions or modifications); or (ii) any document related
to
this Note (collectively a “Claim”). For the purposes of this
Dispute Resolution Provision, the term “Lender” shall include any parent
corporation, subsidiary or affiliate of Lender involved in the servicing,
management or administration of any obligation described or evidenced
by
this Note.
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(b)
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At
the request of Borrower or Lender, any Claim shall be resolved by
binding
arbitration in accordance with the Federal Arbitration Act (Title
9, U.S.
Code) (the “Act”). The Act will apply even though this Note
provides that it is governed by the law of a specified
state.
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(c)
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Arbitration
proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial
services disputes of the
American
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Arbitration
Association or any successor thereof (“AAA”), and the terms of this Dispute
Resolution Provision. In the event of any inconsistency, the terms of
this Dispute Resolution Provision shall control. If AAA is unwilling
or unable to (i) serve as the provider of arbitration or (ii) enforce any
provision of this arbitration clause, the Lender may designate another
arbitration organization with similar procedures to serve as the provider of
arbitration.
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(d)
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The
arbitration shall be administered by AAA and conducted, unless otherwise
required by law, in Atlanta, Georgia. All Claims shall be
determined by one arbitrator; however, if Claims exceed $5,000,000,
upon
the request of Borrower or Lender, the Claims shall be decided by
three
arbitrators. All arbitration hearings shall commence within
ninety (90) days of the demand for arbitration and close within ninety
(90) days of commencement and the award of the arbitrator(s) shall
be
issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional
sixty (60) days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration
award may be submitted to any court having jurisdiction to be confirmed
and have judgment entered and
enforced.
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(e)
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The
arbitrator(s) will give effect to statutes of limitation in determining
any Claim and may dismiss the arbitration on the basis that the Claim
is
barred. For purposes of the application of any statutes of
limitation, the service on AAA under applicable AAA rules of a notice
of
Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s), except as set forth at
subparagraph (h) of this Dispute Resolution Provision. The
arbitrator(s) shall have the power to award legal fees pursuant to
the
terms of this Note.
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(f)
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This
paragraph does not limit the right of Borrower or Lender
to: (i) exercise self-help remedies, such as but not limited
to, setoff; (ii) initiate judicial or non-judicial foreclosure against
any
real or personal property collateral; (iii) exercise any judicial
or power
of sale rights, or (iv) act in a court of law to obtain an interim
remedy,
such as but not limited to, injunctive relief, writ of possession
or
appointment or a receiver, or additional or supplementary
remedies.
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(g)
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The
filing of a court action is not intended to constitute a waiver of
the
right of Borrower or Lender, including the suing party, thereafter
to
require submittal of the Claim to
arbitration.
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(h)
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Any
arbitration or trial by a judge of any Claim will take place on an
individual basis without resort to any form of class or representative
action (the “Class Action Waiver”). Regardless of anything else
in this Dispute Resolution Provision, the validity and effect of
the Class
Action Waiver may be determined only by a court and not by an
arbitrator. Borrower and ▇▇▇▇▇▇ acknowledge that the Class
Action Waiver is material and essential to the arbitration of any
disputes
between Borrower and Lender and is nonseverable from the agreement
to
arbitrate Claims. If the Class Action Waiver is limited, voided
or found unenforceable, then the parties’ agreement to arbitrate shall be
null and void with respect to such proceeding, subject to the right
to
appeal the limitation or invalidation of the Class Action
Waiver. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ acknowledge and agree that
under no circumstances will a class action be
arbitrated.
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(i)
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By
agreeing to binding arbitration, Borrower and Lender irrevocably
and
voluntarily waive to the extent permitted by applicable law any right
they
may have to a trial by
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jury
in
respect of any Claim. Furthermore, without intending in any way to
limit this agreement to arbitrate, to the extent any Claim is not arbitrated,
the parties irrevocably and voluntarily waive to the extent permitted by
applicable law any right they may have to a trial by jury in respect of such
Claim. This waiver of jury trial shall remain in effect even if the
Class Action Waiver is limited, voided or found
unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR
BY TRIAL BY A JUDGE, ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ AGREE AND UNDERSTAND THAT THE EFFECT OF
THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE
EXTENT PERMITTED BY APPLICABLE LAW.
Borrower
hereby irrevocably submits to
the nonexclusive jurisdiction of the United States District Court and each
state
court in the City of Atlanta, Georgia for the purposes of all legal proceedings
arising out of or relating to this Note. Borrower irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any such proceeding brought in such
a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum. Service of process by Lender in
connection with such action or proceeding shall be binding on Borrower if sent
to Borrower by registered or certified mail at its address specified
below.
THIS
NOTE AND ANY OTHER DOCUMENTS OR
INSTRUMENTS EXECUTED IN CONNECTION ▇▇▇▇▇▇▇▇ REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
▇▇▇▇▇▇▇▇
has caused this Note to be
duly executed under seal as of the date first above written.
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HIBBETT
SPORTS, INC.
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By: /s/
▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇, Chief Financial Officer
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Address
for Notices to Borrower:
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▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Birmingham,
Alabama 35211
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Attention: Chief
Financial Officer
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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Address
for Notices to Lender:
Bank
of
America, N.A.
Jacksonville
– Credit Services
Attn: Notice
Desk
FL9-100-03-153
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
3rd
Floor
Jacksonville,
Florida 32256
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇