EXHIBIT 10.1.2
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("this Amendment") dated as of
April 17, 2000 is entered into by HIBBETT SPORTING GOODS, INC., a Delaware
corporation, HIBBETT TEAM SALES, INC., an Alabama corporation, and SPORTS
WHOLESALE, INC., an Alabama corporation (together referred to as the
"Borrowers"), AMSOUTH BANK, an Alabama banking corporation ("AmSouth"), BANK OF
AMERICA, N.A., a national banking association, and FLEET NATIONAL BANK, a
national banking association (collectively, the "Lenders"), and AMSOUTH BANK, an
Alabama banking corporation, as agent for the Lenders (the "Agent").
Recitals
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A. The Borrowers and the Lenders have previously entered into that certain
Credit Agreement dated as of November 5, 1998 (the "Credit Agreement").
Capitalized terms not otherwise herein defined shall have the meanings given
them in the Credit Agreement.
B. The Borrowers have requested and the Lenders have agreed to enter into
certain amendments to the Credit Agreement, as set forth herein.
Agreement
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NOW, THEREFORE, in consideration of the foregoing recitals and in further
consideration of the mutual agreements set forth herein, the Borrowers, the
Agent and the Lenders hereby agree as follows:
1. Recitals. The recitals hereinabove are hereby incorporated by this
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reference as if fully set forth herein.
2. Rules of Construction. This Amendment is subject to the rules of
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construction set forth in Section 1.1 of the Credit Agreement.
3. Representations and Warranties of Borrowers. Each of the Borrowers
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represents and warrants to the Lenders as follows:
(a) Representations and Warranties in Loan Documents. All of the
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representations and warranties set forth in the Loan Documents are true and
correct in all
material respects on and as of the date hereof, except to the extent that
such representations and warranties expressly relate to an earlier date.
(b) No Default. Each of the Borrowers is in compliance in all
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material respects with all the terms and provisions set forth in the Loan
Documents on its part to be observed or performed, and, no Event of
Default, nor any event that upon notice or lapse of time or both would
constitute such an Event of Default, has occurred and is continuing.
4. Amendments to Credit Agreement. The Credit Agreement is hereby amended
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as follows:
(a) The defined term "Change of Control" is hereby added to the Credit
Agreement and shall read as follows:
Change of Control shall mean (i) the persons listed on Exhibit I
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hereto shall cease to be the "beneficial owner" (within the meanings
of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) of
securities of Hibbett representing thirty percent (30%) or more of the
combined voting power of the then outstanding securities of Hibbett,
or (ii) any Person or "group" (within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934), shall, directly or
indirectly, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, other than the
persons listed on Exhibit I hereto, have become, after April 17, 2000,
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the "beneficial owner" of securities of Hibbett representing 25% or
more of the combined voting power of the then outstanding securities
of Hibbett ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors,
assuming the conversion, exchange or exercise into or for voting stock
of all outstanding shares so convertible, exchangeable or exercisable,
or (iii) the members of the Board of Directors of Hibbett shall cease
to consist of a majority of the individuals (y) who constituted the
Board of Directors as of April 17, 2000 or (z) who shall have become
members thereof subsequent to April 17, 2000 after having been
nominated, or otherwise approved in writing, by at least a majority of
individuals who constituted the Board of Directors of Hibbett as of
April 17, 2000. For purposes of this definition, "voting power" shall
be determined with reference to the then outstanding securities of
Hibbett ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors,
assuming the conversion, exchange or exercise into or for voting stock
of all outstanding securities of Hibbett so convertible, exchangeable
or exercisable.
(b) Section 8.1(j) of the Credit Agreement is hereby amended to read,
in its entirety, as follows:
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(j) (1) the occurrence of a Change of Control, or (2) Hibbett
ceases to beneficially own and control not less than the same
percentage ownership of any Subsidiary from the time such Subsidiary
becomes a Participating Entity;
(c) Exhibit I of the Credit Agreement is hereby replaced with Revised
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Exhibit I attached hereto.
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5. Loan Documents to Remain in Effect. Except expressly amended herein,
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the Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms.
6. No Novation, etc. Nothing contained in this Amendment shall be deemed
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to constitute a novation of the terms of the Loan Documents, nor impair any
Liens granted to the Lenders thereunder, nor release any person from liability
for any of the Credit Obligations, nor affect any of the rights, powers or
remedies of the Agent or the Lenders under the Loan Documents, nor constitute a
waiver of any provision thereof.
7. Governing Law, Successors and Assigns, etc. This Amendment shall be
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governed by and construed in accordance with the laws of the State of Alabama
and shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
8. Headings. The descriptive headings of the sections of this Amendment
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are for convenient reference only and shall not be deemed to affect the meaning
or construction of any of the provisions hereof.
9. Entire Agreement. This Amendment constitutes the entire understanding
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to date of the parties hereto regarding the subject matter hereof and supersedes
all prior and contemporaneous oral and written agreements of the parties thereto
with respect to the subject matter hereof.
10. Severability. If any provision of this Amendment shall be invalid,
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illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
11. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which so executed shall be deemed an original, but all
such counterparts shall together constitute but one and the same instrument.
12. No Waiver. Nothing contained in this Amendment shall be construed as
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a waiver or acknowledgment of, or consent to any breach of or Event of Default
under the Credit Agreement or the other Loan Documents.
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13. Effect of this Amendment. This Amendment amends and supplements the
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Credit Agreement and shall be construed as if it is a part thereof for all
purposes. Any representation or warranty contained herein that is determined by
the Agent or the Lenders to have been misleading or untrue in any material
respect at the time made shall constitute an Event of Default under the Credit
Agreement and the other Loan Documents in accordance with Section 8.1 of the
Credit Agreement as if such representation or warranty had been contained in the
Credit Agreement, and any default by the Borrowers in the performance or
observance of any provision of this Amendment that continues unremedied after
the grace period described in Section 8.1 of the Credit Agreement shall
constitute an Event of Default under that section as if such provision had been
contained in the Credit Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused
this Amendment to be executed and delivered by their duly authorized
representatives on the date set forth above.
HIBBETT SPORTING GOODS, INC., a Delaware
corporation
By: /s/ Susan H. Fitzgibbon
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Its Vice President & CFO
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HIBBETT TEAM SALES, INC., an Alabama
corporation
By: /s/ Susan H. Fitzgibbon
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Its Vice President & CFO
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SPORTS WHOLESALE, INC., an Alabama
corporation
By: /s/ Susan H. Fitzgibbon
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Its Vice President & CFO
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BANK OF AMERICA, N.A., a national banking
association, as Lender
By: /s/ David B. Jackson
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Its Senior Vice President
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FLEET NATIONAL BANK, a national banking
association, as Lender
By: /s/ Susan Pardis Galland
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Its Vice President
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AMSOUTH BANK, an Alabama banking
corporation, as Lender and as Agent
By /s/ David A. Simmons
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Its Senior Vice President
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REVISED EXHIBIT I
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LIST OF SHAREHOLDERS
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The SK Equity Fund, L.P.
SK Investment Fund, L.P.
Allan Karp
John F. Megrue
Thomas A. Saunders
Saunders, Karp & Megrue Partners, L.L.C.
SKM Partners, L.P.