MASTER NOTE
EXHIBIT
10.1
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$30,000,000
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Birmingham,
Alabama
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Date: August
28, 2008
FOR VALUE
RECEIVED, Hibbett Sports, Inc.,
a Delaware corporation, (the “Borrower”) promises to pay on DEMAND, to
the order of Regions
Bank, an Alabama banking corporation, its successors and assigns, (the
“Bank”; together with any other holder of this note, being sometimes herein
referred to as the “Holder”), at the Bank’s main office in Birmingham, Alabama
or at such other place as the Holder may from time to time designate, the sum of
Thirty Million and No/100 Dollars ($30,000,000), or so much thereof as the Bank,
in its sole discretion may elect to advance to the Borrower hereunder (the
“Loan”), plus interest on any amount advanced hereunder from the date advanced
until the Loan is paid in full, at a fluctuating interest rate, (the “Floating
Rate”) equal to the rate per annum designated by the Bank from time to time as
its prime rate of interest (the “Prime Rate”), such rate being an index rate by
the Bank for establishing lending rates and not necessarily the Bank’s most
favorable lending rate and changes in such rate being discretionary with the
Bank; provided, however, the Bank and the Borrower may agree from time to time
that interest shall accrue on the unpaid principal balance of the Loan, or a
portion thereof, at a fixed rate of interest for a specified period of time (a
“Fixed Rate”) instead of at the Floating Rate. The amount of interest
accrued on the unpaid principal balance of the Loan shall be computed on the
basis of an assumed year of 360 days for the actual number of days elapsed,
which means that the amount of interest accrued for each day will be computed by
multiplying the unpaid principal balance of the Loan on such day by the Prime
Rate or Fixed Rate as applicable on such day and dividing the result by
360. Any change in the interest rate applicable to the Loan caused by
a change in the Prime Rate shall be effective on the date of the Prime Rate
change without notice to the Borrower or any other action by the
Bank. If the Bank and the Borrower attempt to agree that the Loan, or
a portion thereof, will bear interest at a Fixed Rate, but fail to agree on such
Fixed Rate or on the period for which the Fixed Rate will be in effect, or if
there is material uncertainty as to whether or not the Bank and the Borrower
have agreed on a Fixed Rate, or as to the period for which a Fixed Rate will be
in effect, then interest shall accrue on the Loan, or such portion thereof, at
the Floating Rate during the period for which such Fixed Rate would otherwise be
applicable. If the Bank and the Borrower agree upon a Fixed Rate for
a specified period for a portion of the Loan, such portion shall be deemed to be
a separate loan with a maturity date of the last day of the period during which
the Fixed Rate is in effect, which separate loan may be repaid upon its maturity
date with an advance made under this note if no default has occurred and no
demand for payment has been made.
The
unpaid principal balance of the Loan, (including any portion bearing interest at
a Fixed Rate) and all interest accrued thereon, shall be payable ON DEMAND, but
no later than August 27, 2009; provided, however, that, prior to demand for
payment being made by the Holder, interest computed on the basis of the Prime
Rate shall be payable on the first day of each successive month in each year,
and interest computed on the basis of a Fixed Rate shall be payable in full on
the last day of the period during which the Fixed Rate is in
effect.
Notwithstanding
the foregoing, to enable the Holder to send periodic billing statements in
advance of each interest payment date reflecting the amount of interest, if any,
computed at the Prime rate that is payable on such interest payment date, at the
option of the Holder, the Prime rate in effect 15 days prior to each interest
payment date shall be deemed to be the Prime Rate as continuing in effect 15
days prior to each interest payment date. If the Holder elects to use
this billing method and if the Prime Rate changes during such 15-day period, the
difference between the amount of interest that actually accrues during such
period and the amount of interest paid will be added to or subtracted from, as
the case may be, the interest otherwise payable in preparing the next billing
statement. In determining the amount of interest payable upon demand
for the payment or upon full prepayment of this note, all changes in the Prime
Rate occurring on or prior to the day before the final maturity date or the date
of such prepayment shall be taken into account.
The
Borrower may, from time to time, repay without premium or penalty the principal
amount of the Loan, or any portion thereof, at any time; provided, however, the
Borrower shall not prepay any portion of the Loan bearing interest at a Fixed
Rate during the period that interest accrues thereon at the Fixed
Rate.
All
payments coming due on this note shall be made in cash or immediately available
funds at the Holder’s office at which the payment is made. At its
option, the Holder may elect to give the Borrower credit for any payment made by
check or other instrument in accordance with Holder’s availability schedule in
effect from time to time for such items and instruments, which schedule the
Holder will make available to the Borrower on request. Each payment
on the Loan will first reduce charges owed by the Borrower that are neither
principal nor interest. The remainder of each payment will be applied
first to accrued but unpaid interest and then to unpaid principal.
This note
is a Master Note, and it is contemplated that the proceeds of the Loan will be
advanced from time to time to the Borrower by the Holder in installments as
requested by the Borrower and approved by the Holder, and repaid by the Borrower
and subsequently re-advanced by the Holder, as requested by the Borrower and
approved the Holder, in an amount not exceeding the face amount of this
note. By reason of prepayments of the Loan there may be times when no
indebtedness is owing hereunder, and notwithstanding any such occurrence, this
note shall remain valid and shall be in full force and effect as to each
subsequent advance made hereunder. Each advance hereunder and each
payment made hereon may, at the Holder’s option, be reflected by a notation made
by the Holder on its internal records (which may be kept by computer or other
means determined by the holder) and the Holder is hereby authorized so to record
thereon all such principal advances and payments. The aggregate unpaid amounts
reflected by notations made on the internal records of the holder shall be
deemed reflected by the notations made on the internal records of the Holder
shall be deemed presumptive evidence of the principal amount remaining
outstanding and unpaid on the note. No failure of the holder to
record any advance or payment shall limit or otherwise affect the obligation of
the Borrower hereunder with respect to any advance and no payment of principal
by the Borrower shall be affected by the failure of the Holder to record the
same.
Nothing
herein contained shall obligate or require the Holder to make any advance
hereunder, and all advances shall be made at the option of the
Holder. The Holder may elect to cease making advances under this note
at any time. This note shall be valid and enforceable as the
aggregate amount advanced at any time hereunder, whether or not the full face
amount thereof is advanced.
The
Borrower and each endorser, surety and guarantor of this note (collectively, the
“Obligor”) severally hereby (a) waive as to the indebtedness evidenced hereby
and any extension or renewal thereof demand, presentment, protest, notice of
protest, notice of dishonor, suit against any party and all other requirements
necessary to hold them or any of them liable hereunder, (b) agrees that time of
payment may be extended or renewal notes taken or other indulgences granted
without notice of or consent to such action and without release of the liability
of any Obligor; (c) consents to the Holder’s releasing, agreeing not to sue,
suspending the right to enforce this note against or otherwise discharging or
compromising claims against the Borrower or any other Obligor, all without
notice to or the consent of the Obligors.
The
Borrower agrees to pay all costs of collecting or securing or attempting to
collect or secure this note, including reasonable attorney’s fees.
The
Holder shall have all liens upon and, and rights of set-off given to the Holder
by law, against all monies, securities and other property of any of the Obligors
now or hereafter in the possession of, or on deposit with, the Holder, whether
held in a general or special account of deposit, for safekeeping, or otherwise;
and every such lien and right of set-off may be exercised without demand upon or
notice to any Obligor, and the holder shall have no liability with respect to
any Obligor’s checks or other items that may be returned or other funds
transfers that may not be made due to insufficient funds
thereafter.
The
Borrower understands that the Holder may from time to time enter into a
participation agreement or agreements with one or more participants pursuant to
which such participant or participants shall be given participations in the Loan
and that such participation may from time to time similarly grant to other
participants sub-participations in the Loan. The Borrower agrees that
any participant may exercise any and all rights of banker’s lien or set-off,
whether arising by operation of law or given to the Holder by the provisions of
this note, with respect to the Borrower as fully as if such participant had made
a loan directly to the Borrower. For purposes of this paragraph only,
the Borrower shall be deemed to be directly obligated to each participant or
subparticipant in the amount of its participating interest in the principal of,
and interest on, the Loan.
No
failure or delay on the part of the Holder in exercising any right, power or
privilege under this note shall operate as a waiver thereof. No
modification, amendment or waiver of any provision of this note shall be
effective unless in writing and signed by a duly authorized officer of the
Holder. The unenforceability of any provision of this note shall not
affect the validity and enforceability of the other provisions of this note, it
being the intention of the Borrower and the Holder that the provisions of this
note shall be severable.
The
Borrower has executed this note without condition that anyone else should sign
or become bound hereunder and without any other condition whatever being
made. The provision of this note shall be binding, jointly and
severally, upon the successors and assigns of the Borrower (except that the
Borrower may not assign or transfer its rights hereunder without the prior
written consent of the Bank) and shall inure to the benefit of the Bank, its
successors and assigns. This note is given, executed and delivered
under the seal of the Borrower. Time is of the essence of this
note. This note shall be governed by the laws of the State of
Alabama.
The Bank
is hereby authorized by the Borrower to make advances hereunder and enter into
agreements with respect to Fixed Rates at the request (whether written or oral)
of any officer or representative of a partner of the Borrower or any other
representative of the Borrower.
Any
provision of this note that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
All
rights, power and remedies of the Holder under this note and now or hereafter
existing at law, in equity or otherwise shall be cumulative and may be exercised
successively or concurrently.
This note
contains the entire understanding and agreement between the Borrower and the
Holder with respect to the Loan and supersedes any and all prior agreements,
understanding, promises, and statements with respect to the Loan.
This
is a DEMAND NOTE, and the Holder shall have the unlimited and unrestricted right
to demand payment of the indebtedness evidenced hereby at any time and in the
Holder’s absolute sole discretion, regardless of whether or not a default
hereunder has occurred or any other circumstance whatsoever, notwithstanding
anything to the contrary contained in this note. The Borrower agrees
and acknowledges that such right of the Holder to demand payment shall not be
subject to the provisions of Section 7-1-208 of the Alabama Uniform Commercial
Code or any other statute or principle of law imposing any obligation of good
faith or fair dealing or that otherwise might in any way limit or restrict such
right to demand payment at any time.
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Hibbett
Sports, Inc.
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By: Xxxx X. Xxxxx
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Its: Vice
President and Chief Financial Officer
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Taxpayer
Identification Number:
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#
00-0000000
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END
of Exhibit 10.1
