<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
Commission file number 1-9340
REEBOK INTERNATIONAL LTD.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 04-2678061
- ------------------------------------ --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Technology Center Drive, Stoughton, Massachusetts 02072
- ------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(781) 401-5000
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
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 ( )
The number of shares outstanding of registrant's common stock, par value $.01
per share, at May 5, 2000 was 56,683,660 shares.
<PAGE> 2
REEBOK INTERNATIONAL LTD.
INDEX
<TABLE>
<S> <C>
PART I. FINANCIAL INFORMATION:
Item 1 Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets -
March 31, 2000 and 1999, and
December 31, 1999 . . . . . . . . . . . . . . . . . . 3-4
Condensed Consolidated Statements of Income - Three
months Ended March 31, 2000 and 1999. . . . . . . . . 5
Condensed Consolidated Statements of Cash Flows -
Three months Ended March 31, 2000 and 1999. . . . . . 6-7
Notes to Condensed Consolidated Financial
Statements . . . . . . . . . . . . . . . . . . . . 8-10
Item 2
Management's Discussion and Analysis of Results
Of Operations and Financial Condition . . . . . . . . 11-15
Part II. OTHER INFORMATION:
Items 1-5 Not Applicable . . . . . . . . . . . . . . . . . . . . 16
Item 6 Exhibits and Reports on Form 8-K . . . . . . . . . . . 16
</TABLE>
2
<PAGE> 3
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999 1999
---------- ---------- ----------
(Unaudited) (See Note 1)
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 238,449 $ 108,104 $ 281,744
Accounts receivable, net
of allowance for doubtful
accounts (March 2000,
$43,997; March 1999,
$45,646; December 1999,
$46,217) 574,914 611,854 417,404
Inventory 370,267 486,573 414,616
Deferred income taxes 77,455 77,878 88,127
Prepaid expenses and other
current assets 45,042 57,976 41,227
---------- ---------- ----------
Total current assets 1,306,127 1,342,385 1,243,118
---------- ---------- ----------
Property and equipment, net 161,496 176,470 178,111
Other non-current assets:
Intangibles, net of
amortization 71,474 74,662 68,892
Deferred income taxes 46,474 46,782 43,868
Other 23,134 31,611 30,139
---------- ---------- ----------
141,082 153,055 142,899
---------- ---------- ----------
Total Assets $1,608,705 $1,671,910 $1,564,128
========== ========== ==========
</TABLE>
3
<PAGE> 4
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (Continued)
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999 1999
----------- ----------- -----------
(Unaudited) (See Note 1)
<S> <C> <C> <C>
Current liabilities:
Notes payable to banks $ 23,665 $ 60,696 $ 27,614
Commercial paper 11,274
Current portion of
long-term debt 185,171 91,973 185,167
Accounts payable 148,715 138,579 153,998
Accrued expenses 277,415 231,562 248,822
Income taxes payable 19,829 36,514 8,302
----------- ----------- -----------
Total current liabilities 654,795 570,598 623,903
----------- ----------- -----------
Long-term debt, net of
current portion 360,232 534,556 370,302
Minority interest and other
long-term liabilities 36,501 32,247 41,107
Commitments and contingencies
Stockholders' equity:
Common stock, par value
$.01; authorized 250,000
shares; issued
March 31, 2000, 93,426; issued
March 31, 1999, 92,688;
issued December 31, 1999,
92,986 934 927 930
Retained earnings 1,205,754 1,174,782 1,170,885
Less 36,716 shares
in treasury at cost (617,620) (617,620) (617,620)
Unearned compensation (2,928) (10)
Accumulated other
Comprehensive loss (28,963) (23,570) (25,379)
----------- ----------- -----------
557,177 534,509 528,816
----------- ----------- -----------
Total liabilities and
stockholders' equity $ 1,608,705 $ 1,671,910 $ 1,564,128
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
4
<PAGE> 5
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Amounts in thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three months Ended
March 31,
---------------------------
2000 1999
--------- ---------
<S> <C> <C>
Net sales $ 769,829 $ 785,784
Other income, net 4,845 1,168
--------- ---------
774,674 786,952
Costs and expenses:
Cost of sales 478,704 487,766
Selling, general and
administrative expenses 234,519 252,254
Amortization of intangibles 1,120 1,136
Interest expense 10,081 13,996
Interest income (4,306) (1,395)
--------- ---------
720,118 753,757
--------- ---------
Income before income
taxes and minority interest 54,556 33,195
Income tax expense 20,567 11,950
--------- ---------
Income before minority
interest 33,989 21,245
Minority interest 2,277 3,340
--------- ---------
Net income $ 31,712 $ 17,905
========= =========
Basic earnings per share $ .56 $ .32
========= =========
Diluted earnings per share $ .56 $ .32
========= =========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
5
<PAGE> 6
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three months Ended
March 31,
---------------------------
2000 1999
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 31,712 $ 17,905
Adjustments to reconcile net income
to net cash used for
operating activities:
Depreciation and amortization 10,951 11,490
Minority interest 2,277 3,340
Deferred income taxes 8,142 (3,551)
Net Gain on sale of assets (2,515)
Changes in operating assets and liabilities:
Accounts receivable (160,516) (111,346)
Inventory 36,215 37,407
Prepaid expenses (4,610) (8,501)
Other 1,710 (2,428)
Accounts payable and accrued expenses 15,321 (6,917)
Income taxes payable 10,337 10,220
--------- ---------
Total adjustments (82,688) (70,286)
--------- ---------
Net cash used for operating activities (50,976) (52,381)
--------- ---------
Cash flows from investing activities:
Proceeds from the sale of assets 30,506
Payments to acquire property and
equipment (5,728) (15,775)
Investments in subsidiaries (1,390)
--------- ---------
Net cash provided by (used for)
investing activities 23,388 (15,775)
--------- ---------
</TABLE>
6
<PAGE> 7
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Cont'd)
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three months Ended
March 31,
---------------------------
2000 1999
--------- ---------
<S> <C> <C>
Cash flows from financing activities:
Net borrowings (payments) of notes
payable to banks $ (3,964) $ 43,733
Proceeds from issuance of commercial paper -- 11,274
Payments of long-term debt (9,959) (42,569)
Proceeds from issuance of common stock to
employees -- 133
Dividends to minority shareholders -- (10,224)
Repurchases of common stock -- (16,559)
--------- ---------
Net cash used for financing activities (13,923) (14,212)
--------- ---------
Effect of exchange rate changes on cash
and cash equivalents (1,784) 10,402
--------- ---------
Net decrease in cash and cash equivalents (43,295) (71,966)
--------- ---------
Cash and cash equivalents at beginning of
period 281,744 180,070
--------- ---------
Cash and cash equivalents at end of period $ 238,449 $ 108,104
========= =========
Supplemental disclosures of cash flow information:
2000 1999
--------- ---------
Cash paid during the period for:
Interest $ 11,480 $ 13,753
Income taxes 775 920
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
7
<PAGE> 8
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Dollar amounts in thousands, except share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
- ---------------------------------------------------
Basis of Presentation
- ---------------------
The balance sheet at December 31, 1999 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles ("GAAP") for
complete financial statements.
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with GAAP for interim financial information and reflect
all adjustments (consisting of only normal recurring accruals) which are, in the
opinion of management, necessary for a fair presentation of the results of
operations for the interim periods. The interim financial information and notes
thereto should be read in conjunction with the Company's latest annual report to
shareholders. The results of operations for the three months ended March 31,
2000 are not necessarily indicative of results to be expected for the entire
year.
Certain amounts in the prior year have been reclassified to conform to the 2000
presentation.
NOTE 2 - SPECIAL CHARGE
- -----------------------
Details of the special charge activity are as follows:
<TABLE>
<CAPTION>
Termination of
Legal Employee Fixed Asset Marketing Leases and
Total Settlement Severance Write-downs Contracts Other
----- ---------- --------- ----------- --------- -----
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1999 $65,557 $21,424 $18,917 $15,534 $ 9,091 $ 591
2000 Utilization 3,782 315 2,786 0 565 116
------- ------- ------- ------- ------- -------
Balance, March 31, 2000 $61,775 $21,109 $16,131 $15,534 $ 8,526 $ 475
======= ======= ======= ======= ======= =======
</TABLE>
The fixed asset write-downs relate to assets that will be abandoned or sold. The
remaining accruals will be utilized throughout fiscal 2000 and 2001, as leases
expire, consolidations occur, contractual obligations come due and severance
payments are made.
8
<PAGE> 9
NOTE 3 - EARNINGS PER SHARE
- ---------------------------
The following table sets forth the computation of basic and diluted earnings per
share (amounts in thousands, except per share data):
<TABLE>
<CAPTION>
Three Months Ended
March 31
---------------------
2000 1999
------- -------
<S> <C> <C>
Numerator:
Net income $31,712 $17,905
------- -------
Denominator for basic earnings per share:
Weighted average shares 56,270 56,065
Dilutive employee stock
options 28 476
------- -------
Denominator for diluted earnings per share:
Weighted average shares
and assumed conversions 56,298 56,541
======= =======
Basic earnings per share $ .56 $ .32
Diluted earnings per share $ .56 $ .32
</TABLE>
NOTE 4 - COMPREHENSIVE INCOME
- -----------------------------
Comprehensive income for the three months ended March 31, 2000 and March 31,
1999 was $28,128 and $9,984 respectively. Comprehensive income for all periods
presented represents net income and changes in foreign currency translation
adjustments.
NOTE 5 - CONTINGENCIES
- ----------------------
The Company is involved in various legal proceedings generally incidental to its
business. While it is not feasible to predict or determine the outcome of these
proceedings, management does not believe that they should result in a materially
adverse effect on the Company's financial position, results of operations or
liquidity.
9
<PAGE> 10
NOTE 6 - BUSINESS ACQUISITIONS AND DIVESTITURES
- ----------------------------------------------
During the first quarter of 2000, the Company acquired the remaining minority
interest of certain of its Asia Pacific subsidiaries. The company also sold its
Swiss and Russian subsidiaries to local management and disposed of certain
non-operating assets. The impact of these events was not material to the
consolidated financial statements.
10
<PAGE> 11
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
This Form 10-Q contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995, including statements with
regard to the Company's revenues, earnings, spending, margins, cash flow,
orders, inventory, products, actions, plans, strategies and objectives.
Forward-looking statements include, without limitation, any statement that may
predict, forecast, indicate or imply future results, performance or
achievements, and may contain the words "believe," "anticipate," "expect,"
"estimate," "intend," "plan," "project," "will be," "will continue," "will
result," "could," "may," "might," or any variations of such words or other words
with similar meanings. Any such statements are subject to risks and
uncertainties that could cause the Company's actual results to differ materially
from those discussed in such forward-looking statements. Prospective information
is based on management's then current expectations or forecasts. Such
information is subject to the risk that such expectations or forecasts, or the
assumptions underlying such expectations or forecasts, become inaccurate.
Risks and uncertainties that could affect the Company's actual results and could
cause such results to differ materially from those contained in forward-looking
statements made by or on behalf of the Company include, but are not limited to,
the following: technological, marketing, product, promotional or other success
by one or more of the Company's competitors; changes in consumer preferences;
failure by the Company to adequately forecast consumer demand and sales volume,
leading to increased spending, inventory risk, tooling and other costs;
inability to obtain desired pricing margins and profitability because of
industry conditions, production inefficiencies, increased costs of goods,
currency trends, the general retail environment or the lack of success of the
Company's products or marketing; higher-than-anticipated levels of customer
cancellations or returns; lack of success in the Company's retail operations due
to general retail market conditions or loss of market share to competitors;
failure to meet delivery deadlines because of design, production or distribution
problems; currency fluctuations, government actions, import regulations,
political instability or general economic factors that negatively impact the
Company's business in one or more international regions; interruption or
unavailability of sources of supply; inability to make timely payments on the
Company's indebtedness or to meet debt covenants; loss of one or more
significant customers; inability to protect significant trademarks, patents or
other intellectual property of the Company; negative results in litigation;
general economic factors impacting consumer purchasing power and preferences;
changes in the Company's tax rate or its ability to fully utilize deferred tax
assets; the Company's ability to achieve desired operating and logistical
efficiencies in the areas of distribution and information systems; disruptions
due to Year 2000 non-compliance in the systems of its key suppliers, customers,
distributors or other business partners; and other factors mentioned or
incorporated by reference in this report or other reports.
11
<PAGE> 12
This list of risk factors is not exhaustive. Other risks and uncertainties are
discussed elsewhere in this report and in further detail under the caption
entitled Issues and Uncertainties included in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999 which has been filed with
the Securities and Exchange Commission and is incorporated herein by reference.
In addition, the Company operates in a highly competitive and rapidly changing
environment. Therefore, new risk factors can arise, and it is not possible for
management to predict all such risk factors, nor to assess the impact of all
such risk factors on the Company's business or the extent to which any
individual risk factor, or combination of factors, may cause results to differ
materially from those contained in any forward-looking statement. Accordingly,
investors should not place undue reliance on forward-looking statements as a
prediction of actual results.
Operating Results
- -----------------
First Quarter 2000 Compared to First Quarter 1999
- ---------------------------------------------------
Net sales for the quarter ended March 31, 2000 were $769.8 million, a 2.0%
decrease from 1999's first quarter net sales of $785.8 million. The Reebok
Division's worldwide sales (including the sales of the Greg Norman Collection)
were $641.5 million, a 1.5% decrease from sales of $651.5 million in the first
quarter of 1999. Fluctuation in the Euro is adversely impacting net sales
comparisons. On a constant dollar basis, which eliminates the effect of currency
fluctuations, worldwide sales for the Reebok Division increased approximately
$12.0 million, or 1.9% in the first quarter. U.S. footwear sales of the Reebok
Brand decreased 3.0% to $258.2 million in the first quarter of 2000 from $266.3
million in the first quarter of 1999. Despite the sales decline, U.S. footwear
sales in most categories increased. U.S. apparel sales of the Reebok Division
(including the sales of the Greg Norman Collection) decreased in the first
quarter by 15.4% to $57.7 million from $68.2 million in the first quarter of
1999. Despite the sales decline in the quarter, the Company's apparel profits
increased, as gross margin improved over 1000 basis points and expenses declined
27%. Sales of Greg Norman apparel decreased 11.7% as compared to the first
quarter of 1999, however, gross margins improved by 360 basis points and the
division generated a net profit in the current quarter as compared to a loss
during the first quarter of 1999.
International sales of the Reebok Brand (including footwear and apparel) were
$325.6 million in the first quarter of 2000, an increase of 2.7% from $317.0
million in the first quarter of 1999. On a constant dollar basis, International
sales increased by 8.5% in the first quarter of 2000 as compared to the first
quarter 1999. International comparisons were also adversely impacted by the
changes to the Company's international distribution network. Effective January
1, 2000, the Company's Switzerland and Russia
12
<PAGE> 13
subsidiaries were sold and became independent distributors. European sales
increased $5.1 million or 2.1%. However, removing the adverse impact of currency
and the effect of the sale of Russia and Switzerland, net sales in Europe
increased approximately 11.0% as compared to the first quarter of 1999. The Asia
Pacific region reported a sales increase of 10.2% in the quarter. In Latin
America, the Company's sales to its independent distributors increased
approximately 88% as these distributors increased their purchases to meet local
consumer demand. International categories that generated sales increases in the
first quarter of 2000 were running, tennis, basketball and cross-training.
International apparel sales decreased approximately 3.0%.
Rockport's first quarter 2000 sales were $101.0 million as compared to sales of
$109.7 million in the first quarter of 1999. Domestic sales for the Rockport
brand decreased by 8.9% and International sales decreased by 7.3%. Domestically,
sales decreased in most categories. In the second half of 2000, the Company
plans to substantially increase the quantity of new product introductions. The
Company's new World Tour shoe collection, which will debut at retail in July,
will be the largest product launch in the history of The Rockport Company.
International revenues accounted for 27.9% of Rockport's sales in the first
quarter of 2000 as compared to 27.7% in the first quarter of 1999.
Sales of the Company's Polo Ralph Lauren Footwear products were $27.3 million in
the first quarter of 2000, an increase of 11.0% from $24.6 million in the first
quarter of 1999.
During the first quarter of 2000, the Company's overall gross margin was 37.8%
of sales, this compares to 37.9% for 1999's first quarter. During the first
quarter of 2000, the impact of improved initial pricing margins, lower markdowns
and fewer closeout sales in the U.S. was offset by margin erosion in Europe
caused by the weakening of the Euro against the U.S. dollar.
Selling, general and administrative expenses for the first quarter of 2000 were
$234.5 million, or 30.5% of sales, as compared to $252.3 million, or 32.1% of
sales in 1999's first quarter. The Company has benefited from programs initiated
in the prior year to reduce general and administrative spending to a lower
percentage of sales. The Company plans to continue to work to reduce non-brand
building expenses and to invest most of these cost savings into increased
marketing and other expenses to support all of the Company's brands.
Net interest expense was $5.8 million for the first quarter of 2000, a decrease
of $6.8 million as compared to the first quarter of 1999. The decrease was a
result of improved cash flow and debt repayment. Other income is the net effect
of foreign exchange losses offset by the gain on sale of certain non-operating
assets.
The effective income tax rate was 37.7% in the first quarter of 2000 as compared
to 36.0% in the first quarter of 1999. Looking forward, dependent on the
geographic mix of earnings in
13
<PAGE> 14
2000, the Company expects the first quarter 2000 rate to be indicative of the
full year 2000 rate. However, the rate could fluctuate from quarter to quarter
depending on where the Company earns income geographically, and, if the Company
incurs non-benefitable losses in certain jurisdictions, the rate could increase
further.
Reebok Brand Backlog of Open Orders
- -----------------------------------
The Reebok Brand backlog (including Greg Norman Collection apparel) of open
customer orders scheduled for delivery during the period April 1, 2000 through
September 30, 2000 declined 1.3% as compared to the same period last year. North
American backlog for the Reebok Brand, which includes the U.S. and Canada,
decreased 1.6%, and, the International backlog decreased 1.0%. On a constant
dollar basis, worldwide Reebok Brand backlog increased 1.8%, and International
backlog increased 6.6%. U.S. footwear backlog increased 3.0% and U.S. apparel
backlog (including Greg Norman Collection apparel) decreased 29.4% as compared
to the same period last year. These backlog comparisons are not necessarily
indicative of future sales trends. Many orders are cancelable, sales by
Company-owned retail stores can vary from year to year, many markets in Latin
America and Asia Pacific are not included in the open orders since sales are
made by independent distributors and the ratio of orders booked early to at-once
shipments can vary from period to period.
Liquidity and Sources of Capital
- --------------------------------
At March 31, 2000 the Company's working capital was $651.3 million as compared
with $771.8 million at March 31, 1999. The second quarter 1999 reclassification
to a current liability of the $100.0 million medium-term note due in May 2000
resulted in a portion of the working capital reduction. In addition, the Company
repaid $64.7 million of debt during the preceding twelve-month period which
further reduced working capital. The current ratio at March 31, 2000 and
December 31, 1999 was 2.0 to 1 as compared to 2.4 to 1 at March 31, 1999.
Accounts receivable decreased by $36.9 million from March 31, 1999, a decrease
of 6.0%. The decrease is due to an improvement in DSO as well as the sales
decline. Inventory decreased by $116.3 million or 23.9% from March 31, 1999.
This decrease is in line with the Company's plans. In the U.S., the Company's
Reebok Brand footwear inventories were down 47.9%. U.S. Reebok Brand apparel
inventories were down 18.8% and retail inventories were down 3.6% from last
year. Inventories of all brands outside the U.S. decreased 19.9%. The Company
believes that the overall condition of its inventory at wholesale and at retail
has improved from last year, with more of the inventory being current product.
Cash used for operations during the first quarter of 2000 was $50.9 million, as
compared to $52.4 million during the first quarter of 1999. Cash provided by
investing activities was $24.1
14
<PAGE> 15
million as a result of the proceeds of $30.5 million from the sale of certain
assets. Capital expenditures for the first quarter of 2000 were $5.7 million, a
decrease from 1999 due to the timing of investments in the Company's European
Logistics and Shared Service Companies, international retail expansion and other
information systems initiatives. Cash generated from operations during the
balance of 2000, together with the Company's existing credit lines and other
financial resources, is expected to adequately finance the Company's current and
planned 2000 cash requirements. However, the Company's actual experience may
differ from the expectations set forth in the preceding sentence. Factors that
might lead to a difference include, but are not limited to, the matters
discussed above and under the caption entitled Issues and Uncertainties included
in the Company's Annual Report of Form 10-K as well as future events that might
have the effect of reducing the Company's available cash balances (such as
unexpected operating losses or increased capital or other expenditures, as well
as increases in the Company's inventory or accounts receivable) or future events
that might reduce or eliminate the availability of external financial resources.
15
<PAGE> 16
PART II - OTHER INFORMATION
Item 1-5
Not applicable
Item 6
(a) Exhibits:
10.8.1. Second Amended and Restated Credit and Guarantee Agreement, dated as
of March 22, 2000 among the Company, Reebok International Limited,
the Lenders and Co-Agents named therein, Citibank N.A. as
Documentation Agent and Credit Suisse First Boston as Administrative
Agent.
27. Financial Data Schedule
(b) Reports on Form 8-K:
There were no reports on form 8-K filed during the quarter ended March 31,
2000.
16
<PAGE> 17
SIGNATURE
Pursuant to the requirements 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.
Dated: May 12, 2000
REEBOK INTERNATIONAL LTD.
BY: /s/ KENNETH WATCHMAKER
-------------------------
Kenneth Watchmaker
Executive Vice President and
Chief Financial Officer
17
<PAGE> 1
EXHIBIT 10.8.1
EXECUTION COPY
REEBOK INTERNATIONAL LTD.
REEBOK INTERNATIONAL LIMITED
--------------------
$830,000,000
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
dated as of March 22, 2000
--------------------
CREDIT SUISSE FIRST BOSTON,
AS ADMINISTRATIVE AGENT
CITIBANK, N.A.,
AS DOCUMENTATION AGENT
|
CREDIT | FIRST
SUISSE | BOSTON
|
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS ................................................................ 2
1.1 Defined Terms ............................................................... 2
1.2 Other Definitional Provisions ............................................... 16
SECTION 2. AMOUNT AND TERMS OF DOMESTIC TERM LOAN COMMITMENTS ......................... 17
2.1 Domestic Term Loans ......................................................... 17
2.2 Procedure for Domestic Term Loan Borrowing .................................. 17
2.3 Amortization of Domestic Term Loans ......................................... 17
2.4 Use of Proceeds of Domestic Term Loans ...................................... 18
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS ........................... 18
3.1 Revolving Credit Commitments ................................................ 18
3.2 Procedure for Revolving Credit Borrowing .................................... 18
3.3 Use of Proceeds of Revolving Credit Loans ................................... 19
SECTION 4. AMOUNT AND TERMS OF UK TERM LOAN FACILITY .................................. 19
4.1 UK Term Loans ............................................................... 19
4.2 Procedure for UK Term Loan Borrowing ........................................ 19
4.3 Amortization of UK Term Loans ............................................... 20
4.4 Use of Proceeds of UK Term Loans ............................................ 20
SECTION 5. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY .......................... 20
5.1 L/C Commitment .............................................................. 20
5.2 Procedure for Issuance of Letters of Credit ................................. 21
5.3 Fees, Commissions and Other Charges ......................................... 22
5.4 L/C Participations .......................................................... 23
5.5 Reimbursement Obligation of the Borrower .................................... 24
5.6 Obligations Absolute ........................................................ 24
5.7 Letter of Credit Payments ................................................... 25
5.8 Application ................................................................. 25
5.9 Reporting by Issuing Banks .................................................. 25
SECTION 6. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT; FEES AND PAYMENTS ......... 26
6.1 Repayment of Loans; Evidence of Debt ........................................ 26
6.2 Commitment Fee .............................................................. 27
6.3 Optional Prepayments ........................................................ 27
6.4 Optional Termination or Reduction of Revolving Credit Commitments ........... 27
6.5 Conversion and Continuation Options ......................................... 28
6.6 Minimum Amounts and Maximum Number of Tranches .............................. 28
</TABLE>
<PAGE> 3
<TABLE>
Page
----
<S> <C>
6.7 Interest Rates and Payment Dates ............................................ 29
6.8 Computation of Interest and Fees ............................................ 29
6.9 Inability to Determine Interest Rate ........................................ 30
6.10 Pro Rata Treatment and Payments ............................................. 30
6.11 Illegality .................................................................. 31
6.12 Requirements of Law ......................................................... 31
6.13 Taxes ....................................................................... 32
6.14 Indemnity ................................................................... 34
6.15 Change of Lending Office .................................................... 35
6.16 Additional Action in Certain Events ......................................... 35
SECTION 7. REPRESENTATIONS AND WARRANTIES ............................................. 36
7.1 Financial Condition ......................................................... 36
7.2 No Change ................................................................... 36
7.3 Disclosure .................................................................. 36
7.4 Corporate Existence; Compliance with Law .................................... 37
7.5 Corporate Power; Authorization; Enforceable Obligations ..................... 37
7.6 No Legal Bar ................................................................ 37
7.7 No Material Litigation ...................................................... 38
7.8 No Default .................................................................. 38
7.9 Ownership of Property; Liens ................................................ 38
7.10 Intellectual Property ....................................................... 38
7.11 Taxes ....................................................................... 38
7.12 Federal Regulations ......................................................... 38
7.13 ERISA ....................................................................... 39
7.14 Investment Company Act; Other Regulations ................................... 39
7.15 Subsidiaries ................................................................ 39
7.16 Environmental Matters ....................................................... 39
SECTION 8. CONDITIONS PRECEDENT ....................................................... 41
8.1 Conditions to Initial Extensions of Credit .................................. 41
8.2 Conditions to Each Extension of Credit ...................................... 41
SECTION 9. AFFIRMATIVE COVENANTS ...................................................... 41
9.1 Financial Statements ........................................................ 41
9.2 Certificates; Other Information ............................................. 42
9.3 Payment of Obligations ...................................................... 43
9.4 Conduct of Business and Maintenance of Existence ............................ 43
9.5 Maintenance of Property; Insurance; Trademark License ....................... 43
9.6 Inspection of Property; Books and Records; Discussions ...................... 43
9.7 Notices ..................................................................... 44
9.8 Environmental Laws .......................................................... 45
SECTION 10. NEGATIVE COVENANTS ........................................................ 45
</TABLE>
-ii-
<PAGE> 4
<TABLE>
Page
----
<S> <C>
10.1 Financial Condition Covenants ............................................... 45
10.2 Limitation on Liens ......................................................... 45
10.3 Limitation on Fundamental Changes ........................................... 47
10.4 Limitation on Sale of Assets ................................................ 47
10.5 Limitation on Transactions with Affiliates .................................. 47
10.6 Limitation on Changes in Fiscal Year ........................................ 47
10.7 Limitation on Lines of Business ............................................. 48
SECTION 11. GUARANTEE ................................................................. 48
11.1 Guarantee ................................................................... 48
11.2 Right of SetOff ............................................................. 49
11.3 No Subrogation .............................................................. 49
11.4 Amendments, etc ............................................................. 49
11.5 Guarantee Absolute and Unconditional ........................................ 50
11.6 Reinstatement ............................................................... 50
11.7 Payments .................................................................... 51
SECTION 12. EVENTS OF DEFAULT ......................................................... 51
SECTION 13. THE AGENTS ................................................................ 54
13.1 Appointment ................................................................. 54
13.2 Delegation of Duties ........................................................ 55
13.3 Exculpatory Provisions ...................................................... 55
13.4 Reliance by Administrative Agent ............................................ 55
13.5 Notice of Default ........................................................... 55
13.6 Non-Reliance on Administrative Agent and Other Lenders ...................... 56
13.7 Indemnification ............................................................. 56
13.8 Agents in their Individual Capacities ....................................... 57
13.9 Successor Administrative Agent; Resignation of Documentation Agent .......... 57
SECTION 14. MISCELLANEOUS ............................................................. 58
14.1 Amendments and Waivers ...................................................... 58
14.2 Notices ..................................................................... 58
14.3 No Waiver; Cumulative Remedies .............................................. 60
14.4 Survival of Representations and Warranties .................................. 60
14.5 Payment of Expenses and Taxes ............................................... 60
14.6 Successors and Assigns; Participations and Assignments ...................... 61
14.7 Adjustments; Setoff ......................................................... 64
14.8 Judgment Currency ........................................................... 65
14.9 Counterparts ................................................................ 65
14.10 Confidentiality ............................................................. 65
14.11 Severability ................................................................ 66
14.12 Integration ................................................................. 66
14.13 GOVERNING LAW ............................................................... 66
</TABLE>
-iii-
<PAGE> 5
<TABLE>
Page
----
<S> <C>
14.14 Submission To Jurisdiction; Waivers ......................................... 66
14.15 Acknowledgements ............................................................ 67
14.16 WAIVERS OF JURY TRIAL ....................................................... 67
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
Schedule I Lenders; Addresses for Notices
Schedule II Commitments; Commitment Percentages
Schedule III Subsidiaries
Schedule IV Liens
EXHIBITS
Exhibit A Form of Domestic Term Note
Exhibit B Form of Revolving Credit Note
Exhibit C Form of UK Term Note
Exhibit D Form of Assignment and Acceptance
Exhibit E-1 Form of Notice of Borrowing (Drawings)
Exhibit E-2 Form of Notice of Borrowing (Conversions)
Exhibit E-3 Form of Notice of Borrowing (Continuations)
</TABLE>
-iv-
<PAGE> 6
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as
of March 22, 2000, among:
(a) REEBOK INTERNATIONAL LTD., a Massachusetts corporation (the
"Company");
(b) REEBOK INTERNATIONAL LIMITED, a United Kingdom corporation
("Reebok-UK"; together with the Company, the "Borrowers");
(c) the several banks and other financial institutions from time to time
parties to this Agreement (the "Lenders");
(d) each of the co-agents listed on the signature pages hereto (the
"Co-Agents");
(e) CITIBANK, N.A., as documentation agent (in such capacity, the
"Documentation Agent") for the Lenders hereunder; and
(f) CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation, as
administrative agent (in such capacity, the "Administrative Agent")
for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Company is party to the Amended and Restated Credit
Agreement, dated as of July 1, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Existing Agreement"), with banks and other
financial institutions parties thereto, the Co-Agents named therein and the
Administrative Agent;
WHEREAS, the Company has requested that the Existing Agreement be
amended as set forth herein;
WHEREAS, each of the parties to the Existing Agreement is agreeable
to the requested amendments, but only upon the terms and subject to the
conditions set forth herein, and each of the parties to the Existing Agreement,
for convenience of reference, has agreed to restate the Existing Agreement as so
amended;
WHEREAS, each of the Lenders and the other parties hereto are
agreeable to the terms and provisions of the Existing Agreement as amended and
restated hereby;
<PAGE> 7
2
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties to the Existing Agreement agree that the
Existing Agreement shall be and hereby is amended and restated in its entirety
and the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Administrative Agent": as defined in the preamble to this
Agreement.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Outstanding Extensions of Credit": as to any Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount
of all Revolving Credit Loans held by such Lender then outstanding and (b)
such Lender's Revolving Credit Commitment Percentage of the L/C
Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Commitment Fee Rate": for each day, the rate per annum
set forth below opposite the Credit Rating then in effect:
<TABLE>
<CAPTION>
====================================================================================================
Debt Rating Commitment Fee
====================================================================================================
<S> <C>
AA- or better by S&P and Aa3 or better by Moody's 6.0 b.p
----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 8
3
<TABLE>
<CAPTION>
====================================================================================================
Debt Rating Commitment Fee
====================================================================================================
<S> <C>
A or better by S&P and A2 or better by Moody's, but not AA- or better by 9.0 b.p
S&P and Aa3 or better by Moody's
----------------------------------------------------------------------------------------------------
A- or better by S&P and A3 or better by Moody's, but not A or better by S&P 10.0 b.p
and A2 or better by Moody's
----------------------------------------------------------------------------------------------------
BBB+ or better by S&P and Baa1 or better by Moody's, but not A- or better 12.5 b.p
by S&P and A3 or better by Moody's
----------------------------------------------------------------------------------------------------
BBB or better by S&P and Baa2 or better by Moody's, but not BBB+ or better 15.0 b.p
by S&P and Baa1 or better by Moody's
----------------------------------------------------------------------------------------------------
BBB- or better by S&P and Baa3 or better by Moody's, but not BBB or better 20.0 b.p
by S&P and Baa2 or better by Moody's
----------------------------------------------------------------------------------------------------
Otherwise 25.0 b.p
====================================================================================================
</TABLE>
"Applicable Margin": for each Type of Loan for each day, the rate
per annum set forth below opposite the Credit Rating then in effect:
<TABLE>
<CAPTION>
=================================================================================================
Applicable Margin
---------------------------------
Debt Rating ABR Loans Eurodollar
Loans
=================================================================================================
<S> <C> <C>
AA- or better by S&P and Aa3 or better by Moody's 0 bp 18.0 bp
-------------------------------------------------------------------------------------------------
A or better by S&P and A2 or better by Moody's, but not AA- 0 bp 30.0 bp
or better by S&P and Aa3 or better by Moody's
-------------------------------------------------------------------------------------------------
A- or better by S&P and A3 or better by Moody's, but not A or 0 bp 40.0 bp
better by S&P and A2 or better by Moody's
-------------------------------------------------------------------------------------------------
BBB+ or better by S&P and Baa1 or better by Moody's, but not 0 bp 55.0 bp
A- or better by S&P and A3 or better by Moody's
-------------------------------------------------------------------------------------------------
BBB or better by S&P and Baa2 or better by Moody's, but not 0 bp 60.0 bp
BBB+ or better by S&P and Baa1 or better by Moody's
-------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 9
4
<TABLE>
<CAPTION>
=================================================================================================
Applicable Margin
---------------------------------
Debt Rating ABR Loans Eurodollar
Loans
=================================================================================================
<S> <C> <C>
BBB- or better by S&P and Baa3 or better by Moody's, but not 0 bp 70.0 bp
BBB or better by S&P and Baa2 or better by Moody's
-------------------------------------------------------------------------------------------------
Otherwise 0 bp 80.0 bp
=============================================================== ============ ====================
</TABLE>
"Application": an application, in such form as the relevant Issuing
Bank may specify from time to time, requesting such Issuing Bank to open a
Letter of Credit.
"Assignee": as defined in subsection 14.6(c).
"Available Commitment": as to any Lender, at any time, an amount
equal to the excess, if any, of (a) such Lender's Revolving Credit
Commitment over (b) the aggregate principal amount of Revolving Extensions
of Credit of such Lender then outstanding.
"Borrower": as defined in the preamble hereto.
"Business": as defined in subsection 7.16(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close; provided that, with respect to matters relating to Eurodollar
Loans, the term "Business Day" shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in New York City or London,
England, are authorized or required by law to close.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Closing Date": the date on which the conditions precedent set forth
in subsection 8.1 shall be satisfied.
"Co-Agents": as defined in the preamble to this Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Letter of Credit": as defined in subsection
5.1(b)(i)(2).
<PAGE> 10
5
"Commitment": as to any Lender, its Revolving Credit Commitment, its
Domestic Term Loan Commitment or its UK Term Loan Commitment, as the
context shall require.
"Commitment Percentage": as to any Lender at any date, the
percentage which such Lender's Domestic Term Loan Commitment, UK Term Loan
Commitment and Revolving Credit Commitment then constitutes of the
aggregate Domestic Term Loan Commitments, UK Term Loan Commitments and
Revolving Credit Commitments of all Lenders (or, to the extent that any
such Commitment has terminated, the aggregate principal amount of Loans
or, in the case of the Revolving Credit Commitment, Revolving Extensions
of Credit then outstanding which were made under such Commitment).
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which
the Revolving Credit Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414 of the
Code.
"Company": as defined in the preamble hereto.
"Consolidated Net Income" or "Consolidated Net Loss": for any fiscal
period, the amount which, in conformity with GAAP, would be set forth
opposite the caption "net income" (or any like caption) or "net loss" (or
any like caption), as the case may be, on a consolidated statement of
earnings of the Company and its Subsidiaries for such fiscal period;
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Rating": the rating publicly announced from time to time by
Moody's or S&P (as the context shall require) as being in effect with
respect to the senior, unsecured (and non-credit enhanced), long-term
Indebtedness of the Company.
"Credit Suisse First Boston": Credit Suisse First Boston, a Swiss
banking corporation.
"Default": any of the events specified in Section 12, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
<PAGE> 11
6
"Documentation Agent": as defined in the preamble to this Agreement.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary of the Company organized under
the laws of any jurisdiction within the United States.
"Domestic Term Loan": as defined in subsection 2.1.
"Domestic Term Loan Commitment": as to any Lender, the obligation of
such Lender to make Domestic Term Loans to the Company hereunder in an
aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule II; as to all
Lenders collectively, the "Domestic Term Loan Commitments".
"Domestic Term Note": as defined in subsection 6.1(f).
"EBITDA": for any fiscal period, the Consolidated Net Income or
Consolidated Net Loss, as the case may be, for such fiscal period, after
restoring thereto amounts deducted for (a) extraordinary losses (or
deducting therefrom any amounts included therein on account of
extraordinary gains) and special charges (including, without limitation,
special charges on account of Olympic spending during the 1996 fiscal year
of the Company in an amount not to exceed $12,500,000 for each fiscal
quarter during such fiscal year), (b) depreciation and amortization
(including write-offs or write-downs of amortizable and depreciable
items), (c) the amount of interest expense of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
for such period on the aggregate principal amount of their consolidated
Indebtedness, (d) the amount of tax expense of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
for such period and (e) minority interests; provided that there shall also
be restored to Consolidated Net Income or Consolidated Net Loss for the
fiscal quarter ending on or about March 31, 1998 and for each consecutive
fiscal quarter thereafter through the fiscal quarter ending on or about
December 31, 1999 the amount of any non-recurring charges (not to exceed
$10,000,000 for each such fiscal quarter) attributable to the
re-engineering, start-up and consolidation of the European operations of
the Company and its Subsidiaries and the implementation of global
enterprise software.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
<PAGE> 12
7
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date
which is two Business Days prior to the beginning of the relevant Interest
Period (as specified in the applicable Notice of Borrowing) by reference
to the British Bankers' Association Interest Settlement Rates for deposits
in Dollars (as set forth by any service selected by the Administrative
Agent which has been nominated by the British Bankers' Association as an
authorized information vendor for the purpose of displaying such rates)
for a period equal to such Interest Period; provided that, to the extent
that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "Eurodollar Base Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in Dollars are offered
for such relevant Interest Period to major banks in the London interbank
market in London, England by the Reference Banks at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to the
beginning of such Interest Period. If any of the Reference Banks shall be
unable or shall otherwise fail to supply such rates to the Administrative
Agent upon its request, the rate of interest shall, subject to the
provisions of subsection 6.9, be determined on the basis of the quotations
of the remaining Reference Banks or Reference Bank.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula:
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 12,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by
<PAGE> 13
8
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fireman Group": Paul Fireman, his spouse, his parents, his
children, his grandchildren, the Paul and Phyllis Fireman Trust, the PFP
Charitable Trust, any other trusts of which Paul Fireman is a trustee and
any other charitable trusts created by him.
"Foreign Subsidiary": any Subsidiary of the Company organized under
the laws of any jurisdiction outside the United States of America.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time; provided that, for
purposes of determining compliance with the provisions of subsection 11.1,
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on March 31, 1997.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Granting Bank": as defined in subsection 14.6(h)
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person
incurred for the purpose of providing credit support, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of
<PAGE> 14
9
instruments for deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in
good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases, (d)
all obligations of such Person in respect of acceptances issued or created
for the account of such Person (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof and (f) all
Indebtedness of the types referred to in clauses (a) through (e) above
which is guaranteed directly or indirectly by such Person.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last Business
Day of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an Interest
Period longer than three months, the day which is three months (or a whole
multiple thereof) after the first day of such Interest Period and the last
day of such Interest Period.
(a) "Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two,
<PAGE> 15
10
three or six months thereafter, as selected by the relevant Borrower in a
Notice of Borrowing delivered to the Administrative Agent by 10:00 A.M.,
New York City time, not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date or beyond the date final payment is due on the Domestic
Term Loans or the UK Term Loans shall end on the Termination Date or such
date of final payment, as the case may be;
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month; and
(4) the Borrowers shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Issuing Bank": with respect to any Letter of Credit, (a) Credit
Suisse (or any affiliate thereof) or (b) any other Lender (or any
affiliate thereof), acting in its capacity as such an issuer, from time to
time designated by the Borrower as the issuer of such Letter of Credit
which is reasonably acceptable to the Administrative Agent and agrees (in
its sole discretion) to serve in such capacity with respect to such Letter
of Credit.
"L/C Commitment": $200,000,000.
"L/C Fee Payment Date": the last Business day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit that have not then been reimbursed pursuant to Section 5.5.
<PAGE> 16
11
"L/C Participants": with respect to each Letter of Credit, the
collective reference to all the Revolving Lenders, other than the Issuing
Bank with respect to such Letter of Credit.
"Letters of Credit": a Commercial Letter of Credit (including,
without limitation, a Special Letter of Credit) or a Standby Letter of
Credit, as the context shall require; collectively, the "Letters of
Credit".
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": a Domestic Term Loan, a UK Term Loan or a Revolving Credit
Loan, as the context shall require; collectively, the "Loans".
"Loan Documents": this Agreement and the Notes.
"Majority Lenders": at any time (a) prior to the Closing Date,
Lenders then having Commitments which aggregate more than 50% of the
aggregate amount of the Domestic Term Loan Commitments, UK Term Loan
Commitments and Revolving Credit Commitments then outstanding and (b)
after the Closing Date, Lenders then having Domestic Term Loans, UK Term
Loans and Revolving Credit Commitments (or, if the Revolving Credit
Commitments have terminated, Revolving Credit Loans) which aggregate more
than 50% of the sum of the Domestic Term Loans then outstanding, the UK
Term Loans then outstanding and the Revolving Credit Commitments (or the
Revolving Credit Loans then outstanding, as the case may be) then in
effect.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, (b) the
validity or enforceability of this or any of the other Loan Documents or
(c) the rights or remedies of the Administrative Agent or the Lenders
hereunder or under any of the other Loan Documents.
"Material Environmental Amount": an amount payable by the Company
and/or its Subsidiaries in excess of $10,000,000 for remedial costs,
non-routine compliance costs, compensatory damages, punitive damages,
fines, penalties or any combination thereof.
"Material Subsidiary": each Domestic Subsidiary of the Company which
has either (a) assets having a fair market value (as reasonably estimated
by the Company) or book value in excess of $10,000,000 in the aggregate or
(b) revenues in excess of $10,000,000 per annum, other than (x) Reebok
Securities Holdings Corp., during such time as its only material asset is
Capital Stock of RBK Holdings plc, (y) Avintco, Inc.,
<PAGE> 17
12
during the period prior to the first anniversary of the Closing Date and
(z) Reebok Foundation, Inc.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 6.13(a).
"Notes": the collective reference to the Revolving Credit Notes, the
Domestic Term Notes and the UK Term Notes.
"Notice of Borrowing" means (a) with respect to a request for a
borrowing hereunder, a request in the form of Exhibit F-1 hereto, (b) with
respect to a request for continuation of a Eurodollar Loan hereunder, a
request in the form of Exhibit F-2 hereto and (c) with respect to a
request for conversion of or to a Eurodollar Loan hereunder, a request in
the form of Exhibit F-3 hereto, in each case delivered by a Responsible
Officer of the Company to the Administrative Agent hereunder.
"Participant": as defined in subsection 14.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate": the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at
its principal office in New York City.
"Properties": as defined in subsection 6.16(a).
<PAGE> 18
13
"Reference Banks": Citibank, N.A., Credit Suisse First Boston, Bank
of America and Wachovia Bank of Georgia, N.A. If any Reference Bank shall
for any reason no longer have a Commitment or any Loans, such Reference
Bank shall thereupon cease to be a Reference Bank and the Administrative
Agent (after consultation with the Company) shall, by notice to the
Company and the Lenders, designate another Lender as a Reference Bank.
Each Reference Bank shall use its best efforts to furnish quotations of
rates to the Administrative Agent as contemplated hereby.
"Register": as defined in subsection 14.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": with respect to any Letter of Credit,
the obligation of the Borrower to reimburse the Issuing Bank with respect
thereto pursuant to subsection 5.5(a) for amounts drawn thereunder.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"Required Lenders": at any time (a) prior to the Closing Date,
Lenders then having Commitments which aggregate more than 66-2/3% of the
amount of the Domestic Term Loan Commitments, the UK Term Loan Commitments
and Revolving Credit Commitments then outstanding and (b) after the
Closing Date, Lenders then having Domestic Term Loans, UK Term Loans and
Revolving Credit Commitments (or, if the Revolving Credit Commitments have
terminated, Total Revolving Extensions of Credit) which aggregate more
than 66-2/3% of the sum of the Domestic Term Loans then outstanding, the
UK Term Loans then outstanding and the Revolving Credit Commitments (or
the Total Revolving Extensions of Credit then outstanding, as the case may
be) then in effect.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president,
any executive vice president, the chief financial officer, the treasurer
and the Manager of treasury services of the Company, provided that (a) the
Assistant Treasurer or Manager of treasury services shall be a Responsible
Officer solely for purposes of signing Notices of
<PAGE> 19
14
Borrowing for the Company and Reebok-UK and delivering certificates of a
Responsible Officer of the Borrower required pursuant to subsection 9.2(d)
and (b) the Treasury Manager of Reebok-UK shall be a Responsible Officer
solely for purposes of signing Notices of Borrowing for Reebok-UK.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender to extend credit to the Company hereunder in an aggregate
principal amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule II; as to all Lenders,
collectively, the "Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Lender at any
date, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the aggregate Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the Aggregate Outstanding Extensions of Credit of
such Lender then constitutes of the Aggregate Outstanding Extensions of
Credit of all Lenders).
"Revolving Credit Facility": the Revolving Credit Commitments and
the extensions of credit made thereunder.
"Revolving Credit Loans": as defined in subsection 3.1.
"Revolving Credit Note": as defined in subsection 6.1(f).
"Revolving Extension of Credit": as to any Revolving Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans held by such Lender then outstanding and (b)
such Lender's Revolving Credit Commitment Percentage of the L/C
Obligations then outstanding.
"Revolving Lender": each Lender that has a Revolving Credit
Commitment or holds Revolving Credit Loans.
"S&P": Standard and Poor's Rating Group.
"SPC": as defined in subsection 14.6(h).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Special Letters of Credit": one or more Commercial Letters of
Credit which are denominated either (a) in currencies other than Dollars
which are reasonably acceptable to the relevant Issuing Bank or (b) issued
(in any currency) from a jurisdiction (other than the United States) which
is reasonably acceptable to the relevant Issuing Bank; each, a "Special
Letter of Credit". For purposes of this Agreement, the aggregate amount of
the L/C Obligations outstanding at any date on account of any Special
Letter of Credit which
<PAGE> 20
15
is denominated in a currency other than Dollars shall be the amount of
Dollars into which the then outstanding face amount of such Special Letter
of Credit would be converted at the spot rate of exchange reasonably
determined by the Administrative Agent to be available to it on the most
recent to occur of (x) the date of issuance (or, in the case of any
Special Letter of Credit which is increased, the date of such increase) of
such Special Letter of Credit and (y) the last Business Day of the most
recently ended calendar quarter (in each such case, without giving effect
to any fluctuation in exchange rates since the date of such issuance,
increase or quarter-end, as the case may be).
"Standby Letter of Credit": as defined in paragraph 5.1(b)(i)(l).
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person; provided that
(during such time as common stock of the Company constitutes its only
material asset) RBK Holdings plc shall be deemed not to constitute a
Subsidiary of the Company for any purpose hereunder, other than for
purposes of (a) calculation of financial covenants and (b) presentation of
financial statements. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Termination Date": August 31, 2002.
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Tranche": the collective reference to Eurodollar Loans under the
same Commitments having then current Interest Periods which began on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Transferee": as defined in subsection 14.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UK Borrower": as defined in the preamble hereto.
<PAGE> 21
16
"UK Obligations": the unpaid principal of, and interest on
(including post-petition interest), the UK Term Loans and all other
obligations and liabilities of Reebok-UK to the Administrative Agent and
the Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement (including, without
limitation, any amendment and restatement or refinancing hereof) or any
other document executed and delivered in connection therewith or herewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or any
Lender) or otherwise.
"UK Term Loan": as defined in subsection 4.1.
"UK Term Loan Commitment": as to any Lender, the obligation of such
Lender to make a UK Term Loan to Reebok-UK hereunder in an aggregate
principal amount not to exceed the amount set forth opposite such Lender's
name on Schedule II; as to all Lenders collectively, the "UK Term Loan
Commitments".
"UK Term Note": as defined in subsection 6.1(f).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding". Periods of days referred to in
this Agreement shall be counted in calendar days unless Business Days are
expressly prescribed. Any period determined hereunder by reference to a month or
months or year or years shall end on the day in the relevant calendar month in
the relevant year, if applicable, immediately preceding the date numerically
corresponding to the first day of such period, provided, that if such period
commences on the last day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month during which such period is
to end), such period shall, unless otherwise expressly required by the other
provisions of this Agreement, end on the last day of the calendar month.
<PAGE> 22
17
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF DOMESTIC TERM LOAN COMMITMENTS
2.1 Domestic Term Loans. Subject to the terms and conditions hereof,
each Lender severally agrees to make a term loan (a "Domestic Term Loan") to the
Company on any one Business Day to occur within ten Business Days following the
date hereof in an amount not to exceed the amount of the Domestic Term Loan
Commitment of such Lender then in effect. The Domestic Term Loans may from time
to time be (a) Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as
determined by the Company and notified to the Administrative Agent in accordance
with subsections 2.2 and 5.5.
2.2 Procedure for Domestic Term Loan Borrowing. The Company shall
give the Administrative Agent its irrevocable Notice of Borrowing (which notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time, (x) three Business Days prior to the Closing Date, if all or any part of
the requested Domestic Term Loans are to be initially Eurodollar Loans or (y)
one Business Day prior to the Closing Date, otherwise) requesting that the
Lenders make the Domestic Term Loans on the Closing Date and specifying the
amount to be borrowed. Upon receipt of such Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its pro rata share of the Domestic Term Loans available to
the Administrative Agent for the account of the Company at the office of the
Administrative Agent specified in subsection 13.2 prior to 11:00 A.M., New York
City time, on the Closing Date in funds immediately available to the
Administrative Agent. Such Domestic Term Loans will then be made available to
the Company by the Administrative Agent transferring to the account directed by
the Company (which account need not be maintained by the Administrative Agent)
with the aggregate of the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the Administrative Agent.
2.3 Amortization of Domestic Term Loans. (a) The Company shall repay
the Domestic Term Loans on each date set forth below (or, if such date is not a
Business Day, on the immediately preceding Business Day) by the amount set forth
below opposite such date:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
September 30, 1997 8,148,148.15
December 31, 1997 12,222,222.22
March 31, 1998 8,148,148.15
June 30, 1998 12,222,222.22
September 30, 1998 16,296,296.30
December 31, 1998 20,370,370.37
March 31, 1999 8,148,148.15
June 30, 1999 16,296,296.30
</TABLE>
<PAGE> 23
18
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
September 30, 1999 20,370,370.37
December 31, 1999 24,444,444.44
March 31, 2000 8,148,148.15
June 30, 2000 16,296,296.30
September 30, 2000 20,370,370.37
December 31, 2000 24,444,444.44
March 31, 2001 8,148,148.15
June 30, 2001 16,296,296.30
September 30, 2001 28,518,518.52
December 31, 2001 36,666,666.67
March 31, 2002 8,148,148.15
June 30, 2002 4,444,444.44
</TABLE>
(b) The Company shall repay any then-outstanding Domestic Term Loans
on the Termination Date.
2.4 Use of Proceeds of Domestic Term Loans. The proceeds of the
Domestic Term Loans shall be utilized by the Company only to refinance certain
outstanding Indebtedness of the Company and its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
3.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Company from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Revolving Credit Commitment Percentage of the
L/C Obligations then outstanding, does not exceed the amount of such Lender's
Revolving Credit Commitment. During the Commitment Period the Company may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Company and notified to the Administrative Agent in accordance with
subsections 3.2 and 6.5, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
3.2 Procedure for Revolving Credit Borrowing. The Company may borrow
under the Revolving Credit Commitments during the Commitment Period on any
Business Day, provided that the Company shall deliver to the Administrative
Agent the Company's irrevocable Notice of Borrowing prior to 10:00 A.M., New
York City time, (a) three Business Days prior to the requested borrowing date,
if all or any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans or (b) one Business Day prior to the requested borrowing date,
<PAGE> 24
19
otherwise. Each borrowing under the Revolving Credit Commitments shall be in an
amount equal to (x) in the case of ABR Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Available Commitments are less
than $10,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such Notice of Borrowing from the Company, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Company at the office of the Administrative Agent specified in
subsection 14.2 prior to 11:00 A.M., New York City time, on the borrowing date
requested by the Company in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Company by the
Administrative Agent transferring to the account directed by the Company (which
account need not be maintained by the Administrative Agent) with the aggregate
of the amounts made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
3.3 Use of Proceeds of Revolving Credit Loans. The proceeds of the
Revolving Credit Loans shall be utilized by the Company only (a) to refinance
certain outstanding Indebtedness of the Company and its Subsidiaries and (b) for
other general corporate purposes of the Company and its Subsidiaries in the
ordinary course of business.
SECTION 4. AMOUNT AND TERMS OF UK TERM LOAN FACILITY
4.1 UK Term Loans. Subject to the terms and conditions hereof, each
Lender severally agrees to make a term loan (a "UK Term Loan") to Reebok-UK on
the Closing Date in an amount not to exceed the amount of the UK Term Loan
Commitment of such Lender then in effect. The UK Term Loans may from time to
time be (a) Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as
determined by Reebok-UK and notified to the Administrative Agent in accordance
with subsections 4.2 and 6.5.
4.2 Procedure for UK Term Loan Borrowing. Reebok-UK shall give the
Administrative Agent its irrevocable Notice of Borrowing (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
three Business Days prior to the Closing Date). Upon receipt of such Notice of
Borrowing, the Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of the UK Term Loans
available to the Administrative Agent for the account of Reebok-UK at the office
of the Administrative Agent specified in subsection 14.2 prior to 11:00 A.M.,
New York City time, on the Closing Date in funds immediately available to the
Administrative Agent. The UK Term Loans will then be made available to Reebok-UK
by the Administrative Agent transferring to the account directed by Reebok-UK
(which account need not be maintained by the Administrative Agent) with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
<PAGE> 25
20
4.3 Amortization of UK Term Loans. (a) Reebok-UK shall repay the UK
Term Loans on each date set forth below (or, if such date is not a Business Day,
on the immediately preceding Business Day) by the amount set forth below
opposite such date:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
September 30, 1997 1,851,851.85
December 31, 1997 2,777,777.78
March 31, 1998 1,851,851.85
June 30, 1998 2,777,777.78
September 30, 1998 3,703,703.70
December 31, 1998 4,629,629.63
March 31, 1999 1,851,851.85
June 30, 1999 3,703,703.70
September 30, 1999 4,629,629.63
December 31, 1999 5,555,555.56
March 31, 2000 1,851,851.85
June 30, 2000 3,703,703.70
September 30, 2000 4,629,629.63
December 31, 2000 5,555,555.56
March 31, 2001 1,851,851.85
June 30, 2001 3,703,703.70
September 30, 2001 6,481,481.48
December 31, 2001 8,333,333.33
March 31, 2002 1,851,851.85
June 30, 2002 5,555,555.56
</TABLE>
(b) Reebok-UK shall repay any then-outstanding UK Term Loans on the
Termination Date.
4.4 Use of Proceeds of UK Term Loans. The proceeds of the UK Term
Loans shall be utilized by Reebok-UK (a) to refinance certain outstanding
Indebtedness of Reebok-UK and (b) for other general corporate purposes of
Reebok-UK.
SECTION 5. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
5.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
each Issuing Bank, in reliance on the agreements of the other Lenders set forth
in subsection 5.4(a), agrees to issue any Letters of Credit requested to be
issued by it for the account of the Borrower or any Subsidiary on any Business
Day during the Commitment Period in such form as may be approved from time to
time by such Issuing Bank; provided that such Issuing Bank shall not
<PAGE> 26
21
issue any Letter of Credit if, after giving effect to such issuance, such
Issuing Bank has actual knowledge that (i) the L/C Obligations would
exceed the L/C Commitment, (ii) the Available Commitment would be less
than zero or (iii) if the Letter of Credit to be issued is a Special
Letter of Credit, the aggregate amount of L/C Obligations on account of
Special Letters of Credit to be outstanding after giving effect to the
issuance thereof will be more than $200,000,000.
(b) Each Letter of Credit shall:
(i) be either (1) a standby letter of credit issued to support
obligations of the Borrower and its Subsidiaries, contingent or otherwise,
for which Revolving Credit Loans would be available (a "Standby Letter of
Credit"), or (2) a commercial letter of credit (including, without
limitation, a Special Letter of Credit) issued in respect of the purchase
of goods or services by the Borrower and its Subsidiaries in the ordinary
course of business (a "Commercial Letter of Credit");
(ii) unless such Letter of Credit is a Special Letter of Credit, be
(1) issued from an office of the Issuing Bank in the United States and (2)
denominated in Dollars; and
(iii) expire no later than the earlier of (1) one year following the
date of issuance thereof and (2) five days prior to the Termination Date;
provided that any Letter of Credit may provide for renewal thereof for
additional one-year periods on an "evergreen" basis (but not, in any
event, beyond the date referred to in clause (2) above).
(c) No Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2 Procedure for Issuance of Letters of Credit. The Borrower may
from time to time give notice to the Administrative Agent that the Borrower or
any Subsidiary desires to have a Letter of Credit issued for its account and
specifying the proposed Issuing Bank with respect to such Letter of Credit. In
the event that the proposed Issuing Bank is reasonably acceptable to the
Administrative Agent, the Borrower shall request that such Issuing Bank issue a
Letter of Credit by delivering to such Issuing Bank (with a copy of such
Application to the Administrative Agent, in the case of any Standby Letter of
Credit) at its address for notices specified herein an Application therefor,
completed to the satisfaction of the Issuing Bank, and such other certificates,
documents and other papers and information as the Issuing Bank may request. Upon
receipt of any Application, the Issuing Bank will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
by the Issuing Bank and the Borrower; provided that the Issuing Bank shall in no
event be required to issue any Letter of Credit earlier than one Business Day
(or, in the case of Standby Letters of Credit, three Business Days) after its
receipt of the Application therefor and all such other certificates, documents
and other papers and information relating thereto. In the event that the Letter
of Credit to be issued is a Standby Letter of Credit, the Issuing Bank shall
<PAGE> 27
22
furnish a copy of such Standby Letter of Credit to each of the Administrative
Agent and the Borrower promptly following the issuance thereof.
5.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay
to:
(i) the relevant Issuing Bank, for its own account, a letter of
credit commission with respect to each Special Letter of Credit issued by
such Issuing Bank, computed for each day during the period when such
Special Letter of Credit is outstanding at the rate per annum equal to the
face amount of such Letter of Credit times the rate which is mutually
agreed between the Borrower and such Issuing Bank (which rate shall not,
in any event, exceed the Applicable Commitment Fee Rate in effect on the
date of issuance of such Special Letter of Credit); and
(ii) the Administrative Agent, for the account of each Issuing Bank
and the L/C Participants, a letter of credit commission with respect to
each Commercial Letter of Credit issued by such Issuing Bank, computed for
each day during the period when such Commercial Letter of Credit is
outstanding at the rate per annum equal to the face amount of such Letter
of Credit times the Applicable Commitment Fee Rate on the date of payment.
Such commission shall be calculated on the basis of a 365- or 366-day year (as
the case may be) and shall be payable, in arrears, on each L/C Fee Payment Date
to occur after the date of issuance of such Letter of Credit and shall be
nonrefundable.
(b) The Borrower shall pay to the Administrative Agent, for the
account of each Issuing Bank and the L/C Participants, a letter of credit
commission with respect to each Standby Letter of Credit issued by such Issuing
Bank, computed for each day during the period for which payment is due at the
rate per annum equal to the Applicable Margin in effect for Eurodollar Loans on
such date (calculated on the basis of a 365- or 366-day year, as the case may
be) times the aggregate amount available to be drawn under such Standby Letter
of Credit on such date. Such commissions shall be payable, in arrears, on each
L/C Fee Payment Date to occur after the issuance of such Standby Letter of
Credit and shall be nonrefundable.
(c) The Borrower shall pay to the relevant Issuing Bank, for its own
account, a fronting fee calculated on the face amount of each Letter of Credit
(other than a Special Letter of Credit) issued by such Issuing Bank at a rate
per annum to be agreed upon between the Borrower and such Issuing Bank. Such
fronting fees shall be calculated on the basis of a 365- or 366-day year (as the
case may be) and shall payable, in arrears, on each L/C Fee Payment Date with
respect to any such Letters of Credit which were outstanding during the period
for which payment is due. Notwithstanding anything to the contrary contained
herein, no such fronting fee shall be payable with respect to any Special Letter
of Credit.
(d) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse each Issuing Bank for such normal and customary costs and
expenses as are incurred
<PAGE> 28
23
or charged by such Issuing Bank in issuing, effecting payment under, amending or
otherwise administering any Letter of Credit issued by it.
(e) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the relevant Issuing Bank and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection 5.3.
5.4 L/C Participations. (a) Each Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce such Issuing
Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions hereinafter stated, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's
Revolving Credit Commitment Percentage in the Issuing Bank's obligations and
rights under each Letter of Credit issued by it hereunder and the amount of each
draft paid by the Issuing Bank thereunder. Each L/C Participant unconditionally
and irrevocably agrees with such Issuing Bank that, if a draft is paid under any
Letter of Credit for which such Issuing Bank is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Bank (through the Administrative Agent) upon demand an
amount equal to such L/C Participant's Revolving Credit Commitment Percentage of
the amount of such draft, or any part thereof, which is not so reimbursed (or,
in the case of any Special Letter of Credit which is not denominated in Dollars,
the amount of Dollars necessary so that, following conversion by the Issuing
Bank into the relevant denomination currency at the spot rate of exchange
available to the Issuing Bank on the date of payment, such L/C Participant shall
have purchased its ratable share of such draft).
(b) If any amount required to be paid by any L/C Participant to an
Issuing Bank pursuant to paragraph 5.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Bank under any Letter of Credit issued by it
is paid to such Issuing Bank within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Bank (through the
Administrative Agent) on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate (or, with
respect to Special Letters of Credit which are not denominated in Dollars, the
rate which reasonably represents such Issuing Bank's cost of funds), as quoted
by such Issuing Bank, during the period from and including the date such payment
is required to the date on which such payment is immediately available to such
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to paragraph
5.4(a) is not in fact made available to such Issuing Bank by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the rate per
annum applicable to ABR Loans hereunder (or, in the case of Special Letters of
Credit which are not denominated in Dollars, at a rate equal to the rate which
is reasonably determined by such Issuing Bank to reflect its cost of funding in
the relevant currency plus the Applicable Margin then in effect with respect to
ABR Loans). A certificate of such Issuing Bank submitted
<PAGE> 29
24
to any L/C Participant (through the Administrative Agent) with respect to any
amounts owing under this subsection 5.4 shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 5.4(a), such Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Bank), or any payment of interest on account thereof, such
Issuing Bank will distribute to the Administrative Agent (for the account of
such L/C Participant) such L/C Participant's pro rata share thereof; provided,
however, that in the event that any such payment received by such Issuing Bank
shall be required to be returned by such Issuing Bank, such L/C Participant
shall return to such Issuing Bank (through the Administrative Agent) the portion
thereof previously distributed by such Issuing Bank to it.
5.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse each Issuing Bank on each date on which such Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit issued by such Issuing Bank and paid by such Issuing Bank for
the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses incurred by such Issuing Bank in connection with such payment.
Each such payment shall be made to such Issuing Bank at its address for notices
specified herein in Dollars (or, in the case of any Special Letter of Credit
which is not denominated in Dollars, in lawful money in the currency in which
such Special Letter of Credit is denominated) and in immediately available
funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection 5.5 from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which would be payable on any outstanding ABR Loans
which were then overdue (or, in the case of Special Letters of Credit which are
not denominated in Dollars, at a rate equal to the rate which is reasonably
determined by the relevant Issuing Bank to reflect its cost of funding in the
relevant currency plus 2% above the Applicable Margin then in effect with
respect to ABR Loans).
(c) Each drawing under any Letter of Credit shall (unless it is
reimbursed by the Borrower on the date of drawing) constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to subsection 3.2
of ABR Loans in the amount of such drawing (or, in the case of a drawing under a
Special Letter of Credit, for a borrowing of ABR Loans in the amount which is
reasonably determined by the Administrative Agent to be the Dollar equivalent of
the amount in the relevant currency of such drawing). The borrowing date with
respect to such borrowing shall be the date of such drawing.
5.6 Obligations Absolute. (a) The Borrower's obligations under this
Section 5 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against any Issuing Bank or any beneficiary of a
Letter of Credit.
<PAGE> 30
25
(b) The Borrower also agrees with each Issuing Bank that such
Issuing Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 5.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.
(c) No Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit issued by
such Issuing Bank, except for errors or omissions caused by such Issuing Bank's
gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by an
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of such Issuing Bank to the Borrower.
5.7 Letter of Credit Payments. The responsibility of each Issuing
Bank to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
5.8 Application. To the extent that any provision of any Application related to
any Letter of Credit is inconsistent with the provisions of this Section 5, the
provisions of this Section 5 shall apply.
5.9 Reporting by Issuing Banks. (a) Each Issuing Bank hereby agrees
to provide to the Administrative Agent prompt notice of (i) the issuance by it
of any Letter of Credit, (ii) the amendment of any Letter of Credit issued by
it, (iii) the termination thereof, (iv) the presentation of any draft thereunder
and (v) the reimbursement by the Borrower of such draft; provided, however,
that, with respect to Commercial Letters of Credit, such notice shall take the
form of a summary report which shall be provided to the Administrative Agent (x)
on the first Business Day of each week, (y) on the last Business Day of each
calendar month and (z) at such other times (including, without limitation,
daily) as the Administrative Agent may from time to time request.
(b) Each Issuing Bank hereby agrees to provide to the Administrative
Agent, on the last Business Day of each calendar month, a summary showing the
outstanding balances of the Letters of Credit (other than Special Letters of
Credit) issued by such Issuing Bank on each day during the month then ended.
<PAGE> 31
26
SECTION 6. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT; FEES AND
PAYMENTS
6.1 Repayment of Loans; Evidence of Debt. (a) The Company hereby
unconditionally promises to pay to the Administrative Agent for the account of
each applicable Lender (i) the then unpaid principal amount of each Revolving
Credit Loan of such Lender on the Termination Date (or such earlier date on
which the Revolving Credit Loans become due and payable pursuant to Section 11)
and (ii) the principal amount of the Domestic Term Loans on the dates and in the
amounts set forth in subsection 2.3 (or the then unpaid principal amount of such
Domestic Term Loans, on the date that the Domestic Term Loans become due and
payable pursuant to Section 12. The Company hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 6.7.
(b) Reebok-UK hereby unconditionally promises to pay to the
Administrative Agent, for the account of each applicable Lender, the principal
amount of the UK Term Loans on the dates and in the amounts set forth in
subsection 4.3 (or the then unpaid principal amount of the UK Term Loans, on the
date that the UK Term Loans become due and payable pursuant to Section 12).
Reebok-UK hereby further agrees to pay interest on the unpaid principal amount
of the UK Term Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 6.7. Notwithstanding anything to the contrary contained herein, in no
event shall Reebok-UK have any liability to the Administrative Agent or any
Lender for liabilities hereunder on account of which the Company is the primary
obligor.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
subsection 14.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan, Domestic Term Loan and UK
Term Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
either Borrower and each Lender's share thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 6.1(c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of
<PAGE> 32
27
each Borrower to repay (with applicable interest) the Loans made to such
Borrower by such Lender in accordance with the terms of this Agreement.
(f) The Borrowers agree that, upon request of any Lender through the
Administrative Agent, the Company or Reebok-UK (as the case may be) will execute
and deliver to such Lender (i) a promissory note of the Company evidencing the
Domestic Term Loan of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (a "Domestic Term Note"),
(ii) a promissory note of the Company evidencing the Revolving Credit Loans of
such Lender, substantially in the form of Exhibit B with appropriate insertions
as to date and principal amount (a "Revolving Credit Note") and/or (iii) a
promissory note of Reebok-UK evidencing the UK Term Loan of such Lender,
substantially in the form of Exhibit C with appropriate insertions as to date
and principal amount (a "UK Term Note"), to the extent necessary (in each such
case) to permit such Lender to assign any such Loan to a Federal Reserve Bank.
6.2 Commitment Fee. The Company agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for each day during the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate per annum equal to the Applicable
Commitment Fee Rate in effect on such date times the Available Commitment of
such Lender on such day. Such commitment fee shall be payable quarterly, in
arrears, on the last Business Day of each March, June, September and December
and on the Termination Date or such earlier date as the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
6.3 Optional Prepayments. Each Borrower may at any time and from
time to time prepay the Loans owing by it, in whole or in part, without premium
or penalty, upon at least three Business Days' (or, in the case of prepayments
of ABR Loans, one Business Day's) irrevocable notice to the Administrative Agent
(which notice must be received by the Administrative Agent prior to 10:00 A.M.,
New York City time, on the date upon which such notice is due), specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans,
ABR Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative Agent
shall promptly notify each affected Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection 6.14
and, except in the case of prepayments of Revolving Credit Loans which are ABR
Loans, accrued interest to such date on the amount prepaid. Partial prepayments
of the Domestic Term Loans and the UK Term Loans shall be applied to the
remaining installments thereof, at the option of the Company, either (a) ratably
or (b) in inverse order of the maturity. Amounts prepaid on account of the
Domestic Term Loans and the UK Term Loans may not be reborrowed. Partial
prepayments shall be in an aggregate principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof.
6.4 Optional Termination or Reduction of Revolving Credit
Commitments. The Company shall have the right, upon not less than five Business
Days' notice to the Administrative
<PAGE> 33
28
Agent, to terminate the Revolving Credit Commitments or, from time to time, to
reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans made on the effective date
thereof, the aggregate principal amount of the Revolving Credit Loans then
outstanding would exceed the Revolving Credit Commitments then in effect. Any
such reduction shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.
6.5 Conversion and Continuation Options. (a) Each Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by delivering to the
Administrative Agent an irrevocable Notice of Borrowing by 10:00 A.M., New York
City time, at least one Business Day prior to the requested date of conversion.
Each Borrower may elect from time to time to convert ABR Loans to Eurodollar
Loans by delivering to the Administrative Agent an irrevocable Notice of
Borrowing by 10:00 A.M., New York City time, at least three Business Days' prior
to the requested conversion date. Any such Notice of Borrowing with respect to a
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such Notice of
Borrowing, the Administrative Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and ABR Loans may be converted
as provided herein, provided that (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined that such a
conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination Date
(in the case of conversions of Revolving Credit Loans) or the date of the final
installment of principal of the Domestic Term Loans or UK Term Loans (as the
case may be).
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower delivering to the Administrative Agent an irrevocable Notice
of Borrowing, in accordance with the applicable provisions of the term "Interest
Period" set forth in subsection 1.1, of the length of the next Interest Period
to be applicable to such Loans, provided that no Eurodollar Loan may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined that
such a continuation is not appropriate or (ii) after the date that is one month
prior to the Termination Date (in the case of continuations of Revolving Credit
Loans) or the date of the final installment of principal of the Domestic Term
Loans or the UK Term Loans (as the case may be) and provided, further, that if a
Borrower shall fail to give such notice or if such continuation is not permitted
such Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period. Upon receipt of any such Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender thereof.
6.6 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Eurodollar Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each
<PAGE> 34
29
Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in
excess thereof. In no event shall there be more than 15 Tranches of Eurodollar
Loans outstanding at any time.
6.7 Interest Rates and Payment Dates. Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
then Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the then Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) Notwithstanding anything to the contrary contained herein, in no
event shall a Borrower be obligated to pay interest in excess of the maximum
amount which is chargeable under applicable law.
6.8 Computation of Interest and Fees. (a) Commitment fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a 360-day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the relevant Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the relevant Borrower and the Lenders of the effective date and the
amount of each such change in interest rate. Any change in the Applicable Margin
or Applicable Commitment Fee Rate resulting from a change in the credit rating
of the Company shall become effective on the earlier of (x) the date upon which
such change is publicly announced by the relevant rating agency and (y) the date
upon which the Company provides to the Administrative Agent reasonably
satisfactory evidence of such change.
<PAGE> 35
30
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of either Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 6.7(a).
6.9 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
affected Borrower and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to ABR Loans. Until such notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans shall be made or continued as such, nor shall either
Borrower have the right to convert Loans to Eurodollar Loans.
6.10 Pro Rata Treatment and Payments. (a) Each borrowing by a
Borrower from the Lenders hereunder, each payment by a Borrower on account of
any commitment fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of the
Lenders holding obligations in respect of which such amounts were paid. Each
payment (including each prepayment) by a Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of such Loans then held by the Lenders. Except as
otherwise set forth herein, all payments (including prepayments) to be made by a
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the applicable Lenders, at the Administrative Agent's
office specified in subsection 14.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the Lenders
holding obligations on account of which such amounts were paid promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to
<PAGE> 36
31
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its relevant Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on the
borrowing date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection 5.10 shall be conclusive in the absence of manifest error.
If such Lender's relevant Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such borrowing date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the applicable Borrower.
6.11 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the applicable Borrower shall pay to such Lender such amounts, if any,
as may be required pursuant to subsection 6.14.
6.12 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Note or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 6.13 and changes in the rate of net income taxes or franchise
taxes (imposed in lieu of net income taxes) of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities
<PAGE> 37
32
in or for the account of, advances, loans or other extensions of credit
by, or any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower with respect to such Eurodollar
Loans shall promptly pay (or cause to be paid to) such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law, if compliance therewith is a customary banking
practice) from any Governmental Authority made subsequent to the date hereof
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder or under or
in respect of any Letter of Credit to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, the Company (on its own behalf or on behalf of
Reebok-UK) shall promptly pay (or cause to be paid) to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection 6.12, it shall promptly notify the Company, the
Administrative Agent and (in the case of a claim under subsection 6.12(a) only
with respect to Eurodollar Loans owing by Reebok-UK) Reebok-UK of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this subsection 6.12 submitted by such Lender to the
Borrower owing such amounts (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this subsection
6.12 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
6.13 Taxes. (a) All payments made by the Borrowers under this Agreement
and any Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and
<PAGE> 38
33
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Note, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrowers shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection. Whenever any Non-Excluded
Taxes are payable by a Borrower, as promptly as possible thereafter such
Borrower shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. If a
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection 6.13 shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Company and the Administrative Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be;
(ii) deliver to the Company and the Administrative Agent two further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the
<PAGE> 39
34
Company and the Administrative Agent. Such Lender shall certify (i) in the case
of a Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled to an
exemption from United States backup withholding tax. Each Person that shall
become a Lender or a Participant pursuant to subsection 13.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this subsection 6.13, provided that in the
case of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
(c) If any Lender shall receive a credit or refund from a taxing authority
with respect to, and actually resulting from, an amount of Non-Excluded Taxes
actually paid to or on behalf of such Lender by a Borrower (a "Tax Credit"),
such Lender shall promptly notify such Borrower of such Tax Credit. If such Tax
Credit is received by such Lender in the form of cash, such Lender shall
promptly pay to such Borrower the amount so received with respect to the Tax
Credit. If such Tax Credit is not received by such Lender in the form of cash,
such Lender shall pay the amount of such Tax Credit not later than the time
prescribed by applicable Law for filing the return (including extensions of
time) for such Lender's taxable period which includes the period in which such
Lender receives the economic benefit of such Tax Credit. In any event, the
amount of any Tax Credit payable by a Lender to a Borrower pursuant to this
clause (c) shall not exceed the actual amount of cash refunded to, or credits
received and usable (in accordance with the actual practices then in use by such
Lender) by, such Lender from a taxing authority. In determining the amount of
any Tax Credit, a Lender may use such apportionment and attribution rules as
such Lender customarily employs in allocating taxes among its various operations
and income sources and such determination shall be conclusive absent manifest
error. Each Borrower further agrees promptly to return to a Lender the amount
paid to such Borrower with respect to a Tax Credit by such Lender if such Lender
is required to repay, or is determined to be ineligible for, a Tax Credit for
such amount. Notwithstanding anything to the contrary contained herein, each
Borrower hereby acknowledges and agrees that (i) neither the Administrative
Agent nor any Lender shall be obligated to provide such Borrower with details of
the tax position of the Administrative Agent or such Lender (as the case may be)
and (ii) such Borrower shall have no right to inspect any records (including tax
returns) of the Administrative Agent or such Lender (as the case may be).
6.14 Indemnity. Each Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after such Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment after such
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making by such Borrower of a prepayment of Eurodollar Loans
on a day which is not the last day of an Interest Period with respect thereto.
Such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day
<PAGE> 40
35
of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
6.15 Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under subsection 6.12 or 6.13(a), or if any adoption or
change of the type described in subsection 6.11 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its good faith discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for a Borrower to make payments under subsection 6.12 or
6.13(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 6.11.
6.16 Additional Action in Certain Events. (a) In the event that any event
or condition described in Section 6.11, 6.12 or 6.13(a) has occurred and is
continuing that increases the cost to a Borrower of the Loans by any Lender, the
Company may (after paying any accrued amounts required to be paid pursuant to
Section 6.11, 6.12 or 6.13(a) hereof, as the case may be, for the period prior
to the taking of such action) require any Lender so affected by such event or
condition to transfer or assign, in whole (but not in part), without recourse,
its Commitments and Loans hereunder in accordance with the provisions of
subsection 14.6(c) to one or more Assignees (which need not be existing Lenders
hereunder, but which may not request payment from such Borrower of any such
amounts on account of the same event or condition which affects the assigning
Lender) identified to it by the Company.
(b) In the event that any Lender shall fail to execute and deliver any
amendment, supplement or modification hereto requested by the Company, the
Company may (within 30 days following the requested response date for such
amendment, supplement or modification) require such Lender to transfer or
assign, in whole (but not in part), without recourse, its Commitments and Loans
hereunder in accordance with the provisions of subsection 14.6(c) to one or more
Assignees (which need not be existing Lenders hereunder, but which must be
willing to execute and deliver such amendment, supplement or modification)
identified to it by the Company.
(c) Notwithstanding the foregoing provisions of this subsection 6.16, no
Lender shall be required to assign all or any portion of its Commitments and
Loans pursuant to this Section 6.16 unless and until such Lender shall have
received from such Assignees one or more payments which, in an aggregate, are at
least equal to the aggregate outstanding principal amount of the Loans owing to
such Lender and all accrued interest and other amounts owing on account thereof.
Any assignment made pursuant to this subsection 6.16 shall constitute a
prepayment for purposes of, and shall be subject to the provisions of,
subsection 6.14.
<PAGE> 41
36
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans, each of the Company and (to the extent that such representation and
warranty pertains to matters applicable to Reebok-UK or any of its Subsidiaries)
Reebok-UK hereby represents and warrants to the Administrative Agent and each
Lender that:
7.1 Financial Condition. (a)The consolidated balance sheet of the Company
and its consolidated Subsidiaries as at December 31, 1998 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by Ernst & Young, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly in all
material respects the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at September 30, 1999 and the related unaudited consolidated
statements of income and of cash flows for the nine-month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly in all
material respects the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the nine-month period then
ended (subject to normal year-end audit adjustments and the absence of
footnotes).
(b) All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither
Borrower nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above with respect to such Borrower, any
material Guarantee Obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto. Except to the extent permitted under this Agreement or separately
disclosed to the Lenders in writing prior to the date hereof, there has been no
sale, transfer or other disposition by either Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of such Borrower and its consolidated Subsidiaries at
December 31, 1998 during the period from December 31, 1998 to and including the
date hereof.
7.2 No Change. Since December 31, 1998, there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
7.3 Disclosure. No information, schedule, exhibit or report or other
document furnished by such Borrower or any of its Subsidiaries to the
Administrative Agent or any Lender
<PAGE> 42
37
in connection with the negotiation of this Agreement or any other Loan Document
(or pursuant to the terms hereof or thereof), as such information, schedule,
exhibit or report or other document has been amended, supplemented or superseded
by any other information, schedule, exhibit or report or other document later
delivered to the same parties receiving such information, schedule, exhibit or
report or other document, contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein, in light of the circumstances when made, not materially misleading.
7.4 Corporate Existence; Compliance with Law. Each of such Borrower and
its Subsidiaries (a) is duly organized, validly existing and (in the case of the
Company and its Material Subsidiaries) in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) in the case of the Company and its Material Subsidiaries, is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that all
failures to be so qualified could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (d) is in compliance with all Requirements
of Law except to the extent that all failures to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
7.5 Corporate Power; Authorization; Enforceable Obligations. Such Borrower
has the corporate power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and any Notes and to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which such
Borrower is a party. This Agreement has been, and each other Loan Document to
which it is a party will be, duly executed and delivered on behalf of such
Borrower. This Agreement constitutes, and each other Loan Document to which it
is a party when executed and delivered will constitute, a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
7.6 No Legal Bar. The execution, delivery and performance of the Loan
Documents to which such Borrower is a party, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or Contractual Obligation of such Borrower or of any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
<PAGE> 43
38
7.7 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of such Borrower, threatened by or against such Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
7.8 No Default. Neither Borrower nor any of its respective Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
7.9 Ownership of Property; Liens. Each of the Company, each of its
Material Subsidiaries and Reebok-UK has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property, and none of
such property is subject to any Lien except as permitted by subsection 10.2.
7.10 Intellectual Property. Each Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, technology, know-how
and processes necessary for the conduct of its business as currently conducted,
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect (the "Intellectual Property"). No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property which, if accurate, could reasonably be expected
to have a Material Adverse Effect, nor does either Borrower know of any valid
basis for any such claim. To the best knowledge of each Borrower, the use of
such Intellectual Property by such Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
7.11 Taxes. Each of the Company, each of its Material Subsidiaries and
Reebok-UK has filed or caused to be filed all tax returns which, to the
knowledge of the Company or Reebok-UK, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of each
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
7.12 Federal Regulations. No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will be used in any manner which would
violate, or result in the violation of, Regulation G or Regulation U of the
Board of Governors of the Federal Reserve
<PAGE> 44
39
System as now and from time to time hereafter in effect. If requested by any
Lender or the Administrative Agent, each Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
said Regulation G or Regulation U, as the case may be.
7.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Company nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Company nor any Commonly Controlled Entity would become subject to any liability
under ERISA if the Company or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made.
No such Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Company and each Commonly Controlled Entity for post retirement
benefits to be provided to their current and former employees under Plans which
are welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the
aggregate, exceed the assets under all such Plans allocable to such benefits by
an amount in excess of $10,000,000.
7.14 Investment Company Act; Other Regulations. Neither Borrower is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. Neither
Borrower is subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
7.15 Subsidiaries. Schedule III hereto sets forth all of the Subsidiaries
of the Company at the date hereof.
7.16 Environmental Matters. (a) The facilities and properties owned,
leased or operated by the Company, any of its Material Subsidiaries or any of
its first-tier Foreign Subsidiaries (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any Environmental Law,
except in either case insofar as such violation or liability, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
<PAGE> 45
40
(b) The Properties and all operations at the Properties are in compliance,
and have in the last 3 years been in compliance, in all material respects with
all applicable Environmental Laws, and there is no contamination at or under
(or, to the knowledge of either Borrower, about) the Properties or violation of
any Environmental Law with respect to the Properties or the business operated by
the Company, any of its Material Subsidiaries or any of its first-tier Foreign
Subsidiaries (the "Business"), except insofar as such violation or failure to be
in compliance or contamination, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Environmental Amount.
(c) Neither Borrower nor any of its respective Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does either Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened, except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in the payment of a Material
Environmental Amount.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could reasonably be expected to give rise
to liability under, any applicable Environmental Law, except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of either Borrower, threatened, under any
Environmental Law to which the Company, any of its Material Subsidiaries or any
of its first-tier Foreign Subsidiaries is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business, except insofar as such
proceeding, action, decree, order or other requirement, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of either Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably give rise to liability under
Environmental Laws, except insofar as any such violation or liability referred
to in this paragraph, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
<PAGE> 46
41
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Extensions of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, immediately prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by the Required Lenders and a duly
authorized officer of each Borrower.
(b) Fees. The Administrative Agent shall have received for the
account of each Lender which shall have executed this Agreement on or
before March 22, 2000 an amendment fee in the amount of .125% of the sum
of such Lender's Domestic Term Loans, UK Term Loans and Revolving Credit
Commitment.
8.2 Conditions to Each Extension of Credit. The agreement of each Lender
to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by either Borrower in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit for the account of the
Borrower hereunder shall constitute a representation and warranty by the
Borrowers as of the date thereof that the conditions contained in this
subsection 8.2 have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any amount is owing to any
Lender or the Administrative Agent hereunder or under any other Loan Document,
the Company shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
9.1 Financial Statements. Furnish to each Lender and the
Administrative Agent:
<PAGE> 47
42
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Ernst & Young or other
independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
9.2 Certificates; Other Information. Furnish to each Lender and the
Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in subsection 9.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 9.1(a) and (b), a certificate of a Responsible
Officer (i) stating that, to the best knowledge of such Responsible
Officer, each Borrower has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
(ii) setting forth the computations used by the Company in determining (as
of the end of such fiscal period) compliance with the covenants contained
in subsection 10.1;
(c) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five days after the same
<PAGE> 48
43
are filed, copies of all financial statements and reports which the
Company may make to, or file with, the Securities and Exchange Commission
or any successor or analogous Governmental Authority;
(d) not later than five Business Days after the end of each calendar
month, a certificate of a Responsible Officer of the Borrower setting
forth the amount, beneficiary and Issuing Bank with respect to each
Special Letter of Credit which was outstanding as of the last day of such
calendar month; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
9.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity in accordance with customary terms or before they become
delinquent, as the case may be, all of its material obligations of whatever
nature, except where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the Company or its
Subsidiaries, as the case may be.
9.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
(in the reasonable judgment of the Company) desirable in the normal conduct of
its business except as otherwise permitted pursuant to subsection 10.3; comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
9.5 Maintenance of Property; Insurance; Trademark License.(a) Keep
all property useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance on all its material property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Lender,
upon written request, full information as to the insurance carried.
(b) Keep in full force and effect, and comply in all material
respects with the terms of, a license agreement between the Company and any
wholly-owned Subsidiary of the Company or of Reebok-UK which is substantially
similar in form and substance to the License Agreement, dated as of August 6,
1979, between the Company (as successor to Reebok U.S.A. Limited, Inc.) and
Reebok-UK, as the same may be amended, supplemented or otherwise modified in a
manner which could not reasonably be expected to have a Material Adverse Effect.
9.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all
<PAGE> 49
44
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities; and permit representatives of any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time (upon reasonable advance notice,
when no Default or Event of Default has occurred and is continuing) and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants.
9.7 Notices. Promptly give notice to the Administrative Agent (which
shall give prompt notice thereof to the Lenders) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $10,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought
which could have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Company or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan;
(e) any change in the Credit Rating of the Company promptly upon the
effectiveness thereof; and
(f) the occurrence of (i) any material adverse change in the
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole or (ii) any
development or event which could reasonably be expected to have a material
adverse effect on the rights or remedies of the Administrative Agent or
the Lenders hereunder or under any of the other Loan Documents.
Each notice pursuant to this subsection 9.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
<PAGE> 50
45
9.8 Environmental Laws. (a) Comply with, and use reasonable efforts to
ensure compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use reasonable
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
SECTION 10. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any amount is owing to any
Lender or the Administrative Agent hereunder or under any other Loan Document,
the Company shall not, and (except with respect to subsection 10.1) shall not
permit any of its Subsidiaries to, directly or indirectly:
10.1 Financial Condition Covenants.
(a) Indebtedness to EBITDA. Permit the ratio of (i) total
Indebtedness of the Company and its Subsidiaries on a consolidated basis
at any date minus cash and cash equivalents then held by the Company and
its Subsidiaries to (ii) EBITDA of the Company and its Subsidiaries on a
consolidated basis for the period of four consecutive fiscal quarters most
recently ended prior to such date for which the Company has delivered the
financial statements contemplated by subsection 9.1(a) or (b), as the case
may be, to be greater than the ratio set forth below opposite the "Test
Period" during which such date occurs:
<TABLE>
<CAPTION>
Test Period Ratio
----------- -----
<S> <C>
Closing Date - 09/30/97 3.75 to 1.0
10/01/97 - 12/30/97 3.50 to 1.0
12/31/97 - 03/31/98 3.40 to 1.0
04/01/98 - 06/30/98 3.25 to 1.0
07/01/98 - 12/31/99 3.50 to 1.0
01/01/00 - 03/31/00 3.25 to 1.0
04/01/00 - thereafter 3.00 to 1.0.
</TABLE>
<PAGE> 51
46
(b) Interest Coverage. Permit, for any period of four
consecutive fiscal quarters most recently ended, the ratio of (i)
EBITDA of the Company and its Subsidiaries on a consolidated basis for
such period to (ii) the amount of interest expense, both expensed and
capitalized, of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, for such period on the
aggregate principal amount of their consolidated Indebtedness, to be
less than 3.00 to 1.00.
10.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 90 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or any Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
IV, provided that no such Lien is spread to cover any additional
property after the date hereof and that the amount of Indebtedness
secured thereby is not increased;
(g) Liens securing Indebtedness of the Company and its
Subsidiaries incurred to finance or refinance the acquisition of fixed
or capital assets (including, without limitation, the new headquarters
park for the Company), provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or
capital assets (or, in the case of any refinancing, secured the
Indebtedness being refinanced) or within 90 days following such
acquisition, (ii) such Liens do not at any time encumber any
<PAGE> 52
47
property other than the property originally financed by such Indebtedness
and (iii) the amount of Indebtedness secured thereby is not increased;
(h) Liens on assets of any Foreign Subsidiary securing
Indebtedness or Guarantee Obligations of such Foreign Subsidiary;
provided that the aggregate maximum amount of Indebtedness and Guarantee
Obligations which may be secured by Liens incurred in reliance upon this
subsection 10.2(h) shall be $25,000,000 at any one time outstanding;
(i) Liens securing Indebtedness in the nature of reimbursement
obligations on account of commercial letters of credit which encumber
only the assets acquired or shipped with the support of such commercial
letter of credit;
(j) Liens on the property or assets of a corporation which becomes
a Subsidiary after the date hereof securing Indebtedness of such
Subsidiary which existed at the date of acquisition and was not incurred
in anticipation thereof; provided that (i) such Liens existed at the time
such corporation became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any additional
property or assets of such corporation after the time such corporation
becomes a Subsidiary, and (iii) the amount of Indebtedness secured
thereby is not increased; and
(k) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Subsidiaries)
$25,000,000 in aggregate amount at any time outstanding.
10.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), except that any Subsidiary of a Borrower
may be merged or consolidated with or into such Borrower (provided that (a) such
Borrower shall be the continuing or surviving corporation and (b) in the case of
a merger or consolidation of Reebok-UK with or into the Company, the Company
shall be the continuing or surviving corporation) or with or into any one or
more wholly owned Subsidiaries of the Company (provided that the wholly owned
Subsidiary or Subsidiaries shall be the continuing or surviving corporation).
10.4 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of all or substantially all of the property,
business or assets (including, without limitation, receivables and leasehold
interests) of the Company and its Subsidiaries taken as a whole, whether now
owned or hereafter acquired, in any single transaction or any series of related
transactions. Notwithstanding the foregoing provisions of this subsection 10.4,
the trademark "Reebok" shall at all times be subject to a valid license
agreement in favor of the Company having terms substantially similar to the
License Agreement described in subsection 9.5(b).
10.5 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this
<PAGE> 53
48
Agreement, (b) in the ordinary course of the Company's or such Subsidiary's
business and (c) upon fair and reasonable terms no less favorable to the Company
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate (it being
understood that such fairness and reasonableness shall, in the case of
arrangements with joint ventures with unaffiliated third parties, be determined
in the context of all arrangements between the Company and its Subsidiaries, on
the one hand, and such joint venture, on the other hand).
10.6 Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Company to end on a day other than the Saturday nearest to December 31st
or December 31st.
10.7 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for (a) the design and
marketing of sports, leisure and fitness products and services, including
footwear, apparel, accessories, equipment and videos, (b) the design and
marketing of footwear, apparel and accessories for non-athletic use, (c) the
businesses in which the Company and its Subsidiaries are engaged on the date
hereof and businesses of a similar type and (d) other activities relating
thereto.
SECTION 11. GUARANTEE
11.1 Guarantee. In order to induce the Lenders and the
Administrative Agent to execute and deliver this Agreement and to make the Loans
hereunder, and in consideration thereof:
(a) The Company hereby unconditionally and irrevocably guarantees
to the Administrative Agent, for the ratable benefit of the Lenders, the
prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the UK Obligations. The
Company further agrees to pay any and all expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or by the Lenders in
enforcing, or obtaining advice of counsel in respect of, any of their
rights under this Section 11. Without limiting the generality of the
foregoing, the Company's liability shall extend to all amounts that
constitute part of the UK Obligations and would be owed by Reebok-UK but
for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving
Reebok-UK. This Guarantee shall remain in full force and effect until the
UK Obligations have been paid in full and the UK Term Loan Commitments
have been utilized or terminated, notwithstanding that from time to time
prior thereto Reebok-UK may be free from any UK Obligations.
(b) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender
on account of its liability under this Section 11, it will notify the
Administrative Agent or such Lender in writing that such payment is made
under this Section 11 for such purpose. No payment or
<PAGE> 54
49
payments made by Reebok-UK or any other Person or received or collected
by the Administrative Agent or any Lender from Reebok-UK or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in
reduction of or in payment of the UK Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the Company
hereunder which shall remain obligated hereunder, notwithstanding any
such payment or payments (other than payments made by or received or
collected from the Company in respect of the UK Obligations) until the
date upon which the UK Obligations have been paid in full and the UK Term
Loan Commitments have been utilized or terminated.
11.2 Right of Set-Off. Upon the occurrence and continuance of any
Event of Default, the Administrative Agent and each Lender are hereby
irrevocably authorized by the Company at any time and from time to time without
notice to the Company, any such notice being hereby waived by the Company, to
set off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of the Company, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, on account of the liabilities of
the Company hereunder and claims of every nature and description of the
Administrative Agent or such Lender against the Company, in any currency,
whether arising hereunder or any other Loan Document or otherwise, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment and although such
liabilities and claims may be contingent or unmatured. The Administrative Agent
and each Lender shall notify the Company promptly of any such set-off made by it
and the application made by it of the proceeds thereof; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender under this
subsection are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
11.3 No Subrogation. Notwithstanding any payment or payments made
by the Company hereunder, or any set-off or application of funds of the Company
by the Administrative Agent or any Lender, the Company shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Lender
against Reebok-UK or against any collateral security or guarantee or right of
offset held by the Administrative Agent or any Lender for the payment of the UK
Obligations, nor shall the Company seek or be entitled to seek any contribution
or reimbursement from Reebok-UK in respect of payments made by the Company
hereunder, until the UK Obligations have been paid in full. If any amount shall
be paid to the Company on account of such subrogation rights at any time when
all of the UK Obligations shall not have been paid in full, such amount shall be
held by the Company in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Company, and shall, forthwith upon receipt by
the Company, be turned over to the Administrative Agent in the exact form
received by the Company (duly indorsed by the Company to the Administrative
Agent, if required), to be applied against the UK Obligations, whether matured
or unmatured, in such order as the Administrative Agent may determine.
<PAGE> 55
50
11.4 Amendments, etc. The Company shall remain obligated hereunder
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of
any of the UK Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the UK
Obligations continued, and the UK Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement, any other Loan Document and any other documents
executed and delivered in connection herewith or therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Lenders may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the UK Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the UK Obligations or pursuant to this Section 11 or any
property subject thereto.
11.5 Guarantee Absolute and Unconditional. The Company waives any
and all notice of the creation, renewal, extension or accrual of any of the UK
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 10 or acceptance of the
guarantee provisions of this Section 11; the UK Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred in
reliance upon the guarantee contained in this Section 11; and all dealings
between Reebok-UK or the Company, on the one hand, and the Administrative Agent
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this Section
11. The Company waives (to the extent permitted by law) diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
Reebok-UK or the Company with respect to the UK Obligations. The guarantee
contained in this Section 11 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any other Loan Document or any of the
documents executed in connection herewith or therewith, any of the UK
Obligations or any collateral security therefor or guarantee or right of offset
with respect thereto at any time or from time to time held by the Administrative
Agent or any Lender, (b) any defense (including, without limitation, any statute
of limitations), set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by Reebok-UK
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of Reebok-UK or the Company)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of Reebok-UK for the UK Obligations, or of the Company under the
guarantee contained in this Section 11, in bankruptcy or in any other instance.
When the Administrative Agent or any Lender is pursuing its rights and remedies
hereunder against the Company, the Administrative Agent or any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against Reebok-UK or any other Person or against any collateral security or
guarantee for the UK Obligations or any right of offset with respect thereto,
and any failure by the Administrative
<PAGE> 56
51
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from Reebok-UK or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of Reebok-UK or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Company of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent and the Lenders against the Company.
11.6 Reinstatement. The guarantee contained in this Section 11
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the UK Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Reebok-UK or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, Reebok-UK or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
11.7 Payments. The Company hereby agrees that the amounts payable
by the Company hereunder will be paid to the Administrative Agent without
set-off or counterclaim in Dollars at the office of the Administrative Agent
listed in subsection 14.2 or at such other office as the Administrative Agent
shall designate in writing to the Company.
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or either
Borrower shall fail to pay any interest on any Loan, or any other amount
payable hereunder, within five Business Days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof;
or
(b) Any representation or warranty made or deemed made by either
Borrower herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been incorrect in any material respect
on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of
any agreement contained in Section 10; or
(d) Either Borrower shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section 12), and such default shall continue unremedied for a period of
30 days after the earlier of (i) the date upon which an
<PAGE> 57
52
executive officer of either Borrower has actual knowledge thereof and
(ii) the date upon which the Administrative Agent or any Lender gives
notice to the Company thereof; or
(e) The Company or any of its Subsidiaries shall (i) default in
any payment of principal of or interest of any Indebtedness (other than
the Loans) or in the payment of any Guarantee Obligation, beyond the
period of grace (not to exceed 60 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or Administrative Agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice or
the passage of time if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall exist under
this paragraph unless the aggregate amount of Indebtedness and/or
Guarantee Obligations in respect of which any default or other event or
condition referred to in this paragraph shall have occurred shall be
equal to at least $10,000,000; or
(f) (i) Either Borrower or any Material Subsidiary shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or either Borrower
or any Material Subsidiary shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against either
Borrower or any Material Subsidiary any case, proceeding or other action
of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against either Borrower or any
Material Subsidiary any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) either Borrower or any Material Subsidiary shall
take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) either Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
<PAGE> 58
53
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined
in Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of the Company or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other adverse event
or condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be
expected to involve an aggregate amount of liability to the Company or
any Material Subsidiary in excess of $10,000,000; or
(h) One or more judgments or decrees shall be entered against the
Company, Reebok-UK or any Material Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$10,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) the guarantee set forth in Section 12 shall cease, for any
reason, to be in full force and effect or the Company shall so assert; or
(j) (i) Any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended, but other
than the Fireman Group) (A) shall have acquired beneficial ownership of
20% or more of any outstanding class of Capital Stock having ordinary
voting power in the election of directors of the Company or (B) shall
obtain the power (whether or not exercised) to elect a majority of the
Company's directors or (ii) the Board of Directors of the Company shall
not consist of a majority of Continuing Directors; "Continuing Directors"
shall mean the directors of the Company on the date hereof and each other
director, if such other director's nomination for election to the Board
of Directors of the Company is recommended by a majority of the then
Continuing Directors; or
(k) the Company shall not own, directly or indirectly, all of the
issued and outstanding Capital Stock (other than directors' qualifying
shares and one share of such Capital Stock which is owned of record by
Credit Suisse First Boston Corporation) of Reebok-UK;
<PAGE> 59
54
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section 12 with respect to a
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrowers
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. The Borrower hereby grants to
the Administrative Agent, for the benefit of the Issuing Banks and the L/C
Participants, a security interest in such cash collateral to secure all
obligations under this Agreement and the other Loan Documents. Amounts held in
such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrower
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder and
under the other Loan Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrower (or such
other Person as may be lawfully entitled thereto). Except as expressly provided
above in this Section 11, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
SECTION 13. THE AGENTS
13.1 Appointment. (a) Each Lender hereby irrevocably designates and
appoints Credit Suisse First Boston as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative
<PAGE> 60
55
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.
(b) Notwithstanding anything to the contrary contained in this Agreement,
the parties hereto hereby agree that the Documentation Agent and the Co-Agents
shall have no rights, duties, responsibilities or liabilities in their
respective capacities as such and that no Co-Agent shall have the authority to
take any action hereunder in its capacity as such.
13.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
Administrative Agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
Administrative Agents or attorneys in-fact selected by it with reasonable care.
13.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, Administrative Agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by either Borrower
or any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of a Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of either Borrower.
13.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to either Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of
<PAGE> 61
56
taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
13.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
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 Lenders.
13.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, Administrative Agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrowers, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, Administrative Agents, attorneys-in-fact or Affiliates.
13.7 Indemnification. The Lenders agree to indemnify each of the
Administrative Agent and the Documentation Agent in its respective capacity as
such (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to
<PAGE> 62
57
do so), ratably according to their respective Commitment Percentages in effect
on the date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent or the
Documentation Agent (as the case may be) in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Documentation Agent (as the case may be) under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the gross negligence or willful misconduct of the
Administrative Agent or the Documentation Agent (as the case may be). The
agreements in this subsection 13.7 shall survive the payment of the Loans and
all other amounts payable hereunder.
13.8 Agents in their Individual Capacities. The Administrative Agent, the
Documentation Agent, each Co-Agent and each of their respective Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with each Borrower as though the Administrative Agent, the Documentation Agent
or such Co-Agent (as the case may be) were not the Administrative Agent, the
Documentation Agent or a Co-Agent (as the case may be) hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it, any Note
issued to it and with respect to any Letter of Credit issued or participated in
by it, the Administrative Agent, the Documentation Agent and each Co-Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, the Documentation Agent or a Co-Agent (as the case may
be), and the terms "Lender" and "Lenders" shall include the Administrative
Agent, the Documentation Agent and each Co-Agent in its respective individual
capacity.
13.9 Successor Administrative Agent; Resignation of Documentation Agent.
(a) The Administrative Agent may resign as Administrative Agent upon 10 days'
notice to the Lenders. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successor Administrative
Agent for the Lenders, which successor Administrative Agent (provided that it
shall have been approved by the Company), shall succeed to the rights, powers
and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor Administrative Agent, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans.
(b) The Documentation Agent may resign as Documentation Agent upon 10
days' notice to the Lenders. Upon any such resignation of the Documentation
Agent, no successor Documentation Agent shall be appointed hereunder.
<PAGE> 63
58
(c) After any retiring Administrative Agent's or Documentation Agent's
resignation as Administrative Agent or Documentation Agent (as the case may be),
the provisions of this Section 13 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent or
Documentation Agent (as the case may be) under this Agreement and the other Loan
Documents.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 14.1. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Company
(and, to the extent that it is directly affected thereby, Reebok-UK) written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the
Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as
the Majority Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall:
(i) reduce the amount or extend the scheduled date of maturity of
any Loan or of any installment thereof, or reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of
any Lender's Commitments, in each case without the consent of each Lender
directly affected thereby;
(ii) amend, modify or waive any provision of this subsection 14.1,
or reduce the percentage specified in the definition of Required Lenders
or Majority Lenders, or consent to the assignment or transfer by a
Borrower of any of its rights and obligations under this Agreement and
the other Loan Documents, or release the guarantee provided for in
Section 11, in each case without the written consent of all the Lenders;
(iii) amend, modify or waive any provision of Section 13 without the
written consent of the then Administrative Agent and (to the extent that
such amendment, modification or waiver directly affects the rights or
obligations of the Documentation Agent) the Documentation Agent; or
(iv) amend, modify or waive any provision of Section 5 without the
written consent of each Issuing Bank directly affected thereby.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrowers, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrowers, the Lenders
<PAGE> 64
59
and the Administrative Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
14.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile or
electronic mail transmission) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made (a) in the case of delivery by
hand, when delivered, (b) in the case of delivery by mail, three days after
being deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile or electronic mail transmission, when sent and receipt has been
confirmed, addressed as follows in the case of the Borrowers and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto:
<TABLE>
<S> <C>
The Company: Reebok International Ltd.
100 Technology Center Drive
Stoughton, Massachusetts 02072
Attention: Kenneth Watchmaker, CFO
Fax: 781/401-4422
Email: [email protected]
with a copy to: Attention: General Counsel
Fax: 781/401-4780
After June 1, 2000: Reebok International Ltd.
1895 J.W. Foster Boulevard
Canton, Massachusetts 02021
Fax: 781/401-4422
Reebok-UK: Reebok International Limited
c/o Stephens & Associates
11 1/2 Pall Mall, 4th Floor
London SW1Y 5LU
Attention: Company Secretary
Fax: 011-44-171-930-0083
Email: [email protected]
with a copy to: Reebok International Ltd.
100 Technology Center Drive
Stoughton, Massachusetts 02072
Attention: Kenneth Watchmaker, CFO
Fax: 781/401-4422
</TABLE>
<PAGE> 65
60
<TABLE>
<S> <C>
The Administrative Agent: Credit Suisse First Boston
11 Madison Avenue
New York, New York 10010
Attention: Julia Kingsbury
Fax: 212/325-8304
Email: [email protected]
</TABLE>
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 3.2, 4.2, 6.3, 6.4, 6.5 or 6.10 shall
not be effective until received.
14.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
14.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
14.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender, the Documentation Agent and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the reasonable fees and
disbursements of counsel to each Lender, of counsel to the Documentation Agent
and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each
Lender, each Co-Agent, the Documentation Agent and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender, each Co-Agent, the Documentation Agent and the Administrative Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution,
<PAGE> 66
61
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents or the use of the proceeds of the Loans and any such other
documents, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Company, any of its Subsidiaries or any of
the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Company shall have no obligation
hereunder to the Administrative Agent, the Documentation Agent, any Co-Agent or
any Lender with respect to indemnified liabilities to the extent arising from
the gross negligence or willful misconduct of the Administrative Agent, the
Documentation Agent, such Co-Agent or such Lender. The agreements in this
subsection 14.6 shall survive repayment of the Loans and all other amounts
payable hereunder.
14.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, the Administrative Agent and their respective successors and assigns,
except that neither Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other financial institutions ("Participants") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents; provided
that any Lender which sells such participating interests to a Participant which
is not a commercial bank, savings bank or finance company shall give notice to
the Company, identifying such Participant, promptly following the consummation
of such sale. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Company and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 14.1. The Borrowers agree
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 14.7(a) as fully as if it
were a Lender hereunder. The Borrowers also agree that each Participant shall be
entitled to the benefits of subsections 6.12, 6.13 and 6.14 with respect to its
participation in the Commitments
<PAGE> 67
62
and the Loans outstanding from time to time as if it was a Lender; provided
that, in the case of subsection 6.13, such Participant shall have complied with
the requirements of said subsection and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such subsection
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof or, with the consent of the
Company and the Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial institution (an
"Assignee") all or any part of its rights and obligations under this Agreement
and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit E, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an affiliate thereof, by the Company and the Administrative Agent) and delivered
to the Administrative Agent for its acceptance and recording in the Register,
provided that, in the case of any such assignment to an additional bank or
financial institution, (x) the sum of the aggregate principal amount of the
Domestic Term Loans (or, prior to the Closing Date, the Domestic Term Loan
Commitment), the aggregate principal amount of the UK Term Loans (or, prior to
the Closing Date, the UK Term Loan Commitment) and the aggregate amount of the
Revolving Credit Commitment being assigned are not less than $25,000,000 (or
such lesser amount as may be agreed to by the Company and the Administrative
Agent) and (y) if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Domestic Term Loans (or, prior to the Closing Date, the Domestic Term
Loan Commitment), the UK Term Loans (or, prior to the Closing Date, the UK Term
Loan Commitment) and the aggregate amount of the Revolving Credit Commitment
remaining with the assigning Lender are not less than $10,000,000 (or such
lesser amount as may be agreed to by the Company and the Administrative Agent).
Upon such execution, delivery, acceptance and recording (and the payment of the
registration and processing fee described in clause (e) below), from and after
the effective date determined pursuant to such Assignment and Acceptance, (x)
the Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (e) of this subsection, the consent of the Company
shall not be required for any assignment which occurs at any time when any of
the events described in Section 12(f) shall have occurred and be continuing.
Notwithstanding anything to the contrary contained herein, any assignment made
pursuant to this clause (c) shall be of a ratable share of the UK Term Loans,
the Domestic Term Loans and the Revolving Credit Commitment of the assigning
Lender.
(d) The Administrative Agent, on behalf of the Borrowers, shall maintain
at the address of the Administrative Agent referred to in subsection 14.2 a copy
of each Assignment
<PAGE> 68
63
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amounts of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Administrative Agent and the Lenders may (and, in the
case of any Loan or other obligation hereunder not evidenced by a Note, shall)
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder not evidenced
by a Note shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Company and the Administrative
Agent), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 and delivery to the Administrative Agent of any forms
or statements required pursuant to subsection 6.13(c) and such administrative
information as the Administrative Agent may reasonably request, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Company; provided that (x) no such fee
shall be payable with respect to any assignment from an assigning Lender to an
affiliate thereof and (y) such fee shall be payable by the Company with respect
to any assignment effected at the request of the Company pursuant to subsection
6.16.
(f) Each Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning such Borrower and
its Affiliates which has been delivered to such Lender by or on behalf of such
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of such Borrower in connection with such Lender's credit
evaluation of the Borrowers and their respective Affiliates prior to becoming a
party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 14.6 concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
(h) Notwithstanding anything to the contrary contained herein, any Bank
(a "Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Bank would otherwise be obligated to
make to the Borrower pursuant to this Agreement; provided that (i)
<PAGE> 69
64
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 14.6 any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Bank or to any
financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This subsection may not be amended without
the written consent of each SPC to which a grant has been made pursuant to this
subsection.
14.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender") at
any time shall receive any payment of all or part of its Domestic Term Loans, UK
Term Loans or its Revolving Credit Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 12(f),
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Domestic
Term Loans, UK Term Loans or Revolving Credit Loans (as the case may be), or
interest thereon, such benefitted Lender shall purchase for cash from the other
Lenders such portion of each such other Lender's Domestic Term Loan, UK Term
Loan or Revolving Credit Loans (as the case may be), or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders; and
if after taking into account such sharing the benefitted Lender continues to
have access to additional funds of or collateral granted by a Borrower for
application on account of its debt, then the benefitted Lender shall use such
funds or collateral to reduce indebtedness of such Borrower held by it and share
such payments and the benefits of such collateral with the other Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. Each Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
<PAGE> 70
65
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to either
Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by a
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch, agency or (to
the extent permitted by applicable law) banking affiliate thereof to or for the
credit or the account of such Borrower. Each Lender agrees promptly to notify
such Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
14.8 Judgment Currency. (a) The obligations of Reebok-UK in respect
of the UK Term Loans and amounts owing on account thereof shall, notwithstanding
any judgment in a currency (the "judgment currency") other than Dollars, be
discharged only to the extent that on the Business Day following receipt by the
relevant Lender of any sum adjudged to be so due in the judgment currency such
Lender may in accordance with normal banking procedures purchase Dollars with
the judgment currency; if the amount of Dollars so purchased is less than the
sum originally due to such Lender in Dollars, Reebok-UK agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender
against such loss, and if the amount of Dollars so purchased exceeds the sum
originally due to any party to this Agreement, such Lender agrees to remit to
Reebok-UK such excess.
(b) The obligations of the Borrower in respect of any Reimbursement
Obligation owing on account of any Special Letters of Credit to the relevant
Issuing Bank hereunder shall, notwithstanding any judgment currency other than
the currency in which such Special Letter of Credit is denominated (the
"denomination currency"), be discharged only to the extent that on the Business
Day following receipt by such party of any sum adjudged to be so due in the
judgment currency such Issuing Bank may in accordance with normal banking
procedures purchase the denomination currency with the judgment currency; if the
amount of the denomination currency so purchased is less than the sum originally
due to such Issuing Bank in the denomination currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Issuing Bank against such loss, and if the amount of the denomination currency
so purchased exceeds the sum originally due to any party to this Agreement, such
Issuing Bank agrees to remit to the Borrower such excess.
14.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agent.
14.10 Confidentiality. (a) Each Lender hereby agrees to maintain the
confidentiality of all "Confidential Information" and agrees that it shall not
disclose such
<PAGE> 71
66
"Confidential Information" to third parties without the prior consent of the
Company, other than disclosure (i) on a confidential basis to directors,
officers, employees, legal counsel, accountants and other professional advisors
of such Lender, (ii) to other Lenders and any Participant of such Lender, (iii)
to regulatory officials having jurisdiction over such Lender, (iv) as required
by law or legal process or in connection with any legal proceeding to which such
Lender is a party or is otherwise subject, (v) to any Transferee or prospective
Transferee of such Lender (provided that such Transferee or prospective
Transferee shall have agreed, in writing, to be subject to the provisions of
this subsection 14.10) or (vi) on a confidential basis to affiliates of such
Lender who reasonably could be expected to have a need to know such information
in connection with the administration by such Lender of this Agreement and its
extensions of credit hereunder.
(b) For purposes of this subsection 14.10, the term "Confidential
Information" shall mean all material, non-public information which is received
by such Lender from the Company or any of its Subsidiaries and is conspicuously
identified as being "Confidential", other than (i) any such information which,
at the time of delivery or thereafter, becomes generally available to the public
other than as a result of a disclosure by such Lender, (ii) any such information
which was available to such Lender prior to its disclosure to such Lender by the
Company and its Subsidiaries and (iii) any such information which becomes
available to such Lender from a source other than the Company and its
Subsidiaries (provided that such source is not known to such Lender to be (x)
bound by a confidentiality agreement with the Company and its Subsidiaries or
(y) otherwise prohibited from transmitting the information to such Lender by a
contractual, legal or fiduciary obligation).
14.11 Severability. Any provision of this Agreement which 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.12 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
14.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.14 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition
<PAGE> 72
67
and enforcement of any judgement in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company (on its own behalf or as process agent for Reebok-UK) at its
address set forth in subsection 14.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, except in the case of extreme bad faith (and otherwise
to the maximum extent not prohibited by law), any right it may have to
claim or recover in any legal action or proceeding referred to in this
subsection 14.14 any special, exemplary, punitive or consequential
damages.
14.15 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrowers, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrowers and the Lenders.
14.16 WAIVERS OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
<PAGE> 73
REEBOK INTERNATIONAL LTD.
By: /s/ Kenneth Watchmaker
---------------------------
Title: Executive Vice President,
CFO, and Treasurer
<PAGE> 74
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: /s/ Julia P. Kingsbury
-------------------------------
Title: JULIA P. KINGSBURY
VICE-PRESIDENT
By: /s/ Jodi A. Fatto
-------------------------------
Title: JODI A. FATTO
ASSISTANT VICE-PRESIDENT
<PAGE> 75
THE BANK OF NOVA SCOTIA, as a
Lender of Domestic Term Loans
and of Revolving Credit Loans
By: /s/ Terry Pitcher
---------------------------
Title:
--------------------
Authorized Signatory
<PAGE> 76
CREDIT LYONNAIS NEW YORK BRANCH,
as a Co-Agent and as a Lender
By: /s/ S.R. Chappelka
---------------------------
Title: Vice-President
<PAGE> 77
BANK OF MONTREAL, as a Co-Agent
and as a Lender
By: /s/ Michael J. Solski
---------------------------
Michael J. Solski
Title: Director
<PAGE> 78
THE SANWA BANK, LIMITED, New York
Branch, as a Co-Agent and as a
Lender of Domestic Term Loans and
Revolving Credit Loans
By: /s/ Joseph E. Leo
-----------------------------
Title: Joseph E. Leo
Vice-President
and Area Manager
<PAGE> 79
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Robert Hetu
---------------------------------
Title: ROBERT HETU
VICE-PRESIDENT
By: /s/ Chris T. Horgan
---------------------------------
Title: CHRIS T. HORGAN
VICE-PRESIDENT
<PAGE> 80
BANK OF MONTREAL
By: /s/ Michael J. Solski
------------------------
Title: Michael J. Solski
Director
<PAGE> 81
BANQUE NATIONALE DE PARIS
By: /s/ Richard L. Sted
---------------------------------
Title: RICHARD L. STED
Senior Vice-President
By: /s/ Richard Pace
---------------------------------
Title: Richard Pace
Vice President
Corporate Banking Division
<PAGE> 82
FLEET NATIONAL BANK
By: /s/ Thomas J. Bullard
--------------------------
Title: THOMAS J. BULLARD
VICE-PRESIDENT
<PAGE> 83
FLEET NATIONAL BANK
By: /s/Thomas J. Bullard
Title: Vice-President
<PAGE> 84
STANDARD CHARTERED BANK
By: /s/ Robert Miller
-----------------------------
Title: Senior Vice President
By: /s/ Natalie Yang
-----------------------------
Title: Vice President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 85
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: /s/ Jeff Lubatkin
-------------------------------
Title: Vice President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 86
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/Thomas Fennessey
Title: Vice President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 87
SOCIETE GENERALE
By: /s/ Jerry Parisi
Title: Managing Director
<PAGE> 88
BANK OF AMERICA, N.A.
By: /s/ Lisa B. Choi
Title: Vice President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 89
CIBC INC.
By: /s/ Katherine Bass
Title: Executive Director
CIBC World Markets Corp. As Agent
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 90
CITICORP USA, Inc.
By: /s/ Robert M. Spence
-----------------------------
Title: Managing Director
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 91
ABN AMRO BANK N.V.
By: /s/ James Davis
--------------------------------
Title: Group Vice President
By: /s/ David Carroll
--------------------------------
Title: Assistant Vice President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 92
RZB FINANCE LLC
By: /s/Klaus D. Hein
Title: Vice President
By: /s/Dieter Beintrexler
Title: President
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
<PAGE> 93
SAN PAOLO IMI S.P.A.
By: /s/ Luca Sacchi
Title: VP
By: /s/ Carlo Persico
Title: D.G.M.
<PAGE> 94
SCHEDULE I
LENDERS; ADDRESSES FOR NOTICES
ABN AMRO BANK N.V.
One Post Office Square
39th Floor
Boston, Massachusetts 02109-4000
Attention: David Carroll
Telecopier: 617/988-7910
Email: [email protected]
Attention: James E. Davis
Telecopier: 617/988-7910
Email: [email protected]
BANK OF AMERICA, N.A.
335 Madison Avenue
5th Floor
New York, New York 10017
Attention: Lisa Choi
Telecopier: 212/503-7066
Email: [email protected]
BANK OF MONTREAL
115 South LaSalle Street, 12th Floor
Chicago, Illinois 60603
Attention: Bruce Pietka
Telecopier: 312/750-6057
Email: [email protected]
BANK OF MONTREAL
One First Canadian Place
24th Floor
Toronto-Ontario
Canada M5X-1A1
Attention: Mike Solski
Telecopier: 416/867-5785
Email: [email protected]
THE BANK OF NOVA SCOTIA
28 State Street- Floor 17
Boston, Massachusetts 02109
Attention: Stephanie Empkins
Email: [email protected]
Attention: Paula McDonald
Email: [email protected]
Attention: Terry Pitcher
Email: [email protected]
<PAGE> 95
2
Attention: Kenneth Raymie
Email:[email protected]
Telecopier: 617/624-7607
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
1251 Avenue of Americas
New York, New York 10020
Attention: Tom Fennessey
Telecopier: 212/782-6440
Email: [email protected]
BANKONE, NA
153 West 51st Street- 6th Floor
New York, New York 10019
Attention: Jeff Lubatkin
Email: [email protected]
Attention: Randy Faust
Email: [email protected]
Attention: Thomas Harkless
Email: [email protected]
Telecopier: 212/373-1388
BANQUE NATIONALE DE PARIS
499 Park Avenue
New York, New York 10022
Attention: Richard Pace
Telecopier: 212/415-9606
Email: [email protected]
CIBC INC.
425 Lexington Avenue
New York, New York 10017
Attention: George Knight
Telecopier: 212/856-3799
Email: [email protected]
CITICORP USA, INC.
399 Park Avenue
New York, New York 10043
Attention: Robert Snell
Telecopier: 212/793-1485
Email: [email protected]
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Americas
New York, New York 10019
<PAGE> 96
3
Attention: Mary Collier
Telecopier: 212/459-3179
Email: [email protected]
Attention: Phillip Schubert
Telecopier: 212/459-3179
Email: [email protected]
Attention: John Servin
Telecopier: 212/459-3776
Email: [email protected]
FLEET BOSTON FINANCIAL
One Federal Street
7th Floor
Boston, Massachusetts 02110
Attention: Alexis Griffin
Telecopier: 617/434-6685
Email: [email protected]
Attention: Tom Bullard
Telecopier: 617/434-6685
Email: [email protected]
THE FUJI BANK, LIMITED, NEW YORK BRANCH
Two World Trade Center
79th Floor
New York, New York 10048
Attention: Ramon Ventura
Telecopier: 212/898-2399
Email: [email protected]
HSBC
140 Broadway
5th Floor
New York, New York 10005
Attention: Adriana Collins
Telecopier: 212/658-5109
Email: [email protected]
SAN PAOLO IMI S.P.A.
245 Park Avenue
New York, New York 10167
Attention: Luca Sacchi
Telecopier: 212/692-3178
Email: [email protected]
RZB FINANCE LLC
1133 Avenue of the Americas
<PAGE> 97
4
16th Floor
New York, New York 10036
Attention: Klaus Hein
Telecopier: 212/944-2093
Email: [email protected]
Attention: Marc Wancer
Telecopier: 212/944-2093
Email: [email protected]
THE SANWA BANK, LIMITED
55 East 52nd Street
New York, New York 10055
Attention: Joseph Leo
Telecopier: 212/754-1304
SOCIETE GENERALE
1221 Avenue of the Americas
New York, New York 10020
Attention: Jerry Parisi
Telecopier: 212/278-7430
Email: [email protected]
STANDARD CHARTERED BANK
Seven World Trade Center
New York, New York 10048
Attention: Robert Reddington
Telecopier: 212/667-0568
Email: [email protected]
Attention: Yolanda Rodriguez
Telecopier: 212/667-0568
Email: [email protected]
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
277 Park Avenue
New York, New York 10172
Attention: Toivo Kiiver
Telecopier: 212/224-4384
Email: [email protected]
WACHOVIA BANK OF GEORGIA, N.A.
191 Peachtree Street, NE
Atlanta, Georgia 30303
Attention: Henry Hagan
Telecopier: 404/332-6898
Email: [email protected]
Attention: Sharon Prince
<PAGE> 98
5
Telecopier: 404/332-6898
Email: [email protected]
Attention: John Rafferty
Telecopier: 404/332-6898
Email: [email protected]
<PAGE> 99
SCHEDULE II
COMMITMENTS AND COMMITMENT PERCENTAGES
<TABLE>
<CAPTION>
Domestic Term UK Term Loan Revolving Credit Commitment
Lender Loan Commitment Commitment Commitment Percentage
<S> <C> <C> <C> <C>
Credit Suisse First Boston $33,393,617.05 $7,765,957.46 $23,297,872.36 7.7659574
Citibank, N.A. 32,021,276.60 7,446,808.51 22,340,425.53 7.4468085
Bank of Montreal 27,446,808.51 6,382,978.72 19,148,936.17 6.3829787
Credit Lyonnais 27,446,808.51 6,382,978.72 19,148,936.17 6.3829787
Fleet National Bank 27,446,808.51 6,382,978.72 19,148,936.17 6.3829787
Sanwa Bank, Limited 27,446,808.51 6,382,978.72 19,148,936.17 6.3829787
Wachovia Bank of Georgia, N.A. 27,446,808.51 6,382,978.72 19,148,936.17 6.3829787
Bank of America, N.A. 40,255,319.14 9,361,702.12 28,085,106.38 9.3617022
HSBC 19,148,936.17 6.3829788
Bank of Tokyo-Mitsubishi Trust Company 20,127,659.57 4,680,851.06 14,042,553.19 4.6808511
Banque National de Paris 20,127,659.57 4,680,851.06 14,042,553.19 4.6808511
CIBC Inc. 20,127,659.57 4,680,851.06 14,042,553.19 4.6808511
First National Bank of Boston 20,127,659.57 4,680,851.06 14,042,553.19 4.6808511
Fuji Bank, Limited 20,127,659.57 4,680,851.06 10,302,033.49 3.4340111
ABN Amro Bank N.V. 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
Bank of Nova Scotia 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
Bank One, NA 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
San Paolo IMI S.p.A. 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
Societe Generale 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
Standard Chartered Bank 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
Sumitomo Bank, Limited 12,351,063.83 2,872,340.43 8,617,021.28 2.8723404
RZB LLC Finance 3,740,519.70 1.2468399
TOTAL $430,000,000.00 $100,000,000.00 $300,000,000.00 100.0000%
</TABLE>
<PAGE> 100
EXHIBIT A to
Credit Agreement
FORM OF
DOMESTIC TERM NOTE
$_______________
New York, New York
March__, 2000
FOR VALUE RECEIVED, the undersigned, REEBOK INTERNATIONAL LTD., a
Massachusetts corporation (the "Company"), hereby unconditionally promises to
pay to the order of ____________________ (the "Lender") at the office of Credit
Suisse First Boston, located at 11 Madison Avenue, New York, New York 10010, in
lawful money of the United States of America and in immediately available funds,
the principal amount of ____________ DOLLARS ($______), or, if less, the unpaid
principal amount of the Domestic Term Loan made by the Lender pursuant to
subsection 2.1 of the Credit Agreement, as hereinafter defined. The principal
amount shall be paid in the amounts and on the dates specified in subsection
2.3. The Company further agrees to pay interest in like money at such office on
the unpaid principal amount hereof from time to time outstanding at the rates
and on the dates specified in subsections 6.5 and 6.7 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the
Domestic Term Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto. Each such endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed. The failure to make any such
endorsement shall not affect the obligations of the Company in respect of such
Domestic Term Loan.
This Note (a) is one of the Domestic Term Notes referred to in the
Second Amended and Restated Credit and Guarantee Agreement, dated as of March
22, 2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Company, Reebok International Limited, the
Lender, the other banks and financial institutions from time to time parties
thereto, the Co-Agents named therein, the Documentation Agent named therein and
Credit Suisse First Boston, as administrative agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
<PAGE> 101
2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
REEBOK INTERNATIONAL LTD.
By:
------------------------------
Title:
<PAGE> 102
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 103
Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of Principal
Amount of Amount Converted Eurodollar Rate with of Eurodollar Loans
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid
<S> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Amount of Eurodollar Unpaid Principal
Loans Converted Balance of Eurodollar Notation
Date to ABR Loans Loans Made By
<S> <C> <C> <C>
</TABLE>
<PAGE> 104
EXHIBIT B to
Credit Agreement
FORM OF
REVOLVING CREDIT NOTE
$______________
New York, New York
March__, 2000
FOR VALUE RECEIVED, the undersigned, REEBOK INTERNATIONAL LTD., a
Massachusetts corporation (the "Company"), hereby unconditionally promises to
pay to the order of _____________ (the "Lender") at the office of Credit Suisse
First Boston, located at 11 Madison Avenue, New York, New York 10010, in lawful
money of the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) ________ DOLLARS ($_____), or, if
less, (b) the aggregate unpaid principal amount of all Revolving Credit Loans
made by the Lender to the Company pursuant to subsection 3.1 of the Credit
Agreement, as hereinafter defined. The Company further agrees to pay interest in
like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in subsections 6.5 and
6.7 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Company in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Second Amended and Restated Credit and Guarantee Agreement, dated as of March
22, 2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Company, Reebok International Limited, the
Lender, the other banks and financial institutions from time to time parties
thereto, the Co-Agents named therein, the Documentation Agent named therein and
Credit Suisse First Boston, as administrative agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
<PAGE> 105
2
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
REEBOK INTERNATIONAL LTD.
By:
------------------------------------
Title:
<PAGE> 106
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans of Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 107
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of Principal of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid
<S> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Amount of Eurodollar Unpaid Principal
Loans Converted to Balance of Eurodollar Notation
Date ABR Loans Loans Made By
<S> <C> <C> <C>
</TABLE>
<PAGE> 108
EXHIBIT C to
Credit Agreement
FORM OF
UK TERM NOTE
$ New York, New York
March __, 2000
FOR VALUE RECEIVED, the undersigned, REEBOK INTERNATIONAL LIMITED, a
corporation organized and existing under the laws of the United Kingdom (the
"Company"), hereby unconditionally promises to pay to the order of (the
"Lender") at the office of Credit Suisse First Boston, located at 11 Madison
Avenue, New York, New York 10010, in lawful money of the United States of
America and in immediately available funds, the principal amount of DOLLARS
($ ), or, if less, the unpaid principal amount of the UK Term Loan made by
the Lender pursuant to subsection 4.1 of the Credit Agreement, as hereinafter
defined. The principal amount shall be paid in the amounts and on the dates
specified in subsection 4.3. The Company further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in subsections 6.5 and 6.7
of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the UK
Term Loan and the date and amount of each payment or prepayment of principal
with respect thereto, each conversion of all or a portion thereof to another
Type, each continuation of all or a portion thereof as the same Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Company in respect of such UK Term Loan.
This Note (a) is one of the UK Term Notes referred to in the Second
Amended and Restated Credit and Guarantee Agreement, dated as of March 22, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Company, Reebok International Ltd., the Lender, the other
banks and financial institutions from time to time parties thereto, the
Co-Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
<PAGE> 109
2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
REEBOK INTERNATIONAL LIMITED
By:
Title:
<PAGE> 110
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans of Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 111
Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of Principal of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid
<S> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Amount of Eurodollar Unpaid Principal
Loans Converted to Balance of Eurodollar Notation
Date ABR Loans Loans Made By
<S> <C> <C> <C>
</TABLE>
<PAGE> 112
EXHIBIT D to
Credit Agreement
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit and
Guarantee Agreement, dated as of March 22, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Reebok
International Ltd. (the "Company"), Reebok International Limited, the Lenders
named therein, the Co-Agents named therein, the Documentation Agent named
therein and Credit Suisse First Boston, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
(a) The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Loans and Commitments under the Credit
Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 hereto (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities"), in a principal amount for
each Assigned Facility as set forth on Schedule 1 hereto (which principal amount
shall constitute a ratable share of the Domestic Term Loans, the UK Term Loans
and the Revolving Credit Commitments).
(b) The Assignor (a) 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 or with respect to 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 the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company, any of its Subsidiaries or any other obligor
or the performance or observance by the Company, any of its Subsidiaries or any
other obligor of any of their respective obligations under the Credit Agreement
or any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches any Notes held by it evidencing the
Assigned Facilities and (i) requests that the Administrative Agent, upon request
by the Assignee, exchange the attached Notes for a new Note or Notes payable to
the Assignee and (ii) if the Assignor has retained any interest in the Assigned
Facility, requests that the Administrative Agent exchange the attached Notes for
a new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
<PAGE> 113
2
(c) The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 7.1 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; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
6.13 of the Credit Agreement.
(d) The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
(e) Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
(f) From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
(g) This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE> 114
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
RELATING TO THE SECOND AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT,
DATED AS OF MARCH 22, 2000,
AMONG
REEBOK INTERNATIONAL LTD., REEBOK INTERNATIONAL
LIMITED,
THE LENDERS NAMED THEREIN, THE CO-AGENTS NAMED
THEREIN,
THE DOCUMENTATION AGENT NAMED THEREIN
AND
CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
<TABLE>
<CAPTION>
Principal Commitment Percentage
Credit Facility Assigned Amount Assigned Assigned
<S> <C> <C>
Domestic Term Loans $ . %
UK Term Loans $ . %
Revolving Credit Commitment $ . %
</TABLE>
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
Title: Title:
Accepted: [Consented To:
CREDIT SUISSE FIRST BOSTON, as REEBOK INTERNATIONAL LTD.
Administrative Agent
By:
Title:]
By:
Title:
By:
Title:
<PAGE> 115
EXHIBIT E-1 to
Credit Agreement
FORM OF
NOTICE OF BORROWING (DRAWINGS)
To: Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
This Notice of Borrowing is given pursuant to Section 2.2, Section 3.2
and/or Section 4.2 of the Second Amended and Restated Credit and Guarantee
Agreement, dated as of March 22, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Reebok International
Ltd., Reebok International Limited, the banks and other financial institutions
parties thereto (the "Lenders"), the Co-Agents named therein, the Documentation
Agent named therein and Credit Suisse First Boston, as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders. Any and all
initially capitalized terms used herein have the meanings ascribed thereto in
the Credit Agreement unless otherwise specifically defined herein.
The undersigned hereby (one checked as applicable):
[ ] gives Administrative Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to
Administrative Agent
that it requests the making of a Domestic Term Loan, a UK Term Loan and/or
Revolving Credit Loan under the Credit Agreement as follows:
1. Date of Loan. The requested date of the proposed Loan is___________,
20__.
2. Amount of Loan. The requested aggregate principal amount of the
requested Term Loans and/or Revolving Credit Loans is:
<TABLE>
<CAPTION>
<S> <C>
Domestic Term Loans: $ .
UK Term Loans: $ .
Revolving Credit Loans: $ .
</TABLE>
<PAGE> 116
2
4. Rate Option and Interest Period. The requested interest rate option
and (if applicable) Interest Period for the proposed Loan is:
A. Domestic Term Loans:
[ ] (i) The Eurodollar Rate for an Interest Period of (check and
complete as applicable):
[ ] 1 month for $_______________
[ ] 2 months for $_______________
[ ] 3 months for $_______________
[ ] 6 months for $_______________
[ ] (ii) ABR for $________________.
B. UK Term Loans:
[ ] (i) The Eurodollar Rate for an Interest Period of (check and
complete as applicable):
[ ] 1 month for $_______________
[ ] 2 months for $_______________
[ ] 3 months for $_______________
[ ] 6 months for $_______________
[ ] (ii) ABR for $________________.
C. Revolving Credit Loans:
[ ] (i) The Eurodollar Rate for an Interest Period of (check and
complete as applicable):
[ ] 1 month for $_______________
[ ] 2 months for $_______________
[ ] 3 months for $_______________
[ ] 6 months for $_______________
[ ] (ii) ABR for $________________.
[REEBOK INTERNATIONAL LTD.][REEBOK
INTERNATIONAL LIMITED]
Dated: , 20 . By:
Title:
<PAGE> 117
EXHIBIT E-2 to
Credit Agreement
FORM OF
NOTICE OF BORROWING (CONTINUATIONS)
To: Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
This Notice of Borrowing is given pursuant to Section 6.5 of the Second
Amended and Restated Credit and Guarantee Agreement, dated as of March 22, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Reebok International Ltd., Reebok International Limited, the
banks and other financial institutions parties thereto (the "Lenders"), the
Co-Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders. Any and all initially capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement unless otherwise
specifically defined herein.
The undersigned hereby (one checked as applicable):
[ ] gives Administrative Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to
Administrative Agent
that it requests the continuation of a Eurodollar Loan under the Credit
Agreement as follows:
1. Type of Loan. The Eurodollar Loan to be continued is (one checked as
applicable):
[ ] Domestic Term Loan
[ ] UK Term Loan
[ ] Revolving Credit Loan
2. Expiration. The expiration of the Interest Period presently
applicable to such Eurodollar Loan is _______________, 20___.
3. Amount to be Continued. The requested aggregate amount of such
Eurodollar Loan to be continued is: $_______________ .
4. Interest Period. The Interest Period for the proposed Loan is:
[ ] 1 month for $_______________
[ ] 2 months for $_______________
[ ] 3 months for $_______________
[ ] 6 months for $_______________
<PAGE> 118
2
[REEBOK INTERNATIONAL LTD.][REEBOK
INTERNATIONAL LIMITED]
By
Dated: , 20 . Title:
<PAGE> 119
EXHIBIT E-3 to
Credit Agreement
FORM OF
NOTICE OF BORROWING (CONVERSIONS)
To: Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
This Notice of Borrowing is given pursuant to Section 6.5 of the Second
Amended and Restated Credit and Guarantee Agreement, dated as of March 22, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Reebok International Ltd., Reebok International Limited, the
banks and other financial institutions parties thereto (the "Lenders"), the
Co-Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders. Any and all initially capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement unless otherwise
specifically defined herein.
The undersigned hereby (one checked as applicable):
[ ] gives Administrative Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to
Administrative Agent
that it requests the continuation of a Eurodollar Loan under the Credit
Agreement as follows:(1)
A. Conversion from ABR Loan to Eurodollar Loan.
1. Type of Loan. The ABR Loan to be converted into a Eurodollar
Loan is a (one checked as applicable):
[ ] Domestic Term Loan
[ ] UK Term Loan
[ ] Revolving Credit Loan
2. Date of Conversion. The date upon which such conversion is to occur
is _______, 20 __.
3. Amount to be Converted. The requested aggregate amount of such ABR
Loan to be converted into a Eurodollar Loan is: $_______________ .
- --------
(1) Insert Part A and/or B, as applicable.
<PAGE> 120
2
4. Interest Period. The Interest Period for the proposed Loan is:
[ ] 1 month for $_______________
[ ] 2 months for $_______________
[ ] 3 months for $_______________
[ ] 6 months for $_______________
B. Conversion from Eurodollar Loan to ABR Loan.
1. Type of Loan. The Eurodollar Loan to be converted into an ABR Loan
is a (one checked as applicable):
[ ] Domestic Term Loan
[ ] UK Term Loan
[ ] Revolving Credit Loan
2. Date of Conversion. The date upon which such conversion is to occur
is ____________, 20__.
3. Expiration. The expiration of the Interest Period presently
applicable to such Eurodollar Loan is ____________, 20__ and the Interest Period
presently applicable thereto is _____ months.
4. Amount to be Converted. The requested aggregate amount of such
Eurodollar Loan to be converted into an ABR Loan is: $________.
[REEBOK INTERNATIONAL LTD.][REEBOK
INTERNATIONAL LIMITED]
By
Dated: , 20 . Title:
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 238,449
<SECURITIES> 0
<RECEIVABLES> 618,911
<ALLOWANCES> 43,997
<INVENTORY> 370,267
<CURRENT-ASSETS> 1,306,127
<PP&E> 399,592
<DEPRECIATION> 238,096
<TOTAL-ASSETS> 1,608,705
<CURRENT-LIABILITIES> 654,295
<BONDS> 360,232
0
0
<COMMON> 934
<OTHER-SE> 556,243
<TOTAL-LIABILITY-AND-EQUITY> 1,608,705
<SALES> 769,829
<TOTAL-REVENUES> 774,674
<CGS> 478,704
<TOTAL-COSTS> 478,704
<OTHER-EXPENSES> 233,610
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,081
<INCOME-PRETAX> 52,279
<INCOME-TAX> 20,567
<INCOME-CONTINUING> 31,712
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 31,712
<EPS-BASIC> .56
<EPS-DILUTED> .56
</TABLE>
