EXHIBIT 4.01
____________
CREDIT AGREEMENT
Dated as of December 1, 2006
among
NIKE, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITICORP USA, INC.,
as Syndication Agent,
HSBC BANK USA, N.A., THE BANK OF TOKYO MITSUBISHI UFJ, LTD. and
DEUTSCHE BANK SECURITIES INC.,
as Co-Documentation Agents,
and
The Other Banks Party Hereto
BANC OF AMERICA SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.,
s Co-Lead Arrangers and Co-Book Managers
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER INTERPRETIVE PROVISIONS 1
1.1. Defined Terms 1
1.2. Other Interpretive Provisions 13
1.3. References to Agreements and Laws 14
ARTICLE II THE FACILITY 14
2.1. The Facility 14
2.2. Ratable Advances 14
2.3. Competitive Bid Advances 16
2.4. Fees 19
2.5. General Facility Terms 20
2.6. Extension of Termination Date 24
ARTICLE III TAXES, CHANGE IN CIRCUMSTANCES 25
3.1. Taxes 25
3.2. Yield Protection 26
3.3. Availability of Rate Options 27
3.4. Funding Indemnification 27
3.5. Regulation D Compensation 27
3.6. Bank Statements; Survival of Indemnity 28
3.7. Removal of Banks 28
ARTICLE IV CONDITIONS PRECEDENT 28
4.1. Closing 28
4.2. Each Advance 29
ARTICLE V REPRESENTATIONS AND WARRANTIES 30
5.1. Corporate Existence 30
5.2. Authorization and Validity 30
5.3. No Conflict; Government Consent 30
5.4. Financial Statements 30
5.5. Taxes 30
5.6. Litigation and Contingent Obligations 31
5.7. Subsidiaries 31
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5.8. ERISA 31
5.9. Accuracy of Information 31
5.10. Regulation U 31
5.11. Material Agreements 31
5.12. Compliance With Laws 32
5.13. Ownership of Properties 32
5.14. Post-Retirement Benefits 32
5.15. Environmental and Safety and Health Matters 32
ARTICLE VI COVENANTS 32
6.1. Financial Reporting 32
6.2. Use of Proceeds 33
6.3. Notice of Default 34
6.4. Preservation of Existence; Conduct of Business 34
6.5. Taxes 34
6.6. Insurance 34
6.7. Compliance with Laws 34
6.8. Maintenance of Properties; Trademarks and Franchises 35
6.9. Inspection 35
6.10. Dividends 35
6.11. Merger 35
6.12. Sale of Assets 35
6.13. Sale and Leaseback 35
6.14. Acquisitions 36
6.15. Liens 36
6.16. Affiliates 37
6.17. Capitalization Ratio 37
6.18. Notice of Rating Change 37
ARTICLE VII DEFAULTS 37
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 39
8.1. Acceleration 39
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8.2. Amendments and Waivers 39
8.3. Preservation of Rights 40
ARTICLE IX NOTICES 41
9.1. Giving Notice 41
9.2. Change of Address 41
ARTICLE X GENERAL PROVISIONS 41
10.1. Survival of Representations 41
10.2. Governmental Regulation 41
10.3. Taxes 41
10.4. Headings 41
10.5. Entire Agreement 41
10.6. Several Obligations 42
10.7. Expenses; Indemnification 42
10.8. Numbers of Documents 43
10.9. Accounting 43
10.10. Severability of Provisions 43
10.11. Nonliability of Banks 43
10.12. Confidentiality 43
10.13. CHOICE OF LAW 44
10.14. CONSENT TO JURISDICTION 44
10.15. WAIVER OF JURY TRIAL 45
10.16. OREGON LEGAL NOTICE 45
10.17. Counterparts 45
10.18. No Advisory or Fiduciary Responsibility 45
10.19. USA PATRIOT Act Notice 46
ARTICLE XI THE ADMINISTRATIVE AGENT 46
11.1. Appointment and Authorization of Administrative Agent 46
11.2. Delegation of Duties 46
11.3. Liability of Administrative Agent 47
11.4. Reliance by Administrative Agent 47
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11.5. Notice of Default 48
11.6. Credit Decision; Disclosure of Information by Administrative
Agent 48
11.7. Indemnification of Administrative Agent 48
11.8. Administrative Agent in Individual Capacity 49
11.9. Successor Administrative Agent 49
11.10. Foreign Banks 50
11.11. Administrative Agent May File Proofs of Claim 50
11.12. Other Agents; Co-Lead Arrangers 51
ARTICLE XII SETOFF; RATABLE PAYMENTS 51
12.1. Setoff 51
12.2. Ratable Payments 52
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 52
13.1. Successors and Assigns 52
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EXHIBITS
________
EXHIBIT A-1 Ratable Note
EXHIBIT A-2 Competitive Bid Note
EXHIBIT B Competitive Bid Quote Request
EXHIBIT C Invitation for Competitive Bid Quotes
EXHIBIT D Competitive Bid Quotes
EXHIBIT E Borrower Counsel Opinion
EXHIBIT F Ratable Borrowing Notice
EXHIBIT G Notice of Conversion/Continuation
EXHIBIT H Compliance Certificate
EXHIBIT I Assignment and Assumption
SCHEDULES
_________
Schedule 1 Subsidiaries
Schedule 2 Liens
Schedule 3 Commitments and Pro Rata Shares
Schedule 4 Eurodollar and Domestic Lending Offices
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CREDIT AGREEMENT
This Credit Agreement, dated as of November __, 2006, is among NIKE,
INC., the Banks and BANK OF AMERICA, N.A., as Administrative Agent, CITICORP
USA, INC., as Syndication Agent, and HSBC BANK USA, LTD., THE BANK OF TOKYO
MITSUBISHI UFJ, LTD. and DEUTSCHE BANK SECURITIES INC., as Co-Documentation
Agents. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER INTERPRETIVE PROVISIONS
_____________________________________________
1.1. Defined Terms. As used in this Agreement, the following terms
_____________
shall have the meanings set forth below:
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
_____________
given Bank for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/1000 of 1%) offered by such Bank
and accepted by the Borrower.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
_____________________
aggregate amount of the several Absolute Rate Loans made by some or all of
the Banks to the Borrower at the same time and for the same Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
_____________________
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
_____________________________
Advance, a period of not less than 7 and not more than 183 days commencing on
a Business Day selected by the Borrower pursuant to this Agreement. If such
Absolute Rate Interest Period would end on a day which is not a Business Day,
such Absolute Rate Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate Loan" means a Competitive Bid Loan which bears interest
__________________
at the Absolute Rate.
"Acquisition" means any material transaction, or any series of related
___________
transactions, consummated after the date of this Agreement, by which the
Borrower or any of the Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise, or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency).
"Additional Bank" has the meaning assigned to that term in Section
_______________ _______
2.6.4.
_____
"Administrative Agent" means Bank of America, in its capacity as
____________________
administrative agent for the Banks pursuant to Article XI, and not in its
__________
individual capacity as a Bank, and any successor Administrative Agent
appointed pursuant to Article XI.
__________
"Administrative Agent-Related Persons" means the Administrative Agent,
____________________________________
together with its Affiliates (including, in the case of Bank of America, in
its capacity as the Administrative Agent and in the case of Banc of America
Securities LLC, in its capacity as the Co-Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Administrative Agent's Office" means the Administrative Agent's address
_____________________________
and, as appropriate, account as set forth on Schedule 4, or such other
__________
address or account as the Administrative Agent may from time to time notify
to the Borrower and the Banks.
"Advance" means a borrowing hereunder consisting of the aggregate amount
_______
of the several Loans made by some or all of the Banks to the Borrower on the
same Borrowing Date, at the same Rate Option (or on the same interest basis
in the case of Competitive Bid Advances) and, where applicable, for the same
Interest Period and includes a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person which, directly or
_________
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership interests, by
contract, or otherwise.
"Agreement" means this Credit Agreement as amended, modified or
_________
supplemented from time to time.
"Agreement Accounting Principles" means generally accepted principles of
_______________________________
accounting as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in Section
_______
5.4.
___
2
"Applicable Facility Fee Rate" means, on any date and with respect to
____________________________
each Commitment whether used or unused, the applicable fee (in basis points)
set forth below based on the Applicable Rating Level on such date (provided,
________
however, that on the Effective Date the Applicable Rating Level shall be
_______
deemed to be Level II):
Applicable Rating Level Facility Fee Rate
(in basis points)
_______________________ _________________
Level I 4.5
Level II 5.0
Level III 6.0
Level IV 7.0
Level V 8.0
Level VI 10.0
"Applicable Margin" means, on any date and with respect to each
_________________
Eurodollar Ratable Loan, the applicable margin set forth below based on the
Applicable Rating Level on such date (provided, however, that on the
________ _______
Effective Date the Applicable Rating Level shall be deemed to be Level II):
Applicable Rating Level Applicable Margin
(in basis points)
_______________________ _________________
▇▇▇▇▇ ▇ ▇▇.▇
▇▇▇▇▇ ▇▇ ▇▇.▇
▇▇▇▇▇ ▇▇▇ 19.0
▇▇▇▇▇ ▇▇ ▇▇.▇
▇▇▇▇▇ ▇ ▇▇.▇
▇▇▇▇▇ ▇▇ ▇▇.▇
"Applicable Rating Level" shall mean and be determined by the ratings
_______________________
issued from time to time by S&P and ▇▇▇▇▇'▇ (or S&P or ▇▇▇▇▇'▇, if ratings
shall be available from only one of such Rating Agencies) in respect of the
Borrower's long-term, senior unsecured, non-credit-enhanced debt in
accordance with the following (provided, however, that on the Effective Date
________ _______
the Applicable Rating Level shall be deemed to be Level II):
Rating Level S&P ▇▇▇▇▇'▇
____________ ___ _______
Level I More favorable than A+ More favorable than A1
Level II A+ A1
Level III A A2
3
Level IV A- A3
Level V BBB+ Baa1
Level VI Less than BBB+ or not rated Less than Baa1 or not rated
For purposes of the foregoing, (a) if ratings are available from both
S&P and ▇▇▇▇▇'▇, and the ratings available from such Rating Agencies do not
correspond to the same rating level on the chart above, then (1) if such
rating levels differ by only one level on the chart above, then the
Applicable Rating Level shall correspond to the higher of the two ratings,
and (2) if such rating levels differ by more than one level on the chart
above, then the Applicable Rating Level shall correspond to that rating which
is one rating higher than the lower of the two ratings; (b) if determinative
ratings shall change (other than as a result of a change in the rating system
used by any applicable Rating Agency) such that a change in the Applicable
Rating Level would result, such change shall effect a change in the
Applicable Rating Level as of the day on which the Administrative Agent
receives notice of such change in determinative ratings (such day, a "Change
______
Day"), and any change in the Applicable Margin shall take effect commencing
___
on such Change Day and ending on the date immediately preceding the next
Change Day; (c) if the rating system of any of the Rating Agencies shall
change prior to the date all Obligations hereunder have been paid and the
Commitments cancelled, the Borrower and the Majority Banks shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such changed rating system, and pending such amendment, if no
Applicable Rating Level is otherwise determinable based upon the foregoing,
the most recent Applicable Rating Level in effect shall apply; (d) if the
Borrower shall fail to give notice to the Administrative Agent of any change
in rating by any Rating Agency in respect of the Borrower's long-term, senior
unsecured debt on the date required by Section 6.18, the Applicable Rating
____________
Level shall be deemed to be Level VI for the period from the date such notice
was required to be delivered to the date such notice is received by the
Administrative Agent; and (e) upon the occurrence of and during the existence
of a Default, the Applicable Rating Level shall be deemed to be Level VI.
"Applicable Utilization Fee Rate" means, on any date, a fee equal to 5.0
_______________________________
basis points for all Applicable Rating Levels.
"Approved Fund" has the meaning assigned to such term in Section
_____________ _______
13.1(h).
_______
"Assignment and Assumption" means an Assignment and Assumption
_________________________
substantially in the form of Exhibit I.
_________
"Attorney Costs" means and includes all fees, expenses and disbursements
______________
of any law firm or other external counsel and, without duplication, the
allocated cost of internal legal services and all expenses and disbursements
of internal counsel.
"Bank of America" means Bank of America, N.A., and its successors.
_______________
"Banks" means the financial institutions acting as lenders hereunder,
_____
listed on the signature pages of this Agreement and their respective
successors and assigns.
4
"Base Rate" means for any day a fluctuating rate per annum equal to the
_________
higher of (a) the Federal Funds Rate plus 1/2 of 1%, and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Borrower" means NIKE, Inc., an Oregon corporation.
________
"Borrowing Date" means a date on which an Advance is made hereunder.
______________
"Business Day" means (i) with respect to any borrowing, payment or rate
____________
selection of Eurodollar Ratable Advances or Eurodollar Bid Rate Advances, a
day other than Saturday or Sunday on which banks are open for business in San
Francisco and New York City and on which dealings in United States dollars
are carried on in the London interbank market, and (ii) for all other
purposes, a day other than Saturday or Sunday on which banks are open for
business in San Francisco and New York City.
"Capitalization Ratio" means, with respect to the Borrower and its
____________________
Subsidiaries on a consolidated basis, the ratio of (i) Indebtedness to (ii)
the sum of (x) Indebtedness and (y) net worth as determined in accordance
with generally accepted accounting principles.
"Capitalized Lease" of a Person means any lease of property by such
_________________
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of
_____________________________
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Co-Arrangers" means Banc of America Securities LLC and Citigroup Global
____________
Markets Inc., each in its capacity as a co-lead arranger and a co-book
manager.
"Code" means the Internal Revenue Code of 1986.
____
"Co-Documentation Agents" means HSBC Bank USA, Ltd., The Bank of Tokyo
_______________________
Mitsubishi UFJ, Ltd., and Deutsche Bank Securities, each in its capacity as a
co-documentation agent and not in its individual capacity as a Bank.
"Commitment" means for each Bank, the obligation of the Bank to make
__________
Loans not exceeding the amount set forth opposite the Bank's name in Schedule
________
3 hereof or in the Assignment and Assumption pursuant to which such Bank
_
becomes a party hereto, as applicable, as such amount may be modified from
time to time pursuant to the terms of this Agreement and any Assignment and
Assumption (collectively, the "Commitments").
___________
5
"Competitive Bid Advance" means a borrowing hereunder prior to the
_______________________
Termination Date consisting of the aggregate amount of the several
Competitive Bid Loans made by some or all of the Banks to the Borrower at the
same time and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
________________________________ _____________
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
____________________
Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
______________________
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/1000 of 1%) to be added or subtracted
from such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
____________________
of Exhibit A-2 hereto, with appropriate insertions, duly executed and
___________
delivered to the Administrative Agent by the Borrower for the account of a
Bank and payable to the order of such Bank, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
_____________________
the form of Exhibit D hereto completed and delivered by a Bank to the
_________
Administrative Agent in accordance with Section 2.3.4.
_____________
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
_____________________________
substantially in the form of Exhibit B hereto completed and delivered by the
_________
Borrower to the Administrative Agent in accordance with Section 2.3.2.
_____________
"Compliance Certificate" has the meaning assigned such term in Section
______________________
6.1(c).
______
"Controlled Group" means all members of a controlled group of
________________
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any Subsidiary, are
treated as a single employer under Section 414(b) or 414(c) of the Code.
"Conversion/Continuation Date" means any date on which, under Section
____________________________ _______
2.2.4, the Borrower (a) converts an Advance bearing interest based on a Rate
_____
Option to an Advance bearing interest based on another Rate Option, or (b)
continues an Advance bearing interest based on the same Rate Option, but with
a new Interest Period.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
__________________
all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
"Default" means an event described in Article VII.
_______ ___________
"Dollars" and "$" mean lawful money of the United States of America.
_______ _
6
"Effective Date" means the date on which all conditions set forth in
______________
Section 4.1 are satisfied or waived by the Administrative Agent and the Banks
___________
(or, in the case of Section 4.1(k), waived by the Person entitled to receive
______________
the applicable payment), provided such date shall not be later than December
31, 2006.
"Eligible Assignee" has the meaning assigned to such term in Section
_________________ _______
13.1(h).
_______
"Environmental Laws" means the Resource Conservation and Recovery Act of
__________________
1987, the Comprehensive Environmental Response, Compensation and Liability
Act, any so called "Superfund" or "Superlien" law, the Toxic Substances
Control Act, and any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous materials or
other hazardous or toxic substance, as now or at any time hereafter in
effect.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
_____
any regulations issued pursuant thereto.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
__________________
setting forth Eurodollar Bid Rates pursuant to Section 2.3.
___________
"Eurodollar Base Rate" means for any Interest Period with respect to any
____________________
Eurodollar Ratable Advance or a Eurodollar Bid Rate Advance:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery
on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Ratable Advance or Eurodollar Bid
Rate Advance being made (or that would be made by Bank of America if
such Advance were a Eurodollar Ratable Advance), continued or converted
by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in
the interbank eurodollar market at their request at approximately 4:00
p.m. (London time) two Business Days prior to the first day of such
Interest Period.
7
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
___________________
made by a given Bank for the relevant Eurodollar Interest Period, the sum of
(i) the Eurodollar Base Rate and (ii) the Competitive Bid Margin offered by
such Bank and accepted by the Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which
___________________________
bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at the
________________________
Eurodollar Bid Rate.
"Eurodollar Ratable Advance" means an Advance which bears interest at a
__________________________
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
___________
"Eurodollar Ratable Loan" means a Loan which bears interest at a
_______________________
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
___________
"Eurodollar Interest Period" means, with respect to a Eurodollar
__________________________
Ratable Advance or a Eurodollar Bid Rate Advance, a period of one, two, three
or six months commencing on a Business Day selected by the Borrower pursuant
to this Agreement. Such Eurodollar Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three
or six months thereafter; provided, however, that if there is no such
________ _______
numerically corresponding day in such next, second, third or sixth succeeding
month, such Eurodollar Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day;
provided, however, that if said next succeeding Business Day falls in a new
________ _______
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable Advance
_______________
for the relevant Eurodollar Interest Period, the sum of (i) the Eurodollar
Base Rate applicable to that Eurodollar Interest Period plus (ii) the
Applicable Margin.
"Existing Credit Agreement" means that certain Credit Agreement dated as
_________________________
of November 20, 2003, as amended from time to time, among the Borrower, Bank
of America, as Administrative Agent, and the other financial institutions
party thereto.
"Existing Termination Date" has the meaning assigned to that term in
_________________________
Section 2.6.1.
_____________
8
"Federal Funds Rate" means, for any day, the rate per annum equal to the
__________________
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided, that (a) if such day is not a Business Day,
________
the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" has the meaning assigned to that term in Section 2.4.1.
__________ _____________
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
__________
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
__________________
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
_______________
"Floating Rate" means, for any day, a rate per annum equal to the Base
_____________
Rate.
"Floating Rate Advance" means an Advance which bears interest at the
_____________________
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
__________________
Rate.
"Fund" has the meaning assigned to that term in Section 13.1(h).
____ _______________
"Further Taxes" means any and all present or future taxes, levies,
_____________
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all liabilities
with respect thereto, imposed by any jurisdiction on account of amounts
payable or paid pursuant to Section 3.1.
___________
"Governmental Authority" means any nation or government, any state or
______________________
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Indebtedness" of a Person means such Person's (i) obligations for
____________
borrowed money, (ii) obligations representing the deferred purchase price of
property or services other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade,
(iii) obligations, whether or not assumed, secured by Liens or payable out of
the proceeds or production from property now or hereafter owned or acquired
by such Person, (iv) obligations which are evidenced by notes, acceptances,
or other instruments, (v) Capitalized Lease Obligations, (vi) net liabilities
under interest rate swap, foreign exchange or cap agreements, and (vii)
liability under any arrangement by which such Person assumes, guarantees,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the
9\
obligation or liability of any other Person, or agrees to maintain the net
worth or working capital or other financial condition of any other Person.
"Indemnified Liabilities" has the meaning specified in Section 10.7.
_______________________ ____________
"Interest Period" means a Eurodollar Interest Period or an Absolute Rate
_______________
Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
_____________________________________
Competitive Bid Quotes substantially in the form of Exhibit C hereto,
_________
completed and delivered by the Administrative Agent to the Banks in
accordance with Section 2.3.3.
_____________
"IRS" means the Internal Revenue Service of the United States Treasury.
___
"Knight Family" means, collectively, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and his wife,
_____________
children, parents and siblings, and any trust, corporation or partnership
with respect to his assets established for estate planning purposes.
"Laws" means, collectively, all international, foreign, Federal, state
____
and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Lending Office" means, as to any Bank, the office or offices of such
______________
Bank described as such on Schedule 4, or such other office or offices as a
__________
Bank may from time to time notify the Borrower and the Administrative Agent.
"Lien" means any security interest, mortgage, pledge, lien (statutory or
____
other), claim, charge, encumbrance, title retention agreement, lessor's
interest under a Capitalized Lease or analogous instrument, in, of or on any
Person's assets or properties in favor of any other Person.
"Loan" means, with respect to a Bank, such Bank's portion, if any, of
____
any Advance.
"Loan Anniversary" has the meaning assigned to that term in Section
________________ _______
2.6.1.
_____
"Loan Documents" means this Agreement and the Notes.
______________
"Majority Banks" means Banks in the aggregate having more than 50% of
______________
the combined Commitments at such time of all Banks or, if the Commitments
have been terminated, Banks in the aggregate holding more than 50% of the
aggregate unpaid principal amount of the outstanding Loans.
"Material Adverse Effect" means with respect to any matter that such
_______________________
matter (i) could reasonably be expected to materially and adversely affect
the business, properties, condition
10
(financial or otherwise), or results of operations of the Borrower or the
Borrower and its Subsidiaries taken as a whole, or (ii) has been brought by
or before any court or arbitrator or any governmental body, agency or
official, and draws into question the validity or enforceability of any
material provision of any Loan Document against any obligor party thereto.
"Material Subsidiary" means, at any time, any Subsidiary having at such
___________________
time either (i) total (gross) revenues for the preceding four fiscal quarter
period in excess of 10% of the Borrower's consolidated total (gross) revenues
for such period, or (ii) total assets, as of the last day of the preceding
fiscal quarter, having a net book value in excess of 10% of the net book
value of the Borrower's consolidated total assets on such date, in each case,
based upon the Borrower's most recent annual or quarterly financial
statements delivered to the Administrative Agent under Section 6.1.
___________
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
_______
thereto that is a nationally-recognized rating agency.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
__________________
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non Extending Bank" has the meaning assigned to that term in Section
__________________ _______
2.6.2.
_____
"Notes" means, collectively, the Competitive Bid Notes and the Ratable
_____
Notes; and "Note" means any one of the Notes.
"Notice Date" has the meaning assigned to that term in Section 2.6.2.
___________ _____________
"Notice of Conversion/Continuation" is defined in Section 2.2.4.
_________________________________ _____________
"Obligations" means all unpaid principal of and accrued and unpaid
___________
interest on the Loans, all accrued and unpaid fees and all other
reimbursements, indemnities or other obligations of the Borrower to the Banks
or to any Bank, the Administrative Agent or any indemnified party hereunder
arising under the Loan Documents.
"Occupational Safety and Health Law" means the Occupational Safety and
__________________________________
Health Act of 1970 and any other Law regulating, relating to or imposing
liability or standards of conduct concerning employee health and/or safety.
"Other Taxes" means any present or future stamp, court or documentary
___________
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
this Agreement or any other Loan Documents, excluding, in the case of each
Bank and the Administrative Agent, respectively, taxes imposed on or measured
by its net income by the jurisdiction (or any political subdivision thereof)
under the laws of which such Bank or the Administrative Agent, as the case
may be, is organized or maintains a lending office.
"Participant" is defined in Section 13.1(d).
___________ _______________
11
"Payment Date" means the last Business Day of each February, May, August
____________
and November.
"PBGC" means the Pension Benefit Guaranty Corporation and its successors
____
and assigns.
"Person" means any individual, trustee, corporation, general
______
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association,
firm, joint venture or Governmental Authority.
"Plan" means an employee pension benefit plan which is covered by Title
____
IV of ERISA or subject to the minimum funding standards under Section 412 of
the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"Ratable Advance" means a borrowing hereunder consisting of the
_______________
aggregate amount of the several Ratable Loans made by the Banks to the
Borrower at the same time, at the same Rate Option and for the same Interest
Period.
"Ratable Borrowing Notice" is defined in Section 2.2.3.
________________________ _____________
"Ratable Loan" means a Loan made by a Bank to the Borrower pursuant to
____________
Section 2.2.1 hereof.
_____________
"Ratable Note" means a promissory note in substantially the form of
____________
Exhibit A-1 hereto, duly executed and delivered to the Administrative Agent
___________
by the Borrower for the account of a Bank and payable to the order of such
Bank in the amount of its Commitment, including any amendment, modification,
renewal or replacement of such promissory note.
"Rate Option" means the Eurodollar Rate or the Floating Rate.
___________
"Rating Agency" means S&P and Moody's.
_____________
"Regulation D" means Regulation D of the Board of Governors of the
____________
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulations U and X" means Regulations U and X of the Board of
___________________
Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulation or official interpretation of said
Board of Governors relating to the extension of credit by banks for the
purpose of purchasing or carrying margin stocks applicable to member banks of
the Federal Reserve System.
"Reportable Event" means any of the events set forth in Section 4043(c)
________________
of ERISA, other than events for which the 30-day notice period has been
waived.
"Reserve Requirement" means, with respect to a Eurodollar Interest
___________________
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation
D on eurocurrency liabilities (as defined in
12
Regulation D). The Reserve Requirement shall be adjusted automatically on
and as of the effective date of any change in the applicable reserve
requirement.
"S&P" means Standard & Poor's Ratings Services, a division of The
___
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto that is a nationally-
recognized rating agency.
"Single Employer Plan" means a Plan maintained by the Borrower or any
____________________
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means a corporation, partnership, joint
__________
venture, limited liability company or other business entity of which a
majority of the shares of securities or other interests having ordinary
voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Substantial Portion" is defined in Section 6.12.
___________________ ____________
"Syndication Agent" means Citicorp USA, Inc. in its capacity as
_________________
syndication agent and not in its individual capacity as a Bank.
"Taxes" means any and all present or future taxes, levies, assessments,
_____
imposts, duties deductions, fees withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Administrative Agent, respectively, taxes imposed on or measured by its net
income by the jurisdiction (or any political subdivision thereof) under the
laws of which such Bank or the Administrative Agent, as the case may be, is
organized or maintains a lending office.
"Termination Date" means the first to occur of (a) the later of (i)
________________
December 1, 2011 and (ii) if maturity is extended pursuant to Section 2.6,
___________
such extended maturity date determined pursuant to such Section, and (b) the
date the Commitments or this Agreement are earlier cancelled or terminated
pursuant to the terms hereof; provided, however, that with respect to any Non
________ _______
Extending Bank, "Termination Date" shall mean the first to occur of (x) the
________________
later of (i) December 1, 2011 and (ii) only if such Non Extending Bank
extended the maturity of its commitments for one year pursuant to Section
_______
2.6, such extended maturity date determined pursuant to such Section, and (b)
___
the date the Commitments or this Agreement are earlier cancelled or
terminated pursuant to the terms hereof.
"Unfriendly Acquisition" means the Acquisition of a corporation, limited
______________________
liability company or similar business entity if the Acquisition has not been
approved by the board of directors (or comparable governing body) of such
entity.
"Unfunded Liabilities" means, (i) in the case of Single Employer Plans,
____________________
the amount (if any) by which the present value of all vested nonforfeitable
benefits under such Plan exceeds the
13
fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans, and (ii)
in the case of Multiemployer Plans, the withdrawal liability that would be
incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which but for the lapse of time or
_________________
the giving of notice, or both, would constitute a Default.
1.2. Other Interpretive Provisions.
_____________________________
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar
______ _________
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section,
Exhibit and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not
_________
limitation.
(iv) The term "documents" includes any and all instruments,
_________
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
____ __________________
"to" and "until" each mean "to but excluding;" and the word "through" means
__ _____ ________________ _______
"to and including."
________________
1.3. References to Agreements and Laws. Unless otherwise expressly
_________________________________
provided herein, (a) references to agreements (including the Loan Documents)
and other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements,
extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing,
reforming or interpreting such Law.
ARTICLE II
THE FACILITY
____________
2.1 The Facility.
____________
From the Effective Date until the Termination Date, each Bank
severally agrees to make Ratable Loans to the Borrower from time to time in
amounts not to exceed in the aggregate at any one time outstanding, the
amount of its Commitment.
14
(i) Each Bank may, in its sole discretion and not subject to
the amount of its Commitment, make bids to make Competitive Bid Loans to
the Borrower in accordance with Section 2.3.
(ii) In no event may the aggregate principal amount of all
outstanding Advances (including both the Ratable Advances and the
Competitive Bid Advances) exceed the Commitments.
(iii) Subject to the terms of this Agreement, the Borrower may
borrow, repay and re-borrow within the limits of each Bank's Commitment
at any time prior to the Termination Date.
2.2 Ratable Advances.
________________
2.2.1 General. Each Ratable Advance hereunder shall consist of
_______
borrowings made from the several Banks ratably in proportion to the amounts
of their respective Commitments. For so long as any Competitive Bid Advances
are outstanding, the aggregate outstanding amount of Competitive Bid Advances
shall reduce each Bank's Commitment ratably in the proportion such Bank's
Commitment bears to the Commitments regardless of which Bank or Banks make
such Competitive Bid Advances. No Bank shall be obligated to make a Loan
hereunder if the aggregate principal amount of such Bank's Ratable Loans
outstanding would exceed its Commitment. Upon the request of any Bank made
through the Administrative Agent, the Borrower shall execute and deliver to
such Bank (through the Administrative Agent) a Ratable Note, which shall
evidence such Bank's Ratable Advances.
2.2.2 Ratable Advance Rate Options. The Ratable Advances may be
____________________________
Floating Rate Advances or Eurodollar Ratable Advances, or a combination
thereof, selected by the Borrower in accordance with Section 2.2.3, and as
converted or continued in accordance with Section 2.2.4; provided, that no
Advance may mature after the Termination Date.
2.2.3 Method of Selecting Rate Options and Interest Periods for
_________________________________________________________
Ratable Advances. The Borrower shall select the Rate Option and, if
________________
applicable, Interest Period applicable to each Ratable Advance from time to
time. The Borrower shall give the Administrative Agent irrevocable notice in
the form attached hereto as Exhibit F (a "Ratable Borrowing Notice") not
_________ ________________________
later than 8:00 a.m. (San Francisco time) (a) on the Business Day preceding
the Borrowing Date of each Floating Rate Advance, and (b) three Business Days
before the Borrowing Date for each Eurodollar Ratable Advance.
Notwithstanding the foregoing, a Ratable Borrowing Notice for a Floating Rate
Advance may be given not later than 15 minutes after the time which the
Borrower is required to reject one or more bids offered in connection with an
Absolute Rate Auction pursuant to Section 2.3.6 and a Ratable Borrowing
_____________
Notice for a Eurodollar Ratable Advance may be given not later than 15
minutes after the time the Borrower is required to reject one or more bids
offered in connection with a Eurodollar Auction pursuant to Section 2.3.6. A
_____________
Ratable Borrowing Notice shall specify:
(a) the Borrowing Date, which shall be a Business Day, of such
Ratable Advance;
(b) the aggregate amount of such Ratable Advance;
15
(c) the Rate Option selected for such Ratable Advance; and
(d) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto (which may not end after the Termination Date).
2.2.4 Conversion and Continuation Elections.
_____________________________________
(a) The Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with Section 2.2.4(b): (i) elect, as of
________________
any Business Day, in the case of a Floating Rate Advance, or as of the last
day of the applicable Interest Period, in the case of a Eurodollar Ratable
Advance, to convert such Advance into an Advance bearing interest based on
another Rate Option; or (ii) elect, as of the last day of the applicable
Interest Period, to continue a Eurodollar Ratable Advance or Floating Rate
Advance having an Interest Period expiring on such day; except, that during
______
the existence of a Default or Unmatured Default, the Borrower may not elect
to have any Advance converted into or continued as a Eurodollar Ratable
Advance unless the Majority Banks consent thereto. All conversions and
continuations of Advances shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice
was given held by each Bank.
(b) The Borrower shall deliver a notice of conversion/continuation in
the form attached hereto as Exhibit G (a "Notice of Conversion/Continuation")
__________ _________________________________
to be received by the Administrative Agent not later than 8:00 a.m. (San
Francisco time) (i) on the Business Day preceding the Conversion/Continuation
Date if the Advance is to be converted into or continued as a Floating Rate
Advance, and (ii) three Business Days before the Conversion/Continuation Date
if the Advance is to be converted into or continued as a Eurodollar Ratable
Advance; specifying:
(i) the Conversion/Continuation Date, which shall be a Business
Day, of such Ratable Advance;
(ii) the aggregate amount of such Ratable Advance to be
converted or continued;
(iii) the Rate Option for such Ratable Advance resulting from the
conversion or continuation; and
(iv) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto (which may not end after the Termination Date).
(c) If upon the expiration of any Interest Period applicable to a
Eurodollar Ratable Advance, the Borrower has failed to select timely a new
Interest Period to be applicable to such Advance, or if any Default or
Unmatured Default then exists, the Borrower shall be deemed to have elected
to convert such Advance into a Floating Rate Advance effective as of the
expiration date of such Interest Period.
2.3 Competitive Bid Advances.
________________________
16
2.3.1 Competitive Bid Option. In addition to Ratable Advances
______________________
pursuant to Section 2.2, but subject to the terms and conditions of this
___________
Agreement (including any limitations as to the maximum aggregate principal
amount of all outstanding Advances), the Borrower may, as set forth in this
Section 2.3, request the Banks, prior to the Termination Date, to make offers
___________
to make Competitive Bid Advances to the Borrower. Each Bank may, but shall
have no obligation to, make such offers and the Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth in this
Section 2.3. Upon the request of any Bank made through the Administrative
___________
Agent, the Borrower shall execute and deliver to such Bank (through the
Administrative Agent) a Competitive Bid Note, which shall evidence such
Bank's Competitive Bid Advances.
2.3.2 Competitive Bid Quote Request. When the Borrower wishes
______________________________
to request offers to make Competitive Bid Loans under this Section 2.3, it
___________
shall transmit to the Administrative Agent by telecopy a Competitive Bid
Quote Request substantially in the form of Exhibit B hereto so as to be
_________
received no later than (i) 8:00 a.m. (San Francisco time) at least four
Business Days prior to the Borrowing Date proposed therein, in the case of a
Eurodollar Auction, or (ii) 8:00 a.m. (San Francisco time) at least one
Business Day prior to the Borrowing Date proposed therein, in the case of an
Absolute Rate Auction specifying:
(a) the proposed Borrowing Date, which shall be a Business Day, for
the proposed Competitive Bid Advance;
(b) the aggregate principal amount of such Competitive Bid Advance;
(c) whether the Competitive Bid Quotes requested are to set forth a
Eurodollar Bid Rate or an Absolute Rate, or both; and
(d) the Interest Period applicable thereto (which may not end after
the Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more
than one Interest Period in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within 5 Business Days (or, in
either case upon reasonable prior notice to the Banks, such other number of
days as the Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. Each Competitive Bid Quote Request shall be
in Dollars in a minimum amount of $5,000,000 (and in integral multiples of
$1,000,000 in excess thereof). A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit B hereto shall be rejected,
_________
and the Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
2.3.3 Invitation for Competitive Bid Quotes. Promptly and in
_____________________________________
any event before the close of business on the same Business Day of receipt of
a Competitive Bid Quote Request that is not rejected pursuant to Section
_______
2.3.2, the Administrative Agent shall send to each of the Banks by telecopy
_____
an Invitation for Competitive Bid Quotes substantially in the form of Exhibit
C hereto, which shall constitute an invitation by the Borrower to each Bank
to submit Competitive Bid Quotes offering to make the Competitive Bid Loans
to which such Competitive Bid Quote Request relates in accordance with this
Section 2.3.
___________
17
2.3.4 Submission and Contents of Competitive Bid Quotes.
_________________________________________________
(a) Each Bank may, in its sole discretion, submit a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Loans in response
to any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote
must comply with the requirements of this Section 2.3.4 and must be submitted
_____________
to the Administrative Agent by telecopy at the Administrative Agent's Office
not later than (a) 9:00 a.m. (San Francisco time) at least three Business
Days prior to the proposed Borrowing Date, in the case of a Eurodollar
Auction or (b) 9:00 a.m. (San Francisco time) on the proposed Borrowing Date,
in the case of an Absolute Rate Auction (or, in either case upon reasonable
prior notice to the Banks, such other time and date as the Borrower and the
Administrative Agent may agree); provided, that Competitive Bid Quotes
________
submitted by Bank of America may only be submitted if Bank of America
notifies the Borrower of the terms of the offer or offers contained therein
not later than 15 minutes prior to the latest time at which the relevant
Competitive Bid Quotes must be submitted by the other Banks. Subject to
Articles IV and VIII, any Competitive Bid Quote so made shall be irrevocable
___________ ____
except with the written consent of the Administrative Agent given on the
instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
_________
(i) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes,
(ii) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount may be greater
than, less than or equal to the Commitment, of the quoting Bank, (2)
must be at least $5,000,000 and an integral multiple of $1,000,000, and
(3) may not exceed the principal amount of Competitive Bid Loans for
which offers were requested,
(iii) in the case of a Eurodollar Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan,
(iv) the minimum or maximum amount, if any, of the Competitive
Bid Loan which may be accepted by the Borrower,
(v) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan, and
(vi) the identity of the quoting Bank.
(c) The Administrative Agent shall reject any Competitive Bid Quote
that:
(i) is not substantially in the form of Exhibit D hereto or
_________
does not specify all of the information required by Section 2.3.4(b);
________________
(ii) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit D hereto;
___________
19
(iii) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.3.4(a).
________________
If any Competitive Bid Quote shall be rejected pursuant to this Section
_______
2.3.4(c), then the Administrative Agent shall notify the relevant Bank of
________
such rejection as soon as practical.
2.3.5 Notice to Borrower. The Administrative Agent shall
__________________
promptly notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Bank that is in accordance with Section 2.3.4, and (ii) of any
_____________
Competitive Bid Quote that is in accordance with Section 2.3.4 and amends,
_____________
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Bank with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Administrative Agent's notice to
the Borrower shall specify the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified
in the related Competitive Bid Quote Request and the respective principal
amounts and Eurodollar Bid Rates or Absolute Rates, as the case may be, so
offered.
2.3.6 Acceptance and Notice by Borrower. Not later than (i)
_________________________________
10:00 a.m. (San Francisco time) at least three Business Days prior to the
proposed Borrowing Date, in the case of a Eurodollar Auction, or (ii) 10:00
a.m. (San Francisco time) on the proposed Borrowing Date, in the case of an
Absolute Rate Auction (or, in either case upon reasonable prior notice to the
Banks, such other time and date as the Borrower and the Administrative Agent
may agree), the Borrower shall notify the Administrative Agent of its
acceptance or rejection of the offers so notified to it pursuant to Section
_______
2.3.5; provided, however, that the failure by the Borrower to give such
_____ ________ _______
notice to the Administrative Agent shall be deemed to be a rejection of all
such offers. In the case of acceptance, such notice (a "Competitive Bid
_______________
Borrowing Notice") shall specify the aggregate principal amount of offers for
________________
each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of Section
_______
2.3.4(b)(iv)); provided, that:
____________ ________
(a) the aggregate principal amount of each Competitive Bid Advance
may not exceed the applicable amount set forth in the related Competitive Bid
Quote Request;
(b) acceptance of offers may only be made on the basis of ascending
Eurodollar Bid Rates or Absolute Rates, as the case may be; and
(c) the Borrower may not accept any offer that is described in
Section 2.3.4(c) or that otherwise fails to comply with the requirements of
_______________
this Agreement for the purpose of obtaining a Competitive Bid Loan under this
Agreement.
2.3.7 Allocation by Administrative Agent. If offers are made by
__________________________________
two or more Banks with the same Eurodollar Bid Rates or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such
19
offers are accepted shall be allocated by the Administrative Agent among such
Banks as nearly as possible (in such multiples, not less than $1,000,000, as
the Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers; provided, however, that no Bank shall be
________ _______
allocated a portion of any Competitive Bid Advance which is less than the
minimum amount which such Bank has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same Business
Day, notify each Bank of its receipt of a Competitive Bid Borrowing Notice
and the aggregate principal amount of such Competitive Bid Advance allocated
to each participating Bank.
2.4 Fees.
____
2.4.1 Arrangement, Structuring and Agency Fees. The Borrower
________________________________________
shall pay such arrangement, structuring and agency fees to Bank of America
and the Administrative Agent in the amounts and at the times specified in the
letter agreement, dated October 17, 2006, among the Borrower, Bank of America
and Banc of America Securities LLC (the "Fee Letter"). Such fees shall be
__________
fully earned when paid and shall be nonrefundable for any reason whatsoever.
2.4.2 Administration Fee. The Borrower hereby agrees to pay to
__________________
the Administrative Agent an administration fee for Competitive Bid Quote
Requests in such amounts as are from time to time agreed upon by the Borrower
and the Administrative Agent.
2.4.3 Facility Fee.
____________
(a) Facility Fee. The Borrower shall pay to the Administrative
____________
Agent for the account of each Bank in accordance with its pro rata share of
the Commitments, a facility fee equal to the Applicable Facility Fee Rate
times the actual daily amount of the Commitments, regardless of usage
_____
(without giving effect to any reduction in Commitments due to outstanding
Competitive Bid Loans). The facility fee shall accrue at all times from the
Effective Date until the Termination Date and shall be due and payable
quarterly in arrears on each Payment Date, commencing with the first Payment
Date to occur after the Effective Date, and on the Termination Date.
(b) Calculation of Facility Fee. The facility fee shall be
___________________________
calculated quarterly in arrears, and if there is any change in the Applicable
Facility Fee Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Facility Fee Rate separately for
each period during such quarter that such Applicable Facility Fee Rate was in
effect. The facility fee shall accrue at all times, including at any time
during which one or more of the conditions in Article IV is not met.
__________
2.4.4 Utilization Fee.
_______________
(a) Fees. The Borrower shall pay to the Administrative Agent for
____
the account of each Bank in accordance with its pro rata share of the
Commitments, a utilization fee equal to the Applicable Utilization Fee Rate
times the actual daily aggregate outstanding Loans on each day that the
aggregate outstanding amount of the Loans equals or exceeds 50.0% of the
Commitments (without giving effect to any reduction in Commitments due to
outstanding
20
Competitive Bid Loans). The utilization fee shall be due and payable
quarterly in arrears on each Payment Date, commencing with the first Payment
Date to occur after the Effective Date, and on the Termination Date.
(b) Calculation of Utilization Fee. The utilization fee shall be
______________________________
calculated quarterly in arrears. The utilization fee shall accrue at all
times, including at any time during which one or more of the conditions in
Article IV is not met.
__________
2.4.5 Banks' Participation Fee. On the Effective Date, the
________________________
Borrower shall pay to the Administrative Agent, for the account of the Banks
in accordance with their respective pro rata shares, a participation fee in
an amount set forth in the Fee Letter. Such participation fees are for the
credit facility committed to by the Banks under this Agreement and are fully
earned on the date paid. The participation fee paid to each Bank is solely
for its own account and is nonrefundable for any reason whatsoever.
2.4.6 Computation of Fees. Computation of all fees shall be
___________________
calculated on the basis of a year of 360 days and the actual number of days
elapsed, which results in a higher yield to the payee thereof than a method
based on a year of 365 or 366 days.
2.5 General Facility Terms.
______________________
2.5.1 Method of Borrowing. Not later than 11:00 a.m. (San
___________________
Francisco time) on each Borrowing Date, each Bank shall make available its
Loan or Loans in funds immediately available to the Administrative Agent at
the Administrative Agent's Office. Unless otherwise instructed by the
Borrower, the Administrative Agent shall deposit the funds so received from
the Banks in the Borrower's account at Bank of America's main office in San
Francisco.
2.5.2 Minimum Amount of Each Advance. Each Ratable Advance, and
______________________________
each conversion and continuation with respect to a Ratable Advance, shall be
in the minimum amount of $10,000,000 (and in integral multiples of $1,000,000
if in excess thereof); provided, however, that any Floating Rate Advance may
________ _______
be in the aggregate amount of the unused Commitments.
2.5.3 Repayment. Except for optional payments pursuant to
_________
Section 2.5.4, (a) each Competitive Bid Advance shall be paid in full by the
_____________
Borrower on the last day of the Interest Period applicable thereto, and (b)
each Ratable Advance shall be paid in full by the Borrower on the last day of
the Interest Period applicable thereto, unless such Ratable Advance is
converted or continued in accordance with Section 2.2.4; but in any event all
_____________
Advances shall be paid in full on the Termination Date.
2.5.4 Optional Principal Payments. The Borrower may, upon notice
___________________________
to the Administrative Agent, from time to time pay all outstanding Ratable
Advances, or, in a minimum aggregate amount of $10,000,000 (and in multiples
of $1,000,000 if in excess thereof), any portion of the outstanding Ratable
Advances; provided, that such notice must be received by the Administrative
________
Agent not later than 11:00 a.m. (San Francisco time) (i) three Business Days'
prior to any date of prepayment with respect to Eurodollar Ratable Advances
and (ii) on the date of prepayment with respect to Floating Rate Advances.
All such payments shall be made in immediately available funds to the
Administrative Agent at the Administrative Agent's Office by 11:00 a.m. (San
Francisco time) on the date of payment. A Competitive Bid Advance may not
21
be prepaid prior to the last day of its applicable Interest Period without
the prior consent of the Bank which originally made such Loan, which consent
may be given or withheld at the Bank's sole and absolute discretion. Any
prepayment of a Fixed Rate Advance prior to the end of an applicable Interest
Period shall be subject to the indemnification provided in Section 3.4.
___________
2.5.5 Interest Periods. Subject to the provisions of Section
________________ _______
2.5.6, each Advance shall bear interest (i) with respect to any Floating Rate
_____
Advance, on the outstanding principal amount from the applicable borrowing
date until payment in full, and (ii) with respect to any other Advance, from
the first day of the Interest Period applicable thereto to the earlier of (a)
the last day of such Interest Period, or (b) the date of any earlier
prepayment as permitted by Section 2.5.4, at the interest rate determined as
_____________
applicable to such Advance, subject to the Borrower's right to convert or
continue Ratable Advances pursuant to Section 2.2.4. The Borrower shall not
_____________
request a Fixed Rate Advance if, after giving effect to the requested Fixed
Rate Advance, more than 20 separate Fixed Rate Advances would be outstanding.
2.5.6 Rate after Maturity. Except as provided in the next
___________________
sentence, any Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum equal
to the Base Rate plus 1% per annum. In the case of a Fixed Rate Advance the
maturity of which is accelerated, such Fixed Rate Advance shall bear interest
for the remainder of the applicable Interest Period, at the higher of (a) the
rate otherwise applicable to such Interest Period plus 1% per annum, or (b)
the Base Rate plus 1% per annum.
2.5.7 Interest Payment Dates; Interest Basis. Interest accrued
______________________________________
on each (i) Floating Rate Advance shall be payable on each Payment Date and
(ii) other Advance shall be payable on the last day of its applicable
Interest Period, and on any date on which such Advance is prepaid, whether
due to acceleration or otherwise. Interest accrued on each Fixed Rate
Advance having an Interest Period longer than three months shall also be
payable on the last day of each three month interval during such Interest
Period. Interest on all Floating Rate Advances calculated on the basis of
the Base Rate shall be calculated on the basis of a year of 365 or 366 days,
as the case may be, and the actual number of days elapsed. Interest on all
other Advances shall be calculated for the actual number of days elapsed on
the basis of a year of 360 days and the actual number of days elapsed, which
results in a higher yield to the payee thereof than a method based on a year
of 365 or 366 days. Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment is received
prior to 11:00 a.m. (San Francisco time) at the place of payment. If any
payment of principal or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
2.5.8 Method of Payment. All payments to be made by the Borrower
_________________
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff, without prejudice to Borrower's right to later assert
any counterclaim, defense, recoupment or setoff. Except as specifically
provided in this Agreement and in the following sentence, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Banks to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than
11:00 a.m. (San Francisco time) on the date when due and shall be applied (i)
first, ratably among the Banks with respect to any
22
principal and interest due in connection with Ratable Advances, (ii) second,
after all amounts described in clause (i) have been satisfied, ratably among
those Banks for whom any payment of principal and interest is due in
connection with any Competitive Bid Advances, and (iii) third, after all
_____
amounts described in clauses (i) and (ii) have been satisfied, ratably to any
other Obligations then due to the Banks. If such payment is received by the
Administrative Agent by 11:00 a.m. (San Francisco time) such delivery to the
Banks shall be made on the same day and if received thereafter shall be made
on the next succeeding Business Day. The Administrative Agent is hereby
authorized to charge the account of the Borrower held at Bank of America for
each payment of principal, interest and fees owing by the Borrower as it
becomes due hereunder.
2.5.9 Notes; Telephonic Notices; Designation of Borrower. Each
__________________________________________________
Bank is hereby authorized to record on the schedule attached to each of its
Notes, or otherwise record in accordance with its usual practice, the date
and amount of each of its Loans of the type evidenced by such Note; provided,
________
however, that any failure to so record shall not affect the Borrower's
_______
Obligations under this Agreement or any Note. The Borrower hereby authorizes
the Banks and the Administrative Agent to extend, continue and convert
Advances, effect Rate Option selections and submit Competitive Bid Quotes
based on telephonic notices made by any person or persons the Administrative
Agent or any Bank in good faith believes to be an authorized officer or an
officer, employee or agent of the Borrower designated by an authorized
officer. The Borrower agrees to deliver promptly to the Administrative Agent
a written or telecopy confirmation of each telephonic notice signed by an
authorized officer. If the written or telecopy confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Banks, the records of the Administrative Agent and the Banks shall govern
absent manifest error.
2.5.10 Notification of Advances, Interest Rates and Prepayments.
________________________________________________________
The Administrative Agent will notify each Bank of the contents of each
Ratable Borrowing Notice, Notice of Conversion/Continuation (or automatic
conversion pursuant to Section 2.2.4(c)), and payment notice received by it
________________
hereunder promptly and in any event (provided such items were timely received
by the Administrative Agent from the Borrower) before the close of business
on the same Business Day of receipt thereof (or, in the case of borrowing
notices with respect to Floating Rate Advances, within one hour of receipt
thereof). The Administrative Agent will notify each Bank of the interest
rate applicable to each Fixed Rate Advance promptly upon determination of
such interest rate and will give each Bank prompt notice of each change in
the Base Rate in respect of any outstanding Floating Rate Advance.
2.5.11 Non Receipt of Funds by the Administrative Agent. Unless
________________________________________________
the Borrower or any Bank has notified the Administrative Agent, prior to the
date any payment is required to be made by it to the Administrative Agent
hereunder, that the Borrower or such Bank, as the case may be, will not make
such payment, the Administrative Agent may assume that the Borrower or such
Bank, as the case may be, has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding
amount to the Person entitled thereto. If and to the extent that such
payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Bank
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed
23
payment that was made available to such Bank in immediately available
funds, together with interest thereon in respect of each day from and
including the date such amount was made available by the Administrative
Agent to such Bank to the date such amount is repaid to the
Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Bank failed to make such payment, such Bank shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
___________________
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Bank pays such amount to the Administrative Agent, then
such amount shall constitute such Bank's Ratable Loan or Competitive Bid
Loan, as the case may be, included in the applicable
Borrowing. If such Bank does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may
make a demand therefor upon the Borrower, and the Borrower shall pay
such amount to the Administrative Agent, together with interest thereon
for the Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing. Nothing herein shall
be deemed to relieve any Bank from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or
the Borrower may have against any Bank as a result of any default by
such Bank hereunder.
A notice of the Administrative Agent to any Bank or the Borrower with respect
to any amount owing under this Section 2.5.11 shall be conclusive, absent
______________
manifest error.
2.5.12 Cancellation. The Borrower may, at any time after the
____________
Effective Date, upon not less than five Business Days' prior written notice
to the Administrative Agent, terminate or permanently reduce the Commitments
in whole, or in a minimum aggregate amount of $10,000,000 (and in integral
multiples of $1,000,000 in excess thereof); unless, after giving effect
______
thereto and to any prepayments of Loans made on the effective date thereof,
the then-outstanding principal amount of the Loans would exceed the amount of
the combined Commitments then in effect. All accrued commitment fees to, but
not including, the effective date of any reduction or termination of
Commitments shall be paid on the effective date of such reduction or
termination. Once the Commitments are reduced in accordance with this
Section, they may not be increased.
2.5.13 Lending Offices. Each Bank may from time to time, by
_______________
written or telecopy notice to the Administrative Agent and the Borrower,
change its Lending Office and for whose account Loan payments are to be made.
2.6 Extension of Termination Date.
_____________________________
2.6.1 Requests for Extension. The Borrower may, by notice to
______________________
the Administrative Agent (who shall promptly notify the Banks) not later than
45 days prior to each of the first anniversary hereof and the second
anniversary hereof (each, a "Loan Anniversary"), request that each Bank
________________
extend such Bank's Termination Date for an additional one year from the
24
Termination Date then in effect hereunder (the "Existing Termination Date");
_________________________
provided, that in no event shall the Termination Date be extended beyond
________
December 1, 2013.
2.6.2 Bank Elections to Extend. Each Bank, acting in its sole
________________________
and individual discretion, shall, by notice to the Administrative Agent given
not later than the date (the "Notice Date") that is 10 Business Days after
___________
receipt of notice from the Administrative Agent of the Borrower's request for
an extension advise the Administrative Agent whether or not such Bank agrees
to such extension and each Bank that determines not to so extend its
Termination Date (a "Non-Extending Bank") shall notify the Administrative
__________________
Agent of such fact promptly after such determination (but in any event no
later than the Notice Date) and any Bank that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be a
Non-Extending Bank. The election of any Bank to agree to such extension
shall not obligate any other Bank to so agree.
2.6.3 Notification by Administrative Agent. The Administrative
____________________________________
Agent shall notify the Borrower of each Bank's determination under this
Section no later than the date 30 days prior to the applicable Loan
Anniversary (or, if such date is not a Business Day, on the next preceding
Business Day).
2.6.4 Additional Banks. If (and only if) the Majority Banks
________________
have agreed to extend their Termination Date, the Borrower shall have the
right on or before the Existing Termination Date to replace each Non-
Extending Bank with, and add as "Banks" under this Agreement in place
thereof, one or more Eligible Assignees (each, an "Additional Bank") as
_______________
provided in Section 3.7, each of which Additional Banks shall have entered
___________
into an Assignment and Assumption pursuant to which such Additional Bank
shall, effective no later than the Existing Termination Date, undertake a
Commitment (and, if any such Additional Bank is already a Bank, its
Commitment shall be in addition to such Bank's Commitment hereunder on such
date).
2.6.5 Minimum Extension Requirement. If (and only if) the
_____________________________
Majority Banks have agreed so to extend their Termination Date immediately
prior to the applicable Loan Anniversary, then, the Termination Date of each
Extending Bank and of each Additional Bank shall be extended to the date
falling one year after the Existing Termination Date (except that, if such
date is not a Business Day, such Termination Date as so extended shall be the
next preceding Business Day) and, as of the Existing Termination Date, each
Additional Bank shall become a "Bank" for all purposes of this Agreement.
2.6.6 Conditions to Effectiveness of Extensions.
_________________________________________
Notwithstanding the foregoing, the extension of the Termination Date
pursuant to this Section shall not be effective with respect to any Bank
unless:
(i) no Unmatured Default or Default shall have occurred and be
continuing on the date of such extension and after giving effect
thereto;
(ii) the representations and warranties contained in this
Agreement are true and correct on and as of the date of such extension
and after giving effect thereto, as
25
though made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date);
(iii) since the date of the financial statements most recently
delivered to the Administrative Agent in accordance with Section 6.1(a),
______________
no event, circumstance or development shall have occurred that
constitutes, has had or could reasonably be expected to have a Material
Adverse Effect; and
(iv) on the Termination Date of each Non-Extending Bank, the
Borrower shall repay to each such Non-Extending Bank any Loans at the
time owing to it (and pay any additional amounts required pursuant to
Section 3.4).
___________
2.6.7 Updated Schedule 3. Promptly after each such extension,
__________________
the Administrative Agent shall prepare and deliver to each remaining Bank an
updated Schedule 3 to this Agreement, listing the Banks, Commitments and
__________
Commitment percentages after giving effect to such extension.
2.6.8 Conflicting Provisions. This Section shall supersede any
______________________
provisions in Section 8.2 or 12.2 to the contrary.
___________ ____
ARTICLE III
TAXES, CHANGE IN CIRCUMSTANCES
______________________________
3.1 Taxes.
_____
(a) Any and all payments by the Borrower to each Bank or the
Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any
Indemnified Taxes. In addition, the Borrower agrees to pay all Other Taxes.
(b) If the Borrower shall be required by law to deduct or withhold
any Indemnified Taxes, Other Taxes or Further Taxes from or in respect of any
sum payable hereunder to any Bank or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
(iii) the Borrower shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable Law; and
(iv) the Borrower shall also pay to each Bank or the
Administrative Agent for the account of such Bank, at the time interest
26
is paid, Further Taxes in the amount that the respective Bank specifies
as necessary to preserve the after-tax yield the Bank would have
received if such Indemnified Taxes, Other Taxes or Further Taxes had not
been imposed.
(c) The Borrower agrees to indemnify and hold harmless each Bank and
the Administrative Agent for the full amount of (i) Indemnified Taxes, (ii)
Other Taxes, and (iii) Further Taxes in the amount that the respective Bank
specifies as necessary to preserve the after-tax yield the Bank would have
received if such Indemnified Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Indemnified Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days
after the date the Bank or the Administrative Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the Borrower of
Indemnified Taxes, Other Taxes or Further Taxes, the Borrower shall furnish
to each Bank or the Administrative Agent the original or a certified copy of
a receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Bank or the Administrative Agent.
3.2 Yield Protection. If, after the date hereof, because of the
________________
enactment of, or any change in, any Law or any governmental or quasi
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof (other than such
enactments or changes that are not effective as of August 31, 2006 but are
scheduled to become effective thereafter pursuant to such laws, rules,
regulations, policies, guidelines, directives or interpretations that are
effective as of August 31, 2006), which
(a) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Bank in respect of Fixed Rate Advances (other than reserves and assessments
taken into account in determining the interest rate applicable to Fixed Rate
Advances), or
(b) imposes any other condition the result of which is to increase
the cost to any Bank of making, funding or maintaining Fixed Rate Advances or
reduces any amount receivable by any Bank in connection with loans, or
requires any Bank to make any payment calculated by reference to the amount
of loans held or interest received by it, by an amount deemed material by
such Bank, or
(c) affects the amount of capital required or expected to be
maintained by any Bank or any corporation controlling any Bank and such Bank
determines the amount of capital required is increased by or based upon the
existence of this Agreement or its obligation to make Loans hereunder or of
commitments of this type,
then, within 15 days of demand by such Bank through the Administrative Agent,
the Borrower shall pay such Bank that portion of such increased expense
incurred (including, in the case of Section 3.2(c), any reduction in the rate
______________
of return on capital to an amount below that which it could have achieved but
for such law, rule, regulation, policy, guideline or directive and after
27
taking into account such Bank's policies as to capital adequacy) or reduction
in an amount received which such Bank determines is attributable to making,
funding and maintaining its Loans and its Commitment. Notwithstanding the
foregoing, if a Bank fails to make a claim within 90 days after it becomes,
or ought reasonably to have become, aware of any event giving rise to a claim
under this Section 3.2, then such Bank shall be entitled to make any claim
___________
under this Section 3.2 only in respect of any amounts due under this Section
___________ _______
3.2 that are attributable to the period following the 90th day preceding the
___
day upon which the Bank makes such claim.
3.3 Availability of Rate Options. If any Bank determines that
____________________________
maintenance of any of its Fixed Rate Loans at a suitable Lending Office would
violate any applicable law, rule, regulation or directive, whether or not
having the force of law, such Bank shall so notify the Administrative Agent
and the Administrative Agent shall suspend the availability of the affected
Rate Option and require any Fixed Rate Advances outstanding under the
affected Rate Option to be repaid; or if any Bank determines that (i)
deposits of a type or maturity appropriate to match fund Fixed Rate Advances
are not available, the Administrative Agent shall suspend the availability of
the affected Rate Option with respect to any Fixed Rate Advances made after
the date of any such determination, or (ii) a Rate Option does not accurately
reflect the cost of making a Fixed Rate Advance at such Rate Option, such
Bank shall so notify the Administrative Agent and then the Administrative
Agent shall suspend the availability of the affected Rate Option with respect
to any Fixed Rate Advances made after the date of any such determination.
3.4 Funding Indemnification. If any payment of a Fixed Rate Advance
_______________________
occurs, whether made by the Borrower or by a Bank or other assignee in
connection with an assignment pursuant to Section 3.7, on a date which is not
___________
the last day of the applicable Interest Period, whether because of
acceleration, prepayment, automatic conversion or otherwise, or the Borrower
requests a Fixed Rate Advance, or the continuation or conversion of an
Advance as or to a Fixed Rate Advance, or the Borrower does not borrow,
continue or convert such Fixed Rate Advance on the date specified by the
Borrower except by reason of default by the Banks, the Borrower will
indemnify each Bank for any loss or cost incurred by it resulting therefrom,
including any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed Rate Advance.
3.5 Regulation D Compensation. Each Bank may through the
_________________________
Administrative Agent request the Borrower to pay and upon such request the
Borrower shall pay, contemporaneously with each payment of interest on the
Borrower's Eurodollar Ratable Loans, additional interest on such Loans at a
rate per annum determined by such Bank up to but not exceeding the excess of
(i) (A) the Eurodollar Base Rate divided by (B) one minus the Reserve
_____
Requirement with respect to Eurocurrency liabilities (as defined in
Regulation D) over (ii) the Eurodollar Base Rate. Any Bank wishing to
require payment of such additional interest (x) shall so notify the Borrower
and the Administrative Agent, in which case such additional interest on the
Eurodollar Ratable Loans of such Bank shall be payable to such Bank at the
place indicated in such notice with respect to each Interest Period
commencing at least five Business Days after the giving of such notice, and
(y) shall notify the Borrower at least five Business Days prior to each date
on which interest is payable on the Eurodollar Ratable Loans of the amount
then due it under this Section.
3.6 Bank Statements; Survival of Indemnity. To the extent reasonably
______________________________________
possible, each Bank shall designate an alternate Lending Office with respect
to its Fixed Rate Loans to reduce any liability of the Borrower to such Bank
28
under Section 3.1 or 3.2 or to avoid the unavailability of a Rate Option
___________ ___
under Section 3.3, so long as such designation is not prohibited by
___________
applicable legal and regulatory restrictions and not disadvantageous to such
Bank as determined in its sole discretion. Each Bank shall deliver to the
Borrower through the Administrative Agent a written statement of such Bank as
to the amount due, if any, under Sections 3.1, 3.2 or 3.4, simultaneously
________________________
with making a request for payment under said Sections 3.1, 3.2 or 3.4. Such
________________________
written statement shall set forth in reasonable detail the calculations upon
which such Bank determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Fixed Rate Loan
shall be calculated as though each Bank funded its Fixed Rate Loan through
the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Fixed Rate for such Loan,
whether in fact that is the case or not. Unless otherwise provided herein,
the amount specified in the written statement shall be payable on demand
after receipt by the Borrower of the written statement. The Obligations of
the Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of the
__________________________
Obligations and termination of this Agreement.
3.7 Removal of Banks. If (i) the obligation of any Bank to make or
________________
continue any Loans as, or convert Loans to, Eurodollar Ratable Loans has been
suspended pursuant to Section 3.3, or (ii) any Bank has demanded compensation
___________
under Section 3.1 or 3.2, the Borrower may elect to remove such Bank as a
__________________
Bank hereunder or, at Borrower's sole expense, to require such Bank to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and the consents required by, Section 13.1), all
____________
of its interest, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations; provided,
________
that (A) the Borrower notifies such Bank through the Administrative Agent of
such election at least five Business Days before any date fixed for a
borrowing, (B) (x) in the case of a removal, the Borrower promptly repays all
outstanding Obligations to such removed Bank or (y) in the case of an
assignment and delegation, such Bank shall have received payment of an amount
equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and other Obligations payable to it hereunder and under the
other Loan Documents from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (C) no Default or Unmatured Default exists. Upon receipt
by the Administrative Agent of a notice of removal of a Bank in accordance
herewith, the Commitment of such Bank shall terminate.
ARTICLE IV
CONDITIONS PRECEDENT
____________________
4.1 Closing. Concurrently with the execution of this Agreement and
_______
prior to making the initial Advance, the Borrower will deliver to the
Administrative Agent, with sufficient copies for the Banks, the following
documents, in form and substance satisfactory to the Administrative Agent and
the Banks:
(a) Executed copies of this Agreement.
(b) Competitive Bid Notes and Ratable Notes payable to the order of
each of the Banks requesting Notes.
29
(c) Copies, certified as of a date not more than one week prior to
the Effective Date by the Secretary or Assistant Secretary (or comparable
officer) of the Borrower, of its Board of Directors' (or Executive
Committee's) resolutions authorizing execution of the Loan Documents.
(d) An incumbency certificate, executed as of a date not more than
one week prior to the Effective Date by the Secretary or Assistant Secretary
(or comparable officer) of the Borrower which shall identify by name and
title and bear the signature of the officers of the Borrower authorized to
sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Administrative Agent and the Banks shall be entitled to rely
until informed of any change in writing by the Borrower.
(e) A written opinion of the Borrower's in house counsel, addressed
to the Administrative Agent and the Banks in substantially the form of
Exhibit E hereto (which opinion the Borrower hereby expressly instructs such
counsel to prepare and deliver to the Administrative Agent and the Banks for
their benefit).
(f) One copy of the Articles of Incorporation (or comparable
document) of the Borrower, together with all amendments, certified as of a
recent date by the appropriate governmental officer in the State of Oregon.
(g) A copy, certified by the Secretary or Assistant Secretary (or
comparable officer) of the Borrower, of its Bylaws.
(h) A certificate, signed by the chief financial officer of the
Borrower, stating that (x) on the Effective Date no Default or Unmatured
Default has occurred and is continuing and (y) there has not occurred a
material adverse change since May 31, 2006 in the business, assets,
liabilities, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole or in the facts and information regarding such
entities as represented to date.
(i) Evidence satisfactory to the Administrative Agent that the
Existing Credit Agreement has been, or concurrently with the effectiveness of
this Agreement will be, terminated and no loans or other amounts are
outstanding thereunder.
(j) Such other documents as any Bank or its counsel may have
reasonably requested prior to execution of the Agreement.
(k) Any fees required to be paid on or before the Effective Date
shall have been paid.
4.2 Each Advance. The Banks shall not be required to make any
____________
Advance, unless on the applicable Borrowing Date:
(a) No Default or Unmatured Default has occurred and is continuing,
or would result from such proposed Advance.
30
(b) The representations and warranties contained in Article V are
_________
true and correct as of such Borrowing Date except for changes in the
Schedules hereto reflecting transactions permitted by this Agreement.
(c) The Administrative Agent shall have received a Ratable Borrowing
Notice in accordance with the requirements hereof and/or such other requests
and documentation required under Section 2.3, if applicable.
______________
Each Ratable Borrowing Notice or Competitive Bid Quote Request with
respect to each such Advance shall constitute a representation and warranty
by the Borrower that the conditions contained in Sections 4.2(a) and (b) have
_______________ ___
been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
______________________________
The Borrower represents and warrants to the Banks that:
5.1 Corporate Existence. The Borrower is a corporation duly
___________________
incorporated and validly existing under the laws of the State of Oregon and
is duly qualified and has all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
5.2 Authorization and Validity. The Borrower has the corporate power
__________________________
and authority and legal right to execute and deliver the Loan Documents and
to perform its Obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its Obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents constitute legal, valid and binding Obligations of the
Borrower enforceable against the Borrower in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and
_______________________________
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any Law, order, writ, judgment, injunction, decree or award
binding on the Borrower or any Subsidiary or the Borrower's or any
Subsidiary's articles of incorporation or bylaws or the provisions of any
indenture, instrument or agreement to which the Borrower or any Subsidiary is
a party or is subject, or by which it, or its property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the property of the Borrower or a
Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
any Governmental Authority, or any subdivision thereof, is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4 Financial Statements. The May 31, 2006 and the August 31, 2006
____________________
consolidated financial statements of the Borrower and the Subsidiaries
heretofore delivered to the Banks were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and
31
operations of the Borrower and the Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
5.5 Taxes. The Borrower and the Subsidiaries have filed all United
_____
States federal tax returns and all other United States and foreign tax
returns which are required to be filed and have paid all taxes due pursuant
to said returns or pursuant to any assessment received by the Borrower or any
Subsidiary, except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided. The United States
income tax returns of the Borrower and the Subsidiaries have been audited by
the Internal Revenue Service through the fiscal year ended May 31, 2001. No
tax liens have been filed and no claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of the
Borrower and the Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.6 Litigation and Contingent Obligations. There is no litigation,
_____________________________________
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of the Borrower's officers, threatened against or
affecting the Borrower or any Subsidiary which might materially adversely
affect the business, properties, financial condition prospects, or results of
operations of the Borrower or the ability of the Borrower to perform its
Obligations under the Loan Documents. The Borrower has no material
contingent obligations not provided for or disclosed in the financial
statements referred to in Section 5.4 or delivered pursuant to Section 6.1.
___________ ___________
5.7 Subsidiaries. Schedule 1 hereto contains an accurate list of all
____________ __________
of the presently existing Subsidiaries of the Borrower, setting forth their
respective jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or other Subsidiaries as of
the Effective Date. All of the issued and outstanding shares of capital
stock of such Subsidiaries have been duly authorized and issued and are fully
paid and non assessable. Each Subsidiary is duly organized or formed and
validly existing under the laws of its jurisdiction of incorporation or
organization and is duly qualified and has all requisite power and authority
to conduct its business in each jurisdiction in which its business is
conducted.
5.8 ERISA. There are no material Unfunded Liabilities. Each Plan
_____
complies in all material respects with all applicable requirements of Law and
regulations, no Reportable Event has occurred with respect to any Plan,
neither the Borrower nor any other members of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to terminate any Plan.
5.9 Accuracy of Information. No information, exhibit or report
_______________________
furnished by the Borrower or any Subsidiary to the Administrative Agent or to
any Bank in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein
not misleading.
5.10 Regulation U. Neither the Borrower nor any Subsidiary owns any
____________
margin stock (as defined in Regulation U).
32
5.11 Material Agreements. Neither the Borrower nor any Subsidiary is a
___________________
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
5.12 Compliance With Laws. The Borrower and its Subsidiaries have
____________________
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective properties where failure to
comply could reasonably be expected to have a Material Adverse Effect.
5.13 Ownership of Properties. Except as set forth on Schedule 2
_______________________
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section
6.15, to all of the properties and assets reflected in the financial
statements as owned by them.
5.14 Post-Retirement Benefits. The amount of the present value of the
________________________
expected cost of post retirement medical and insurance benefits payable by
the Borrower and its Subsidiaries to their employees and former employees, as
estimated by the Borrower in accordance with reasonable procedures and
assumptions, is not material to the financial condition of the Borrower.
5.15 Environmental and Safety and Health Matters. To the best of the
___________________________________________
knowledge of the Borrower, the Borrower and each Subsidiary are in compliance
with all Environmental Laws and Occupational and Health Laws where failure to
comply would reasonably be expected to have a Material Adverse Effect on the
ability of the Borrower to perform its obligations hereunder. Neither the
Borrower nor any Subsidiary has received notice of any claims that any of
them is not in compliance in all material respects with the Environmental
Laws where failure to comply would reasonably be expected to have a Material
Adverse Effect on the ability of the Borrower to perform its Obligations.
ARTICLE VI
COVENANTS
_________
During the term of this Agreement, unless the Majority Banks shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
___________________
each Material Subsidiary, a system of accounting established and administered
in accordance with generally accepted accounting principles, and furnish to
the Administrative Agent with sufficient copies for each Bank:
(a) Within 100 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants, acceptable to the Banks, prepared in accordance with generally
accepted accounting principles on a consolidated basis for itself and the
33
Subsidiaries, including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and a statement of
cash flows.
(b) Within 60 days after the close of each of the first three
quarterly periods of each of its fiscal years, for itself and the
Subsidiaries, a consolidated unaudited balance sheet as at the close of such
period, and a consolidated profit and loss statement and a consolidated
statement of cash flows for the period from the beginning of such fiscal year
to the end of such quarter, all certified by its chief financial officer.
(c) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit H (each, a
_________
"Compliance Certificate") hereto signed by its chief financial officer
______________________
showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists or, if any
Default or Unmatured Default exists, stating the nature and status thereof.
(d) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements so
furnished.
(e) Promptly upon the filing thereof, copies of all S 1's, 10 Ks and
10 Qs (and any substitute which may hereafter be required) which the Borrower
or any Material Subsidiary files with the Securities and Exchange Commission.
(f) Promptly after the Borrower has notified the Administrative
Agent of any intention by the Borrower to treat the Loans as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4), a duly completed copy of IRS Form 8886 or any successor form.
(g) Such other information (including non-financial information) as
the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to clauses (a), (b), (d) and
_____________________
(e) of this Section 6.1 (to the extent any such documents are included in
___ ___________
materials otherwise filed with the SEC) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the
Borrower's website on the Internet at the website address at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇;
or (ii) on which such documents are posted on the Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each
Bank and the Administrative Agent have access (whether a commercial, third-
party website or whether sponsored by the Administrative Agent); provided,
________
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Bank that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent or such Bank and (ii) the Borrower shall
notify (which may be by facsimile or electronic mail) the Administrative
Agent and each Bank of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
____
copies) of such documents. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.1(c) to the Administrative
______________
Agent and each of the Banks. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
34
maintain copies of the documents referred to above, and in any event shall
have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Bank shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Co-Arrangers will make available to the Banks materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on IntraLinks or
__________________
another similar electronic system (the "Platform") and (b) certain of the
________
Banks may be "public-side" Banks (i.e. Banks that do not wish to receive
material non-public information with respect to the Borrower or its
securities) (each, a "Public Bank"). The Borrower hereby agrees that (i)
___________
all Borrower Materials that are to be made available to Public Banks shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean
that the word "PUBLIC" shall appear prominently on the first page thereof;
(ii) by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to
have authorized the Administrative Agent, the Co-Arrangers and the Banks to
treat such Borrower Materials as not containing any material non-public
information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however, that to
________ _______
the extent such Borrower Materials constitute Information (as defined in
Section 10.12), they shall be treated as set forth in such Section 10.12);
_____________ _____________
(iii) all Borrower Materials marked "PUBLIC" are permitted to be made
available through a portion of the Platform designated "Public Investor"; and
(iv) the Administrative Agent and each Co-Arranger shall be entitled to treat
any Borrower Materials that are not marked "PUBLIC" as being suitable only
for posting on a portion of the Platform not designated "Public Investor".
Notwithstanding the foregoing, the Borrower shall not be under any obligation
to ▇▇▇▇ any Borrower Materials "PUBLIC".
6.2 Use of Proceeds. The Borrower will, and the Borrower will cause
_______________
each Subsidiary to, use the proceeds of the Advances for working capital
purposes and general corporate purposes; provided, that the proceeds of the
________
Advances shall not be used for the direct financing of an Unfriendly
Acquisition, a bid to make an Unfriendly Acquisition or any steps preliminary
to an Unfriendly Acquisition or a bid to make an Unfriendly Acquisition. The
Borrower will not, nor will the Borrower permit any Subsidiary to, use any of
the proceeds of the Loans to purchase or carry any "margin stock" (as defined
in Regulations U and X) or to extend credit to any person to purchase or
carry any margin stock, or extend credit to any person for any of the
aforesaid purposes.
6.3 Notice of Default. The Borrower will, and will cause each
_________________
Subsidiary to, give prompt notice in writing to the Administrative Agent and
Banks of (a) the occurrence of any Default or Unmatured Default, (b) any
other development, financial, legal or otherwise, which the Borrower
reasonably expects will have a Material Adverse Effect or would materially
adversely affect the ability of the Borrower to repay the Obligations, and
(c) receipt of any notice that the operations of the Borrower or any
Subsidiary are not in compliance with requirements of any applicable
Environmental Law or any Occupational Safety and Health Law where failure to
comply would reasonably be expected to have a Material Adverse Effect on the
ability of the Borrower to perform its Obligations hereunder, or receipt of
notice that any properties or assets of the Borrower or any Subsidiary are
subject to an Environmental Lien securing obligations in excess of
__________________
35
$20,000,000. As used herein, "Environmental Lien" means a Lien in favor of
any Governmental Authority for (i) any liability under any Environmental Law,
or (ii) damages arising from or costs incurred by such Governmental Authority
in response to a spillage, disposal or release into the environment of any
hazardous or toxic substance.
6.4 Preservation of Existence; Conduct of Business. The Borrower
______________________________________________
will, and will cause each Subsidiary to, do all things necessary to remain
duly incorporated and validly existing as a corporation in its jurisdiction
of incorporation and maintain all requisite authority to conduct its business
in each jurisdiction in which its business is conducted; provided, that the
________
Borrower may liquidate or dissolve any Subsidiary into the Borrower or any
other Subsidiary; provided, however, that a Material Subsidiary may not
________ _______
liquidate or dissolve into a Subsidiary that is not a Material Subsidiary.
The Borrower will not, and will not permit any Subsidiary to, engage in any
material line of business substantially different from those lines of
business carried on by the Borrower and its Subsidiaries on the date hereof
or such other lines of business as are reasonably related thereto.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, pay
_____
when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
6.6 Insurance. The Borrower will, and will cause each Subsidiary to,
_________
maintain with financially sound and reputable insurance companies insurance,
or a program of self-insurance, on all their property in such amounts and
covering such risks as is consistent with sound business practice, and the
Borrower will furnish to the Administrative Agent upon any Bank's request
full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each
____________________
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject where
noncompliance could reasonably be expected to have a Material Adverse Effect.
6.8 Maintenance of Properties; Trademarks and Franchises. The
____________________________________________________
Borrower will, and will cause each Subsidiary to, do all things necessary to
maintain, preserve, protect and keep its properties in good repair, working
order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times. The Borrower and each Subsidiary own, are
licensed or otherwise have the lawful right to use, and will continue to own,
be licensed or have the lawful right to use, all permits and other
governmental approvals, patents, trademarks, trade names, copyrights,
technology, know how and processes used in or necessary for the conduct of
their businesses as currently conducted. The use of such permits and other
governmental approvals, patents, trademarks, trade names, copyrights,
technology, know how and processes by the Borrower and each of its
Subsidiaries does not infringe on the rights of any Person.
6.9 Inspection. Subject to Section 10.12 hereof, the Borrower will,
__________ _____________
and will cause each Subsidiary to, permit the Administrative Agent or any
Bank, by their respective representatives and agents, to inspect any of the
properties, corporate books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other
36
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Administrative Agent or any Bank may designate.
6.10 Dividends. The Borrower will not, nor will it permit any
_________
Subsidiary to, declare or pay any dividends on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at any time outstanding,
if, after giving effect thereto, the Borrower or any Subsidiary is in
violation of any of the provisions hereof.
6.11 Merger. The Borrower will not, nor will it permit any Material
______
Subsidiary to, merge or consolidate with or into any other Person, except
that (a) a Material Subsidiary may merge or consolidate with the Borrower or
another Material Subsidiary; provided, that in connection with any merger or
consolidation involving the Borrower, the Borrower is the surviving entity,
and (b) the Borrower or a Material Subsidiary may merge or consolidate with
any other Person to effect an Acquisition permitted by Section 6.14;
provided, that the Borrower or such Material Subsidiary, as applicable, is
the surviving entity.
6.12 Sale of Assets. The Borrower will not, nor will it permit any
______________
Subsidiary to, lease, sell or otherwise dispose of all or any of its
property, assets or business to any other Person except (i) sales of
inventory in the ordinary course of business, and (ii) any other disposals of
assets (including sale and leasebacks but excluding the sale and leaseback of
the Borrower's headquarters in Beaverton, Oregon) so long as the aggregate
book value of the assets so disposed by the Borrower and its Subsidiaries in
any period of twelve consecutive months, commencing on or after the date
hereof, does not exceed 20% of the aggregate book value of the assets of the
Borrower and its Subsidiaries, taken as a whole ("Substantial Portion"), as
of the end of the fiscal quarter immediately preceding the date of
calculation.
6.13 Sale and Leaseback. The Borrower will not, nor will it permit any
__________________
Subsidiary to, sell or transfer any property in order to concurrently or
subsequently lease as lessee such or similar property except with respect to
sales of property or sale and leaseback transactions which would be permitted
by Section 6.12.
____________
6.14 Acquisitions. The Borrower will not, nor will it permit any
____________
Subsidiary to, make any Acquisition if the Acquisition is of a Person engaged
in businesses not permitted by Section 6.4.
___________
6.15 Liens. The Borrower will not, nor will it permit any Subsidiary
______
to, create, incur, or suffer to exist any Lien in, of or on the property of
the Borrower or any Subsidiary, except:
(a) Liens for taxes, assessments or governmental charges or levies
on its property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings.
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 30 days past due.
37
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the business of the Borrower or the Subsidiaries.
(e) Liens existing on the date hereof and described in Schedule 2
hereto.
(f) Liens incurred in connection with the purchase by the Borrower
or a Subsidiary of tangible assets (excluding inventory) provided the
Indebtedness secured thereby does not exceed the purchase price of such
asset, plus any related interest and fees and the Lien attaches only to the
asset so purchased.
(g) Liens incurred in connection with the acquisition of real estate
and construction of buildings for or on behalf of the Borrower or a
Subsidiary; provided, that:
(i) the Indebtedness secured by such Lien does not exceed the
cost of such construction, plus any related interest and fees, and
(ii) the aggregate book value of all real estate and buildings
subject to Liens permitted by this subparagraph (g), does not exceed 20%
of the Borrower's net worth at the time of determination.
(h) Liens not otherwise permitted hereunder, on property other than
accounts receivable and inventory; provided, that the aggregate amount of
________
Indebtedness secured thereby (other than those referred to in (a) through (g)
above) shall not at any one time exceed $100,000,000 or its Dollar equivalent
at such time in other currencies.
(i) Liens filed in connection with the construction of, and
additions to, the Borrower's headquarters in Beaverton, Oregon in an
aggregate amount which do not reflect obligations of the Borrower in excess
of $100,000,000.
6.16 Affiliates. The Borrower will not, and will not permit any
__________
Subsidiary to, enter into any transaction (including the purchase or sale of
any property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower than the
Borrower or such Subsidiary would obtain in a comparable arm's length
transaction.
6.17 Capitalization Ratio. The Borrower will not as of the end of any
____________________
fiscal quarter from and after the Effective Date permit the Capitalization
Ratio to exceed 0.60 to 1.00.
6.18 Notice of Rating Change. The Borrower shall, no later than ten
_______________________
(10) Business Days after the chief executive officer, the president, any
corporate vice president or the treasurer of the Borrower obtains knowledge
of any such change, give notice to the Administrative Agent (by telephone,
38
followed promptly by written notice transmitted by facsimile with a hard copy
sent promptly thereafter) of any change in rating by any Rating Agency in
respect of the Borrower's long-term, senior unsecured, non-credit-enhanced
debt, together with the details thereof, and of any announcement by any
Rating Agency that its rating in respect of such senior unsecured long-term
debt is "under review" or that any such debt rating has been placed on a
"CreditWatch List"(r) or "watch list" or that any similar action has been taken
by such Rating Agency.
ARTICLE VII
DEFAULTS
________
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary to the Banks or the Administrative Agent
under or in connection with this Agreement, any Loan, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2 Nonpayment of principal of any Loan when due, or nonpayment of
interest upon any Loan or of any utilization fee, facility fee or other
Obligations under any of the Loan Documents within five days after the same
becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.3(a), 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.17. The breach
by the Borrower (other than a breach which constitutes a Default under
Section 7.1, 7.2 or the preceding sentence of this Section 7.3) of any of the
terms or provisions of this Agreement which is not remedied within 30 days
after written notice from the Administrative Agent or any Bank.
7.4 Failure of the Borrower or any Subsidiary to pay any Indebtedness
in an aggregate principal amount in excess of $50,000,000 within 30 days
after the Borrower knows or ought reasonably to have known, that such
Indebtedness was due; or the default by the Borrower or any Subsidiary in the
performance of any term, provision or condition contained in any agreement
under any such Indebtedness was created or is governed, or any other event
shall occur or condition exist, the effect of which is to cause, or to permit
the holder or holders of such Indebtedness to cause such Indebtedness to
become due prior to its stated maturity; or any such Indebtedness of the
Borrower or any Subsidiary shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Borrower or any Material Subsidiary shall
not pay, or admit in writing its inability to pay, its debts generally as
they become due.
7.5 The Borrower or any Material Subsidiary shall (i) have an order
for relief entered with respect to it under any Debtor Relief Law as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it
or any substantial part of its property, (iv) institute any proceeding
seeking an order for relief under any Debtor Relief Law as now or hereafter
in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
39
dissolution, winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any Debtor Relief Law or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.5, or (vi)
fail to contest in good faith any appointment or proceeding described in
Section 7.6.
7.6 Without the application, approval or consent of the Borrower or
any Subsidiary, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any Subsidiary or any substantial part
of its property, or a proceeding described in Section 7.5(iv) shall be
instituted against the Borrower or any Subsidiary and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for a period of 60 days.
7.7 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of all or any
Substantial Portion of the property of the Borrower or any Subsidiary.
7.8 The Borrower or any Subsidiary shall fail within 30 days to pay,
bond or otherwise discharge, one or more judgments or orders for the payment
of money in excess of $20,000,000 in the aggregate, which are not stayed on
appeal or otherwise being appropriately contested in good faith. Any Liens
arising out of such judgments or orders are subject to the provisions of
Section 6.15(h).
_______________
7.9 Any Reportable Event shall occur in connection with any Plan or
any material Unfunded Liabilities shall exist.
7.10 Any Change in Control shall occur. "Change in Control" means
_________________
either (a) with respect to any capital stock of the Borrower that is publicly
traded, the acquisition after the date of this Agreement by any Person or two
or more Persons acting in concert, other than the Knight Family, of
beneficial ownership (within the meaning of Rule 13d 3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 50% or more
of the outstanding shares of such capital stock which are entitled to vote in
the election of directors; or (b) with respect to any capital stock of the
Borrower that is not publicly traded, if the Knight Family shall at any time
fail to own and control 67% or more of the outstanding shares of such capital
stock.
7.11 There occurs under any agreement or arrangement designed to
protect at least one of the parties thereto from the fluctuations of interest
rates, exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions, including, but not limited to, interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants (each, a "Swap Contract"), an "early termination
date" (as defined in such Swap Contract) resulting from (a) any "event of
default" (as defined in such Swap Contract) under such Swap Contract as to
which the Borrower or any Subsidiary is the defaulting party, or (b) any
"termination event" (as defined in such Swap Contract) as to which the
Borrower or any Subsidiary is an affected party, and, in either event, the
net ▇▇▇▇-to-market value for such Swap Contract, as determined by the
Borrower based upon one or more mid-market or other readily available
40
quotations provided by any recognized dealer in such Swap Contracts, owed by
the Borrower or such Subsidiary as a result thereof is greater than
$20,000,000.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
______________________________________________
8.1 Acceleration. If any Default described in Section 7.5 or 7.6
____________
occurs, the obligations of the Banks to make Loans to the Borrower hereunder
shall automatically terminate and the Obligations of the Borrower shall
immediately become due and payable without any election or action on the part
of the Administrative Agent or any Bank. If any other Default occurs, the
Majority Banks may terminate the Commitments of the Banks, or declare the
Obligations of the Borrower to be due and payable, or both, whereupon such
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within 14 days after acceleration of the maturity of the Obligations
or termination of the Commitments of the Banks as a result of any Default
(other than any Default as described in Section 7.5, 7.6, 7.7 or 7.10) and
before any judgment or decree for the payment of the Obligations due shall
have been obtained or entered, the Majority Banks (in their sole discretion)
shall so direct the Administrative Agent to, and the Administrative Agent
shall, by notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2 Amendments and Waivers. No amendment or waiver of any provision
______________________
of this Agreement or any other Loan Document, and no consent to any departure
by the Borrower therefrom, shall be effective unless in writing signed by the
Majority Banks and the Borrower and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.1 without the written
consent of each Bank;
(b) extend or increase the Commitment of any Bank (except
reinstatement of any Commitment in accordance with Section 8.1) without the
written consent of such Bank;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any other Loan Document without
the written consent of each Bank directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan, or any fees or other amounts payable hereunder or under
any other Loan Document, or change the manner of computation of any financial
ratio (including any change in any applicable defined term) used in
determining the Applicable Margin, Applicable Facility Fee Rate, or
Applicable Utilization Fee Rate, as the case may be, that would result in a
reduction of any interest rate on any Loan or any fee payable hereunder
without the written consent of each Bank directly affected thereby;
41
(e) change Section 2.5.8 or Section 12.2 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Bank; or
(f) change any provision of this Section or the definition of
"Majority Banks" or any other provision hereof specifying the number or
percentage of Banks required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without
the written consent of each Bank;
provided, that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Banks required above,
affect the rights or duties of the Administrative Agent under this Agreement
or any other Loan Document; and provided, further, that the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto.
8.3 Preservation of Rights. No delay or omission of the Banks or the
______________________
Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence
of a Default or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Banks and the Administrative Agent required pursuant to Section 8.2, and then
only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and
all shall be available to the Administrative Agent and the Banks until the
Obligations have been paid in full.
ARTICLE IX
NOTICES
_______
9.1 Giving Notice. Except as otherwise permitted by Section 2.5.9
_____________
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed or delivered to such party
at its address set forth below its signature hereto or at such other address
as may be designated by such party in a notice to the other parties. Any
notice, if mailed by certified mail, return receipt requested and properly
addressed with postage prepaid, shall be deemed given when received and
receipt confirmed; any notice, if transmitted by facsimile, shall be deemed
given when legibly transmitted and receipt confirmed.
9.2 Change of Address. The Borrower, the Administrative Agent and any
_________________
Bank may each change the address for notices by a notice in writing, in the
case of the Borrower or the Administrative Agent, to the other parties hereto
and, in the case of any Bank, to the Borrower and the Administrative Agent.
42
ARTICLE X
GENERAL PROVISIONS
__________________
10.1 Survival of Representations. All representations and warranties
___________________________
made hereunder and in any other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall
survive the execution and delivery hereof and thereof. Such representations
and warranties have been or will be relied upon by the Administrative Agent
and each Bank, regardless of any investigation made by the Administrative
Agent or any Bank or on their behalf and notwithstanding that the
Administrative Agent or any Bank may have had notice or knowledge of any
Default or Unmatured Default at the time of any Loan or Commitment, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied.
10.2 Governmental Regulation. Anything contained in this Agreement to
_______________________
the contrary notwithstanding, no Bank shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Taxes. Any taxes (excluding income taxes) or other similar
_____
assessments or charges payable or ruled payable by any Governmental Authority
in respect of the Loan Documents shall be paid by the Borrower, together with
interest and penalties, if any.
10.4 Headings. Section headings in the Loan Documents are for
________
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5 Entire Agreement. This Agreement, together with the other Loan
________________
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict
between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided, that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Banks in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.6 Several Obligations. The obligations of the Banks hereunder to
___________________
make Ratable Loans are several and not joint. No Bank shall be the partner
or agent of any other (except to the extent to which the Administrative Agent
is authorized to act as such). The failure of any Bank to perform any of its
obligations hereunder shall not relieve any other Bank from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
10.7 Expenses; Indemnification.
_________________________
(a) The Borrower agrees (a) to pay or reimburse the Administrative
Agent for all costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
43
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration
of the transactions contemplated hereby and thereby, including all Attorney
Costs, and (b) to pay or reimburse the Administrative Agent and each Bank for
all costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement
or the other Loan Documents (including all such costs and expenses incurred
during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges
and fees and taxes related thereto, and other out-of-pocket expenses incurred
by the Administrative Agent and the cost of independent public accountants
and other outside experts retained by the Administrative Agent or any Bank.
All amounts due under this Section 10.7 shall be payable within ten Business
Days after demand therefor. The agreements in this Section shall survive the
termination of the Commitments and repayment of all other Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each
Administrative Agent-Related Person, each Bank and their respective
Affiliates, directors, officers, employees, counsel, agents and attorneys-in-
fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or
any other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Commitment or Loan or the use or proposed use
of the proceeds therefrom, or (c) any actual or prospective claim,
litigation, investigation or proceeding by third parties relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, that such indemnity shall not, as
to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee, subject to Oregon
Revised Statutes (section) 20.096. No Indemnitee shall be liable for any
damages arising from the use by others of any information or other materials
obtained through IntraLinks, electronic telecommunications, or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect, consequential or punitive
damages relating to this Agreement or any other Loan Document or arising out
of its activities in connection herewith or therewith (whether before or
after the Closing Date). All amounts due under this Section 10.7 shall be
payable within ten Business Days after demand therefor. The agreements in
this Section shall survive the resignation of the Administrative Agent, the
replacement of any Bank, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
44
10.8 Numbers of Documents. All statements, notices, closing documents,
____________________
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to
each of the Banks.
10.9 Accounting. Except as provided to the contrary herein, all
__________
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles. The Borrower will not make any change in its fiscal
year or in the accounting principles and methods used in preparing its
financial statements.
10.10 Severability of Provisions. Any provision of this Agreement and
__________________________
the other Loan Documents to which the Borrower is a party that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 Nonliability of Banks. The relationship between the Borrower and
_____________________
the Banks and the Administrative Agent with respect to this Agreement shall
be solely that of borrower and lender. Neither the Administrative Agent nor
any Bank shall have any fiduciary responsibilities to the Borrower with
respect to this Agreement. Neither the Administrative Agent nor any Bank
undertakes under this Agreement any responsibility to the Borrower to review
or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations.
10.12 Confidentiality. Each of the Administrative Agent and the Banks
_______________
agrees to maintain the confidentiality of the Information (as defined below);
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal
counsel and other advisors who are involved with the lending facility
contemplated by this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority (including any bank examiner or
self-regulatory authority, such as the National Association of Insurance
Commissioners); (c) to the extent required by applicable Laws or regulations
or by any subpoena or similar legal process; (d) to any other party hereto;
(e) in connection with the exercise of any remedies hereunder or under any
other Loan Document or any action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
professional advisor) to any swap or derivative transaction relating to the
Borrower and its obligations; (g) with the consent of the Borrower; or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent or any Bank on a nonconfidential basis from a source
other than the Borrower. For purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Bank on a nonconfidential basis prior to
disclosure by the Borrower; provided, that in the case of information
45
received from the Borrower after the date hereof, such information is clearly
identified in writing at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative Agent and each Bank
may disclose without limitation of any kind, any information with respect to
the "tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or such Bank relating to such tax
treatment and tax structure; provided, that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information,
this sentence shall only apply to such portions of the document or similar
item that relate to the tax treatment or tax structure of the Loans and
transactions contemplated hereby.
10.13 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
_____________
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF OREGON
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.14 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
_______________________
TO THE NON EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OREGON
STATE COURT SITTING IN PORTLAND, OREGON IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF ANY ADMINISTRATIVE AGENT OR ANY BANK TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
10.15 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
____________________
EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
10.16 OREGON LEGAL NOTICE. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES
___________________
AND COMMITMENTS MADE BY US AFTER THE EFFECTIVE DATE OF THIS ACT CONCERNING
LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR
HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN
46
WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY US TO BE ENFORCEABLE. THE
TERM "THIS ACT" MEANS CHAPTER 967 OREGON LAWS 1989. THE TERM "US" MEANS THE
ADMINISTRATIVE AGENT AND THE BANKS. THE EFFECTIVE DATE OF THIS ACT IS
OCTOBER 3, 1989.
10.17 Counterparts. This Agreement may be executed in any number of
____________
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
10.18 No Advisory or Fiduciary Responsibility. In connection with all
_______________________________________
aspects of each transaction contemplated hereby, the Borrower acknowledges
and agrees that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document) constitute arm's-length commercial transactions between
the Borrower and its Affiliates, on the one hand, and the Administrative
Agent and other agents party hereto, on the other hand, and the Borrower is
capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading
to such transaction, the Administrative Agent and each of the other agents
party hereto is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrower or any of its
Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor any other agent party hereto has assumed
or will assume an advisory, agency or fiduciary responsibility in favor of
the Borrower with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver
or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or any other agent party hereto has advised
or is currently advising the Borrower or any of its Affiliates on other
matters) and neither the Administrative Agent nor any other agent party
hereto has any obligation to the Borrower or any of its Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; (iv) the
Administrative Agent and the other agents party hereto and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its Affiliates, and
neither the Administrative Agent nor any such other agent has any obligation
to disclose any of such interests by virtue of any advisory, agency or
fiduciary relationship; and (v) each of the Administrative Agent and the
other agents party hereto has not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. The Borrower hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Administrative
Agent and each other agent party hereto with respect to any breach or alleged
breach of agency or fiduciary duty.
10.19 USA PATRIOT Act Notice. Each Bank that is subject hereto and the
______________________
Administrative Agent (for itself and not on behalf of any Bank) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"Act"), it is required to obtain, verify and record information that
47
identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Bank or the
Administrative Agent, as applicable, to identify the Borrower in accordance
with such Act.
ARTICLE XI
THE ADMINISTRATIVE AGENT
________________________
11.1 Appointment and Authorization of Administrative Agent. Each Bank
_____________________________________________________
hereby irrevocably, subject to Section 11.9, appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or
be deemed to have any fiduciary relationship with any Bank or participant,
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. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and
in the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is
used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
11.2 Delegation of Duties. The Administrative Agent may execute any of
____________________
its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
11.3 Liability of Administrative Agent. No Administrative Agent-
_________________________________
Related Person shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Bank
or participant for any recital, statement, representation or warranty made by
Borrower or any Subsidiary or Affiliate of the Borrower, or any officer
thereof, contained herein or in 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 the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Administrative Agent-Related Person shall be under any obligation to any Bank
or participant to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or
48
any other Loan Document, or to inspect the properties, books or records of
Borrower or any of its Subsidiaries or Affiliates thereof.
11.4 Reliance by Administrative Agent.
________________________________
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement 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 counsel
to Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Majority Banks as it
deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of 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 or any other Loan
Document in accordance with a request or consent of the Majority Banks (or
such greater number of Banks as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Bank that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Bank unless the Administrative
Agent shall have received notice from such Bank prior to the proposed Closing
Date specifying its objection thereto.
11.5 Notice of Default. The Administrative Agent shall not be deemed
_________________
to have knowledge or notice of the occurrence of any Default or Unmatured
Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Banks, unless the Administrative Agent shall have received
written notice from a Bank or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Banks of its receipt of
any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Majority Banks in
accordance with Article VIII; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable
or in the best interest of the Banks.
11.6 Credit Decision; Disclosure of Information by Administrative
____________________________________________________________
Agent. Each Bank acknowledges that no Administrative Agent-Related Person
_____
has made any representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any consent to and acceptance
of any assignment or review of the affairs of Borrower and its Subsidiaries
or Affiliates thereof, shall be deemed to constitute any representation or
warranty by any Administrative Agent-Related Person to any Bank as to any
49
matter, including whether Administrative Agent-Related Persons have disclosed
material information in their possession. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and its
Subsidiaries, and all applicable bank or other regulatory Laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower hereunder. Each Bank
also represents that it will, independently and without reliance upon any
Administrative Agent-Related Person 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
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the
Administrative Agent herein, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower or any of its Affiliates which may
come into the possession of any Administrative Agent-Related Person.
11.7 Indemnification of Administrative Agent. Whether or not the
_______________________________________
transactions contemplated hereby are consummated, the Banks shall indemnify
upon demand each Administrative Agent-Related Person (to the extent not
reimbursed by or on behalf of Borrower and without limiting the obligation of
Borrower to do so), pro rata, and hold harmless each Administrative Agent-
Related Person from and against any and all Indemnified Liabilities incurred
by it; provided, however, that no Bank shall be liable for the payment to any
Administrative Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Administrative
Agent-Related Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Majority Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
11.8 Administrative Agent in Individual Capacity. Bank of America and
___________________________________________
its Affiliates may make loans to, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with Borrower and its Affiliates as
though Bank of America were not the Administrative Agent hereunder and
50
without notice to or consent of the Banks. The Banks acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of Borrower or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Bank and may exercise such rights and powers as though it were not
the Administrative Agent, and the terms "Bank" and "Banks" include Bank of
America in its individual capacity.
11.9 Successor Administrative Agent. The Administrative Agent may, and
______________________________
at the request of the Majority Banks shall, resign as Administrative Agent
upon 30 days' notice to the Banks. If the Administrative Agent resigns under
this Agreement, the Majority Banks shall appoint from among the Banks a
successor administrative agent for the Banks, which successor administrative
agent shall be consented to by the Borrower at all times other than during
the existence of a Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and the Borrower, a successor administrative agent from among
the Banks. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of
the retiring Administrative Agent and the term "Administrative Agent" shall
mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article XI and Section 10.7
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Majority Banks appoint a successor agent as provided for above.
11.10 Foreign Banks. Each Bank that is a "foreign corporation,
_____________
partnership or trust" within the meaning of the Code and that is entitled to
an exemption from or reduction of withholding tax under the laws of the
jurisdiction in which the Borrower is resident for tax purposes or any treaty
to which such jurisdiction is a party with respect to payments hereunder or
under any Loan Documents shall deliver to the Administrative Agent, prior to
receipt of any payment subject to withholding under the Code (or after
accepting an assignment of an interest herein), two duly signed completed
copies of either IRS Form W-8BEN or any successor thereto (relating to such
Person and entitling it to an exemption from, or reduction of, withholding
tax on all payments to be made to such Person by the Borrower pursuant to
this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time to time, each
such Person shall, to the extent it may lawfully do so, (a) promptly submit
to the Administrative Agent such additional duly completed and signed copies
of one of such forms (or such successor forms as shall be adopted from time
to time by the relevant United States taxing authorities) as may then be
51
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent
of any available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Person by the Borrower
pursuant to this Agreement, (b) promptly notify the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (c) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Bank, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction
or withholding for taxes from amounts payable to such Person. If such
Person, to the extent it may lawfully do so, fails to deliver the above forms
or other documentation, then the Administrative Agent may withhold from any
interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that the Administrative
Agent did not properly withhold any tax or other amount from payments made in
respect of such Person, such Person shall indemnify the Administrative Agent
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The obligations of the Banks under this Section shall
survive the payment of all Obligations and the resignation or replacement of
the Administrative Agent.
11.11 Administrative Agent May File Proofs of Claim. In case of the
_____________________________________________
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Banks and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Banks and the Administrative
Agent and their respective agents and counsel, and all other amounts due the
Banks and the Administrative Agent under Sections 2.4 and 10.7 allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Bank to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such
payments directly to the Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts
due the Administrative Agent under Sections 2.4 and 10.7.
53
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf
of any Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Bank or to
authorize the Administrative Agent to vote in respect of the claim of any
Bank in any such proceeding.
11.12 Other Agents; Co-Lead Arrangers. None of the Persons identified
_______________________________
in this Agreement as a "Syndication Agent," "Co-Documentation Agent" or "Co-
Arranger" shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all Banks as
such. Without limiting the foregoing, none of the Persons so identified
shall have or be deemed to have any fiduciary relationship with any Bank.
Each Bank acknowledges that it has not relied, and will not rely, on any of
the Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
________________________
12.1 Setoff. In addition to any rights and remedies of the Banks
______
provided by law, if the Borrower becomes insolvent, however evidenced, or any
Default occurs and is continuing, each Bank is authorized at any time and
from time to time, without prior notice to the Borrower, any such notice
being waived by the Borrower to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Bank to or for the credit or the account of the Borrower
against any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Bank shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured. Each Bank
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
12.2 Ratable Payments. If any Bank, whether by setoff or otherwise,
________________
has payment made to it upon its Loans in a greater proportion than that
received by any other Bank (except as specifically contemplated by the terms
of this Agreement), such Bank agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Banks so that after such purchase each
Bank will hold its ratable proportion of Loans. If any Bank, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or
such amounts which may be subject to set off, such Bank agrees, promptly upon
demand, to take such action necessary such that all Banks share in the
benefits of such collateral ratably in proportion to their Loans. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made. Nothing in this Section shall impair the
right of any Bank to exercise any right of set-off or counterclaim it may
have and apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than the Obligations.
53
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
_________________________________________________
13.1 Successors and Assigns.
______________________
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Bank and no Bank may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of subsection (b) of this Section or (ii)
by way of participation in accordance with the provisions of subsection (d)
of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it);
provided, that any such assignment shall be subject to the following
conditions: (i) (A) in the case of an assignment of the entire remaining
amount of the assigning Bank's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Bank, an Affiliate of a Bank or an
Approved Fund with respect to a Bank, no minimum amount need be assigned and
(B) in any case not described in subsection (b)(i)(A) of this Section the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$10,000,000 unless each of the Administrative Agent and, so long as no
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Bank's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights and obligations in respect of Competitive Bid Loans; (iii) no
consent shall be required for any assignment except to the extent required by
subsection (b)(i)(B) of this Section and, in addition (A) the consent of the
Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (1) a Default has occurred and is continuing at the time of
such assignment or (2) such assignment is to a Bank, an Affiliate of a Bank
or an Approved Fund, and (B) the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed shall be required if such
assignment is to a Person that is not a Bank, an Affiliate of a Bank or an
Approved Fund with respect to a Bank; (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500,
provided, however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment (the assignee, if it is not a Bank, shall deliver to the
Administrative Agent a completed administrative questionnaire in a form
supplied by the Administrative Agent); (v) no such assignment shall be made
54
to the Borrower or any of Borrower's Affiliates or Subsidiaries; and (vi) no
such assignment shall be made to a natural person. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder, if not already a party hereto, shall
become a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Bank
under this Agreement, and the assigning Bank thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 10.7 with
respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute
and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank
of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of,
and principal amounts of the Loans owing to, each Bank pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Bank, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries ) (each, a "Participant") in all or a portion of
such Bank's rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans owing to it); provided, that (i)
such Bank's obligations under this Agreement shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 8.2 that affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.1, 3.2 and 3.4, and shall be
bound by the obligations set forth in Section 3.6, to the same extent as if
it were a Bank and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each
55
Participant also shall be entitled to the benefits of Section 12.1 as though
it were a Bank, provided such Participant agrees to be subject to Section
12.2 as though it were a Bank.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.1 or 3.4 than the applicable Bank would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Foreign Bank if it were a Bank shall not be entitled to the benefits of
Section 3.1 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 11.10 as though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations of such Bank, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided, that no
such pledge or assignment shall release such Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
(g) The words "execution," "signed," "signature" and words of like
import in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually
executed signature or the use of paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable Law,
including the Federal Electronic Signatures and Global and National Commerce
Act or any state Laws based on or substantially similar to the Uniform
Electronic Transactions Act.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 13.1(b)(iii), (v) and (vi) (subject to such consents,
if any, as may be required under Section 13.1(b)(iii)).
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"Approved Fund" means any Fund that is administered or managed by (a) a Bank,
(b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that
administers or manages a Bank.
[Remainder of page intentionally left blank.]
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NIKE, INC.
By:____________________________
Name: _________________________
Title: __________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By:_____________________________
Name: __________________________
Title: ___________________________
BANK OF AMERICA, N.A., as a Bank
By:_____________________________
Name: __________________________
Title: ___________________________
CITICORP USA, INC., as Syndication
Agent
By:_____________________________
Name: __________________________
Title: ___________________________
CITICORP USA, INC., as a Bank
By:_____________________________
Name: __________________________
Title: ___________________________
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as Co-Documentation Agent
By:_____________________________
Name: __________________________
Title: ___________________________
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as a Bank
By:_____________________________
Name: __________________________
Title: ___________________________
DEUTSCHE BANK SECURITIES INC.,
as Co-Documentation Agent
By:____________________________
Name: _________________________
Title: __________________________
DEUTSCHE BANK AG, as a Bank
By:____________________________
Name: _________________________
Title: __________________________
HSBC BANK USA, N.A., as Co-
Documentation Agent
By:_____________________________
Name: __________________________
Title: ___________________________
HSBC BANK USA, N.A., as a Bank
By:_____________________________
Name: __________________________
Title: ___________________________
▇▇▇▇▇▇▇ STREET COMMITMENT
CORPORATION, as a Bank
By:_____________________________
Name: __________________________
Title: ___________________________
JPMORGAN CHASE BANK, N.A., as a Bank
By:____________________________
Name: _________________________
Title: __________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Bank
By:____________________________
Name: _________________________
Title: __________________________
THE NORTHERN TRUST COMPANY, as a
Bank
By:____________________________
Name: _________________________
Title: __________________________
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By:____________________________
Name: _________________________
Title: __________________________
▇▇▇▇▇ FARGO BANK, N.A., as a Bank
By:____________________________
Name: _________________________
Title: __________________________
ROYAL BANK OF CANADA, as a Bank
By:____________________________
Name: _________________________
Title: __________________________
CALYON NEW YORK BRANCH, as a Bank
By:____________________________
Name: _________________________
Title: __________________________
By:____________________________
Name: _________________________
Title: __________________________
THE ROYAL BANK OF SCOTLAND PLC,
as a Bank
By:____________________________
Name: _________________________
Title: __________________________
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By:____________________________
Name: _________________________
Title: __________________________
WESTPAC BANKING CORPORATION,
as a Bank
By:____________________________
Name: _________________________
Title: __________________________
EXHIBIT A-1
NOTE
(Ratable Loans)
$ _________ ___________, 200__
NIKE, INC., an Oregon corporation (the "Borrower"), promises to pay to
the order of _______________ (the "Bank") the lesser of the principal sum of
___________________ Dollars ($_______) and the aggregate unpaid principal
amount of all Ratable Loans made by the Bank to the Borrower pursuant to
Section 2.2 of the Credit Agreement (as the same may be amended or modified,
the "Agreement") hereinafter referred to, in immediately available funds at
the Administrative Agent's Office or as otherwise directed by the
Administrative Agent pursuant to the terms of the Agreement, together with
interest on the unpaid principal amount hereof at the rates and on the dates
set forth in the Agreement. The Borrower shall pay each of these respective
Ratable Loans in full in accordance with the Agreement. All Ratable Loans
not sooner repaid shall be paid in full on the Termination Date.
The Bank shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Ratable Loan made by it and the date
and amount of each principal payment hereunder; provided, however, that any
failure to so record shall not affect the Borrower's Obligations under this
Note.
This Note is one of the Ratable Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement, dated as of December 1,
2006, among the Borrower, Bank of America, N.A., as Administrative Agent, and
the Banks and other Persons party thereto, including the Bank, to which
Agreement reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
OREGON LEGAL NOTICE. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
___________________
COMMITMENTS MADE BY US AFTER THE EFFECTIVE DATE OF THIS ACT CONCERNING LOANS
AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING
WITH EXPRESS CONSIDERATION AND SIGNED BY US TO BE ENFORCEABLE. THE TERM
"THIS ACT" MEANS CHAPTER 967 OREGON LAWS 1989. THE TERM "US" MEANS THE BANK.
THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 3, 1989.
NIKE, INC.
By:
Name:
Title:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (RATABLE LOANS) OF NIKE, INC.
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Borrower Loan Period Paid Balance
____ ________ _________ ___________ _________ _______
EXHIBIT A-2
NOTE
(Competitive Bid Loans)
___________, 200__
NIKE, INC., an Oregon corporation (the "Borrower"), promises to pay, on
or before the Termination Date, to the order of _____________________________
(the "Bank") the aggregate unpaid principal amount of all Competitive Bid
Loans made by the Bank to the Borrower pursuant to Section 2.3 of the Credit
Agreement hereinafter referred to (as the same may be amended or modified,
the "Agreement"), in lawful money of the United States in immediately
available funds at the Administrative Agent's Office or as otherwise directed
by the Administrative Agent pursuant to the terms of the Agreement, together
with interest, in like money and funds, on the unpaid principal amount hereof
at the rates and on the dates determined in accordance with the Agreement.
The Borrower shall pay each of the Competitive Bid Loans in full on the last
day of such Competitive Bid Loan's applicable Interest Period.
The Bank shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice,
the date and amount of each Competitive Bid Loan made by it and the date and
amount of each principal payment hereunder, provided, however, that any
failure to so record shall not affect the Borrower's Obligations under this
Note.
This Note is one of the Competitive Bid Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement dated as of December 1,
2006, among the Borrower, Bank of America, N.A., as Administrative Agent, and
the Banks and other Persons party thereto, including the Bank, to which
Agreement reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
OREGON LEGAL NOTICE. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
___________________
COMMITMENTS MADE BY US AFTER THE EFFECTIVE DATE OF THIS ACT CONCERNING LOANS
AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING
WITH EXPRESS CONSIDERATION AND SIGNED BY US TO BE ENFORCEABLE. THE TERM
"THIS ACT" MEANS CHAPTER 967 OREGON LAWS 1989. THE TERM "US" MEANS THE BANK.
THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 3, 1989.
NIKE, INC.
By:
Name:
Title:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (COMPETITIVE BID LOANS)
OF NIKE, INC.
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Borrower Loan Period Paid Balance
____ ________ _________ ___________ _________ _______
EXHIBIT B
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2)
_______________, 200_
To: Bank of America, N.A.,
as Administrative Agent (the "Administrative Agent")
From: NIKE, Inc. ("Borrower")
Re: Credit Agreement (as extended, renewed, amended or restated from
time to time, the "Agreement") dated as of December 1, 2006 among
the Borrower, Bank of America, N.A., as Administrative Agent, and
the Banks and other Persons party thereto
Borrower hereby gives notice pursuant to Section 2.3.2 of the Agreement
that it requests Competitive Bid Quotes offering to make Competitive Bid
Loans as follows:
Borrowing Date: , 200_
Principal Amount1 Interest Period2
$____________ ____________
Such Competitive Bid Quotes should offer [a Eurodollar Bid Rate] [an
Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Banks in response to this request, the undersigned shall
be deemed to affirm as of such date the representations and warranties made
in the Agreement to the extent specified in Article IV thereof. Capitalized
terms used herein have the meanings assigned to them in the Agreement.
NIKE, INC.
By:__________________________
Name:
Title:
1 Amount must be at least $5,000,000 and an integral multiple of $1,000,000.
2 One, two, three or six months (Eurodollar Auction) or at least 7 and up to
183 days (Absolute Rate Auction), subject to the provisions of the
definitions of Eurodollar Interest Period and Absolute Rate Interest Period.
The Interest Period may not end after the Termination Date.
EXHIBIT C
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3.3)
, 200_
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
NIKE, Inc. (the "Borrower")
Pursuant to Section 2.3.3 of the Credit Agreement dated as of December
1, 2006, (as extended, renewed, amended or restated from time to time, the
"Agreement") among the Borrower, the Banks and other Persons party thereto,
and the undersigned, as Administrative Agent, we are pleased on behalf of the
Borrower to invite you to submit Competitive Bid Quotes offering to make
Competitive Bid Loans to the Borrower as follows:
Borrowing Date: , 200_
Principal Amount Interest Period
$____________ ____________
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.3.4 of
the Agreement and the foregoing terms on which the Competitive Bid Quote
Request was made. Capitalized terms used herein have the meanings assigned
to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. San
Francisco time on _______, 200__.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_______________________________
Authorized Officer
EXHIBIT D
COMPETITIVE BID QUOTE
(Section 2.3.4)
, 200_
To: Bank of America, N.A., as Administrative Agent
Attn: _______________
Re: Competitive Bid Quote to NIKE, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
___________, 20__, we hereby make the following Competitive Bid quote
pursuant to Section 2.3.4 of the Credit Agreement hereinafter referred to and
on the following terms:
1. Quoting Bank: _______________
2. Person to contact at Quoting Bank: _______________
3. Borrowing Date: _________, 200__1
4. We hereby offer to make Competitive Bid Loans in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest [Competitive [Absolute Minimum or
Amount2 Period3 Bid Margin4] Rate5] Maximum Amount6
_________ ________ ___________ _________ ______________
$
1 As specified in the related Invitation.
2 Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for at least $5,000,000 and an
integral multiple of $1,000,000.
3 One, two, three or six months or at least 7 and up to 183 days, as
specified in the related Invitation. The Interest Period may not end
after the Termination Date.
4 Competitive Bid Margin over or under the Eurodollar Base Rate determined
for the applicable Interest Period. Specify percentage (rounded to the
nearest 1/1000 of 1%) and specify whether "PLUS" or "MINUS."
5 Specify rate of interest per annum (rounded to the nearest 1/1000 of 1%)
6 Specify minimum or maximum amount which the Borrower may accept (see
Section 2.3.4(b)(iv)).
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, dated as of December 1, 2006 (as extended, renewed, amended or
restated from time to time), among the Borrower, the Banks and other Persons
listed on the signature pages thereof, and yourselves, as Administrative
Agent, irrevocably obligates us to make Competitive Bid Loans for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: ____________, 200_ By: _____________________________
Authorized Officer
EXHIBIT E
FORM OF
BORROWER COUNSEL OPINION
________________________
December 1, 2006
To the Administrative Agent and Banks who are parties to the
Credit Agreement described below:
Re: Opinion of Counsel
Ladies and Gentlemen:
I serve as General Counsel of NIKE, Inc., an Oregon corporation (the
"Borrower"). In that capacity, I provide this Opinion Letter in connection
with the Credit Agreement dated as of even date herewith among the Borrower,
Bank of America, N.A., as Administrative Agent, and the Banks named therein,
providing for loans in an aggregate principal amount not exceeding
$1,000,000,000 at any one time outstanding, and the Ratable Notes and
Competitive Bid Notes executed in connection therewith (collectively, the
"Agreement"). Capitalized terms used in this Opinion Letter are defined as
set forth in the Agreement or the Accord (see below).
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section
of Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this
Opinion Letter should be read in conjunction therewith. The Law covered by
the opinions expressed herein is limited to the Federal Laws of the United
States and the Law of the State of Oregon. This Opinion Letter is limited to
matters about which I possess Actual Knowledge.
Based on and subject to the foregoing, I am of the opinion that:
1. The Agreement is enforceable against the Borrower.
2. Execution and delivery by the Borrower of, and performance of its
agreements in, the Agreement do not (i) violate its Constituent Documents,
(ii) breach or result in a default under any existing obligation of the
Borrower, or result in or require the creation or imposition of any Lien,
under any contract filed by the Borrower with the U.S. Securities and
Exchange Commission, or (iii) breach or otherwise violate any existing
obligation of the Borrower under any Court Order.
3. Execution and delivery by the Borrower of, and performance by the
Borrower of its agreements in, the Agreement do not violate applicable
provisions of statutory law or regulation.
4. There are no actions or proceedings against the Borrower or any
of its Subsidiaries pending, or overtly threatened in writing, before any
court, governmental agency or arbitrator which (a) seek to affect the
enforceability of the Agreement, or (b) would result in a material adverse
effect on the business or financial condition of the Borrower.
The General Qualifications apply to the opinions set forth in paragraphs
1 and 3 above and the Other Common Qualifications apply to all of the
opinions set forth above. This Opinion Letter may be relied upon only by you
and your assignees and the Banks in connection with the Transaction and may
not, without our prior written consent, be used or relied upon by you or any
other person for any purpose whatsoever, except to the extent authorized in
the Accord.
Very truly yours,
EXHIBIT F
RATABLE BORROWING NOTICE
________________________
Date: , 200_
To: Bank of America, N.A., as Administrative Agent for the Banks parties
to the Credit Agreement dated as of December 1, 2006 (as extended,
renewed, amended or restated from time to time, the "Credit
Agreement") among NIKE, Inc., the Banks and other Persons party
thereto, and Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
The undersigned, NIKE, Inc. (the "Borrower"), refers to the Credit
Agreement, the terms defined therein being used herein as therein defined,
and hereby gives you notice irrevocably, pursuant to Section 2.2.3 of the
Credit Agreement, of the Ratable Advance specified below:
(i) The Business Day of the proposed Ratable Advance is ____________,
200_.
(ii) The aggregate amount of the proposed Ratable Advance is
$_____________.
(iii) The Advance shall be a [Eurodollar Ratable Advance] [Floating
Rate Advance].
[(iv) The duration of the Interest Period of the Eurodollar Ratable
Advance shall be ___ month[s].]
The undersigned hereby certifies that the following statements are true
on the date hereof and will be true on the date of the proposed Ratable
Advance, before and after giving effect thereto and to the application of the
proceeds therefrom.
(a) the representations and warranties contained in Article V of the
Credit Agreement are true and correct as though made on and as
of such date except for changes in the Schedules hereto
reflecting transactions permitted by this Agreement;
(b) no Default or Unmatured Default has occurred and is continuing,
or would result from such proposed Ratable Advance; and
(c) The proposed Ratable Advance will not cause the aggregate
principal amount of all outstanding Loans to exceed the combined
Commitments of the Banks.
NIKE, Inc.
By:
Name:
Title:
EXHIBIT G
NOTICE OF CONVERSION/CONTINUATION
Date: , 200_
To: Bank of America, N.A. as Administrative Agent for the Banks parties to
the Credit Agreement dated as of December 1, 2006 (as extended,
renewed, amended or restated from time to time, the "Credit
Agreement") among NIKE, Inc., the Banks and other Persons party
thereto, and Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
The undersigned, NIKE, Inc. (the "Borrower"), refers to the Credit
Agreement, the terms defined therein being used herein as therein defined,
and hereby gives you notice irrevocably, pursuant to Section 2.2.4. of the
Credit Agreement, of the [conversion] [continuation] of the Ratable Advance
specified below:
(i) The Business Day of the proposed Conversion/Continuation Date is
_______________, 200_.
(ii) The aggregate amount of the Advance to be [converted] [continued]
is $____________.
(iii) The Advance shall be [converted into] [continued as] a
[Eurodollar Ratable Advance] [Floating Rate Advance].
[(iv) The duration of the Interest Period of the Eurodollar Ratable
Advance included in the [conversion] [continuation] shall be
month[s].]
NIKE, INC.
By: ______________________
Name:
Title:
EXHIBIT H
COMPLIANCE CERTIFICATE
______________________
To: The Banks parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Credit
Agreement dated as of December 1, 2006, among NIKE, Inc., the Banks and other
Persons party thereto, and Bank of America, N.A., as Administrative Agent for
the Banks (as extended, renewed, amended or restated from time to time, the
"Agreement"). Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in Paragraph 2 above did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of
the Agreement, all of which data and computations are true, complete and
correct.
Described below are the exceptions, if any, to Paragraph 3 above by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking,
or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _____ day of
________________ , 200__.
By: ____________________________
Name:
SCHEDULE "I" TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of ____________, 200__, with
Provisions of Sections 6.12, 6.15(h), 6.15(i) and 6.17 of
the Agreement
Maximum Permitted Actual
_________________ ______
I. Section 6.12: $________________ $_________
Aggregate book value of the (See attached worksheet)
assets disposed of by the Borrower
and its Subsidiaries during the
past twelve months pursuant to
Section 6.12(ii)
II. Section 6.15(h): $100,000,000 $_________
Aggregate amount of Indebtedness
secured by Liens, not otherwise
permitted under Section 6.15, on
property other than accounts
receivable and inventory
Section 6.15(i): $100,000,000 $_________
Aggregate amount of obligations
of the Borrower subject to Liens
filed in connection with the
construction of, and additions to,
the Borrower's headquarters
in Beaverton, Oregon
III. Section 6.17: Capitalization Ratio
(Indebtedness to the sum of (x) 0.60 to 1.00 ____ to 1.00
Indebtedness and (y) net worth)
NIKE, Inc.
Compliance Certificate Covenants Worksheet
Page 2
I. Section 6.12:
Sale of Assets:
A. Amount Permitted
Consolidated Assets (at book value)
as of ______________, 200__: $_______________
x 0.20
_____________
Amount permitted during period beginning
____________ and ending ____________: $_______________
B. Disposals of Fixed Assets
(per Statement of Cash Flows
during period beginning
and ending___________________: $_______________
(A) must be greater than/equal to (B)
In Compliance?
(Yes or No)
II. Section 6.15:
Liens:
A. Aggregate amount of Indebtedness secured by Liens
permitted under Section 6.15(h) of the Agreement: $___________
B. Maximum amount permitted under Section 6.15(h): $ 100,000,000
C. Aggregate amount of obligations of the Borrower
subject to Liens filed in connection with the
construction of, and additions to, the Borrower's
headquarters in Beaverton, Oregon: $___________
D. Maximum amount permitted under Section 6.15(i): $ 100,000,000
(A) must be less than/equal to (B); (C) must be less than/equal to (D)
In Compliance?
(Yes or No)
III. Section 6.17
Capitalization Ratio:
A. Indebtedness
B. Net Worth $__________________
C. INDEBTEDNESS/ INDEBTEDNESS plus
NET WORTH (A/A+B) :1.00
______________
Maximum Ratio Permitted 0.60:1.00
In Compliance?
(Yes or No)
EXHIBIT I
ASSIGNMENT AND ASSUMPTION
_________________________
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [the][each]1 Assignor identified in item 1 below ([the][each, an]
"Assignor") and [the][each]2 Assignee identified in item 2 below ([the][each,
an] "Assignee"). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably
sells and assigns to [the Assignee][the respective Assignees], and
[the][each] Assignee hereby irrevocably purchases and assumes from [the
Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of
[the Assignor's][the respective Assignors'] rights and obligations in [its
capacity as a Bank][their respective capacities as Banks] under the Credit
Agreement and any other documents or instruments delivered pursuant thereto
to the extent related to the amount and percentage interest identified below
of all of such outstanding rights and obligations of [the Assignor][the
respective Assignors] under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity
as a Bank)][the respective Assignors (in their respective capacities as
Banks)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively
as [the][an] "Assigned Interest"). Each such sale and assignment is without
recourse to [the][any]
____________________________________________________
1 For bracketed language here and elsewhere in this form relating to the
Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the
Assignee (s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
3 Select as appropriate.
4 Include bracketed language if there are either multiple Assignors
or multiple Assignees.
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][any] Assignor.
1. Assignor[s]: ______________________________
______________________________
2. Assignee[s]: ______________________________
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify
Bank]]
3. Borrower: NIKE, INC.
4. Administrative Agent: BANK OF AMERICA, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of December 1, 2006,
among the Borrower, the financial institutions from time to time party
thereto as lenders and/or agents, and Bank of America, N.A., as
Administrative Agent
6. Assigned Interest[s]:5
Aggregate Amount of Percentage
Amount of Commitment Assigned of
Commitment/Loans /Loans Commitment/ CUSIP
Assignor[s]6 Assignee[s]7 for all Banks8 Assigned Loans9 Number
___________ ___________ ________________ __________ ___________ ______
$________________ $_________ _________%
$________________ $_________ _________%
$________________ $_________ _________%
[7. Trade Date: __________________]10
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
_________________________
5 The reference to "Loans" in the table should be used only if the Credit
Agreement provides for Term Loans.
6 List each Assignor, as appropriate.
7 List each Assignee, as appropriate.
8 Amounts in this column and in the column immediately to the right to be
adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date.
9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Banks thereunder
10 To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined by the Trade Date.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and]11 Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Title:
[Consented to:]12
NIKE, INC., as Borrower
By: _________________________________
Title:
11 To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
12 To be added only if the consent of the Borrower is required by the terms
of the Credit Agreement
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
NIKE CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
______________________________
1.1. Assignor. [The][Each] Assignor (a) represents and warrants
________
that (i) it is the legal and beneficial owner of [the][[the relevant]
Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any collateral thereunder, (iii) the financial condition of the Borrower, any
of its Subsidiaries or Affiliates or any other Person obligated in respect of
any Loan Document or (iv) the performance or observance by the Borrower, any
of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2. Assignee. [The][Each] Assignee (a) represents and warrants
________
that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Bank under the Credit
Agreement, (ii) it meets all the requirements to be an assignee under Section
13.1(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents,
____________ ___ ____
if any, as may be required under Section 13.1(b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Bank
thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire
[the][such] Assigned Interest, is experienced in acquiring assets of such
type, (v) it has received a copy of the Credit Agreement, and has received or
has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 6.1 thereof, as
___________
applicable, and such other documents and information as it deems appropriate
to make its own credit analysis and decision to enter into this Assignment
and Assumption and to purchase [the][such] Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a foreign Bank, attached hereto is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative
________
Agent shall make all payments in respect of [the][each] Assigned Interest
(including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
__________________
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of Oregon.
