SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
FOR QUARTERLY REPORTS UNDER SECTION 13 OR 15 (d) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
For the Quarter Ended August 31, 1995 Commission file number - 1-10635
NIKE, Inc.
(Exact name of registrant as specified in its charter)
OREGON 93-0584541
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Bowerman Drive, Beaverton, Oregon 97005-6453
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (503) 671-6453
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days
Yes X No .
___ ___
Common Stock shares outstanding as of August 31, 1995 were:
_________________
Class A 25,880,522
Class B 45,603,473
_________________
71,483,995
==========
PART 1 - FINANCIAL INFORMATION
Item 1. Financial Statements
NIKE, Inc.
CONDENSED CONSOLIDATED BALANCE SHEET
Aug. 31, May 31,
1995 1995
________ _______
(in thousands)
ASSETS
Current assets:
Cash and equivalents $ 178,556 $ 216,071
Accounts receivable 1,192,172 1,053,237
Inventories (Note 3) 676,417 629,742
Deferred income taxes 68,682 72,657
Prepaid expenses 87,300 74,221
__________ _________
Total current assets 2,203,127 2,045,928
Property, plant and equipment 934,801 891,213
Less accumulated depreciation 352,091 336,334
__________ __________
582,710 554,879
Identifiable intangible assets and goodwill 490,872 495,907
Other assets 46,707 46,031
__________ __________
$3,323,416 $3,142,745
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 3,237 $ 31,943
Notes payable 325,937 397,100
Accounts payable 367,797 297,656
Accrued liabilities 338,902 345,224
Income taxes payable 109,397 35,612
__________ __________
Total current liabilities 1,145,270 1,107,535
Long-term debt 14,082 10,565
Non-current deferred income taxes 17,921 17,789
Other long-term liabilities 42,952 41,867
Commitments and contingencies (Note 4) - -
Redeemable Preferred Stock 300 300
Shareholders' equity:
Common Stock at stated value (Note 2):
Class A convertible-25,881 and
25,895 shares outstanding 155 155
Class B-45,603 and 45,550 shares
outstanding 2,698 2,698
Capital in excess of stated value 129,621 122,436
Foreign currency translation
adjustment 4,006 1,585
Retained earnings 1,966,411 1,837,815
___________ __________
2,102,891 1,964,689
___________ __________
$3,323,416 $3,142,745
========== ==========
The accompanying Notes to Condensed Consolidated Financial Statements are
an integral part of this statement.
NIKE, Inc.
CONDENSED CONSOLIDATED STATEMENT OF INCOME
<TABLE>
<CAPTION>
Three Months Ended
August 31,
__________________
1995 1994
____ ____
(in thousands, except per share data)
<S> <C> <C>
Revenues $1,614,649 $1,170,355
_________ _________
Costs and expenses:
Cost of sales 967,522 700,447
Selling and administrative 359,525 292,294
Interest 11,377 4,757
Other expense (income) 8,344 (830)
________ ________
1,346,768 996,668
________ ________
Income before income taxes 267,881 173,687
Income taxes 103,100 67,700
________ ________
Net income $ 164,781 $ 105,987
========= =========
Net income per common share(Note 2) $ 2.26 $ 1.43
========= =========
Dividends declared per common share $ .25 $ .20
========= =========
Average number of common and
common equivalent shares (Note 2) 72,926 74,222
========= =========
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are
an integral part of this statement.
NIKE, Inc.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended
August 31,
_________________
1995 1994
____ ____
(in thousands)
<S> <C> <C>
Cash provided (used) by operations:
Net income $164,781 $105,987
Income charges (credits) not
affecting cash:
Depreciation 20,039 14,757
Deferred income taxes and
purchased tax benefits 3,157 7,253
Other non-current liabilities 1,085 1,490
Other 6,472 1,650
Changes in other working capital
components (63,305) (13,727)
________ _______
Cash provided by operations 132,229 117,410
________ _______
Cash provided (used) by investing activities:
Acquisition of business:
Net assets acquired -- (10,264)
Goodwill and other intangibles acquired -- (10,347)
Additions to property, plant and
equipment (49,975) (18,077)
Disposals of property, plant and
equipment 1,085 4,222
Decrease (increase) in other assets 1,494 (1,518)
_______ _______
Cash used by investing activities (47,396) (35,984)
_______ _______
Cash (used) provided by financing activities:
Additions to long-term debt 644 213
Reductions in long-term debt
including current portion (26,185) (3,554)
(Increase) decrease in notes payable (71,163) 29,933
Proceeds from exercise of options 7,637 1,405
Repurchase of stock (18,756) --
Dividends - common and preferred (17,893) (14,641)
_______ _______
Cash (used) provided by financing
activities (125,716) 13,356
_______ _______
Effect of exchange rate changes on cash 3,368 450
_______ _______
Net (decrease) increase in cash and equivalents (37,515) 95,232
Cash and equivalents, May 31, 1995 and 1994 216,071 518,816
_______ _______
Cash and equivalents, August 31, 1995
and 1994 $178,556 $614,048
======== ========
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are
an integral part of this statement.
NIKE, Inc.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - Summary of significant accounting policies:
___________________________________________
Basis of Presentation:
The accompanying unaudited condensed consolidated financial statements
reflect all adjustments (consisting of normal recurring accruals) which
are, in the opinion of management, necessary for a fair presentation of
the results of operations for the interim period(s). The interim financial
information and notes thereto should be read in conjunction with the
Company's latest annual report to shareholders. The results of operations
for the three (3) months ended August 31, 1995 are not necessarily
indicative of results to be expected for the entire year.
NOTE 2 - Net income per common share:
___________________________
Net income per common share is computed based on the weighted average
number of common and common equivalent (stock option) shares outstanding
for the period(s).
NOTE 3 - Inventories:
___________
Inventories by major classification are as follows:
Aug. 31, May 31,
1995 1995
________ ________
(in thousands)
Finished goods $663,530 $618,521
Work-in-process 1,763 2,157
Raw materials 11,124 9,064
________ ________
$676,417 $629,742
======== ========
NOTE 4 - Commitments and contingencies:
_____________________________
There have been no other significant subsequent developments
relating to the commitments and contingencies reported on the
Company's most recent Form 10-K.
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION
Operating Results
_________________
The first quarter ended August 31, 1995 established new
record highs for revenues and net income. Revenues increased 38%
to $1.615 billion, compared to $1.170 billion in the prior year's
first quarter. Net income was $165 million, or $2.26 per share,
compared to $106 million, or $1.43 per share for the same period
in the prior year. The 55% increase in net income was due to the
record revenues as well as a decrease in selling and administrative
expenses as a percent of revenues, from 25% in the prior year
to 22.3% in the current year.
Revenues increased $444 million over the record $1.2 billion
reported in the same period of the prior year. U.S. footwear
increased $136 million, or 21%, resulting from an increase of
19% in pairs shipped and a 2% increase in average selling price due
to sales mix. Revenues increased in all U.S. footwear categories.
U.S. apparel was up $88 million over last year's first quarter, an
increase of 93%. International revenues increased $131 million, or
36%, composed of 33% and 48% increases in international (n0n-U.S.)
footwear and apparel revenues, respectively. The international
growth included a 6% increase resulting from new NIKE subsidiaries
and a positive 8% affect from foreign exchange translation. All
other brands, which includes Cole Haan (R), Tetra Plastics, Sports
Specialties and Canstar Sports, increased during the quarter, however
the primary increase was due to $75 million in revenues from Canstar
Sports, which was acquired in the third quarter of the prior fiscal
year. The breakdown of revenues follows:
Three months ended Aug. 31
1995 1994 % Change
(in thousands)
U.S. Footwear $791,568 $655,142 21%
U.S. Apparel 182,483 94,735 93%
_______ _______ __
Total United States 974,051 749,877 30%
International Footwear 366,678 276,462 33%
International Apparel 126,034 85,134 48%
_______ _______ __
Total International 492,712 361,596 36%
Other Brands 147,886 58,882 151%
_______ _______ ___
Total Revenues $1,614,649 $1,170,355 38%
========== ========== ===
Consolidated gross margins were relatively flat at 40.1%
compared to 40.2% in the prior year. Strong demand for NIKE
products combined with sound inventory management resulted in
stable NIKE brand margins. The Company continues to place
strong emphasis on inventory management, minimizing foreign
exchange risk, and production sourcing in order to maximize
gross profit.
Selling and administrative expenses increased $67 million in
absolute dollars over the previous year's first quarter, however, as
a percent of sales decreased 2.7 percentage points to 22.3%. The
largest increase in absolute dollars was $29 million from international,
with $12 million a result of exchange rates, $5 million from new
subsidiaries, and the remainder due to increased levels of operations.
U.S. NIKE brand operations were up $22 million, primarily in planned
marketing expenses. Canstar Sports added $12 million of expenses.
The Company anticipates that total fiscal 1996 selling and
administrative expense as a percent of revenues will
approximate the prior year.
Interest expense for the quarter increased $6.6 million over
the prior year due to increased short term borrowings for both U.S.
and international operations. Other income decreased
$9.2 million, primarily as a result of increased goodwill expense,
increased profit share plan expense and decreased interest income.
Goodwill expense and interest income were most significantly affected
by the acquisition of Canstar Sports.
The Company's effective tax rate for the quarter was 38.5%
compared to 39.0% in the prior year. This is primarily due to
lower taxes provided on non-U.S. earnings. The Company anticipates
the tax rate for fiscal 1996 will approximate 38.5%.
Worldwide orders for NIKE Brand athletic footwear and apparel
scheduled for delivery from September 1995 through January 1996 were
approximately $2.3 billion, 32% higher than such orders booked in
the comparable period of the prior year. These orders are not
necessarily indicative of total revenues for subsequent periods
because the mix of advance orders and "at once" shipments may vary
significantly from quarter to quarter and year to year. Additionally,
as international operations continue to shift to a greater emphasis on
futures orders, this mix again may vary. Finally, exchange rates can
cause differences in the comparisons.
Liquidity and Capital Resources
The Company's financial position remains strong, with working
capital rising $119 million since May 31, 1995. The working capital
ratio remained the same as of May 31, 1995 at 1.9:1.
Cash and equivalents decreased $38 million from May 31, 1995.
Cash provided by operations was reduced by increases in working capital
components. Other significant uses of cash included
additions to property, plant and equipment, decreases in short
term borrowings and long term debt.
The increase in working capital components was primarily due
to increases in accounts receivable and inventories, offset by
increases in accounts payable and taxes payable. The increase in
accounts receivable of $139 million was due to sales growth in both
July and August over last May's comparable two month period. Overall
inventories increased $47 million in conjunction with levels of
operations, primarily due to U.S. apparel and international footwear
and apparel inventories which have increased $18 million and $58
million, respectively. U.S. footwear inventories decreased $29 million
due to record shipments and timing of inventory receipts. Increases in
accounts payable and taxes payable are a result of the increased level
of operations.
The additions to property, plant and equipment were composed
of normal operational spending, the continued consolidation of European
footwear warehouses, expansion of NIKE Town retail locations and
acquisition of land adjacent to the world headquarters.
The Company also utilized cash to reduce short term debt
outstanding
at May 31, 1995 and to retire long term debt acquired in the purchase
of Canstar Sports.
During the quarter, the Company purchased 200,000 shares of
its own stock under the stock repurchase program announced in
July 1993, bringing the total number of shares purchased in the
program to approximately 5,149,000.
In September of 1995, the Company's Board of Directors announced
a two-for-one stock split following shareholder approval an
increase in the number of authorized Class A and Class B Common
shares. The stock split will be in the form of a 100 percent
stock dividend to be paid on October 30, 1995 to shareholders of
record on October 9, 1995.
The debt to equity ratio at August 31, 1995 was .6:1 compared
to .6:1 at May 31, 1995 and .4:1 at August 31, 1994. Management
believes that funds generated by operations, together with
currently available resources, will adequately finance anticipated
fiscal 1996 expenditures, with the potential exception of the stock
repurchase program discussed above. At August 31, 1995, the Company
had $300 million available in committed unused lines of credit.
Part II - Other Information
Item 1. Legal Proceedings:
There have been no material changes from the information previously
reported under Item 3 of the Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995.
Item 4. Submission of Matters to a Vote of Security Holders
The Company's annual meeting of shareholders was held on September 18,
1995. The shareholders elected for the ensuing year all of management's
nominees for the Board of Directors, and passed by a majority vote Proposal 2
approving the increase in authorized common stock, Proposal 3 approving the
Executive Performance Sharing Plan and Proposal 4 ratifying the appointment of
independent accountants. The voting results are as follows:
Election of Directors
Votes Cast
Director For Withheld
Elected by holders of
Class A Common Stock:
Ralph D. DeNunzio 25,133,498 (99.972%) 7,000
Richard K. Donahue 25,133,498 (99.972%) 7,000
Douglas G. Houser 25,133,498 (99.972%) 7,000
John E. Jaqua 25,133,498 (99.972%) 7,000
Philip H. Knight 25,133,498 (99.972%) 7,000
Kenichi Ohmae 25,133,498 (99.972%) 7,000
Ralph A. Pfeiffer, Jr. 25,133,498 (99.972%) 7,000
Charles W. Robinson 25,133,498 (99.972%) 7,000
A. Michael Spence 25,133,498 (99.972%) 7,000
John R. Thompson, Jr 25,133,498 (99.972%) 7,000 .
Elected by holders of
Class B Common Stock:
William J. Bowerman 38,245,687 (98.748%) 484,860
Thomas E. Clarke 38,266,447 (98.802%) 464,020
Jill K. Conway 38,306,354 (98.905%) 424,113
Delbert J. Hayes 38,260,338 (98.786%) 470,129
For Against Abstain
Proposal 2 -
Approval of the
increase in authorized
shares:
Class A Common Stock 25,133,498 (99.972%) 7,000 0
Class B Common Stock 28,402,266 (73.333%) 10,201,984 127,117
Proposal 3 -
Approval of Executive
Performance Sharing Plan:
Class A Common Stock 25,133,498 (99.972%) 7,000 0
Class B Common Stock 37,513,611 (96.058%) 1,021,352 195,504
Proposal 4 -
Ratification of Appointment
of Accountants:
Class A Common Stock 25,133,498 (99.972%) 7,000 0
Class B Common Stock 38,603,851 (99.673%) 18,287 108,329
Item 6. Exhibits and Reports on Form 8-K:
(a) EXHIBITS:
3.1 Restated Articles of Incorporation, as amended.
3.2 Third Restated Bylaws, as amended.
4.1 Restated Articles of Incorporation, as amended (see Exhibit 3.1).
4.2 Third Restated Bylaws, as amended (see Exhibit 3.2).
10.1 Credit Agreement dated as of September 15, 1995 among NIKE, Inc.,
Bank of America National Trust & Savings Association,
individually and as Agent, and the other banks party thereto.
10.2 Form of non-employee director Stock Option Agreement (incorporated
by reference from Exhibit 10.3 to the Company's Annual Report on
Form 10-K for the fiscal year ended May 31, 1993).*
10.3 Form of Indemnity Agreement entered into between the Company and
each of its officers and directors (incorporated by reference from
the Company's definitive proxy statement filed in connection with
its annual meeting of shareholders held on September 21, 1987).
10.4 NIKE, Inc. Restated Employee Incentive Compensation Plan
(incorporated by reference from Registration Statement No. 33-29262
on Form S-8 filed by the Company on June 16, 1989).*
10.5 NIKE, Inc. 1990 Stock Incentive Plan (incorporated by reference
from the Company's definitive proxy statement filed in connection
with its annual meeting of shareholders held on September 17, 1990).*
10.6 Collateral Assignment Split-Dollar Agreement between NIKE, Inc.
and Philip H. Knight dated March 10, 1994 (incorporated by
reference from Exhibit 10.7 to the Company's Annual Report on
Form 10-K for he fiscal year ended May 31, 1994).*
10.7 NIKE, Inc. Executive performance Sharing Plan (incorporated by
reference from the Company's definitive proxy statement
filed in connection with its annual meeting of shareholders
held on September 18, 1995).*
27 Financial Data Schedule.
* Management contract or compensatory plan or arrangement.
(b) The following reports on Form 8-K were filed by the Company during
the first quarter of fiscal 1996:
Form 8-K
July 11, 1995 ITEM 5. OTHER EVENTS. Press release
announcing 4th quarter
earnings
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
NIKE, Inc.
An Oregon Corporation
BY: s/Robert S. Falcone
________________________
Robert S. Falcone
Vice President,
Chief Financial Officer
DATED: October 13, 1995
RESTATED ARTICLES OF INCORPORATION
OF
NIKE, INC.
ARTICLE I
These Restated Articles of Incorporation supersede the previously
existing Articles of Incorporation of NIKE, Inc. and all amendments
thereto.
ARTICLE II
The name of this Corporation is NIKE, Inc. and its duration shall
be perpetual.
ARTICLE III
The purposes for which this Corporation is organized are to engage
in any lawful activity for which corporations may be organized under ORS
Chapter 57.
ARTICLE IV
The aggregate number of shares which the Corporation shall have the
authority to issue is divided as follows:
A. 110,000 shares of Class A Common Stock, no par value;
B. 350,000 shares of Class B Common Stock, no par value; and
C. 300,000 shares of Preferred Stock, $1.00 par value.
Immediately upon the filing of these Restated Articles of Incorporation
with the Corporation Commissioner for the State of Oregon, each share of the
Corporation's Common Stock, without par value, outstanding immediately prior
to such filing shall become, without further action and without the necessity
of transfer or exchange of any share certificates, 30 shares of the
Corporation's Class A Common Stock, without par value, and the holders
thereof shall be entitled to all of the rights and preferences of such class
of stock as set forth in these Restated Articles of Incorporation.
The Class A Common Stock and the Class B Common Stock are sometimes
collectively referred to herein as the "Common Stock." The designations,
preferences, limitations and relative rights granted to or imposed upon the
respective classes of the shares of capital stock and the holders thereof are
as follows:
A. Preferred Stock, $1.00 par value
1. Dividends. The holders of Preferred Stock shall be
entitled to receive dividends at the rate of $.10 per share per annum
payable annually on May 31. Dividends shall be cumulative. Computation
of the amount of dividends accrued in respect of a fraction of a year shall
be on the basis of a 365-day year. In case dividends for any period are not
paid in full, all shares of Preferred Stock shall participate ratably in the
payment of dividends for such period in proportion to the full amount of such
dividends for such period to which they are entitled. Unpaid dividends shall
bear interest at the rate of 12 percent per annum. No dividend shall be
declared or paid or set apart for payment in any fiscal year on the Common
Stock or on any class of stock of the Corporation ranking as to dividends
subordinate to the Preferred Stock, until all dividends for such fiscal year
for all outstanding shares of Preferred Stock have been declared and paid, or
set apart for payment, in full.
2. Voting Rights. Except as otherwise expressly required by
law, shares of Preferred Stock shall not be entitled to vote on any matter
submitted to shareholders, other than matters listed below:
(a) Sale of all or substantially all of the assets of
the Corporation or any of its subsidiaries.
(b) Merger, consolidation, liquidation or dissolution of
the Corporation.
(c) Sale or assignment of the "NIKE" trademark for
athletic shoes sold in the United States.
On any of the foregoing matters or on any matters as to which voting
of the Preferred Stock shall be expressly required by law, such stock shall
be entitled to one vote per share, and it shall vote as a separate class.
If any such matter is submitted for approval by Preferred Shareholders
and is not approved by the holders of more than 66-2/3 percent of the shares
of Preferred Stock outstanding, the Corporation and the holders of Preferred
Stock shall have the following rights and obligations:
(a) Holders of Preferred Stock voting against the action
may require the Corporation to redeem all of its shares of Preferred Stock
by giving written notice to the Corporation and stating that the shares of
Preferred Stock shall be redeemed by the Corporation on a specified date,
which may not be less than 60 days from the date of the notice. The
redemption price shall be $1.00 per share, plus accrued dividends and
interest, if any.
(b) The Corporation may redeem any or all of the shares
of Preferred Stock voting against the action by giving written notice to
the holders of Preferred Stock and stating in such notice that the shares
of Preferred Stock shall be redeemed by the Corporation on a specified
date, which may not be more than 60 days from the date the notice is given.
The redemption price shall be $1.00 per share, plus accrued dividends and
interest, if any.
3. Liquidation. The holders of Preferred Stock shall be entitled
to receive, before any payment or distribution of the assets of the
Corporation, whether capital or surplus, shall be made to or set apart
for the holders of the Common Stock or any other series or class of stock
ranking junior to such Preferred Stock as to rights upon liquidation,
dissolution or winding up of the affairs of the Corporation, voluntarily
or involuntarily, $1.00 per share, together with all dividends declared
and unpaid thereon to the date of final distribution, and no more. If,
upon liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation distributable among the holders of Preferred Stock shall
be insufficient to pay in full the preferential amount aforesaid, then such
assets shall be distributed among such holders ratably in proportion to the
full amounts which would be payable on said shares if all amounts payable
thereon were paid in full. Neither the merger nor consolidation of the
Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation,
nor a sale, transfer or lease of all or any part of the assets of the
Corporation shall be deemed to be a liquidation, dissolution or winding
up of the Corporation within the meaning of this paragraph.
4. Redemption by the Corporation. The Corporation, at its
option, may redeem shares of Preferred Stock in any one or more of the
following situations:
(a) The Corporation may redeem all, but not less than
all, of the shares of Preferred Stock by giving written notice to the
holders of Preferred Stock and stating in such notice that the shares
of Preferred Stock shall be redeemed by the Corporation on a specified d
ate which shall not be more than 90 days from the date the notice is
given. The redemption price shall be $1.00 per share, plus accrued
dividends and interest, if any. At the time of any redemption under
this paragraph A.4.(a) of Article IV, in addition to paying the
redemption price, the Corporation shall repay the entire indebtedness
owed by the Corporation to the holders of Preferred Stock.
(b) If a holder of Preferred Stock desires to sell or
transfer the Preferred Stock (to any person other than Nissho Iwai Co.,
Ltd. or one of its subsidiaries), the Corporation may redeem the
Preferred Stock proposed for sale. The redemption price shall be
$1.00 per share, plus accrued dividends and interest, if any.
(i) In the event of a proposed sale or transfer,
the holder of Preferred Stock shall notify the Corporation of its
intention to sell or transfer the Preferred Stock and provide the
Corporation with the name of the proposed transferee and the terms
of the transfer. If the Corporation chooses to exercise its right to
redeem, the Corporation shall give the holder of Preferred Stock
written notice of its intention to redeem within 15 days from the date
the Corporation receives notice of the holder's proposed sale or
transfer. Any such redemption notice by the Corporation will provide
for redemption no more than 60 days from the time such redemption
notice is given by the Corporation to the holder of Preferred Stock
(ii) If a holder of Preferred Stock sells or
transfers Preferred Stock, any transferee shall be subject to the
redemption rights set forth in these Articles.
(c) In the event that the Supply Agreement executed
by the Corporation and Nissho Iwai American Corporation on October 7,
1976, is terminated by either party, the Corporation may redeem by
giving written notice to the holders of the Preferred Stock and
stating in such notice that the shares of Preferred Stock shall be
redeemed on a specified date which shall not be more than 60 days
from the date such notice is given. The redemption price shall be
$1.00 per share, plus accrued dividends and interest, if any.
Notice of any proposed redemption of shares of Preferred Stock
shall be given by the Corporation by mailing a copy of such notice
to the holders of record of the shares to be redeemed, at their
respective addresses as appearing on the books of the Corporation.
5. Redemption by Holder. In the event that the Supply
Agreement executed by the Corporation and Nissho Iwai American
Corporation on October 7, 1976, is terminated by either party, the
holders of the Preferred Stock may redeem by giving written notice to
the Corporation and stating in such notice that the shares shall be
redeemed on a specified date which shall not be less than 60 days
from the date such notice is given. The redemption price shall be
$1.00 per share, plus accrued dividends and interest, if any.
B. Class A Common Stock and Class B Common Stock.
1. Voting Rights. Subject to the rights granted
herein to the Preferred Stock, the holders of the Common Stock shall
possess all of the voting power of the capital stock of this Corporation.
All such shares shall have one vote per share and shall vote together
as one class except as provided in this Article IV, Section B,
subsection 1, or as may otherwise be required by law.
At any time that the number of outstanding shares of the Class
B Common Stock shall equal or exceed 25 percent of the total
outstanding shares of Common Stock, determined as of the record
date established for the purpose of determining shareholders entitled
to vote, the shares of the Class A and Class B Common Stock shall vote
separately for the purpose of electing directors. At any such time, the
holders of the Class B Common Stock, voting as a separate class, shall be
entitled to elect a number of directors equal to 25 percent (rounded up to
the nearest whole number) of the total number of authorized directors.
The holders of the Class A Common Stock, voting as a separate class,
shall elect all remaining members of the Board of Directors. The two
classes shall continue to vote separately for the election of directors
as long as the outstanding shares of the Class B Common Stock represent
25 percent or more of the total outstanding Common Stock.
Without regard to the above provisions relating to class voting
for directors, if at any time the number of outstanding shares of the
Class A Common Stock shall be less than 12.5 percent of the total
outstanding Common Stock, the holders of the Class B Common Stock
shall continue to elect, voting as a separate class, 25 percent
(rounded up to the nearest whole number) of the total number of
authorized directors, and the holders of the Class A Common Stock and
the holders of the Class B Common Stock shall elect all remaining
members of the Board of Directors, voting together as a single class.
In any vote for the removal of a director from office, the shares
of the Class A and Class B Common Stock shall vote together and as one
class, except that a director elected by the vote of either the Class
A Common Stock or the Class B Common Stock, voting separately as a class,
or a director appointed to fill the vacancy left by a director who was
elected by separate class vote, may be removed from office only upon
the affirmative vote of the holders of a majority of the outstanding
shares of the class which elected him or his predecessor.
Nothing within this Article IV concerning voting rights is
intended to modify or otherwise affect the voting provisions which
are contained in Article VI of these Restated Articles of Incorporation,
as amended.
2. Conversion Rights of the Class A Common Stock.
Subject to the following terms and conditions, each share of
Class A Common Stock shall be convertible into a fully paid and
nonassessable share of the Class B Common Stock. At the option of the
respective holders, up to 1,017,000 shares of Class A Common Stock which
will be outstanding upon the filing with the Oregon Corporation
Commissioner of these Restated Articles of Incorporation shall be
convertible at any time, and all remaining shares shall be convertible
at any time from and after the 90th day following the effective date
under the Securities Act of 1933 of the Corporation's Registration
Statement filed with the Securities and Exchange Commission in October
1980. The conversion ratio shall be one share of Class B Common Stock
for each share of Class A Common Stock surrendered for conversion.
Such conversion rights shall include and be subject to the following:
(a) Conversion may be affected as to all or any whole
number of shares evidenced by any certificate for shares of Class A
Common Stock upon surrender of such certificate to the Corporation
at its principal office or to such agent or agents as may be designated
by the Board of Directors. Shares so surrendered for conversion shall
be accompanied by written evidence of the holder's election to convert
such shares and (if so requested by the Corporation) accompanied by an
instrument of transfer, in form satisfactory to the Corporation, duly
executed by the holder of his duly authorized attorney.
(b) As promptly as practicable after the surrender of
the shares for conversion in the manner herein provided, the Corporation
shall deliver or cause to be delivered to the holder of the shares so
surrendered, certificates representing the number of fully paid and
nonassessable shares of the Class B Common Stock of the Corporation into
which such shares of Class A may be converted together with (if the
certificate for the shares of Class A surrendered includes shares which
are not being converted) certificates representing the number of shares
of Class A Common Stock not then being so converted. Such conversion
shall be deemed to have been made as soon as the shares of the Class A
Common have been surrendered for conversion in the manner herein provided,
so that the rights of the holder of the shares of Class A Common so
surrendered shall cease at such time and the person entitled to receive the
Class B Common Stock upon such conversion shall be treated for all
purposes as having become the record holder of such shares of Class B
Common Stock at such time; provided, however, that no such surrender on
any date when the stock transfer books of the Corporation shall be closed
or after the record date shall have been set shall be effective to
constitute the person or persons entitled to receive the shares of Class
B Common Stock upon conversion of their shares of Class A Common Stock
as the record holder or holder of such shares of Class B Common Stock
on such date, but rather such shares shall retain the rights of Class A
Common Stock until after the event for which the record date was set or
the transfer books were closed.
(c) The Corporation shall at all times reserve and keep
available for issue upon the conversion of the Class A Common Stock such
number of its authorized but unissued shares of Class B Common Stock as
will be sufficient to permit the conversion of all outstanding shares of
the Class A Common Stock.
(d) In the case of any reclassification of the outstanding
shares of the Class B Common Stock, or in the case of any consolidation or
merger of the Corporation with or into another corporation, the result of
which is that shares of Class B Common Stock become convertible into or
entitled to receive securities or other property different from that which
shares of Class A Common Stock then outstanding shall have the right
thereafter to convert any of such shares into the kind and amount of
shares of stock and other securities which a holder of that number of
shares of the Class B Common Stock into which such shares are convertible
received or is entitled to receive.
(e) At no time shall the record date be set for any vote by
the shareholders of the Corporation upon any merger, consolidation, sale
of substantially all of the assets of the Corporation or any other event
which under the Oregon Business Corporation Act is required to be submitted
to the shareholders for a vote without first providing not less than 10
days' prior written notice of such date and event to the registered holders
of the Class A Common Stock as shown on the books of the Corporation, if
as a part of such transaction the shares of the Class B Common Stock are
to be treated differently or to be entitled to different rights than the
shares of the Class A Common Stock.
3. Other Rights. All rights to which holders of capital stock
are entitled and which are not expressly granted to the Preferred Stock
under this Article are reserved to and vested in the Common Stock. In
all respects other than voting, which rights are set forth hereinabove,
the shares of the Class A and the Class B Common Stock shall have
identical rights, provided that no stock dividend, stock split or other
issuance of shares by the Corporation without consideration shall without
express authorization of the Board of Directors result in the shares of
one class of stock becoming entitled to receive shares of the other. No
stock dividend, stock split or other issuance of shares without
consideration shall be effected by the Corporation with respect to
either class of Common Stock except such action as shall affect both
classes of stock ratably on a share-for-share basis. There shall be
no preference between shares of Class A Common Stock and shares of
Class B Common Stock with respect to dividends or the rights to proceeds
upon liquidation, dissolution or the winding up of the affairs of the
Corporation.
ARTICLE V
The authorized number of directors of the Corporation shall be
seven, provided that such number may be increased (or decreased to not
less than 5) by resolution of the Board of Directors. Vacancies on the
Board may be filled by the affirmative vote of the remaining directors,
including any vacancy created by an increase in the number of directors,
provided that no vacancy created by the resignation, removal from office
or death of a director who was elected by a separate class vote of the
Common Stock shall be filled by the Board of Directors, except upon the
affirmative vote of a majority of the remaining directors similarly
elected by such class. If none shall be remaining, the vacancy shall be
filled by the remainder of the directors.
ARTICLE VI
A. The affirmative vote of the holders of not less
than 80 percent of all outstanding Common Stock, voting as one
class, shall be required for the approval or authorization of any
"business combination" (as hereafter defined) with any person or
entity which, as of the record date for the determination of the
shareholders entitled to notice thereof and to vote thereon, is the
beneficial owner of 10 percent or more of the outstanding Common Stock
of the Corporation. Any such 80 percent vote in order to constitute due
and valid authorization under this Article must include not less than 50
percent of the Common Stock held by persons other than the person or
entity interested in such transaction.
B. The term "business combination" shall mean
1. any merger or consolidation of the Corporation or
any subsidiary of the Corporation with or into any other person or
entity;
2. the sale of substantially all of the assets of the
Corporation to any other person or entity; or
3. any other transaction with such person or entity for
which approval of the shareholders of this Corporation is required by
law or by any agreement between the Corporation and any national
securities exchange.
C. The foregoing voting requirements shall not be applicable
to any business combination approved by resolution of the Board of
Directors prior to any such shareholder vote, provided that the
resolution received the affirmative vote of a majority of the
directors elected at the most recent annual meeting of shareholders
(including any replacements for such directors who were appointed by
the board), or to any business combination solely between the
Corporation and any other corporation or entity in which 50 percent or
more of the voting stock or interest is owned by the Corporation.
D. Beneficial ownership for purposes of this Section shall
be deemed to include all shares which would be determined to be
beneficially owned (whether directly by such person or entity or
indirectly through any affiliate or otherwise) under Rule 13d-3 of
the Securities and Exchange Commission as in effect on the date of
filing of these Restated Articles of Incorporation with the Oregon
Corporation Commissioner as well as all shares of the Corporation
which the other entity has the right to acquire, pursuant to any
agreement or otherwise.
E. The determination of whether a proposed business
combination is within the scope of this Article VI, including
without limitation, the determination of whether such other party
beneficially owns 10 percent or more of the outstanding Common Stock
of the Corporation for purposes of this Article VI, shall be made by
the Board of Directors. Such determination shall, if made in god
faith, be binding upon all parties.
F. The shareholder vote, if any, required for any business
combination not expressly subject to the supermajority voting
provision of this Article VI shall be such vote as may otherwise be
required by applicable law.
ARTICLE VII
Articles V and VI, and this Article VII, of these Restated
Articles of Incorporation may not be amended except upon the affirmative
vote of 80 percent of the outstanding Common Stock.
ARTICLE VIII
A. The Corporation shall have the power to indemnify to
the fullest extent not prohibited by law any person who is made
or threatened to be made a party to, witness in, or otherwise involved
in, any action, suit or proceeding, whether civil, criminal,
administrative, investigative, legislative, formal or informal,
internal or external or otherwise (including an action, suit or
proceeding by or in the right of the Corporation) by reason of the fact
that the person is or was a director, officer, employee or agent of the
Corporation or a fiduciary within the meaning of the Employee Retirement
Income Security Act of 1974 with respect to any employee benefit plan of
the Corporation, or serves or served at the request of the Corporation
as a director, officer, employee or agent or as a fiduciary of an
employee benefit plan, of another corporation, partnership, joint
venture, trust, or other enterprise. Any indemnification provided
pursuant to this Article VIII shall not be exclusive of any rights to
which the person indemnified may otherwise be entitled under any
articles of incorporation, bylaw, agreement, statute, policy of
insurance, vote of shareholders or Board of Directors, or otherwise,
which exists at or subsequent to the time such person incurs or becomes
subject to such liability and expense.
B. To the fullest extent not prohibited by law, no director
of the Corporation shall be personally liable to the Corporation or
its shareholders for monetary damages for conduct as a director.
No amendment or repeal of this Article VIII, nor the adoption of
any provision of these Restated Articles of Incorporation inconsistent
with this Article VIII, nor a change in the law, shall adversely affect
any right or protection that is based upon this Paragraph B and pertains
to conduct that occurred prior to the time of such amendment, repeal,
adoption or change. No change in the law shall reduce or eliminate the
rights and protections set forth in this Paragraph B unless the change
in the law specifically requires such reduction or elimination. If the
Oregon Business Corporation Act is amended after this Article VIII
becomes effective to authorize corporate action further eliminating or
limiting the personal liability of directors of the Corporation, then
the liability of directors of the Corporation shall be eliminated or
limited to the fullest extent not prohibited by the Oregon Business
Corporation Act as so amended.
ARTICLE IX
(1) No contract or other transaction between the Corporation
and one or more of its directors or any other corporation, firm,
association or entity in which one or more of its directors are
directors or officers or are financially interested, shall be either
void or voidable because of such relationship or interest or because
such director or directors are present at the meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction or because his or their votes are counted
for such purpose, if:
(a) The fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies the contract or transaction by a vote
or consent sufficient for the purpose without counting the votes or
consents of such interested directors; or
(b) The fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or
written consent; or
(c) The contract or transaction is fair and reasonable
to the Corporation.
(2) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or a committee thereof which authorizes or ratifies such
contract or transaction.
This Article shall not invalidate any contract or other transaction
which would otherwise be valid under applicable law.
ARTICLE X
No holder of any class of stock of the Corporation now or
hereafter authorized shall have any preemptive or preferential right
of subscription to or otherwise be entitled to acquire any shares of
any class of stock of the Corporation, whether now or hereafter
authorized, or to any obligation convertible or exchangeable into
stock of the Corporation, or any right, option or warrant of
subscription to any of the foregoing, other than such, if any, as
may be specifically authorized by, pursuant to the authority hereby
given, the Board of Directors.
ARTICLE XI
The stated capital of the Corporation at the time of the adoption
of these Restated Articles of Incorporation is $__________.
Executed this ___ day of ___________, 19____.
NIKE, Inc.
NIKE, INC.
THIRD RESTATED BYLAWS
(Adopted September , 1995)
NIKE, INC.
THIRD RESTATED BYLAWS
TABLE OF CONTENTS
Page
ARTICLE 1 - Offices 1
Section 1. Principal Office 1
Section 2. Additional Offices 1
ARTICLE 2 - Shareholders 1
Section 1. Place of Meetings 1
Section 2. Annual Meetings 1
Section 3. Special Meetings 1
Section 4. Notice of Meetings and Waiver 2
Section 5. Quorum 2
Section 6. Voting Rights 3
Section 7. Voting of Shares by Certain Holders 3
Section 8. Proxies 3
Section 9. Shareholder Lists 4
Section 10. Business of Shareholder Meetings. 4
ARTICLE 3 - Directors 6
Section 1. Powers 6
Section 2. Number and Qualifications 6
Section 3. Election and Tenure 6
Section 4. Vacancies 6
Section 5. Resignation 7
Section 6. Removal 7
Section 7. Meetings - Notice and Waiver 7
Section 8. Quorum and Vote 8
Section 9. Compensation 8
ARTICLE 4 - Committees 8
Section 1. Committees of the Board of Directors 8
Section 2. Actions of the Committees 9
Section 3. Procedures 9
Section 4. Appointment of Committee Members 9
ARTICLE 5 - Officers 9
Section 1. Designation; Appointment 9
Section 2. Chairman of the Board 10
Section 3. President. 10
Section 4. Vice Presidents 11
Section 5. Secretary 11
Section 6. Treasurer 11
Section 7. Assistant Officers 12
Section 8. Divisional Officers 12
ARTICLE 6 - Certificates and Transfer of Share 12
Section 1. Certificates for Shares 12
Section 2. Transfer on the Books 13
Section 3. Lost Certificates 13
Section 4. Transfer Agents and Registrars 13
Section 5. Record Date 13
Section 6. Registered Shareholders 13
ARTICLE 7 - General Provisions 14
Section 1. Records 14
Section 2. Seal 14
Section 3. Amendment of Bylaws 14
Section 4. Action Without a Meeting 14
Section 5. Telephonic Meetings 14
Section 6. Fiscal Year 15
Section 7. Execution of Corporate Instruments 15
ARTICLE 8 - Transactions With Interested Directors 15
Section 1. Validity of Transaction 15
Section 2. Indirect Interest 16
Section 3. Authorization by Board 16
Section 4. Authorization by Shareholders 16
ARTICLE 9 -Indemnification 17
ARTICLE 10 - Limitation of Director Liability 21
NIKE, INC.
THIRD RESTATED BYLAWS
ARTICLE 1 - Offices
Section 1. Principal Office. The registered office and principal
executive offices of NIKE, Inc., an Oregon corporation (the "Corporation"),
shall be located in Beaverton, Oregon, or such other location as the Board
of Directors may determine.
Section 2. Additional Offices. The Corporation may also have
offices at such other places, either within or without Oregon, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE 2 - Shareholders
Section 1. Place of Meetings. Meetings of the shareholders of
the Corporation shall be held at Beaverton, Oregon, or any other place,
either within or without Oregon, selected by the Board of Directors, or
in the absence of a selection by the Board of Directors, by the Chairman
of the Board.
Section 2. Annual Meetings. The annual meeting of the
shareholders shall be held on the third Monday in September of each year
if not a legal holiday, and if a legal holiday then on the next succeeding
business day, at such time as may be designated by the Board of Directors
and specified in the notice of the meeting. The Board of Directors shall
have the discretion to designate a different annual meeting date for any
year, provided that the date so designated is within 60 days of the date
specified in the preceding sentence. At the annual meeting, the
shareholders shall elect by vote a Board of Directors, consider reports
of the affairs of the Corporation, and transact such other business as
may properly be brought before the meeting.
Section 3. Special Meetings. The Corporation shall hold a
special meeting of shareholders upon the call of the Chairman of the
Board or the Board of Directors, or if the holders of at least 10 percent
of all votes entitled to be cast on any issue proposed to be considered at
the special meeting sign, date and deliver to the Secretary of the
Corporation one or more written demands for the meeting describing the
purpose or purposes for which it is to be held. Special meetings of the
shareholders may not be called by any other person or persons.
Section 4. Notice of Meetings and Waiver.
(a) General. The Corporation shall notify shareholders in
writing of the date, time and place of each annual and special shareholders
meeting not earlier than 60 days nor less than ten days before the meeting
date. Except as otherwise required by applicable law, the Corporation is
required to give notice only to shareholders entitled to vote at the
meeting. Such notice is effective when mailed if it is mailed postage
prepaid and is correctly addressed to the shareholder's address shown
in the Corporation's current record of shareholders. Except as otherwise
required by applicable law, notice of an annual meeting need not include a
description of the purpose or purposes for which the meeting is called.
Notice of a special meeting shall include a description of the purpose or
purposes for which the meeting is called.
(b) Adjourned Meetings. If an annual or special shareholders
meeting is adjourned to a different date, time or place, notice need not be
given of the new date, time or place if the new date, time or place is
announced at the meeting before adjournment. If a new record date for the
adjourned meeting is fixed, or is required by law to be fixed, notice of the
adjourned meeting shall be given to persons who are shareholders as of the
new record date. A determination of shareholders entitled to notice of or to
vote at a shareholders meeting is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
(c) Waiver of Notice. A shareholder's attendance at a
meeting waives objection to (i) lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting,
and (ii) consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
Section 5. Quorum. Shares entitled to vote as a separate
voting group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Unless otherwise
required by law, a majority of the votes entitled to be cast on the matter
by the voting group constitutes a quorum of that voting group for action on
that matter. Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting unless a new record date is or must be
set for that adjourned meeting. In the absence of a quorum, a majority of
those present in person or represented by proxy may adjourn the meeting
from time to time until a quorum exists. Any business that might have
been transacted at the original meeting may be transacted at the adjourned
meeting if a quorum exists.
Section 6. Voting Rights. The voting rights of holders of stock
of the Corporation, and the circumstances under which any class of stock has
special voting rights and the manner of exercise thereof, are as set forth
in the Restated Articles of Incorporation, as amended (the "Restated
Articles"). Only shares of stock are entitled to vote. Except as
otherwise provided in the Restated Articles or by applicable law: (i) each
outstanding share, regardless of class, is entitled to one vote on each
matter voted on at a shareholders meeting; (ii) if a quorum exists, action
on a matter, other than the election of directors, by a voting group shall
be approved if the votes cast within the voting group favoring the action
exceed the votes cast within the voting group opposing the action; and
(iii) directors shall be elected by a plurality of the votes cast by holders
of the shares entitled to vote in the election at a meeting at which a quorum
is present.
Section 7. Voting of Shares by Certain Holders. If the name
signed on a vote, consent, waiver or proxy corresponds to the name of a
shareholder, the Corporation, if acting in good faith, is entitled to
accept the vote, consent, waiver or proxy and give it effect as the act
of the shareholder. If the name signed on a vote, consent, waiver or
proxy does not correspond to the name of its shareholder, the Corporation,
if acting in good faith, is nevertheless entitled to accept the vote,
consent, waiver or proxy and give it effect as the act of the shareholder
if authorized by ORS 60.237 or any successor provision dealing with
acceptance of votes.
Shares of the Corporation are not entitled to be voted if (i) they
are owned, directly or indirectly, by another domestic or foreign
corporation, and (ii) the Corporation owns, directly or indirectly, a
majority of the shares entitled to be voted for the directors of such
other corporation. This paragraph does not limit the power of a corporation
to vote any shares, including its own shares, held by it in a fiduciary
capacity.
Any redeemable shares that the Corporation may issue are not
entitled to be voted after notice of redemption is mailed to the holders
and a sum sufficient to redeem the shares has been deposited with a bank,
trust company or other financial institution under an irrevocable obligation
to pay the holders the redemption price on surrender of the shares.
Section 8. Proxies. A shareholder entitled to vote or to
execute any waiver or consent may do so either in person or by written
proxy duly executed and filed at or before the meeting at which it is to
be used with the Secretary at the Corporation or other officer or agent
of the Corporation authorized to tabulate votes. An appointment of a
proxy is effective when received by the Secretary or other officer or
agent of the Corporation authorized to tabulate votes. An appointment
is valid for 11 months unless a longer period is expressly provided in
the appointment form. An appointment of a proxy is revocable by the
shareholder unless the appointment form conspicuously states that it
is irrevocable and the appointment is coupled with an interest.
Section 9. Shareholder Lists. After fixing a record
date for a meeting, the Corporation shall prepare an alphabetical
list of the names of all of its shareholders who are entitled to notice
of the meeting. The list shall be arranged by voting group, and within
each voting group, by class or series of shares and show the address
of and the number of shares held by each shareholder. The shareholder
list shall be available for inspection by any shareholder, beginning
two business days after notice of the meeting for which the list was
prepared is given and continuing through the meeting. Such list shall
be kept on file at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be
held. A shareholder, or the shareholder's agent or attorney, shall
be entitled on written demand to inspect and, subject to the requirements
of law, to copy the list during regular business hours and at the
shareholder's expense during the period it is available for inspection.
The Corporation shall make the shareholder list available at the
meeting, and any shareholder, or the shareholder's agent or attorney,
is entitled to inspect the list at any time during the meeting or
any adjournment. The original stock transfer book shall be prima
facie evidence as to who are the shareholders entitled to inspect
such list or to vote at any meeting of shareholders. Refusal or
failure to prepare or make available the shareholder list does not
affect the validity of action taken at the meeting.
Section 10. Business of Shareholder Meetings.
(a) The Chairman of the Board, or such other officer
of the Corporation designated by the Board of Directors, shall call
meetings of the shareholders to order and shall act as presiding
officer thereof. Unless otherwise determined by the Board of Directors
prior to the meeting, the presiding officer, or any person he or she
designates, shall also have the authority in his or her sole
discretion to regulate the conduct of any such meeting, including,
without limitation: the establishment of rules for determining if
business is to be brought before such meeting; the establishment of
procedures for the maintenance of order and safety; setting limitations
on the time allotted to questions or comments on the affairs of the
Corporation; imposing restrictions on entry to such meeting of shareholders
after the time prescribed for the commencement thereof; determining the
opening and closing of the voting polls; imposing restrictions on the
persons (other than shareholders or their proxies) who may attend such
meeting; ascertaining whether any shareholder or his or her proxy may be
excluded from such meeting based upon any determination by the presiding
officer, in his or her discretion, that any such person has disrupted or
is likely to disrupt the proceedings thereat; and by determining the
circumstances in which any person may make a statement or ask questions
at such meeting.
(b) Only business within the purpose or purposes described
in the meeting notice may be conducted at a special shareholders meeting.
(c) At the annual meeting of the shareholders, only such
business shall be conducted as shall have been properly brought before
the meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (ii) otherwise
brought before the meeting by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the meeting by
a shareholder, and (iv) under law, an appropriate subject of shareholder
action.
(d) In addition to any other applicable requirements,
including, without limitation, requirements relating to solicitation
of proxies and proposals of security holders under the Securities
Exchange Act of 1934, as amended, (the "Proxy Rules") for business to
be properly brought before the annual meeting by a shareholder,
including nominations of persons for election to the Board of Directors,
the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice
must be received by the Secretary at the principal executive offices
of the Corporation, not less than 60 days prior to the meeting. A
shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the annual meeting: (i) a
brief description of the business desired to be brought before the
annual meeting; (ii) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business; (iii)
the class and number of shares of the Corporation which are beneficially
owned by the shareholder; (iv) any material interest of the shareholder
in such business; (v) a description of all arrangements or understandings
between such shareholder and any other person or persons in connection with
the proposal of such business, (vi) a representation that such shareholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting; and (vii) with regard to nominations, all
information required by the Proxy Rules.
(e) No business shall be conducted at an annual or special
meeting except in accordance with the procedures set forth in this Section
10. The presiding officer at a shareholders meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this
Section. If the presiding officer should so determine, he or she shall
so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
(f) The Chairman of the Board shall, in advance of any
meeting of shareholders, appoint one or more inspectors of election to
act at the meeting. The inspectors of election shall decide upon the
qualifications of voters, count the votes, declare the results and make
a written report thereof.
ARTICLE 3 - Directors
Section 1. Powers. The Corporation shall have a Board of
Directors. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall
be managed under the direction of, the Board of Directors.
Section 2. Number and Qualifications. The number of
directors shall be determined by resolution of the Board of Directors,
and shall not be less than five. Any decrease in the number of
directors designated by the Board of Directors shall not shorten an
incumbent director's term. Directors need not be residents of
Oregon or shareholders of the Corporation.
Section 3. Election and Tenure. The directors shall
be elected at the annual meeting of the shareholders, by separate
vote of the Class A and Class B Common Stock in the manner required
by the Restated Articles. Their term of office shall begin
immediately after election. The terms of all directors, including
a director elected to fill a vacancy, expire at the next annual
shareholders meeting following their election. Despite the expiration
of a director's term, the director shall continue to serve until his
or her successor is elected and qualifies or until there is a decrease
in the number of directors.
Section 4. Vacancies. A vacancy in the Board of Directors
shall exist upon the death, resignation or removal of any director or
upon an increase in the number of directors. If a vacancy occurs on
the Board of Directors as a result of death, resignation or removal
from office of a director who is elected by a separate class vote of
the common stock, it shall be filled by the affirmative vote of a
majority of the remaining directors similarly elected by such class.
If none shall be remaining, the vacancy shall be filled by all directors
then in office. If the directors remaining in office constitute fewer
than a quorum of the Board, they may fill the vacancy by an affirmative
vote of a majority of all of the directors remaining in office. If a
vacancy occurs on the Board of Directors as a result of an increase in
the number of directors, the Board of Directors may fill such vacancy,
provided they may not elect more than three additional directors in any
period between annual shareholders meetings to fill such vacancies.
Section 5. Resignation. A director may resign at any time by
delivering written notice to the Chairman of the Board of Directors, the
Board of Directors or the Corporation.
Section 6. Removal. The shareholders may remove one or more
directors with or without cause. If a director is elected by a voting
group of shareholders, only the shareholders of that voting group may
participate in the vote to remove the director. A director may be removed
by the shareholders only at a meeting called for the purpose of removing
the director and the meeting notice must state that the purpose, or one
of the purposes, of the meeting is removal of the director.
Section 7. Meetings - Notice and Waiver.
(a) The Board of Directors may hold regular or special
meetings in or out of Oregon.
(b) Regular meetings of the Board of Directors may be
held without notice of the date, time, place or purpose of the meeting.
The Board of Directors may fix, by resolution, the time and place for
the holding of regular meetings.
(c) Special meetings of the Board of Directors for any
purpose or purposes may be called at any time by the Chairman of the
Board, or a majority of directors. Notice of special meetings of the
Board of Directors shall be preceded by at least 48 hours' notice of the
date, time, place and general purpose of the meeting. The notice shall
be given orally, either in person or by telephone, or shall be delivered in
writing, either personally, by mail or by facsimile or by telegram.
(d) Notice of the time and place of holding any adjourned
meeting need not be given if such time and place are fixed at the meeting
adjourned.
(e) The transaction of all business at any meeting of the
Board of Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum be present, and if, either
before or after the meeting, each of the directors not present shall
sign a written waiver of notice, or consent to holding such meeting,
or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of
the minutes of the meeting. A director's attendance at or participation
in a meeting waives any required notice to the director of the meeting
unless the director at the beginning of the meeting, or promptly upon
the director's arrival, objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to
action taken at the meeting.
Section 8. Quorum and Vote.
(a) A majority of the directors in office shall constitute
a quorum for the transaction of business. A majority of the directors
present, in the absence of a quorum, may adjourn from time to time but
may not transact any business. If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present is the
act of the Board of Directors, unless a different vote is required by law.
(b) A director who is present at a meeting of the Board
of Directors, or is present at a meeting of a committee of the Board
of Directors, when corporate action is taken, is deemed to have assented
to the action taken unless (i) the director objects at the beginning of
the meeting, or promptly upon the director's arrival, to holding the
meeting or transacting business at the meeting, (ii) the director's
dissent or abstention from the action taken is entered in the minutes of
the meeting, or (iii) the director delivers written notice of dissent
or abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of the
meeting. The right of dissent or abstention is not available to a director
who votes in favor of the action taken.
Section 9. Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of
Directors, including, without limitation, an annual fee, a fixed sum for
attending each Board and committee meeting, and their expenses of
attendance at each meeting of the Board or a committee. No such payment
shall preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee, consultant or otherwise and
receiving compensation for that service.
ARTICLE 4 - Committees
Section 1. Committees of the Board of Directors. The Board
of Directors shall designate an Executive Committee, a Personnel and
Organization Committee, a Finance Committee, and an Audit Committee,
each of which shall have powers and authority of the Board of Directors
to the extent provided for in mission statements for each committee
adopted by the Board of Directors. The Board of Directors may designate
one or more additional committees of the Board with such powers as shall
be specified in mission statements adopted by the Board. Each committee
shall consist of two or such greater number of directors as shall be
determined from time to time by resolution of the Board of Directors.
Section 2. Actions of the Committees. Each committee shall
keep regular minutes of its meetings. All action taken by a committee
shall be reported to the Board of Directors at its meeting next
succeeding such action and shall be subject to approval and revision
by the Board, provided that no legal rights of third parties shall be
affected by such revisions.
Section 3. Procedures. The provisions of Article 3 of these
Bylaws governing meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors shall apply to committees
and their members as well.
Section 4. Appointment of Committee Members. The members
of each committee shall be appointed by the Board of Directors by
resolution and shall serve until the first meeting of the Board of
Directors after the annual meeting of shareholders and until their
successors are elected and qualified or until the members' earlier
resignation or removal. The Board of Directors shall designate the
Chair of each committee other than the Executive Committee. The
Chairman of the Board shall serve as Chair of the Executive Committee.
The Board may also designate the Vice Chair of any committee, as
appropriate. Vacancies may be filled by the Board of Directors at any
meeting.
With the approval of the Board of Directors, the Chairman of
the Board may designate one or more directors to serve as an alternate
member or members at any committee meeting to replace any absent or
disqualified member. The Chairman of the Board may designate a
committee member as acting Chair of that committee, in the absence
of the elected committee Chair or a Vice Chair.
ARTICLE 5 - Officers
Section 1. Designation; Appointment.
(a) The officers of the Corporation shall be a
Chairman of the Board and Chief Executive Officer, a President
and Chief Operating Officer, one or more Vice Presidents, a
Treasurer, a Secretary and such other officers and assistant officers
as the Board of Directors or the Chairman of the Board shall from time
to time appoint, none of whom need be members of the Board of Directors.
The officers shall hold office at the pleasure of the Board of Directors
if appointed by the Board, or the Chairman of the Board if appointed by
the Chairman. Subject to the terms of any contract of employment
between the Corporation and such officer, any officer appointed by
the Board of Directors or the Chairman of the Board may be removed at
any time by the Board of Directors or the Chairman, respectively.
The same individual may simultaneously hold more than one
office in the Corporation. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to such office.
The salaries and other compensation of the officers of the Corporation
shall be fixed by or in the manner designated by the Board of Directors.
(b) Any officer may resign at any time by giving written
notice to the Board of Directors, the Chairman of the Board of Directors
or the Secretary. Unless the notice specifies a later effective date,
a resignation is effective at the earliest of the following: (i) when
received; (ii) five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postage prepaid and correctly
addressed; or (iii) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested and the receipt is
signed by or on behalf of the addressee. Once delivered, a notice of
resignation is irrevocable unless revocation is permitted by the Board of
Directors. If a resignation is made effective at a later date and the
Corporation accepts the future effective date, the Board of Directors may
fill the pending vacancy before the effective date, if the Board of
Directors provides that the successor shall not take office until the
effective date.
Section 2. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shareholders
and will be the Chief Executive Officer of the Corporation. Subject to
the control of the Board of Directors, the Chairman of the Board shall
have general supervision, direction and control of the business and
affairs of the Corporation and shall perform other duties commonly
incident to such office. The Chairman of the Board will have authority
to execute on behalf of the Corporation all contracts, deeds, agreements,
stock certificates and other instruments. The Chairman of the Board will
be the Chair of the Executive Committee and an ex officio a member of all
other standing committees, will have the general powers and duties of
management usually vested in the Chief Executive Officer of a corporation
and will have such other powers and duties as may be prescribed by the
Board of Directors or these Bylaws.
Section 3. President. The President will be the Chief
Operating Officer of the Corporation, and will have such duties of
general supervision, direction and control of the business and affairs
of the Corporation as are authorized by the Board of Directors and the
Chairman of the Board. In the absence of the Chairman of the Board, the
President will perform the duties and responsibilities of the Chairman
of the Board. The President will be ex officio a member of all the
standing committees, have the general powers and duties of management
usually vested in the office of Chief Operating Officer of a corporation
and will have such other powers and duties as may be prescribed by the
Board of Directors, the Chairman of the Board or these Bylaws.
Section 4. Vice Presidents. Each Executive Vice President,
Senior Vice President and Vice President shall have such powers and
perform such duties as may be assigned to the officer by the Board of
Directors or by the Chairman of the Board or the President or these
Bylaws. In the absence or disability of the Chairman of the Board and
the President, the Chairman of the Board's duties and powers shall be
performed and exercised by a senior officer designated by the Board of
Directors or the Chairman of the Board.
Section 5. Secretary. The Secretary shall attend all meetings of
the shareholders and of the Board of Directors, and shall record all acts and
proceedings thereof in the minute book of the Corporation. The Secretary
shall give notice in conformity with these Bylaws of all meetings of the
shareholders, of the Board of Directors and any committee thereof requiring
notice. The Secretary shall perform all other duties given him in these
Bylaws and other duties commonly incident to such office and shall also
perform such other duties and have such other powers as the Board of
Directors or the Chairman of the Board may designate from time to time.
An Assistant Secretary is authorized to assume and perform the duties of
the Secretary in the absence of the Secretary, and to also perform such
other duties and have such other powers as the Board of Directors or the
Chairman of the Board shall designate from time to time.
Section 6. Treasurer. The Treasurer shall perform all duties a
nd acts incident to the position of Treasurer, shall have custody and be
responsible for the Corporation's funds and securities, shall supervise
the investments of its funds, and shall deposit all money and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be
authorized, taking proper vouchers for such disbursements, and shall
render to the Board of Directors, whenever required, an account of all
the transactions of the Treasurer and of the financial condition of the
Corporation. The Treasurer shall perform such other duties as may be
assigned, and shall report to the Chief Financial Officer or, in the
absence of the Chief Financial Officer, to the Chairman of the Board.
In the absence of the Treasurer, an Assistant Treasurer is authorized to
assume the duties of the Treasurer, and to also perform such other duties
and have such other powers as the Board of Directors or the Chairman of
the Board shall designate from time to time.
Section 7. Assistant Officers. Such other officers as the
Board of Directors, the Chairman of the Board or the President may
designate, including a Deputy Chairman of the Board of Directors and
Assistant Officers, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors or
the Chairman of the Board.
Section 8. Divisional Officers. The Board of Directors or
the Chairman of the Board may from time to time appoint persons to hold
nominal titles as officers of divisions or of other areas of the
Corporation's business ("Divisional Officers"). No Divisional Officer
shall by reason of such appointment become a corporate officer or have
the authority of a corporate officer. Each Divisional Officer shall
only perform such duties and have such powers as may be assigned to the
person by the Board of Directors or the Chairman of the Board. Any
title given to any Divisional Officer may be withdrawn, with or without
cause at any time, by the Board of Directors or the Chairman, and any
duty or authority delegated to any such person may be withdrawn, with or
without cause at any time, by the Board of Directors or the Chairman.
ARTICLE 6 - Certificates and Transfer of Shares
Section 1. Certificates for Shares.
(a) Form. Certificates for shares shall be in such form as
the Board of Directors may designate, shall state the name of the
Corporation and the state law under which the Corporation is organized,
shall state the name of the person to whom the shares represented by
the certificate are issued, and shall state the number and class of
shares and the designation of the series, if any, the certificate
represents. If the Corporation is authorized to issue different
classes of shares or different series within a class, the designations,
relative rights, preferences and limitations applicable to each class,
the variations in rights, preferences and limitations determined for
each series and the authority of the Board of Directors to determine
variations for future series shall be summarized on the front or back
of each certificate, or each certificate may state conspicuously on its
front or back that the Corporation shall furnish shareholders with this
information on request in writing and without charge.
(b) Signing. Each certificate for shares shall be signed,
either manually or in facsimile, by (i) the Chairman of the Board or
the President and (ii) the Secretary or an Assistant Secretary of the
Corporation. The certificates may bear the corporate seal or its
facsimile. If any officer who has signed a share certificate, either
manually or in facsimile, no longer holds office when the certificate
is issued, the certificate shall nevertheless be valid.
Section 2. Transfer on the Books. Upon surrender to the
Corporation of a certificate for shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer,
and subject to any limitations on transfer appearing on the certificate
or in the Corporation's stock transfer records, the Corporation shall
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 3. Lost Certificates. In the event a certificate
is represented to be lost, stolen or destroyed, a new certificate shall
be issued in place thereof upon such proof of the loss, theft or
destruction and upon the giving of such bond or other indemnity as may
be required by the Corporation.
Section 4. Transfer Agents and Registrars. The Board of
Directors may from time to time appoint one or more transfer agents
and one or more registrars for the shares of the Corporation who will
have such powers and duties as the Board of Directors may specify.
Section 5. Record Date. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of
any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which
shall not be more than 70 nor less than 10 days before the date of such
meeting, nor more than 70 days prior to any other action. If no record
date is fixed by the Board of Directors, the record date for
determining shareholders entitled to notice of or to vote at a meeting
of shareholders shall be the close of business on the day next preceding
the day on which notice of such meeting is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held. A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 6. Registered Shareholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE 7 - General Provisions
Section 1. Records. The Corporation shall maintain all
records required by law. All such records shall be kept at its
principal office, registered office or at any other place designated
by the Chairman of the Board of the Corporation, or as otherwise
provided by applicable law. The records of the Corporation allowed
to be inspected by shareholders shall be open to inspection by the
shareholders or the shareholders' agents or attorneys in the manner
and to the extent required by applicable law.
Section 2. Seal. The corporate seal, if any, shall be
circular in form and shall have inscribed thereon the name of the
Corporation and the state of incorporation.
Section 3. Amendment of Bylaws. Except as otherwise
provided by applicable law or by the Restated Articles, the Board of
Directors may amend or repeal these Bylaws at any regular or special
meeting. The Corporation's shareholders may also amend or repeal these
Bylaws, as authorized by applicable laws.
Section 4. Action Without a Meeting. Any action required or
permitted by law to be taken at any meeting of the Board of Directors,
or at any meeting of a committee of the Board of Directors, or at any
meeting of shareholders may be taken without a meeting if the action is
taken by all members of the Board or the Committee or all shareholders.
The action shall be evidenced by one or more written consents describing
the action taken, signed by each director, committee member or shareholder
and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section 4 is
effective when the last director or shareholder signs the consent, unless
the consent specifies an earlier or later effective date. A consent signed
under this section has the effect of a meeting vote and may be described as
such in any document.
Section 5. Telephonic Meetings. The Board of Directors or any
committee thereof may permit any or all directors to participate in a
regular or special meeting by, or conduct the meeting through, use of any
means of communication by which all directors participating may
simultaneously hear each other during the meeting. All directors
participating in a Board or committee meeting by this means shall be
deemed to be present in person at the meeting.
Section 6. Fiscal Year. The fiscal year of the Corporation
shall extend from June 1 until May 31 of the following calendar year.
Section 7. Execution of Corporate Instruments.
(a) The Board of Directors may, in its discretion, determine
the method and designate the signatory officer or officers, or other
person or persons, to execute any corporate instrument or document, and
such execution or signature shall be binding upon the Corporation.
(b) Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, formal contracts of the
Corporation, promissory notes, deeds of trusts, mortgages and other
evidences of indebtedness of the Corporation, and other corporate
instruments shall be executed, signed or endorsed by the Chairman of the
Board, the President, the Treasurer, or any Vice President. All other
instruments and documents requiring the corporate signature may be executed
as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) All checks and drafts drawn on banks or other depositories
on funds to the credit of the Corporation or in special accounts of the
Corporation shall be signed by such person or persons as the Board of
Directors shall authorize so to do.
ARTICLE 8 - Transactions With Interested Directors
Section 1. Validity of Transaction.
(a) No transaction involving the Corporation shall be
voidable by the Corporation solely because of a director's direct or
indirect interest in the transaction if:
(i) The material facts of the transaction and the
director's interest were disclosed or known to the Board of
Directors or a committee of the Board of Directors, and the Board
of Directors or committee authorized, approved or ratified the
transaction;
(ii) The material facts of the transaction and the
director's interest were disclosed or known to the share-holders
entitled to vote and the shareholders authorized, approved or
ratified the transaction by the affirmative vote of the holders
of a majority of the issued and outstanding shares of the
Corporation, or by written consent; or
(iii) The transaction was fair and reasonable to
the Corporation.
(b) This Article 8 shall not invalidate any contract,
transaction or determination that would otherwise be valid under
applicable law.
Section 2. Indirect Interest. Solely for purposes of this
Article 8, a director of the Corporation has an indirect interest in
a transaction if another entity in which the director has a material
financial interest or in which the director is a general partner is a
party to the transaction; or the transaction with another entity of
which the director is a director, officer or trustee is a party to the
transaction and the transaction is or should be considered by the Board
of Directors.
Section 3. Authorization by Board. For purposes of
Section 1 of this Article 8, a transaction in which a director has
an interest is authorized, approved or ratified by the Board of
Directors if it receives the affirmative vote of a majority of the
directors on the Board of Directors, or on the committee, who have
no direct or indirect interest in the transaction. A transaction may
not be authorized, approved or ratified under this Article 8 by a
single director. If a majority of the directors who have no direct or
indirect interest in the transaction vote to authorize, approve or
ratify the transaction, a quorum shall be present for the purpose of
taking action under this Article 8. The presence of, or a vote cast
by, a director with a direct or indirect interest in the transaction
shall not affect the validity of any action taken under Section 1 of
this Article 8 by the Board of Directors or a committee thereof, if the
transaction is otherwise authorized, approved or ratified as provided in
Section 1 of this Article 8.
Section 4. Authorization by Shareholders. For purposes of
Section 1 of this Article 8, a transaction in which a director has an
interest is authorized, approved or ratified if it receives the vote of
a majority of the shares entitled to vote under this Article 8 voting
as a single voting group. Shares owned by or voted under the control
of a director who has a direct or indirect interest in the transaction,
and shares owned by or voted under the control of any entity described
in paragraph (a) of Section 2 of this Article 8 may be counted in a
vote of shareholders to determine whether to authorize, approve or
ratify a transaction by vote of the shareholders under Section 1 of
this Article 8. A majority of the shares, whether or not present,
that are entitled to be counted in a vote on the transaction under
this Article 8 constitutes a quorum for the purpose of taking action
under this Article 8.
ARTICLE 9 -Indemnification
(a) The Corporation shall indemnify to the fullest extent
permitted by law, any person who is made, or threatened to be made, a
party to or witness in, or is otherwise involved in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, investigative, or otherwise (including any action, suit or
proceeding by or in the right of the Corporation) by reason of the fact that:
(i) the person is or was a director or officer of the
Corporation or any of its subsidiaries;
(ii) the person is or was serving as a fiduciary within
the meaning of the Employee Retirement Income Security Act of 1974
with respect to any employee benefit plan of the Corporation or
any of its subsidiaries; or
(iii) the person is or was serving, at the request of the
Corporation or any of its subsidiaries, as a director or officer, or
as a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise.
(b) The Corporation may indemnify its employees and other
agents to the fullest extent permitted by law.
(c) The expenses incurred by a director or officer or other
indemnified person in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative, or otherwise, which the director or officer is made or
threatened to be made a party to or witness in, or is otherwise involved
in, shall be paid by the Corporation in advance upon written request if
the indemnified person:
(i) furnishes the Corporation a written affirmation that
in good faith the person believes that he or she is entitled to be
indemnified by the Corporation; and
(ii) furnishes the Corporation a written undertaking to
repay such advance to the extent that it is ultimately determined
by a court that such person is not entitled to be indemnified by
the Corporation. Such advances shall be made without regard to
the person's ability to repay such expenses and without regard to
the person's ultimate entitlement to indemnification under this
Article or otherwise.
(d) The rights of indemnification provided in this Article 9
shall be in addition to any rights to which a person may otherwise be
entitled under any articles of incorporation, bylaw, agreement, statute,
policy of insurance, vote of shareholders or Board of Directors, or
otherwise; shall continue as to a person who has ceased to be a director,
officer, employee or agent of the Corporation; and shall inure to the
benefit of the heirs, executors and administrators of such person.
(e) Any repeal of this Article 9 shall be prospective only
and no repeal or modification of this Article 9 shall adversely affect
any right or protection that is based upon this Article 9 and pertains
to an act or omission that occurred prior to the time of such repeal or
modification.
(f) As a condition precedent to indemnification under this
Article 9, not later than 30 days after receipt by the director or officer
of notice of the commencement of any proceeding the director or officer
shall, if a claim in respect of the proceeding is to be made against the
Corporation under this Article 9, notify the Corporation in writing of the
commencement of the proceeding. The failure to properly notify the
Corporation shall not relieve the Corporation from any liability which it
may have to the director or officer otherwise than under this Article 9.
With respect to any proceeding as to which the director or officer so
notifies the Corporation of the commencement:
(i) The Corporation shall be entitled to participate
in the proceeding at its own expense.
(ii) Except as otherwise provided in this paragraph
(f), the Corporation may, at its option and jointly with any
other indemnifying party similarly notified and electing to
assume such defense, assume the defense of the proceeding, with
legal counsel reasonably satisfactory to the director or officer.
The director or officer shall have the right to use separate legal
counsel in the proceeding, but the corporation shall not be liable
to the director or officer under this Article 9 for the fees and
expenses of separate legal counsel incurred after notice from the
Corporation of its assumption of the defense, unless (A) the director
or officer reasonably concludes that there may be a conflict of
interest between the Corporation and the director or officer in the
conduct of the defense of the proceeding, or (B) the Corporation does
not use legal counsel to assume the defense of such proceeding.
The Corporation shall not be entitled to assume the defense of any
proceeding brought by or on behalf of the Corporation or as to which
the director or officer has made the conclusion provided for in (A)
above.
(iii) If two or more persons who may be entitled to
indemnification from the Corporation, including the director or
officer seeking indemnification, are parties to any proceeding,
the Corporation may require the director or officer to use the
same legal counsel as the other parties. The director or officer
shall have the right to use separate legal counsel in the proceeding,
but the Corporation shall not be liable to the director or officer
under this Article 9 for the fees and expenses of separate legal
counsel incurred after notice from the Corporation of the requirement
to use the same legal counsel as the other parties, unless the director
or officer reasonably concludes that there may be a conflict of
interest between the director or officer and any of the other parties
required by the Corporation to be represented by the same legal counsel.
(iv) The Corporation shall not be liable to indemnify the
director or officer under this Article 9 for any amounts paid in
settlement of any proceeding effected without its written consent,
which shall not be unreasonably withheld. The director or officer
shall permit the Corporation to settle any proceeding that the
Corporation assumes the defense of, except that the Corporation
shall not settle any action or claim in any manner that would
impose any penalty or limitation on the director or officer
without such person's written consent.
(g) Notwithstanding any provision in this Article 9,
the Corporationn shall not be obligated under this Article 9 to make
any indemnification or advance any expenses in connection with any claim
made against any director or officer:
(i) for which payment is required to be made to or on
behalf of the director or officer under any insurance policy,
except with respect to any excess amount to which the director
or officer is entitled under this Article 9 beyond the amount of
payment under such insurance policy;
(ii) if a court having jurisdiction in the matter finally
determines that such indemnification is not lawful under any
applicable statute or public policy;
(iii) in connection with any proceeding (or part of any
proceeding) initiated by the director or officer, or any proceeding
by the director or officer against the Corporation or its directors,
officers, employees or other persons entitled to be indemnified by the
Corporation, unless: (A) the Corporation is expressly required by law
to make the indemnification; (B) the proceeding was authorized by the
Board of Directors; or (C) the director or officer initiated the
proceeding pursuant to subsection (i) of this Article 9 and the
director or officer is successful in whole or in part in such
proceeding; or
(iv) for an accounting of profits made from the purchase
and sale by the director or officer of securities of the Corporation
within the meaning of Section 16(b) of the Exchange Act, or similar
provision of any state statutory law or common law.
(h) In the event of payment under this Article 9, the
Corporation shall be subrogated to the extent of such payment to all
of the rights of recovery of the director or officer. The director or
officer shall execute all documents required and shall do all acts that
may be necessary to secure such rights and to enable the Corporation
effectively to bring suit to enforce such rights.
(i) Without the necessity of entering into an express contract,
all rights to indemnification and advances to directors and officers under
this Article 9 shall be deemed to be contractual rights and be effective to
the same extent and as if provided for in a contract between the Corporation
and the director or officer. Any director or officer may enforce any right
to indemnification or advances under this Article 9 in any court of
competent jurisdiction if: (i) the Corporation denies the claim for
indemnification or advances, in whole or in part, or (ii) the Corporation
does not dispose of such claim within 45 days of request therefor. It shall
be a defense to any such enforcement action (other than an action brought to
enforce a claim for advancement of expenses pursuant to, and in compliance
with, this Article 9) that the director or officer is not entitled to
indemnification under this Article 9. However, except as provided in
subsection (f) of this Article 9, the Corporation shall not assert any
defense to an action brought to enforce a claim for advancement of expenses
pursuant to this Article 9 if the director or officer has tendered to the
Corporation the affirmation and undertaking required hereunder. The burden of
proving by clear and convincing evidence that indemnification is not
appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or independent legal counsel)
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the director or officer
has met the applicable standard of conduct nor an actual determination by
the Corporation (including its Board of Directors or independent legal
counsel) that indemnification is improper because the director or officer
has not met such applicable standard of conduct, shall be asserted as a
defense to the action or create a presumption that the director or officer
is not entitled to indemnification under this Article 9 or otherwise. The
director's or officer's expenses incurred in connection with successfully
establishing such person's right to indemnification or advances, in whole or
in part, in any proceeding shall also be paid or reimbursed by the
Corporation.
(j) The rights conferred on any person by this Article 9
shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) To the fullest extent permitted by law, the Corporation,
upon approval by the Board of Directors, may purchase insurance on behalf
of any person required or permitted to be indemnified pursuant to this
Article 9.
(l) If this Article 9 or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each director and officer to the full extent not
prohibited by any applicable portion of this Article 9 that shall not have
been invalidated, or by any other applicable law.
ARTICLE 10 - Limitation of Director Liability
To the fullest extent permitted by law, no director of
the Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for conduct as a director.
Without limiting the generality of the foregoing, if the Oregon
Revised Statutes are amended, after this Article 10 becomes effective,
to authorize corporate action further eliminating or limiting the personal
liability of directors of the Corporation, then the liability of directors
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the Oregon Revised Statutes, as so amended. No amendment or
repeal of this Article 10, nor the adoption of any provision of these Bylaws
inconsistent with this Article 10, nor a change in the law, shall adversely
affect any right or protection that is based upon this Article 10 and pertains
to conduct that occurred prior to the time of such amendment, repeal, adoption
or change. No change in the law shall reduce or eliminate the rights and
protections set forth in this Article 10 unless the change in the law
specifically requires such reduction or elimination.
CREDIT AGREEMENT
Dated as of September 15, 1995
among
NIKE, INC.,
Certain of Its Subsidiaries,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BA SECURITIES, INC. _
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 1
ARTICLE II
THE FACILITY 11
2.1. The Facility 11
2.2. Ratable Advances 11
2.2.1. Ratable Advances 11
2.2.2. Ratable Advance Rate Options 12
2.2.3. Method of Selecting Rate Options and Interest
Periods for Ratable Advances 12
2.2.4. Conversion and Continuation Elections 12
2.2.5. Applicable Margin 13
2.3. Competitive Bid Advances 14
2.3.1. Competitive Bid Option 14
2.3.2. Competitive Bid Quote Request 14
2.3.3. Invitation for Competitive Bid Quotes 15
2.3.4. Submission and Contents of Competitive Bid Quotes 15
2.3.5. Notice to Borrower 16
2.3.6. Acceptance and Notice by Borrower 16
2.3.7. Allocation by Agent 17
2.3.8. Administration Fee 17
2.4. Fees 17
2.4.1. Facility Fee 17
2.5. General Facility Terms 17
2.5.1. Method of Borrowing 18
2.5.2. Minimum Amount of Each Advance 18
2.5.3. Repayment 18
2.5.4. Optional Principal Payments 18
2.5.5. Interest Periods 18
2.5.6 Rate after Maturity 18
2.5.7 Interest Payment Dates; Interest Basis 19
2.5.8. Method of Payment 19
2.5.9. Notes; Telephonic Notices; Designation of Company 19
2.5.10. Notification of Advances, Interest Rates
and Prepayments 20
2.5.11. Non-Receipt of Funds by the Agent 20
2.5.12. Cancellation 20
2.5.13. Lending Installations 20
2.5.14. Currency Fluctuations 21
2.5.15. Failure to Pay in a Eurocurrency 21
2.5.16. Judgment Currency Provisions 21
2.6. Extension of Revolving Credit Termination Date 21
2.7. Subsidiary Borrowers 23
ARTICLE III
TAXES, CHANGE IN CIRCUMSTANCES 23
3.1. Taxes. 23
3.2. Yield Protection 24
3.3. Availability of Rate Options 24
3.4. Funding Indemnification 25
3.5. Regulation D Compensation 25
3.6. Bank Statements; Survival of Indemnity 25
3.7. Removal of Banks 26
ARTICLE IV
CONDITIONS PRECEDENT 26
4.1. Closing 26
4.2. Each Advance. 27
ARTICLE V
REPRESENTATIONS AND WARRANTIES 28
5.1. Corporate Existence 28
5.2. Authorization and Validity 28
5.3. No Conflict; Government Consent 28
5.4. Financial Statements 28
5.5. Material Adverse Change 28
5.6. Taxes 28
5.7. Litigation and Contingent Obligations 29
5.8. Subsidiaries 29
5.9. ERISA 29
5.10. Accuracy of Information 29
5.11. Regulation U 29
5.12. Material Agreements 29
5.13. Compliance With Laws 29
5.14. Ownership of Properties 29
5.15. Post-Retirement Benefits 30
5.16. Environmental and Safety and Health Matters 30
ARTICLE VI
COVENANTS 30
6.1. Financial Reporting 30
6.2. Use of Proceeds 31
6.3. Notice of Default 31
6.4. Preservation of Existence; Conduct of Business 31
6.5. Taxes 31
6.6. Insurance 31
6.7. Compliance with Laws 32
6.8. Maintenance of Properties; Trademarks and Franchises 32
6.9. Inspection 32
6.10. Dividends 32
6.11. Merger 32
6.12. Sale of Assets 32
6.13. Sale and Leaseback 33
6.14. Acquisitions 33
6.15. Liens 33
6.16. Affiliates 34
6.17. Leverage Ratio 34
ARTICLE VII
DEFAULTS 34
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 36
8.1. Acceleration 36
8.2. Amendments 36
8.3. Preservation of Rights 37
ARTICLE IX
GUARANTY 37
9.1. Guaranty 37
9.2. Obligations Independent 37
9.3. Authorization of Renewals, Etc 38
9.4. Waiver of Certain Rights 38
9.5. Waiver of Certain Defenses 38
9.6. Information Relating to Company 38
9.7. Subordination 38
9.8. Reinstatement of Guaranty 38
9.9. Power and Authority of Subsidiary Borrowers 38
ARTICLE X
GENERAL PROVISIONS 39
10.1. Survival of Representations 39
10.2. Governmental Regulation 39
10.3. Taxes 39
10.4. Headings 39
10.5. Entire Agreement 39
10.6. Several Obligations 39
10.7. Expenses; Indemnification 39
10.8. Numbers of Documents 40
10.9. Accounting 40
10.10. Severability of Provisions 40
10.11. Nonliability of Banks 40
10.12. Confidentiality 40
10.13. CHOICE OF LAW 40
10.14. CONSENT TO JURISDICTION 40
10.15. WAIVER OF JURY TRIAL 41
10.16. OREGON LEGAL NOTICE 41
10.17. Several Obligations 41
ARTICLE XI
THE AGENT 41
11.1. Appointment and Authorization; "Agent" 41
11.2. Delegation of Duties 41
11.3. Liability of Agent 42
11.4. Reliance by Agent 42
11.5. Notice of Default 42
11.6. Credit Decision 43
11.7. Indemnification of Agent 43
11.8. Agent in Individual Capacity 43
11.9. Successor Agent 44
11.10. Withholding Tax 44
ARTICLE XII
SETOFF; RATABLE PAYMENTS 45
12.1. Setoff 45
12.2. Ratable Payments 45
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 46
13.1. Successors and Assigns 46
13.2. Participations 46
13.2.1. Permitted Participants; Effect 46
13.2.2. Voting Rights 46
13.2.3. Benefit of Setoff 46
13.3. Assignments 47
13.3.1. Permitted Assignments 47
13.3.2. Effect; Effective Date 47
13.4. Dissemination of Information 47
ARTICLE XIV
NOTICES 48
14.1. Giving Notice 48
14.2. Change of Address 48
ARTICLE XV
COUNTERPARTS 48
EXHIBITS
EXHIBIT A Ratable Note
EXHIBIT B Competitive Bid Note
EXHIBIT C Competitive Bid Quote Request
EXHIBIT D Invitation for Competitive Bid Quotes
EXHIBIT E Competitive Bid Quotes
EXHIBIT F Company Counsel Opinion
EXHIBIT G Ratable Borrowing Notice
EXHIBIT H Notice of Conversion/Continuation
EXHIBIT I Compliance Certificate
EXHIBIT J Assignment Agreement
EXHIBIT K Confidentiality Agreement
EXHIBIT L Certificate for Subsidiary Borrowers
SCHEDULES
Schedule 1 Subsidiaries
Schedule 2 Liens
CREDIT AGREEMENT
This Agreement, dated as of September 15, 1995, is among NIKE, Inc., the
"Subsidiary Borrowers" from time to time party hereto, the Banks and Bank
of America National Trust and Savings Association, as Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"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 Company.
"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 Company 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
180 days commencing on a Business Day selected by the Company 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 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 Company or any of the Subsidiaries (i) acquires any going
concern 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).
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Banks to the Company
on the same Borrowing Date, at the same Rate Option (or on the same interest
basis in the case of Competitive Bid Advances) and 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.
"Agent" means Bank of America National Trust and Savings Association
in its capacity as agent for the Banks pursuant to Article XI, and not in
its individual capacity as a Bank, and any successor Agent appointed
pursuant to Article XI.
"Agent-Related Persons" means BofA and any successor agent arising
under Section 11.9, together with their respective Affiliates (including,
in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitment" means the aggregate of the Commitments of
all the Banks hereunder, as reduced from time to time pursuant to the
terms hereof.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect 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.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Advances, a fluctuating rate of interest per annum equal to
the higher of (i) the Federal Funds Effective Rate most recently determined
by the Agent plus 1/2% per annum and (ii) the Corporate Base Rate. Changes
in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. The Agent will give notice promptly to the
Company and the Banks of changes in the Alternate Base Rate in respect
of any outstanding Floating Rate Loans.
"Applicable Margin" shall have the meaning set forth in Section
2.2.5.
"Arranger" means BA Securities, Inc.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Attorney Costs" has the meaning set forth in Section 10.7.
"Banks" means the financial institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Base Eurocurrency Rate" means, with respect to a Eurocurrency
Advance and for the relevant Eurocurrency Interest Period, the rate
determined by the Agent to be the arithmetic mean (rounded upwards,
if necessary, to the nearest one-sixteenth of one percent) of the annual
rates of interest published by Reuters Limited, by reference to the
Screen page "LIBO", as being the offered rates in the London interbank
market for deposits in the applicable Eurocurrency for a period
approximately equal to such Eurocurrency Interest Period at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Eurocurrency Interest Period. If such rates are not available, Base
Eurocurrency Rate means the rate determined by the Agent to be the rate
reported to the Agent by BofA as the rate at which deposits in the
applicable Eurocurrency are offered by BofA to first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two
business days prior to the first day of such Eurocurrency Interest Period,
in the approximate amount of BofA's portion of the relevant Eurocurrency
Advance and having a maturity approximately equal to such Eurocurrency
Interest Period.
"BofA" means Bank of America National Trust and Savings Association,
and its successors.
"Borrowers" means the Company and any Subsidiary Borrowers.
References to "the Borrower" in relation to any particular Loan
shall be deemed to refer to the applicable Borrower with respect to
such Loan.
"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,
(ii) with respect to any borrowing payment or rate selection of
Eurocurrency Advances, a day on which banks are open for business in
San Francisco, New York City and London, England and on which dealings
in such Eurocurrency are carried on in the London interbank market and
in the place where the principal foreign exchange market in the country
of issue of the applicable Eurocurrency is located; and (iii) 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.
"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.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, for each Bank, the obligation of the Bank
to make Loans not exceeding the amount set forth opposite its signature
below, as such amount may be modified from time to time pursuant to
the terms of this Agreement.
"Company" means NIKE, Inc., an Oregon corporation.
"Competitive Bid Advance" means a borrowing hereunder prior to
the Revolving Credit Termination Date consisting of the aggregate amount
of the several Competitive Bid Loans made by some or all of the Banks to
a 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 "B" hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrowers 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 "E" hereto completed and delivered by a Bank to the Agent
in accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "C" hereto completed and delivered by
a Borrower to the Agent in accordance with Section 2.3.2.
"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 Company 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, a 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, an Advance having an Interest Period expiring
on such date.
"Corporate Base Rate" means a rate per annum equal to the "reference
rate" of interest announced by BofA from time to time, changing when and
as said reference rate changes. The reference rate is not necessarily the
lowest rate of interest charged by BofA at any given time for any
particular class of customers or credit extensions.
"Default" means an event described in Article VII.
"Dollars" means lawful money of the United States of America.
"Effective Date" means the date on which all conditions set forth
in Section 4.1 are satisfied or waived by the Agent and the Banks,
provided such date shall not be later than September 30, 1995.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary
of a Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
"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,
as amended from time to time.
"Eurocurrency" means Dutch Guilders, British Pounds Sterling, Italian
Lira, Belgian Francs, Spanish Pesetas, German Marks and any other currency
other than Dollars which is freely transferable and convertible into
Dollars.
"Eurocurrency Advance" means an advance which bears interest at a
Eurocurrency Rate requested by the Company pursuant to Section 2.2.
"Eurocurrency Interest Period" means with respect to a Eurocurrency
Advance, a period of one, two, three or six months commencing on a
Business Day selected by a Borrower pursuant to this Agreement. Such
Eurocurrency 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 Eurocurrency Interest Period shall end on the last Business Day of
such next, second, third or sixth month. If a Eurocurrency Interest Period
would otherwise end on a day which is not a Business Day, such Eurocurrency
Interest Period shall end on the next succeeding Business Day provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Eurocurrency Interest Period shall end on the immediately
preceding Business Day.
"Eurocurrency Loan" means a Loan which bears interest at a Eurocurrency
Rate requested by the Borrower pursuant to Section 2.2.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Eurocurrency Interest Period, a rate per annum equal to the
sum of (i) the Base Eurocurrency Rate applicable to that Eurocurrency
Interest Period plus (ii) the Applicable Margin, rounded if necessary, to
the next higher 1/16th of 1%.
"Eurodollar Auction" means a solicitation of Competition Bid Quotes
setting forth Eurodollar Bid Rates pursuant to Section 2.3.
"Eurodollar Base Rate" means, with respect to a Eurodollar Ratable
Advance or a Eurodollar Bid Rate Advance and for the relevant Eurodollar
Interest Period, the rate determined by the Agent to be the arithmetic
mean (rounded upwards, if necessary, to the nearest one-sixteenth of one
percent) of the annual rates of interest published by Reuters Limited, by
reference to the Screen page "LIBO", as being the offered rates in the
London interbank market for Dollar deposits for a period approximately
equal to such Eurodollar Interest Period at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period. If such rates are not available, Eurodollar Base Rate
means the rate determined by the Agent to be the rate at which deposits
in Dollars are offered by BofA to first-class banks in the London interbank
market at approximately 11 a.m. (London time) two Business Days prior to
the first day of such Eurodollar Interest Period, in the approximate amount
of BofA's relevant Eurodollar Ratable Loan, or, in the case of a Eurodollar
Bid Rate Advance, the amount of the Eurodollar Bid Rate Advance requested by
a Borrower and having a maturity approximately equal to such Eurodollar
Interest Period.
"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 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. The Eurodollar Rate shall be rounded, if necessary, to
the next higher 1/16 of 1%.
"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.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to (i) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the
preceding Business Day) by the Federal Reserve Bank of New York; or (ii)
if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10 a.m. (San Francisco time)
for such day on such transactions received by the Agent from three
federal funds brokers of recognized standing selected by the Agent.
"Fixed Rate" means the Eurodollar Rate, the Eurocurrency 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 (i) the Alternate Base Rate plus (ii) the Applicable Margin.
"Floating Rate Advance" means an Advance which bears interest at
the Floating Rate.
"Floating Rate Interest Period" means, with respect to a Floating
Rate Advance, a period of three months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. If such Floating
Rate Interest Period would end on a day which is not a Business Day, such
Floating Rate Interest Period shall end on the next succeeding Business Day.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, 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.
"Guaranteed Obligations" is defined in Section 9.1.
"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, 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 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 Floating Rate Interest Period, a Eurodollar
Interest Period, a Eurocurrency 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 "D" hereto,
completed and delivered by the 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, Philip H. Knight, and his wife,
children, parents and siblings, and any trust with respect to his assets
established for estate planning purposes.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Bank or the Agent.
"Leverage Ratio" means, with respect to the Company and its
Subsidiaries on a consolidated basis, the ratio of (i) Indebtedness to
(ii) net worth as determined in accordance with generally accepted
accounting principles.
"Lien" means any security interest, mortgage, pledge, lien, 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 Documents" means this Agreement and the Notes.
"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 (financial or otherwise),
or results of operations of the Company or the Company 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 Company'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 Company's consolidated total assets on such date, in
each case, based upon the Company's most recent annual or quarterly financial
statements delivered to the Agent under Section 6.1.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which the
Company or any member of the Controlled Group is a party to which more
than one employer is obligated to make contributions.
"Notes" means, collectively, the Competitive Bid Notes and the
Ratable Notes; and "Note" means any one of the Notes.
"Notice of Conversion/Continuation" is defined in Section 2.2.4.
"Occupational Safety and Health Law" means the Occupational Safety
and Health Act of 1970 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
employee health and/or safety.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all other
reimbursements, indemnities or other obligations of the Borrowers to the
Banks or to any Bank, the Agent or indemnified party hereunder arising
under the Loan Documents (including the Company's obligations under
Article IX hereof).
"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 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 Agent, as the case may be, is organized or
maintains a lending office.
"Payment Date" means the last day of each May, August, November, and
February.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Person" means any corporation, natural person, firm, joint
venture, partnership, trust, unincorporated organization, enterprise,
government or any department or agency of any government.
"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 Company 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 a 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 a Borrower pursuant
to Section 2.2 hereof.
"Ratable Note" means a promissory note in substantially the form
of Exhibit "A" hereto, duly executed and delivered to the Agent by the
Borrowers for the account of each Bank and payable to the order of a
Bank in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Rate Option" means the Eurodollar Rate, the Eurocurrency Rate
or the Floating Rate.
"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 stock
applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect
to a Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event, provided that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any such
waivers in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"Required Banks" means Banks in the aggregate having at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Banks in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Loans.
"Reserve Requirement" means, with respect to a Eurodollar Interest
Period or a Eurocurrency Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities (in the case
of Eurodollar Advances and Eurocurrency Advances). The Reserve Requirement
shall be adjusted automatically on and as of the effective date of any change
in the applicable reserve requirement.
"Revolving Credit Termination Date" means October 31, 2000 or such
later date to which the Revolving Credit Termination Date is extended
pursuant to Section 2.6, unless this Agreement is earlier terminated pursuant
to the terms hereof.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Subsidiary" means any corporation more than 50% of the outstanding
voting securities of which shall at the time be owned or controlled,
directly or indirectly, by a Person or by one or more Subsidiaries or by
such Person and one or more Subsidiaries of such Person, or any similar
business organization which is so owned or controlled. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Subsidiary Borrowers" means any Person becoming a Subsidiary Borrower
under Section 2.7 hereof.
"Substantial Portion" is defined in Section 6.12.
"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 Agent, respectively, taxes imposed on or measured by i
ts net income by the jurisdiction (or any political subdivision thereof)
under the laws of which such Bank or the Agent, as the case may be, is
organized or maintains a lending office.
"Unfriendly Acquisition" means the Acquisition of a corporation or
similar business entity if the Acquisition has not been approved by the
board of directors of such corporation.
"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 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.
"U.S. Dollar Equivalent" means, at anytime, in relation to any
amount of Eurocurrency, the amount of Dollars (rounded to the nearest
Dollar) which such amount of such Eurocurrency would purchase at BofA's
spot buying rate at such time for value two Business Days later in the
London interbank market.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities (other than directors' qualifying shares) of which shall
at the time be owned or controlled, directly or indirectly, by the Company
or one or more Wholly-Owned Subsidiaries, or by the Company and one or
more Wholly-Owned Subsidiaries, or any similar business organization
which is so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE FACILITY
2.1. The Facility. From and including the Effective Date and
prior to the Revolving Credit Termination Date, each Bank severally
agrees to make Ratable Loans to the Borrowers from time to time in
amounts not to exceed in the aggregate at any one time outstanding,
the amount of its Commitment.
(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 a 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 Aggregate
Commitment.
(iii) Subject to the terms of this Agreement, the Borrowers may
borrow, repay and re-borrow at any time prior to the Revolving
Credit Termination Date.
2.2. Ratable Advances.
2.2.1. Ratable Advances Each Ratable Advance hereunder shall
consist of borrowings made from the several Banks ratably in proportion
to the amounts of their respective Commitments. Subject to the terms
of Section 2.5.14, the U.S. Dollar Equivalent of each Eurocurrency Advance
on the day each Eurocurrency Advance is made shall be deemed to be the
amount of the Advance outstanding for the purpose of calculating the
unutilized portion of the Commitment of each Bank from time to time and
the aggregate amount of the Advances outstanding for purposes of Section
2.4, provided that no Bank shall be obligated to make a Loan hereunder if
the aggregate principal amount of such Bank's Loans outstanding (after
converting each Eurocurrency Advance to its U.S. Dollar Equivalent on the
date an Advance is requested and giving effect to the requested Advance)
would exceed such Bank's Commitment. 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 Aggregate Commitment
regardless of which Bank or Banks make such Competitive Bid Advances.
Ratable Advances shall be evidenced by the Ratable Notes.
2.2.2. Ratable Advance Rate Options. The Ratable Advances may be
Floating Rate Advances, Eurocurrency 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. No Ratable Advance may mature after the Revolving
Credit Termination Date.
2.2.3. Method of Selecting Rate Options and Interest Periods
for Ratable Advances. The Borrower shall select the Rate Option and
Interest Period applicable to each Ratable Advance from time to time.
The Borrower shall give the Agent irrevocable notice in the form attached
hereto as Exhibit G (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, (b) three Business Days before the
Borrowing Date for each Eurodollar Ratable Advance, and (c) four Business
Days before the Borrowing Date for each Eurocurrency Advance.
Notwithstanding anything herein to the contrary, Eurocurrency Advances
shall be available only if the Eurocurrency requested is freely available
to all of the Banks on the date the Company requests such Eurocurrency
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 Company 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 Company 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:
(i) the applicable Borrower;
(ii) the Borrowing Date, which shall be a Business Day,
of such Ratable Advance;
(iii) the aggregate amount of such Ratable Advance;
(iv) the Rate Option selected for such Ratable Advance;
(v) In the case of each Eurocurrency Advance, the
Eurocurrency requested; and
(vi) in the case of each Fixed Rate Advance, the
Interest Period applicable thereto (which may not
end after the Revolving Credit Termination Date).
2.2.4. Conversion and Continuation Elections.
(a) The Borrower may, upon irrevocable written
notice to the Agent in accordance with subsection 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 an Eurocurrency Advance or 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 an Eurocurrency
Advance or Eurodollar Ratable 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 Eurocurrency Advance or
Eurodollar Ratable Advance unless the Required Banks consent thereto.
Notwithstanding anything herein to the contrary, Eurocurrency Advances
shall be available only if the Eurocurrency requested is freely
available to all of the Banks on the date the Company requests a conversion
to or continuation of an Eurocurrency Advance. 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 H (a "Notice of
Conversion/Continuation") to be received by the 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, (ii) three Business Days before the
Conversion/Continuation Date if the Advance is to be converted into
or continued as an Eurodollar Ratable Advance, and (iii) four Business
Days before the Conversion/Continuation Date if the Advance is to be
converted into or continued as an Eurocurrency Advance; specifying:
(A) the applicable Borrower;
(B) the Conversion/Continuation
Date, which shall be a Business Day, of such Ratable
Advance;
(C) the aggregate amount of such Ratable
Advance to be converted or continued;
(D) the Rate Option for such Ratable
Advance resulting from the conversion or continuation;
and
(E) in the case of each Fixed Rate Advance,
the Interest Period applicable thereto (which may
not end after the Revolving Credit Termination Date).
(c) If upon the expiration of any Interest Period
applicable to an Eurocurrency Advance or 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.
2.2.5. Applicable Margin. The Applicable Margin for Advances
shall be based on the Leverage Ratio in accordance with the table
below; provided that on the Effective Date the Leverage Ratio shall
be deemed to be 0.32 to 1.00. The Leverage Ratio shall be determined on
a quarterly basis from the financial statements delivered by the Company
pursuant to Sections 6.1(i) and (ii). The adjustment, if any, to the
Applicable Margin shall be effective on the fifth Business Day after
the delivery of such financial statements and shall be applicable to all
outstanding Advances as well as to all Interest Periods beginning on and
after the fifth Business Day after the delivery of such statements. If
financial statements are not received by the Agent within the time periods
set forth in Sections 6.1(i) and (ii) and the Agent has given the Company
five days' notice that such statements have not been received by the
Agent, the maximum Applicable Margin shall apply until such statements
are received by the Agent.
APPLICABLE MARGIN
Eurodollar and
Leverage Floating Rate Eurocurrency
Ratio Advances Advances
1) Less than
0.50 to 1.00 0% 0.120%
2) Greater than or equal to 0% 0.200%
0.50 to 1.00 and less than
0.75 to 1.00
3) Greater than or equal 0% 0.275
to 0.75 to 1.00
2.3. Competitive Bid Advances.
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, without limitation, the limitation set
forth in Section 2.1(ii) as to the maximum aggregate principal amount
of all outstanding Advances hereunder), any Borrower may, as set forth
in this Section 2.3, request the Banks, prior to the Revolving Credit
Termination Date, to make offers to make Competitive Bid Advances to
such 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.
Competitive Bid Advances shall be evidenced by the Competitive Bid Notes.
2.3.2. Competitive Bid Quote Request. When a Borrower wishes
to request offers to make Competitive Bid Loans under this Section 2.3,
it shall transmit to the Agent by telecopy a Competitive Bid Quote
Request substantially in the form of Exhibit "C" 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 Revolving Credit Termination Date).
The Borrowers 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 Borrowers and the 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 "C" hereto shall
be rejected, and the Agent shall promptly notify the Borrowers 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 Agent shall send to each of the Banks by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of
Exhibit "D" 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.
2.3.4. Submission and Contents of Competitive Bid Quotes. (i) 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 Agent by telecopy at its offices specified in or pursuant to
Article XIII 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 Company and the Agent may agree); provided that Competitive
Bid Quotes submitted by BofA may only be submitted if BofA notifies the
Company 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 Agent given on the
instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit "E" hereto and shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same
as that set forth in the applicable Invitation for Competitive Bid
Quotes,
(b) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal amount
(1) 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,
(c) in the case of a Eurodollar Auction, the Competitive
Bid Margin offered for each such Competitive Bid Loan,
(d) the minimum or maximum amount, if any, of the
Competitive Bid Loan which may be accepted by the Borrower,
(e) in the case of an Absolute Rate Auction, the
Absolute Rate offered for each such Competitive Bid Loan, and
(f) the identity of the quoting Bank.
(iii) The Agent shall reject any Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit
"E" hereto or does not specify all of the information required
by Section 2.3.4(ii);
(b) contains qualifying, conditional or similar
language, other than any such language contained in
Exhibit "E" hereto;
(c) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes; or
(d) arrives after the time set forth in Section 2.3.4(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(iii), then the Agent shall notify the relevant Bank of such
rejection as soon as practical.
2.3.5. Notice to Borrower. The 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 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 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 Company and the Agent may agree), the Borrower
shall notify the 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 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(ii)(d)); 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(iii) 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 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
offers are accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples, not less than $1,000,000, as the
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 Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The 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.
2.3.8. Administration Fee. The Company hereby agrees to pay to
the Agent an administration fee for Competitive Bid Quote Requests in
such amounts as are from time to time agreed upon by the Company and
the Agent.
2.4. Fees.
2.4.1. Facility Fee. The Company hereby agrees to pay to the
Agent for the account of each Bank a facility fee at the rates per annum
set forth below, based on the Leverage Ratio set forth in the table
below on each Bank's Commitment (whether used or unused) for the period
from the Effective Date to and including the Revolving Credit Termination
Date, payable in arrears on each Payment Date hereafter and on the
Revolving Credit Termination Date for any period then ending for which
such fee shall not have been theretofore paid; provided that on the
Effective Date the Leverage Ratio shall be 0.32 to 1.00. The adjustment,
if any, to the facility fee shall be applicable on the fifth Business Day
after delivery to the Banks of the financial statements delivered by the
Company pursuant to Sections 6.1(i) or (ii). If the financial statements
are not received by the Agent within the time periods set forth in
Sections 6.1(i) and (ii) and the Agent has given the Company five days'
notice that such statements have not been received by the Agent, the
maximum fee shall apply until such statements are received by the Agent.
Leverage Ratio Facility Fee
1) Less than 0.50 to 1.00 0.070%
2) Greater than or equal to 0.50 to 1.00 0.095%
and less than 0.75 to 1.00
3) Greater than or equal to 0.75 to 1.00 0.125%
All fees shall be calculated for the actual number of days elapsed
on the basis of a year consisting of 360 days.
2.5. General Facility Terms.
2.5.1. Method of Borrowing. Not later than 11:00 a.m.
(San Francisco time, in the case of any Dollar borrowing, or the
local time at the applicable payment office of the Agent for the
applicable currency, in the case of any non-Dollar borrowing) on
each Borrowing Date, each Bank shall make available its Loan or
Loans in funds immediately available to the Agent, in the applicable
currency, at the applicable payment office of the Agent for such
currency, or at such other location and time as the Agent shall direct.
Unless otherwise instructed by the Company, the Agent shall deposit the
funds so received from the Banks in the Company's account at BofA'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), or U.S. Dollar Equivalent amounts;
provided, however, that any Floating Rate Advance may be in the aggregate
amount of the unused Aggregate Commitment.
2.5.3. Repayment. Except for optional payments pursuant to
Section 2.5.4, each Competitive Bid Advance shall be paid in full by
the Borrower on the last day of the Interest Period applicable thereto,
and each Ratable Advance shall be paid in full by the Company on the
last day of the Interest Period applicable thereto, unless converted or
continued in accordance with Section 2.2.4, but in any event all Advances
shall be paid in full on the Revolving Credit Termination Date.
2.5.4. Optional Principal Payments. The Borrower may 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), or U.S. Dollar Equivalent amounts, any portion of
the outstanding Ratable Advances upon three Business Days' prior notice
to the Agent (or four, in the case of prepayment of Eurocurrency
Advances). All such payments shall be made in immediately available
funds to the Agent at the Agent's address specified in Article XIII or
at any other Lending Installation of the Agent specified by the Agent in
accordance with Section 2.5.8. by 11:00 a.m. (San Francisco time, in the
case of any Dollar denominated Ratable Advance being prepaid, or the local
time at the applicable payment office of the Agent for the applicable
currency, in the case of any non-Dollar Ratable Advance being prepaid) on
the date of payment. A Competitive Bid Advance may not 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 from and including the first
day of the Interest Period applicable thereto to (but not including)
the earlier of (i) the last day of such Interest Period or (ii) 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 Company's
right to convert or continue Advances pursuant to Section 2.2.4. The
Borrowers 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
Alternate 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 the rate otherwise applicable to such Interest Period
plus 1% per annum or the Alternate Base Rate plus 1% per annum.
2.5.7 Interest Payment Dates; Interest Basis. Interest accrued
on each 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 Corporate Base Rate shall be calculated for the actual number of
days elapsed on the basis of a year consisting of 365/366 days. Interest
on all other Advances shall be calculated for the actual number of days
elapsed on the basis of a year consisting of 360 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, in the case of any Dollar Advance, or the local time at
the applicable payment office of the Agent for the applicable currency,
in the case of any non-Dollar Advance) 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. Except as specifically provided in this
Agreement and in the following sentence, all payments of principal,
interest, and fees hereunder shall be made in immediately available
funds to the Agent at the Agent's address specified pursuant to Article
XIV or at any other Lending Installation of the Agent specified in writing
by the Agent to the Company (at least one Business Day prior to the
applicable due date) by 11:00 a.m. (San Francisco time, in the case of any
Dollar Advance, or the local time at the applicable payment office of the
Agent for the applicable currency, in the case of any non-Dollar Advance)
on the date when due and shall be applied (i) first, ratably among the
Banks with respect to any 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. All payments of
principal and interest hereunder shall be made in the currency in which
the related Advance was made. Each payment delivered to the Agent for
the account of any Bank shall be delivered by the Agent to such Bank
in the same type of funds which the Agent received at such Bank's address
specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Agent from such Bank. If such
payment is received by the Agent by 11:00 a.m. (San Francisco time, in
the case of any Dollar Advance, or the local time at the applicable payment
office of the Agent for the applicable currency, in the case of any
non-Dollar Advance) 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 Agent is hereby authorized to charge the account of
the Company held at BofA for each payment of principal, interest and
fees owing by any Borrower as it becomes due hereunder.
2.5.9. Notes; Telephonic Notices; Designation of Company. 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 Borrowers' Obligations under any Note.
The Borrowers hereby authorize the Banks and the 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 Agent or any Bank in good faith believes to be an
authorized officer or an officer, employee or agent of such Borrower
designated by an authorized officer. The Borrowers agree to deliver
promptly to the 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 Agent and the Banks, the records of the Agent and the
Banks shall govern absent manifest error. Each Subsidiary Borrower
hereby irrevocably appoints the Company as its agent and attorney-in-fact,
authorized to execute and deliver on its behalf any and all statements,
certificates, documents and agreements as may be required or contemplated
hereunder, including Ratable Borrowing Notices and Notices of
Conversion/Continuation and requests for offers to make Competitive
Bid Loans, and to receive any and all notices and other communications
from the Agent and the Banks hereunder and to perform on such Subsidiary
Borrower's behalf any and all other acts, deeds and requirements of this
Agreement.
2.5.10. Notification of Advances, Interest Rates and Prepayments.
The Agent will notify each Bank of the contents of each Ratable Borrowing
Notice, Notice of Conversion/Continuation (or automatic conversion
pursuant to subsection 2.2.4(c)), and payment notice received by it
hereunder promptly and in any event (provided such items were timely
received by the Agent from the Borrowers) 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 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 Alternate
Base Rate in respect of any outstanding Floating Rate Advance.
2.5.11. Non-Receipt of Funds by the Agent Unless the Borrower
or a Bank, as the case may be, notifies the Agent prior to the date on
which it is scheduled to make payment to the Agent of (i) in the case
of a Bank, the proceeds of a Loan or (ii) in the case of the Borrower,
a payment of principal, interest or fees to the Agent for the account
of the Banks, that it does not intend to make such payment, the Agent
may assume that such payment has been made. The Agent may, but shall
not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Bank or
the Borrower, as the case may be, has not in fact made such payment to
the Agent, the recipient of such payment shall, on demand by the Agent,
repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to (x) in the case of
payment by a Bank, the Federal Funds Effective Rate for such day or (y)
in the case of payment by the Company, the interest rate applicable to
the relevant Loan.
2.5.12. Cancellation. The Company may at any time after the date
hereof cancel the Aggregate Commitment in whole, or in a minimum
aggregate amount of $10,000,000 (and in integral multiples of $1,000,000)
ratably among the Banks upon at least three Business Days' prior
written notice to the Agent, which notice shall specify the amount of
such reduction; provided, however, no such notice of cancellation shall
be effective to the extent that it would reduce the Aggregate Commitment
to an amount which would be less than the outstanding principal amount
of Loans at the time such cancellation is to take effect. Any notice of
cancellation given pursuant to this Section shall be irrevocable and
shall specify the date upon which such cancellation is to take effect.
2.5.13. Lending Installations. Each Bank may book its Loans at
any Lending Installation selected by such Bank and may change its
Lending Installation from time to time. Each Bank will notify the Agent
and the Company on or prior to the date of this Agreement of the Lending
Installation which it intends to utilize for each type of Loan hereunder.
Each Bank may, by written or telecopy notice to the Agent and the Company,
change the Lending Installation through which Loans will be made by it and
for whose account Loan payments are to be made.
2.5.14. Currency Fluctuations. If the aggregate principal amount
of all Advances outstanding (after converting each Eurocurrency Advance
to its U.S. Dollar Equivalent on the date of calculation) as of the last
Business Day of any calendar month exceeds the Aggregate Commitment, then
upon five Business Days' written notice from such Bank to the Borrowers
and the Agent, the Borrowers shall prepay an aggregate principal amount
of Ratable Advances (ratably among the Banks) such that the outstanding
principal balance of all Advances outstanding does not exceed the Aggregate
Commitment. Unless otherwise specified by the Company at a time during
which there exists no Default, prepayments under this Section 2.5.14 shall
be allocated ratably among the Borrowers according to their respective
outstanding Advances.
2.5.15. Failure to Pay in a Eurocurrency. If any Borrower is
unable for any reason to effect payment of a Eurocurrency Advance in
a Eurocurrency as required by Section 2.5.8 or if any Borrower shall
default in the payment when due of any payment in a Eurocurrency, the
Banks may, at their option, require such payment to be made to the
Agent at the Agent's office specified in Article XIV in the equivalent
amount in Dollars at the U.S. Dollar Equivalent of such Eurocurrency
to the place or places where such payment was payable. In any case in
which the Borrower shall make such payment in Dollars, the Borrower
agrees to hold each Bank harmless from any loss incurred by such Bank
arising from any change in the value of Dollars in relation to such
Eurocurrency between the date such payment became due and the date of
payment thereof. The Borrowers' Obligations under this Section 2.5.15
shall survive termination of this Agreement.
2.5.16. Judgment Currency Provisions. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due
hereunder or under any Note in any currency (the "Original Currency") into
another currency (the "Other Currency"), the parties hereto agree, to
the fullest extent permitted by law, that the rate of exchange used shall
be that at which in accordance with normal banking procedures BofA could
purchase the Original Currency with the Other Currency on the Business Day
preceding that on which final judgment is given. To the fullest extent
permitted by applicable law, the Obligations of the Borrowers in respect
to any sum due in the Original Currency to any Bank hereunder shall,
notwithstanding any judgment in an Other Currency, be discharged only to
the extent that on the Business Day following receipt by such Bank of any
sum adjudged to be so due in the Other Currency such Bank may in accordance
with normal banking procedures purchase the Original Currency with the Other
Currency; if the amount of the Original Currency so purchased is less than
the sum originally due to the Bank in the Original Currency, the Borrowers
severally agree, as a separate Obligation and notwithstanding any such
judgment, to indemnify such Bank against such loss, and if the amount of
the Original Currency so purchased exceeds the sum originally due such
Bank in the Original Currency, such Bank agrees to remit to the Borrower
such excess.
2.6. Extension of Revolving Credit Termination Date. (a) The
Company may, from time to time, by notice to the Agent (each such notice
being an "Extension Notice") given no later than 30 days but not sooner
than 60 days prior to October 31 of each year beginning 1996 (each such
October 31, called an "Extension Date") of this Agreement, extend the
Revolving Credit Termination Date to a date one year after the then
applicable Revolving Credit Termination Date. Such extension shall not
be effective with respect to a Bank which, by a notice (a "Withdrawal
Notice") to the Company and the Agent given within 30 days following
the Agent's receipt of such Extension Notice, declines to consent to
such extension or which has failed to respond to the Company and the
Agent within said 30-day period (each Bank giving a Withdrawal Notice
or failing to respond in a timely manner being called a "Withdrawing Bank"
and each Bank other than a Withdrawing Bank being a "Continuing Bank").
Such extension shall be effective only if the aggregate of the Commitments
of the Continuing Banks is 66 2/3% or more of the Aggregate Commitment in
effect on the date of this Agreement.
If Banks with less than 66-2/3% of the Aggregate Commitment elect
to be Continuing Banks, the Revolving Credit Termination Date shall
not be extended and the Banks (including Withdrawing Banks) shall be
obligated to make Loans to the Company in accordance with the original
terms of this Agreement (including any previously approved extensions).
If Banks with 66-2/3% or more, but less than 100%, of the Aggregate
Commitment elect to be Continuing Banks, the Company may, at any time
prior to the then applicable Extension Date, invite the Continuing
Banks to increase their Commitments and/or invite other banks to become
party to the Agreement in accordance with Section 13.3, in an aggregate
amount not to exceed the Commitments of the Withdrawing Banks. If the
Company fails to receive new or increased Commitments equal to the
Commitments of the Withdrawing Banks prior to the then applicable
Extension Date, the Company may, at its option, elect to cancel the
requested extension of the Revolving Credit Termination Date and the
Banks, including the Withdrawing Banks, shall continue to be obligated
to make Loans in accordance with the original terms of this Agreement
(including any previously approved extensions). If the Company receives
66-2/3% or more, but less than 100%, of the Aggregate Commitment, and the
Company elects not to cancel the requested extension, the Revolving Credit
Termination Date shall be extended by one year, provided, however, that the
Commitment of each Withdrawing Bank shall terminate on the then applicable
Revolving Credit Termination Date without giving any effect to such
each Withdrawing Bank on such Revolving Credit Termination Date,
provided, however, that so long as no Default or Unmatured Default exists,
the Company may, at any time prior to such Revolving Credit Termination
Date and by not less than five Business Days' prior written notice to the
Agent and any Withdrawing Bank, cancel such Bank's Commitment, and thereupon
prepay all Loans made by such Bank, together with interest and fees accrued
to the date of such prepayment and breakage costs due under Section 3.3, if
any, whereupon such Bank shall cease to be obliged to make further Loans
hereunder, its Commitment shall be reduced to zero and it shall be released
from all unaccrued obligations under this Agreement.
The Agent shall notify each Bank of its receipt of an Extension Notice
within two Business Days after the Agent's receipt thereof. The Company
may deliver only one Extension Notice per year.
(b) A Withdrawing Bank shall be obliged, at the request of the
Company and subject to the Withdrawing Bank receiving payment in full of
all amounts owing to it under this Agreement prior to completion of an
assignment, to assign, without recourse or warranty and by an assignment
agreement in substantially the form of Exhibit "J" attached hereto, and
in accordance with Section 13.3, all of its rights and obligations
hereunder to another financial institution which is an Eligible Assignee
nominated by the Company and willing to participate in the facility in
the place of such Withdrawing Bank; provided that such transferee satisfies
all the requirements of this Agreement.
(c) If the Revolving Credit Termination Date shall have been
extended in respect of Continuing Banks in accordance with this Section 2.6,
any Ratable Borrowing Notice or Notice of Conversion/Continuation specifying
a Borrowing Date or Conversion/Continuation Date occurring after the
Revolving Credit Termination Date applicable to a Withdrawing Bank or
requesting an Interest Period extending beyond such date (i) shall have
no effect in respect of such Withdrawing Bank and (ii) shall not specify
a requested aggregate principal amount exceeding, when combined with all
then outstanding Advances, the Aggregate Commitment calculated on the
basis of the Commitments of the Continuing Banks.
(d) If the Revolving Credit Termination Date shall have been
extended in respect of Continuing Banks in accordance with this Section 2.6,
all references herein to the "Revolving Credit Termination Date" shall,
with respect to all parties hereto other than Withdrawing Banks, refer to
the Revolving Credit Termination Date as so extended.
2.7. Subsidiary Borrowers. From time to time, the Company may
designate Subsidiaries as Subsidiary Borrowers by delivering to the Agent
a fully-executed original certificate in the form of Exhibit "L" hereto,
together with all documents required by such certificate (in sufficient
number for the Agent and each of the Banks), whereupon, upon the Agent's
acknowledgment of receipt of same, such designated Subsidiaries shall be
deemed Subsidiary Borrowers for all purposes hereof. Until a Subsidiary
so becomes a Subsidiary Borrower, it shall not be entitled to any Advances
hereunder.
ARTICLE III
TAXES, CHANGE IN CIRCUMSTANCES
3.1. Taxes. (a) Any and all payments by the Borrowers to each
Bank or the Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Borrowers severally agree to pay all
Other Taxes.
(b) If a Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect
of any sum payable hereunder to any Bank or the 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 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
Agent for the account of such Bank, at the time interest 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 Taxes,
Other Taxes or Further Taxes had not been imposed.
(c) The Borrowers severally agree to indemnify and hold
harmless each Bank and the Agent for the full amount of i) 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 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 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 Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by any
Borrower of Taxes, Other Taxes or Further Taxes, the Borrower shall
furnish to each Bank or the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Bank or the 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 June 1,
1995 but are scheduled to become effective thereafter pursuant to such
laws, rules, regulations, policies, guidelines, directives or interpretations
that are effective as of June 1, 1995), which
(i) 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 or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Fixed Rate Advances), or
(ii) imposes any other condition the result of which is to
increase the cost to any Bank or any applicable Lending Installation
of making, funding or maintaining loans or reduces any amount receivable
by any Bank or any applicable Lending Installation in connection with
loans, or requires any Bank or any applicable Lending Installation 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, o
(iii) affects the amount of capital required or expected to be
maintained by any Bank or Lending Installation 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 Agent, the Company
shall pay such Bank that portion of such increased expense incurred
(including, in the case of Section 3.2(iii), 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
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 with respect to such Advance 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
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, such Bank shall so notify the Agent
and the 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 (other than
Eurocurrency Advances) are not available, the 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,
(other than a Eurocurrency Advance) at such Rate option, such Bank shall so
notify the Agent and then the 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 if any Bank determines that (iii)
deposits of a type or maturity appropriate to match fund Eurocurrency
Advances are not available to it or (iv) the Eurocurrency Rate does not
accurately reflect the cost of making its Eurocurrency Loan, such Bank
shall so notify the Agent and then the Agent shall suspend the availability
of the Eurocurrency Rate for that particular Eurocurrency with respect to
Eurocurrency Advances made after the date of such determination.
3.4. Funding Indemnification. If any payment of a Fixed Rate
Advance occurs 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, and 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, without limitation,
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 Agent
request any Borrower to pay and upon such request the Borrower shall
pay, contemporaneously with each payment of interest on such Borrower's
Eurocurrency Loans and 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 applicable Base Eurocurrency Rate or
Eurodollar Base Rate, as the case may be, divided by (B) one minus the
Reserve Requirement with respect to Eurocurrency liabilities over (ii) the
applicable Base Eurocurrency Rate or Eurodollar Base Rate, as the case may
be. Any Bank wishing to require payment of such additional interest (v)
shall so notify the Borrowers and the Agent, in which case such additional
interest on the Eurocurrency Loans and 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 Borrowers at
least five Business Days prior to each date on which interest is payable
on the Eurocurrency Loans and 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
Installation with respect to its Fixed Rate Loans to reduce any liability
of the Borrowers to such Bank 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 disadvantageous to such Bank. Each Bank shall deliver
to the Borrowers through the 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 Borrowers 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 applicable to 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 Borrowers of the written statement. The Obligations of the
Borrowers 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, Eurocurrency Loans or 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 Company may elect
to terminate this Agreement as to such Bank, provided that (i) the Company
notifies such Bank through the Agent of such election at least five Business
Days before any date fixed for a borrowing, (ii) the Company repays all of
such Bank's Outstanding Obligations at the end of the respective Interest
Periods applicable thereto and (iii) no Default or Unmatured Default exists.
Upon receipt by the Agent of such notice, the Commitment of such Bank shall
terminate.
ARTICLE IV
CONDITIONS PRECEDEN
4.1. Closing. (a) Concurrently with the execution of this
Agreement and prior to making the initial Advance, the Company will
deliver to the Agent, with sufficient copies for the Banks, the following
documents, in form and substance satisfactory to the Agent and the Banks:
(i) Executed copies of this Agreement.
(ii) Competitive Bid Notes and Ratable Notes payable to the
order of each of the Banks.
(iii) Copies, certified as of a date not more than one week
prior to the Effective Date by the Secretary or Assistant
Secretary of the Company, of its Board of Directors' (or Executive
Committee's) resolutions authorizing execution of the Loan
Documents.
(iv) An incumbency certificate, executed as of a date not more
than one week prior to the Effective Date by the Secretary
or Assistant Secretary of the Company which shall identify
by name and title and bear the signature of the officers of
the Company authorized to sign the Loan Documents and to
make borrowings hereunder, upon which certificate the Banks
shall be entitled to rely until informed of any change in
writing by the Company.
(v) A written opinion of the Company's in-house counsel, addressed
to the Agent and the Banks in substantially the form of Exhibit
"F" hereto (which opinion the Company hereby expressly instruct
such counsel to prepare and deliver to the Banks for their
benefit).
(vi) One copy of the Articles of Incorporation of the Company,
together with all amendments, certified as of a recent
date by the Secretary or Assistant Secretary of the Company.
(vii) Copies, certified by the Secretary or Assistant Secretary of
the Company, of its Bylaws.
(viii) A certificate, signed by the chief financial officer of
the Company, stating that on the Effective Date, no Default
or Unmatured Default has occurred and is continuing.
(ix) Evidence satisfactory to the Agent that the Credit Agreement
dated as of June 1, 1991 among the Company, The First National
Bank of Chicago as "Agent" and the banks party thereto has
been terminated and no loans or other amounts are outstanding
thereunder.
(x) Such other documents as any Bank or its counsel may have
reasonably requested prior to execution of the Agreement.
4.2. Each Advance. The Banks shall not be required to make any
Advance, unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) 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.
Each Ratable Borrowing Notice or Competitive Bid Quote Request with
respect to each such Advance shall constitute a representation and warranty
by the Company that the conditions contained in Sections 4.2(i) and (ii)
have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers severally represent and warrant to the Banks that:
5.1. Corporate Existence. Each of the Borrowers and the Subsidiaries
is a corporation duly incorporated and validly existing under the laws of
its jurisdiction of incorporation 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 Borrowers each have the
corporate power and authority and legal right to execute and deliver the
Loan Documents and to perform their Obligations thereunder. The execution
and delivery by the Borrowers of the Loan Documents and the performance
of their Obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents constitute legal, valid
and binding Obligations of the Borrowers enforceable against the Borrowers
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 Borrowers of the Loan Documents, nor the consummation
of the transactions therein contemplated, nor compliance with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrowers or any
Subsidiary or any Borrower's or any Subsidiary's articles of incorporation
or bylaws or the provisions of any indenture, instrument or agreement to
which any 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 any 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 or public body or
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, 1995, consolidated
financial statements of the Company 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 operations of the
Company and the Subsidiaries at such date and the consolidated results of
their operations for the period then ended.
5.5. Material Adverse Change. Since May 31, 1995, there has been no
change in the business, properties, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries which could have
a Material Adverse Effect.
5.6. Taxes. The Company 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 Company 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 Company and the Subsidiaries have been
audited by the Internal Revenue Service through the fiscal year ended
May 31, 1992. 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 Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no
litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting the Company or any Subsidiary which might materially
adversely affect the business, properties, financial condition prospects,
or results of operations of the Company or the ability of the Company to
perform its Obligations under the Loan Documents. The Company has no
material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule "1" hereto contains an accurate
list of all of the presently existing Subsidiaries of the Company,
setting forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Company 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 of the Borrowers
(other than the Company) is a Wholly-Owned Subsidiary.
5.9. 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 Company 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.
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Company or any Subsidiary to the 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.
5.11. Regulation U. Neither the Company nor any Subsidiary owns
any margin stock (as defined in Regulation U).
5.12. Material Agreements. Neither the Company nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or
other corporate restriction which might have a Material Adverse Effect.
Neither the Company 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 might have a Material Adverse Effect or (ii) any agreement or
instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Company 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 might have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule "2"
hereto, on the date of this Agreement, the Company 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 it.
5.15. Post-Retirement Benefits. The amount of the present value of the
expected cost of post-retirement medical and insurance benefits payable by
the Company and its Subsidiaries to its employees and former employees, as
estimated by the Company in accordance with reasonable procedures and
assumptions, is not material to the financial condition of the Company.
5.16. Environmental and Safety and Health Matters. To the best
of the knowledge of the Company, the Company 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 Company to perform its obligations
hereunder. Neither the Company 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 Company
to perform its Obligations.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Banks shall
otherwise consent in writing:
6.1. Financial Reporting. The Company will maintain, for itself
and each Subsidiary, a system of accounting established and administered
in accordance with generally accepted accounting principles, and furnish
to the Agent with sufficient copies for each Bank:
(i) Within 120 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
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.
(ii) 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.
(iii) Together with the financial statements required hereunder,
a compliance certificate in substantially the form of Exhibit
"I" 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.
(iv) Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports and
proxy statements so furnished.
(v) 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 Company or any Subsidiary files with the Securities
and Exchange Commission.
(vi) Such other information (including non-financial information)
as the Agent or any Bank may from time to time reasonably request.
6.2. Use of Proceeds. The Borrowers will, and the Company will
cause each Subsidiary to, use the proceeds of the Advances for working
capital purposes and general corporate purposes other than 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 Borrowers will not, nor will the
Company 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
o 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 Company will, and will cause each
Subsidiary to, give prompt notice in writing to the Agent and Banks of
(i) the occurrence of any Default or Unmatured Default, (ii) any other
development, financial, legal or otherwise, which the Company reasonably
expects will have a Material Adverse Effect or would materially adversely
affect the ability of the Company to repay the Obligations and (iii) receipt
of any notice that the operations of the Company 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 Company
to perform its Obligations hereunder, or receipt of notice that any properties
or assets of the Company or any Subsidiary are subject to an Environmental
Lien securing obligations in excess of $5,000,000. As used herein,
"Environmental Lien" means a Lien in favor of any governmental entity for
(i) any liability under any Environmental Law, or (ii) damages arising from
or costs incurred by such governmental entity 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 Company
will, and will cause each Subsidiary to, do all things necessary to
remain duly incorporated and validly existing as a domestic 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 however, that the Company may liquidate or dissolve any
Subsidiary into the Company or any other Subsidiary; provided, however,
that neither a Subsidiary Borrower nor a Material Subsidiary may liquidate
or dissolve into a Subsidiary that is not a Subsidiary Borrower or Material
Subsidiary. The Company 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 Company and its Subsidiaries on the
date hereof or such other lines of business as are reasonably related
thereto.
6.5. Taxes. The Company 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 Company will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies
insurance on all their property in such amounts and covering such risks
as is consistent with sound business practice, and the Company will
furnish to the Agent upon any Bank's request full information as to the
insurance carried.
6.7. Compliance with Laws. The Company 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.
6.8. Maintenance of Properties; Trademarks and Franchises. The
Company 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 Company and each
Subsidiary owns, is licensed or otherwise has 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 its business as currently conducted. The
use of such permits and other governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how and processes by the
Company and each of its Subsidiaries does not infringe on the rights of
any Person.
6.9. Inspection. Subject to Section 10.12 hereof, the Company will,
and will cause each Subsidiary to, permit the Agent or any Bank, by their
respective representatives and agents, to inspect any of the properties,
corporate books and financial records of the Company and each Subsidiary,
to examine and make copies of the books of accounts and other financial
records of the Company and each Subsidiary, and to discuss the affairs,
finances and accounts of the Company and each Subsidiary with, and to be
advised as to the same by, their respective officers at such reasonable
times and intervals as the Agent or any Bank may designate.
6.10. Dividends. The Company 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 Company or any
Subsidiary is in violation of any of the provisions hereof.
6.11. Merger. The Company will not, nor will it permit
any Subsidiary Borrower or Material Subsidiary to, merge or consolidate
with or into any other Person, except that (a) a Subsidiary Borrower
or Material Subsidiary may merge or consolidate with the Company or
another Subsidiary Borrower or Material Subsidiary, provided, that in
connection with any merger or consolidation involving the Company, the
Company is the surviving entity, and (b) the Company, a Subsidiary
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 Company, such Subsidiary Borrower or such Material Subsidiary,
as applicable, is the surviving entity.
6.12. Sale of Assets. The Company 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 Company's headquarters in Beaverton, Oregon) so long as the
aggregate book value of the assets so disposed by the Company 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 Company 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 Company 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 which would be permitted by Section 6.12
and a sale and leaseback with respect to the Company's headquarters in
Beaverton, Oregon.
6.14. Acquisitions. The Company 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 Company 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 Company or any Subsidiary, except:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 Company or the Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule "2"
hereto.
(vi) Liens incurred in connection with the purchase by the
Company 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.
(vii) Liens incurred in connection with the acquisition of real
estate and construction of buildings for or on behalf of the
Company or a Subsidiary provided that:
(a) the Indebtedness secured by such lien does not exceed the
cost of such construction, plus any related interest and
fees, and
(b) the aggregate book value of all real estate and buildings
subject to Liens permitted by this subparagraph 6.15, does
not exceed 20% of net worth at the time of determination.
(viii) 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 (i) through (vii) above) shall not at
any one time exceed $100,000,000 or its U.S. Dollar Equivalent
at such time in other currencies.
(ix) Liens filed in connection with the construction of, and
additions to, the Company's headquarters in Beaverton,
Oregon in an aggregate amount which do not reflect
obligations of the Company in excess of $80,000,000.
6.16. Affiliates. The Company
will not, and will not permit any Subsidiary to, enter into any
transaction (including, without limitation, 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 Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the
Company than the Company or such Subsidiary would obtain in a comparable
arm's length transaction.
6.17. Leverage Ratio. The Company will not as of the end of any
fiscal quarter from and after the Effective Date permit the Leverage
Ratio to exceed 1.00 to 1.00.
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 any Borrower or any Subsidiary to the Banks or the 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 Note when due, or nonpayment
of interest upon any Note or of any commitment fee or other Obligations
under any of the Loan Documents within five days after the same becomes
due.
7.3. The breach by the Company of any of the terms or provisions
of Sections 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 and 6.17. The breach
by the Company (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 Agent or any Bank.
7.4. Failure of the Company or any Subsidiary to pay any
Indebtedness in an aggregate principal amount in excess of $20,000,000
within 30 days after the Company knows or ought reasonably to have
known, that such Indebtedness was due; or the default by the Company 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 Company 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 Company or
any Subsidiary shall not pay, or admit in writing its inability to pay,
its debts generally as they become due.
7.5. The Company or any Subsidiary shall (i) have an order for
relief entered with respect to it under the Federal or State bankruptcy
laws 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 the Federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors 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
Company or any Subsidiary, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Company or any Subsidiary
or any substantial part of its property, or a proceeding described in
Section 7.5(iv) shall be instituted against the Company or any Subsidiary
and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 30 days with respect to any such
appointment or proceeding against the Company or a Subsidiary incorporated
within the United States and 60 days with respect to any Subsidiary
incorporated outside of the United States.
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 Company or any Subsidiary.
7.8. The Company or any Subsidiary shall fail within 30 days to
pay, bond or otherwise discharge, any judgment or order for the payment
of money in excess of $5,000,000, which is 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(viii).
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 Company 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 13d3
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 Company 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 Company
or any Subsidiary is the defaulting party, or (b) any "termination
event" (as defined in such Swap Contract) as to which the Company or
any Subsidiary is an affected party, and, in either event, the net
mark-to-market value for such Swap Contract, as determined by the
Company based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts,
owed by the Company or such Subsidiary as a result thereof is greater
than $20,000,000.
7.12. The guaranty contained in Article IX of this Agreement is
for any reason partially or wholly revoked or invalidated, or otherwise
ceases to be in full force and effect, or the Company or any other
Person contests in any manner the validity or enforceability thereof
or denies that the Company has any further liability or obligation
thereunder.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.5,
7.6 or 7.7 occurs with respect to any Borrower, the obligations of the
Banks to make Loans to that Borrower hereunder shall automatically
terminate and the Obligations of such Borrower shall immediately become
due and payable without any election or action on the part of the Agent
or any Bank. If any Default described in Section 7.5, 7.6 or 7.7 occurs
with respect to the Company, the obligations of the Banks to make Loans
to any Borrower hereunder shall automatically terminate and the Obligations
of all the Borrowers shall immediately become due and payable without any
election or action on the part of the Agent or any Bank. If any Default
occurs, the Required Banks may terminate or suspend the Obligations of the
Banks to make Loans to any and all Borrowers hereunder, or declare the
Obligations of any and all Borrowers 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 Borrowers hereby each expressly waive.
If, within 14 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Banks to make Loans
hereunder as a result of any Default (other than any Default as described
in Section 7.5, 7.6, or 7.7 with respect to any Borrower or 7.10 with
respect to the Company) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required
Banks (in their sole discretion) shall so direct, the Agent shall, by notice
to the Borrowers, rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII,
the Required Banks (or the Agent with the consent in writing of the
Required Banks) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Banks or the
Borrowers hereunder or waiving any Default hereunder; provided, however,
that no such supplemental agreement shall, without the consent of each
Bank affected thereby:
(i) Extend the scheduled maturity of any Loan or Note or reduce
the principal amount thereof (other than as permitted by this
Agreement), or reduce the rate or extend the time of payment
of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Banks.
(iii) Subject to Section 2.6, extend the Revolving Credit
Termination Date, or increase the amount of the Commitment
of any Bank hereunder, or permit any Borrower to assign
its rights under this Agreement.
(iv) Amend or waive the provisions of Article IV.
(v) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent
shall be effective without the written consent of the Agent. The Agent
may waive payment of the fee required under Section 10.7(a) without
obtaining the consent of any of the Banks.
8.3. Preservation of Rights. No delay or omission of the Banks
or the 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 Company 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 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 Agent and the Banks until the Obligations
have been paid in full.
ARTICLE IX
GUARANTY
9.1. Guaranty. The Company hereby irrevocably, absolutely
and unconditionally guarantees the full and punctual payment or performance
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all of the Obligations of each
Subsidiary Borrower (the "Guaranteed Obligations"). This guaranty
constitutes a guaranty of payment and performance when due and not of
collection, and the Company specifically agrees that it shall not be
necessary or required that the Agent or any Bank exercise any right,
assert any claim or demand or enforce any remedy whatsoever against any
Subsidiary Borrower (or any other Person) before or as a condition to the
obligations of the Company under this Article IX. The Agent or any Bank
may permit the indebtedness of any Subsidiary Borrower to the Agent or any
Bank to include indebtedness other than the Guaranteed Obligations, and
may apply any amounts received from any source, other than from the Company,
to that portion of Subsidiary Borrowers' indebtedness to the Agent or any
Bank which is not a part of the Guaranteed Obligations.
9.2. Obligations Independent. The obligations under this Article IX
are independent of the Obligations of the Subsidiary Borrowers, and, if
the Company fails to pay when due any amount owing under this Article
IX, a separate action or actions may be brought and prosecuted against
the Company whether action is brought against the Subsidiary Borrowers or
whether the Subsidiary Borrowers be joined in any such action or actions.
9.3. Authorization of Renewals, Etc The Company authorizes the Agent
and each Bank, without notice or demand and without affecting its liability
hereunder, from time to time: to renew, compromise, extend, accelerate or
otherwise change the time for payment, or otherwise change the terms, of the
Guaranteed Obligations, including increase or decrease of the rate of interest
thereon.
9.4. Waiver of Certain Rights. The Company waives any right to require
the Agent or any Bank (a) to proceed against the Subsidiary Borrowers or any
other Person; (b) to proceed against or exhaust any security for the
Guaranteed Obligations or any other indebtedness of the Subsidiary Borrowers
to the Agent or any Bank; or (c) to pursue any other remedy in the Agent's
or any such Bank's power whatsoever.
9.5. Waiver of Certain Defenses. The Company waives all suretyship
defenses, any defense arising by reason of any disability or other defense
of the Subsidiary Borrowers, or the cessation from any cause whatsoever of
the liability of the Subsidiary Borrowers, whether consensual or arising by
operation of law or any bankruptcy, insolvency or debtor relief proceeding,
ore burdensome than those of the Subsidiary Borrowers. The Company waives
all rights and defenses arising out of an election of remedies by the Agent
or any Bank. The Company waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor
and notices of acceptance of this guaranty. In connection with any action
against the Company seeking to enforce the terms of this Article IX, the
Company agrees that it may not assert as a defense that the underlying
obligation of the Subsidiary Obligor is not enforceable against such
Subsidiary Borrower by reason of any statute of limitations applicable
to such underlying obligation.
9.6. Information Relating to Company. The Company acknowledges
and agrees that it shall have the sole responsibility for obtaining
from the Subsidiary Borrowers such information concerning the Subsidiary
Borrowers' financial condition or business operations as the Company
may require, and that neither the Agent nor any Bank has any duty at any
time to disclose to the Company any information relating to the business
operations or financial condition of the Subsidiary Borrowers.
9.7. Subordination. Any obligations of the Subsidiary Borrowers
to the Company, now or hereafter existing, constituting obligations to
the Company as subrogee of the Agent or any Bank or resulting from the
Company's performance under this Article IX, are hereby fully
subordinated in time and priority of payment to the Guaranteed
Obligations.
9.8. Reinstatement of Guaranty. If any payment or transfer of
any interest in property by any Subsidiary Borrower to the Agent or
any Bank in fulfillment of any Guaranteed Obligation is rescinded or
must at any time (including after the termination or cancellation of
this guaranty) be returned, in whole or in part, by the Agent or any
Bank to the Subsidiary Borrower or any other Person, upon the insolvency,
bankruptcy or reorganization of the Subsidiary Borrower or otherwise, this
guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior return or cancellation.
9.9. Power and Authority of Subsidiary Borrowers. The Company
acknowledges that none of the Agent or any Bank has inquired into the
power or authority of any Subsidiary Borrower to execute and deliver
this Agreement or the Notes or to borrow any Advance hereunder, or of
any officer, director or agent acting or purporting to act on behalf of
any Subsidiary Borrower to do any of the foregoing. The Company agrees
that it is not necessary for the Agent or any Bank to inquire into any
such power and authority, and that any Guaranteed Obligation made or
created in reliance upon the professed exercise of such power and authority
of a Subsidiary Borrower, or of any officer, director or agent acting or
purporting to act on behalf of any Subsidiary Borrower, shall be guaranteed
hereunder.
ARTICLE X
GENERAL PROVISIONS
10.1. Survival of Representation. All representations and
warranties of the Company contained in this Agreement shall survive
delivery of the Notes and the making of the Loans herein contemplated.
10.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Bank shall be obligated to
extend credit to the Company 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 Company,
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. The Loan Documents embody the entire
agreement and understanding among the Borrowers, the Agent and the Banks
and supersede all prior agreements and understandings among the Borrowers,
the Agent and the Banks relating to the subject matter thereof.
10.6. Several Obligations. The respective Obligations of the
Banks hereunder are several and not joint and no Bank shall be the partner
or agent of any other (except to the extent to which the 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 Company shall reimburse
the Agent for the costs and expenses incurred in the preparation,
execution and administration of the Loan Documents as set forth in a
letter agreement between the Agent and the Company dated July 14, 1995.
b) The Borrowers jointly and severally shall reimburse the Agent and each
Bank for all itemized, reasonable costs and expenses (including attorney's
fees and time charges of attorneys for the Agent and each Bank, which
attorneys may be employees of a Bank) (hereinafter, collectively,
"Attorney Costs") paid or incurred in connection with the collection and
enforcement of the Loan Documents during the existence of a Default or
after acceleration of the Advances (including in connection with any
"workout" or restructuring regarding the Advances, and including in any
insolvency proceeding). The Borrowers jointly and severally further
agree to indemnify the Agent, the Arranger, and each Bank, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
expenses of litigation or preparation therefor whether or not the Agent
or any Bank is a party thereto, including Attorney Costs) which any of
them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or the direct
or indirect application or proposed application of the proceeds of any
Loan hereunder (together, "Indemnified Liabilities"), subject to Oregon
Revised Statutes 20.096. The Obligations of the Borrowers under this
Section shall survive the termination of this Agreement.
10.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the 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 Company 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 in any Loan
Document that is held to be inoperative, unenforceable, or invalid in
any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in
that jurisdiction or the operation, enforceability, or validity of that
provision in any other jurisdiction, and to this end the provisions of
all Loan Documents are declared to be severable.
10.11. Nonliability of Banks. The relationship between the Borrowers
and the Banks and the Agent with respect to this Agreement shall be solely
that of borrower and lender. Neither the Agent nor any Bank shall have
any fiduciary responsibilities to the Borrowers with respect to this
Agreement. Neither the Agent nor any Bank undertakes under this Agreement
any responsibility to the Borrowers to review or inform the Borrowers
of any matter in connection with any phase of the Borrowers' business
or operations.
10.12. Confidentiality. The Agent and each Bank agrees to hold any
non-public information which it may receive from the Borrowers pursuant
to this Agreement in confidence, except for disclosure (i) to other Banks
and their respective affiliates involved with the administration,
syndication, agency and any similar functions with respect to the Loan
Documents, (ii) to legal counsel, accountants, and other professional
advisors to that Bank, (iii) to regulatory officials, (iv) as requested
pursuant to or as required by law, regulation, or legal process, (v) in
connection with any legal proceeding to which that Bank is a party, and
(vi) permitted by Section 13.4.
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 BORROWERS EACH HEREBY
IRREVOCABLY SUBMIT 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
BORROWERS EACH HEREBY IRREVOCABLY AGREE 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 AGENT OR ANY BANK TO BRING PROCEEDINGS AGAINST THE
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY ANY BORROWERS AGAINST THE AGENT OR ANY BANK OR ANY AFFILIATE OF THE
AGENT OR ANY BANK INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
SHALL BE BROUGHT ONLY IN A COURT IN PORTLAND, OREGON .
10.15. WAIVER OF JURY TRIAL. THE BORROWERS, THE 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 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 AGENT AND THE BANKS. THE EFFECTIVE DATE OF THIS
ACT IS OCTOBER 3, 1989.
10.17. Several Obligations. Unless otherwise expressly provided
herein, all Obligations of the Borrowers are several and not joint.
ARTICLE XI
THE AGENT
11.1. Appointment and Authorization; "Agent". Each Bank hereby
irrevocably (subject to Section 11.9) appoints, designates and authorizes
the 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 in this Agreement or in any other
Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be
deemed to have any fiduciary relationship with any Bank, 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 Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" in this Agreement
with reference to the 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 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 concerning all matters pertaining to such duties. The
Agent shall not be responsible to any Bank for the negligence or
misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
11.3. Liability of Agent. None of the Agent-Related Persons
shall (i) be liable to any Bank 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), or (ii) be responsible
in any manner to any of the Banks for any recital, statement,
representation or warranty made by the Borrowers or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this
Agreement 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 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 the Company or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrowers or any of the Borrowers'
Subsidiaries or Affiliates.
11.4. Reliance by Agent. (a) The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex
or telephone 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 the Borrowers), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required 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 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 Required Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.1, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter either
sent by the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to the Bank.
11.5. Notice of Default. The 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 Agent for the account of the Banks,
unless the Agent shall have received written notice from a Bank or the
Borrowers referring to this Agreement, describing such Default or
Unmatured Default and stating that such notice is a "notice of default".
The Agent will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or Unmatured
Default as may be requested by the Required Banks in accordance with
Article VIII; provided, however, that unless and until the Agent has
received any such request, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect
to such Default or Unmatured Default as it shall deem advisable or in
the best interest of the Banks.
11.6. Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it,
and that no act by the Agent hereinafter taken, including any review of
the affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to
any Bank. Each Bank represents to the Agent that it has, independently
and without reliance upon any 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
Borrowers and their Subsidiaries, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Bank also represents that it will, independently and
without reliance upon any 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 Borrowers. Except for notices, reports and
other documents expressly herein required to be furnished to the Banks by
the Agent, the 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 the Borrowers which may come into the possession
of any of the Agent-Related Persons.
11.7. Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on behalf
of the Borrowers and without limiting the obligation of the Company to
do so), pro rata, from and against any and all Indemnified Liabilities;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities
resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the 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 Agent is not reimbursed for such expenses by or on
behalf of the Borrowers. The undertaking in this Section shall survive
the payment of all Obligations hereunder and the resignation or replacement
of the Agent.
11.8. Agent in Individual Capacity. BofA and its Affiliates
may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other
business with the Borrowers and their Subsidiaries and Affiliates as
though BofA were not the Agent hereunder and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive information regarding
the Borrowers or their Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrowers or
such Affiliates) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its
Loans, BofA shall have the same rights and powers under this Agreement
as any other Bank and may exercise the same as though it were not the
Agent, and the terms "Bank" and "Banks" include BofA in its individual
capacity.
11.9. Successor Agent. The Agent may, and at the request of
the Required Banks shall, resign as Agent upon 30 days' notice to the
Banks. If the Agent resigns under this Agreement, the Required Banks
shall appoint from among the Banks a successor agent for the Banks.
If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with
the Banks and the Company, a successor agent from among the Banks.
Upon the acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers and duties
of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder
as 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 Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's resignation
shall nevertheless thereupon become effective and the Banks shall perform
all of the duties of the Agent hereunder until such time, if any, as the
Required Banks appoint a successor agent as provided for above.
11.10. Withholding Tax. (a) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections
1441 or 1442 of the Code, such Bank agrees with and in favor of the Agent,
to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment
of any interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because
it is effectively connected with a United States trade or business
of such Bank, two properly completed and executed copies of IRS Form
4224 before the payment of any interest is due in the first taxable
year of such Bank and in each succeeding taxable year of such Bank
during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption
or reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such
Bank sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Borrowers to such Bank, such Bank
agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Borrowers to such Bank.
To the extent of such percentage amount, the Agent will treat such Bank's
IRS Form 1001 as no longer valid.
( c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells,
assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrowers to such Bank, such
Bank agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of
the Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
payment to such Bank an amount equivalent to the applicable withholding
tax after taking into account such reduction. However, if the forms or
other documentation required by subsection (a) of this Section are not
delivered to the Agent, then the Agent may withhold from any interest
payment to such Bank not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account of any
Bank (because the appropriate form was not delivered or was not properly
executed, or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by the
Agent as tax or otherwise, including penalties and interest, and including
any taxes imposed by any jurisdiction on the amounts payable to the Agent
under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Banks under this subsection shall
survive the payment of all Obligations and the resignation or replacement
of the Agent.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of,
any rights of the Banks under applicable law, if any Borrower becomes
insolvent, however evidenced, or any Default or Unmatured Default
occurs, any indebtedness from any Bank to the Borrower (including all
account balances, whether provisional or final and whether or not
collected or available) may be offset and applied toward the payment
of the Obligations owing to such Bank, whether or not the Obligations,
or any part hereof, shall then be due.
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.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the
Company and the Banks and their respective successors and assigns, except
that the Borrowers shall not have the right to assign their rights or
Obligations under the Loan Documents and any assignment by any Bank must
be made in compliance with Section 13.3. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and
until such payee complies with Section 13.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the
transfer is filed with the Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions
of the Loan Documents. Any request, authority or consent of any Person,
who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on
any subsequent holder, transferee or assignee of such Note or of any
Note or Notes issued in exchange therefor.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Bank may, in
the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more
banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Bank, any Note held by such
Bank, any Commitment of such Bank or any other interest of such
Bank under the Loan Documents. Participations in Competitive Bid
Loans may be sold to any entity. In the event of any such sale by
a Bank of participating interests to a Participant, such Bank's
Obligations under the Loan Documents shall remain unchanged, such
Bank shall remain solely responsible to the other parties hereto
for the performance of such Obligations, such Bank shall remain
the holder of any such Note for all purposes under the Loan
Documents, all amounts payable by the Company under this Agreement
shall be determined as if such Bank had not sold such participating
interests, and the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and Obligations under the Loan Documents.
13.2.2. Voting Rights. Each Bank shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan
or Commitment in which such Participant has an Interest which
forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan or Commitment,
postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment,
releases any guarantor of any such Loan or releases any substantial
portion of collateral, if any, securing any such Loan.
13.2.3. Benefit of Setoff. The Borrowers each agree that
each Participant shall be deemed to have the right of setoff provided
in Section 12.1 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent as if the amount
of its participating interest were owing directly to it as a Bank
under the Loan Documents, provided that each Bank shall retain the
right of setoff provided in Section 12.1 with respect to the amount
of participating interests sold to each Participant. The Banks agree
to share with each Participant, and each Participant, by exercising
the right of setoff provided in Section 12.1, agrees to share with
each Bank, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with Section 12.2
as if each Participant were a Bank.
13.3. Assignments.
13.3.1. Permitted Assignments. Any Bank may, in the ordinary
course of its commercial banking business, in accordance with
applicable law, with the prior consent of the Company and the Agent
(which consent shall not be unreasonably withheld and provided that no
such consent shall be necessary in connection with assignments to
Purchaser that are Affiliates of such Bank and provided further that
no consent of the Company shall be required if there exists a Default),
at any time assign to one or more Eligible Assignees ("Purchasers")
all or any part of its rights and Obligations, ratably, under the
Loan Documents, provided that each assignment shall be in a minimum
principal amount of $15,000,000 and in increments of $1,000,000 in
excess thereof (or, if less, the remaining amount of Loans held by
the assignor) and further provided, that assignments of Competitive
Bid Loans may be made to any entity on a ratable or non-ratable
basis. Such assignment shall be substantially in the form of
Exhibit "J" hereto. Such consent shall be substantially in the
form attached as Exhibit "2" to Exhibit "J" hereto.
13.3.2. Effect; Effective Date. Upon (i) delivery to the
Agent of a notice of assignment, substantially in the form attached
as Exhibit "1" to Exhibit "J" hereto (a "Notice of Assignment"),
together with any consents required by Section 13.3.1, and (ii)
payment of a $2,500 fee to the Agent from the assignor for processing
such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and
after the effective date of such assignment, such Purchaser shall
for all purposes be a Bank party to this Agreement and any other
Loan Document executed by the Banks and shall have all the rights
and Obligations of a Bank under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent
or action by the Company, the Banks or the Agent shall be required
to release the transferor Bank with respect to the percentage of
the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant
to this Section 13.3.2, the transferor Bank, the Agent and the
Company shall make appropriate arrangements so that replacement
Notes are issued to such transferor Bank and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their Commitment, as
adjusted pursuant to such assignment.
13.4. Dissemination of Information. The Company authorizes
each Bank to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of
law (each a "Transferee") and any prospective Transferee any and all
information in such Bank's possession concerning the creditworthiness
of the Company and the Subsidiaries, provided that such Transferee or
prospective Transferee executes a Confidentiality Agreement in the form
of Exhibit "K" hereto.
ARTICLE XIV
NOTICES
14.1. 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.
14.2. Change of Address.
The Company, the Agent and any Bank may each change the address for
service of notice upon it by a notice in writing to the other parties
hereto.
ARTICLE XV
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.
IN WITNESS WHEREOF, the Company, the Banks and the Agent have
executed this Agreement as of the date first above written.
NIKE, INC.
By:
Title: Treasurer
One Bowerman Drive
Beaverton, OR 97005-6453
Attention: Marcia Stilwell, Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By:
Title: Vice President
Payment Office: Bank of America National Trust
and Savings Association
Bank of America National Trust Agency Management Services #5596
and Savings Association 1455 Market Street, 12th Floor
(ABA 121-000-358) San Francisco, CA 94103
1850 Gateway Boulevard Attn: Ivo A. Bakovic, Vice President
Concord, CA 94520 Telephone: (415) 622-1158
For credit to account: Facsimile: (415) 622-4894
No. 12338-14629
Ref: Nike, Inc.
COMMITMENTS:
$45,454,545.45 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By:
Title:
555 California Street
41st Floor
San Francisco, CA 94104
Attention: Steven F. Sterling,
Vice President
Telephone: (415) 622-8703
Facsimile: (415) 622-4585
$45,454,545.45 ABN AMRO BANK N.V., SEATTLE BRANCH
By:
Title:
One Union Square, Suite 2323
Seattle, WA 98101
Attention: James Rice
Vice President
Telephone: (206) 587-2360
Telecopy: (206) 682-5641
$45,454,545.45 BANQUE NATIONALE DE PARIS
By:
Title:
By:
Title:
180 Montgomery St., 4th fl.
San Francisco, CA 94104
Attention: Judith A. Dowling
Vice President
Telephone: (415) 956-0707
Telecopy: (415) 391-3390
$45,454,545.45 CITICORP USA, INC.
By:
Title:
One Sansome St., 27th floor
San Francisco, CA 94104
Attention: David Taylor, Vice
President
Telephone: (415) 627-6325
Telecopy: (415) 433-0307
$45,454,545.45 THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
777 South Figueroa Street, 4th floor
Los Angeles, CA 90017
Attention: Thomas C. Williams,
Vice President
Telephone: (213) 683-4936
Telecopy: (213) 683-4949
$45,454,545.45 SEATTLE-FIRST NATIONAL BANK
By:
Title:
701 Fifth Avenue, 12th fl.
Seattle, WA 98124
Attention: Hendrikus T. Knottnerus
Vice President
Telephone: (206) 358-3274
Telecopy: (206) 358-3113
$45,454,545.45 SWISS BANK CORPORATION,
SAN FRANCISCO BRANCH
By:
Title:
By:
Title:
101 California Street, Suite 1700
San Francisco, CA 94111-5884
Attention: David L. Parrot
Associate Director
Telephone: (415) 774-3425
Telecopy: (415) 989-7570
$45,454,545.45 THE BANK OF NOVA SCOTIA
By:
Title:
888 S.W. Fifth Avenue, Suite 750
Portland, OR 97204
Attention: Errett Hummel
Relationship Manager
Telephone: (503) 222-5233
Telecopy: (503) 2225502
$45,454,545.54 THE BANK OF TOKYO, LTD., PORTLAND BRANCH
By:
Title:
2300 Pacwest Center
1211 S.W. Fifth Avenue
Portland, Oregon 97204
Attention: Hiro Nakazawa
Vice President
Telephone: (503) 222-3724
Telecopy: (503) 227-5372
$45,454,545.54 THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By:
Title:
900 SW Fifth Avenue, Suite 1550
Portland, Oregon 97204
Attention: Daniel Dutton
Vice President
Telephone: (503) 242-1199
Telecopy: (503) 242-2413
$45,454,545.54 UNITED STATES NATIONAL BANK OF OREGON
By:
Title:
555 S.W. Oak Street, PL-4
Portland, Oregon 97204
Attention: Ann Smith
Vice President
Telephone: (503) 275-6380
Telecopy: (503) 275-5428
EXHIBIT "A"
NOTE
(Ratable Loans)
$ September 15, 1995
NIKE, Inc., an Oregon corporation (the "Company"), promises to pay
to the order of (the "Bank") the lesser of the
principal sum of Dollars or the aggregate unpaid
principal amount of all Loans made by the Bank to the Company 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 main office of Bank of America National Trust
and Savings Association in San Francisco, California, as Agent or as
otherwise directed by the 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 Company shall pay each
of these respective Loans in full on the last day of such Loan's
applicable Interest Period. All Loans not sooner repaid shall be paid
in full on the Revolving Credit 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 and the date and amount
of each principal payment hereunder provided, however, that any failure
to so record shall not affect the Company's Obligations under this Note.
This Note (Ratable Loans) is one of the Notes issued pursuant to, and
is entitled to the benefits of, the Credit Agreement, dated as of
September 15, 1995, among the Company, certain of its Subsidiaries, Bank
of America National Trust and Savings Association, individually and as
Agent, and the banks named therein, including the Bank, to which Agreement,
as it may be amended from time to time, 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 COMPANY'S RESIDENCE MUST BE
IN 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 BANK. THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 3, 1989.
NIKE, INC.
By:
Title:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (RATABLE LOANS) OF NIKE, Inc.
Dated September 15, 1995
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paind Balance
EXHIBIT "B"
NOTE
(Competitive Bid Loans)
September 15, 1995
NIKE, Inc., an Oregon corporation (the "Company"), 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 Company 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 main office of Bank of America National Trust and
Savings Association, as Agent, in San Francisco, California or as otherwise
directed by the 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 Company shall pay each of these respective 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 and the date
and amount of each principal payment hereunder, provided, however, that
any failure to so record shall not affect the Company's obligations
under this Note.
This Note (Competitive Bid Loans) is one of the Notes issued
pursuant to, and is entitled to the benefits of, the Credit Agreement
dated as of September 15, 1995, among the Company, certain of its
Subsidiaries, Bank of America National Trust and Savings Association,
individually and as Agent, and the banks named therein, including the
Bank, to which Agreement, as it may be amended from time to time,
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 COMPANY'S RESIDENCE MUST BE
IN 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 BANK. THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 3, 1989.
NIKE, INC.
By:
Title:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (COMPETITIVE BID LOANS)
OF NIKE, Inc.
Dated September 15, 1995
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paind Balance
EXHIBIT "C"
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2
, 199 _
To: Bank of America National Trust and Savings Association,
as Agent (the "Agent")
From: NIKE, Inc. ("Company")
Re: Credit Agreement (the "Agreement") dated as of September 15,
1995, among the Company, certain of its Subsidiaries, Bank of America
National Trust and Savings Association, individually and as Agent, and
the Banks listed on the signature pages thereof
We hereby give notice pursuant to Section 2.3.2 of the Agreement
that we request Competitive Bid Quotes for the following proposed
Competitive Bid Advance(s):
Borrower:
Borrowing Date:
Principal Amount(1) Interest Period(1)
$
Such Competitive Bid Quotes should offer a [Competitive Bid
Margin] [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:
Title:
EXHIBIT "D"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3.3)
DATE
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
NIKE, INC. (the "Company")
Pursuant to Section 2.3.3 of the Credit Agreement dated as of
September 15, 1995, (the "Agreement") among the Company, certain of i
ts Subsidiaries, the Banks parties thereto and the undersigned, as Agent,
we are pleased on behalf of the Company to invite you to submit Competitive
Bid Quotes to the Company for the following proposed Competitive Bid
Advance(s):
Borrower:
Borrowing Date:
Principal Amount Interest Period
$
Such Competitive Bid Quotes should offer a [Competitive Bid
Margin] [Absolute Rate]. Your Competitive Bid Quote must comply
with Section 2.3.4 of the Agreement and the foregoing terms in 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 [1:00 p.m.]
[9:00 a.m.] San Francisco time on , 19 .
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By:
Authorized Officer
EXHIBIT "E"
COMPETITIVE BID QUOTE
(Section 2.3.4)
, 199 _
To: Bank of America National Trust and Savings Association, as Agent
Attn: _
Re: Competitive Bid Quote to NIKE, Inc. (the "Company")
In response to your invitation on behalf of the Company dated
September 15, 1995, 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. Borrower: _
2. Quoting Bank: _
3. Person to contact at Quoting Bank: _
4. Borrowing Date: , 19 (1)
5. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest [Competitive Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate(5) Amount
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 September 15, 1995, among the
Borrowers, the Banks listed on the signature pages thereof and yourselves,
as Agent, irrevocably obligates us to make the Competitive Bid Loan(s) for
which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: , 19 By: _
Authorized Officer
EXHIBIT "F"
COMPANY COUNSEL OPINION
See Attachment
EXHIBIT "G"
RATABLE BORROWING NOTICE
Date: , 199
To: Bank of America National Trust and Savings Association as Agent
for the Banks parties to the Credit Agreement dated as of
September 15, 1995 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement") among NIKE, Inc.,
certain of its Subsidiaries, certain Banks which are signatories
thereto and Bank of America National Trust and Savings Association,
as Agent
Ladies and Gentlemen:
The undersigned, NIKE, Inc. (the "Company"), 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) Borrower:
(ii) The Business Day of the proposed Advance is
, 19 .
(iii) The aggregate amount of the proposed Advance
is $ .
(iii) The Advance shall be a [Eurodollar Ratable]
[Eurocurrency] [Floating Rate] Advance.
[(iv) The Eurocurrency is .]
[(v) The duration of the Interest Period of the
[Eurodollar Ratable Advance] [Eurocurrency Advance]
shall be months.]
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:
Title:
EXHIBIT "H"
NOTICE OF CONVERSION/CONTINUATION
Date: , 199
To: Bank of America National Trust and Savings Association
as Agent for the Banks parties to the Credit Agreement dated
as of September 15, 1995 (as extended, renewed, amended or
restated from time to time, the "Credit Agreement") among NIKE,
Inc., certain of its Subsidiaries, certain Banks which are
signatories thereto and Bank of America National Trust and Savings
Association, as Agent
Ladies and Gentlemen:
The undersigned, NIKE, Inc. (the "Company"), 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) Borrower:
(ii) The Business Day of the proposed Conversion/Continuation
Date is , 19 .
(iii) The aggregate amount of the Advance to be [converted]
[continued] is $ .
(iii) The Advance shall be [converted into] [continued as] a
[Eurodollar Ratable] [Eurocurrency] [Floating Rate] Advance.
[(iv) The duration of the Interest Period of the [Eurodollar Ratable
Advance] [Eurocurrency Advance] included in the [conversion]
[continuation] shall be months.]
NIKE, Inc.
By:
Title:
EXHIBIT "I"
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 September 15, 1995, among NIKE, Inc. and
certain Subsidiaries, the banks party thereto and Bank of America
National Trust and Savings Association as Agent for the Banks (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 Company;
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 Company and its Subsidiaries
during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 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 Company's compliance with certain covenants
of the Agreement, all of which data and computations are true, complete
and correct [and Schedule II attached hereto sets forth the determination
of the interest rate to be paid for Advances commencing the first day of
the month following the delivery hereof.]
Described below are the exceptions, if any, to paragraph 3
by listing, in detail, the nature of the condition or event, the
period during which it has existed and the action which the Company
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 [and Schedule II] hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered
this day of , 19 .
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of , 199__, with
Provisions of Sections 6.12 and 6.17 of
the Agreement
Required Actual
I. Section 6.12:
Sale of Assets $ $
Cannot Exceed 20% (Maximum
of Assets BV ($000's) Permitted)
II. Section 6.17: Leverage Ratio
(Indebtedness to net worth) 1.00 to 1.00
NIKE, Inc.
Compliance Certificate - Covenants Worksheet
(all numbers reported in thousands)
Page 2
I. Section 6.12:
Sale of Assets:
A. Amount Permitted
Consolidated Assets (at book value)
as of $
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)
NIKE, Inc.
Compliance Certificate - Covenants Worksheet
(all numbers reported in thousands)
Page 3
III. Section 6.17
Leverage Ratio:
A. Indebtedness $ _
B. Net Worth $ _
C. INDEBTEDNESS/NW (A/B) $ _
Maximum Ratio Permitted 1.00:1.00
EXHIBIT "J"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the "Assignee")
is dated as of , 19 . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement, dated as of September 15, 1995 (which, as it may be amended,
modified, renewed or extended from time to time, is herein called the
"Credit Agreement"), among NIKE, Inc. (the "Company"), certain of its
Subsidiaries, certain banks party thereto and Bank of America National
Trust and Savings Association, as agent for such banks. Capitalized
terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement. The Assignor
desires to assign to the Assignee, and the Assignee desires to assume
from the Assignor, an undivided interest (the "Purchased Percentage")
in the Commitment of the Assignor such that after giving effect to the
assignment and assumption hereinafter provided, the Commitment of the
Assignee shall equal $ and its percentage of the Aggregate
Commitment shall equal %.
2. ASSIGNMENT. For and in consideration of the assumption of
obligations by the Assignee set forth in Section 3 hereof and the other
consideration set forth herein, and effective as of the Effective Date
(as hereinafter defined), the Assignor does hereby sell, assign,
transfer and convey all of its right, title and interest in and to the
Purchased Percentage of (i) the Commitment of the Assignor (as in effect
on the Effective Date), (ii) any Loan constituting part of a Ratable
Advance [or part of any Competitive Bid Advance] outstanding on the
Effective Date and (iii) the Credit Agreement and the other Loan
Documents [other than the Competitive Bid Note payable to Assignor]
[(the "Transferred Documents")]. Pursuant to Section 13.3 of the Credit
Agreement, on and after the Effective Date the Assignee shall have the
same rights, benefits and obligations as the Assignor had under the Loan
Documents [Transferred Documents] with respect to the Purchased Percentage
of the Loan Documents [Transferred Documents], all determined as if the
Assignee were a "Bank" under the Credit Agreement with ___% of the
Aggregate Commitment. The Effective Date shall be the later of
or two Business Days (or such shorter period agreed to by the Agent)
after a Notice of Assignment substantially in the form of Exhibit "1"
attached hereto and any consents substantially in the form of Exhibit
"2" attached hereto required to be delivered to the Agent by Section
13.3 of the Credit Agreement have been delivered to the Agent. In no
event will the Effective Date occur if the payments required to be made
by the Assignee to the Assignor on the Effective Date under Section 4
and 5 hereof are not made on the proposed Effective Date. The Assignor
will notify the Assignee of the proposed Effective Date on the Business
Day prior to the proposed Effective Date.
3. ASSUMPTION. For and in consideration of the assignment of
rights by the Assignor set forth in Section 2 hereof and the other
consideration set forth herein, and effective as of the Effective Date,
the Assignee does hereby accept that assignment, and assume and covenant
and agree fully, completely and timely to perform, comply with and
discharge, each and all of the obligations, duties and liabilities of
the Assignor under the Credit Agreement which are assigned to the
Assignee hereunder, which assumption includes, without limitation,
the obligation to fund the unfunded portion of the Aggregate Commitment
in accordance with the provisions set forth in the Credit Agreement as
if the Assignee were a "Bank" under the Credit Agreement with % of
he Aggregate Commitment. The Assignee agrees to be bound by all
provisions relating to "Banks" under and as defined in the Credit
Agreement, including, without limitation, provisions relating to the
dissemination of information and the payment of indemnification.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date,
the Assignee shall be entitled to receive from the Agent all payments
of principal, interest and fees with respect to the Purchased
Percentage of the Assignor's Commitment and Loans [constituting part
of any Ratable Advances]. The Assignee shall advance funds directly to
the Agent with respect to all such Loans and reimbursement payments made
on or after the Effective Date. In consideration for the sale and
assignment of such Loans hereunder, (i) with respect to all Floating
Rate Loans made by the Assignor outstanding on the Effective Date, the
Assignee shall pay the Assignor, on the Effective Date,[ an amount equal
to the Purchased Percentage of all such Floating Rate Loans; and (ii)
with respect to each Fixed Rate Loan made by the Assignor outstanding
on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Fixed Rate Loan either
becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter
referred to as the "Payment Date")]*, the Assignee shall pay the Assignor
an amount equal to the Purchased Percentage of such Fixed Rate Loan.
On and after the Effective Date, the Assignee will also remit to the
Assignor any amounts of interest on Loans [constituting part of any
Ratable Advances] and fees received from the Agent which relate to the
Purchased Percentage of Loans made by the Assignor accrued for periods
prior to the Effective Date, in the case of Floating Rate Loans, or the
Payment Date, in the case of Fixed Rate Loans, and not heretofore paid
by the Assignee to the Assignor. In the event interest for the period
from the Effective Date to but not including the Payment Date is not
paid by the Company with respect to any Fixed Rate Loan sold by the
Assignor to the Assignee hereunder, the Assignee shall pay to the
Assignor interest for such period on such Fixed Rate Loan at the
applicable rate provided by the Credit Agreement. In the event that
either party hereto receives any payment to which the other party hereto
is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY ASSIGNEE. On each day on which the Assignee
receives a payment of interest or commitment fees under the Credit
Agreement (other than a payment of interest or commitment fees which
the Assignee is obligated to deliver to the Assignor pursuant to Section
4 hereof, which shall be excluded in determining fees payable to the
Assignor pursuant to this Section), the Assignee shall pay to the
Assignor a fee. The amount of such fee shall be the difference between
(i) the amount of such interest or fee, as applicable, received by the
Assignee and (ii) the amount of the interest or fee, as applicable, which
would have been received by the Assignee if each interest rate was
of 1% less than the interest rate paid by the Company or if the commitment
fee was of 1% less than the commitment fee paid by the Company, as
applicable. In addition, the Assignee agrees to pay % of the fee
required to be paid to the Agent pursuant to Section 13.3 of the Credit
Agreement.
6. CREDIT DETERMINATION; LIMITATIONS ON ASSIGNOR'S LIABILITY.
The Assignee represents and warrants to the Assignor that it is capable
of making and has made and shall continue to make its own credit
determinations and analysis based upon such information as the Assignee
deemed sufficient to enter into the transaction contemplated hereby and
not based on any statements or representations by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no
representation or warranty of any kind to the Assignee and shall not be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectibility of the Credit Agreement or any
other Loan Document, including without limitation, documents granting the
Assignor and the other Banks a security interest in assets of the Company
or any guarantor, (ii) any representation, warranty or statement made in or
in connection with any of the Loan Documents, (iii) the financial condition
or creditworthiness of the Company or any guarantor, (iv) the performance
of or compliance with any of the terms or provisions of any of the Loan
Documents, (v) inspecting any of the property, books or records of the
Company or (vi) the validity, enforceability, perfection, priority,
condition, value or sufficiency of any collateral securing or purporting
to secure the Loans. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be liable for any mistake,
error of judgment, or action taken or omitted to be taken in connection
with the Loans or the Loan Documents, except for its or their own bad
faith or willful misconduct.
7. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses
(including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or arising
in any manner from the Assignee's performance or non-performance of
obligations assumed under this Assignment Agreement.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the
Assignee shall have the right pursuant to Section 13.3 of the Credit
Agreement to assign the rights which are assigned to the Assignee
hereunder to any entity or person, provided that (i) any such subsequent
assignment does not violate any of the terms and conditions of the Loan
Documents or any law, rule, regulation, order, writ, judgment, injunction
or decree and that any consent required under the terms of the Loan
Documents has been obtained, (ii) the assignee under such assignment
from the Assignee shall agree to assume all of the Assignee's
obligations hereunder in a manner satisfactory to the Assignor and
(iii) the Assignee is not thereby released from any of its obligations
to the Assignor hereunder.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in
the Aggregate Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage of the Aggregate
Commitment assigned to the Assignee shall remain the percentage specified
in Section 1 hereof and the dollar amount of the Commitment of the
Assignee shall be recalculated based on the reduced Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement and the attached
consent embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be governed
by the internal law, and not the law of conflicts, of the State of
California.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the
purpose hereof, the addresses of the parties hereto (until notice of a
change is delivered) shall be the address set forth under each party's
name on the signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the
date first above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
EXHIBIT "1" to EXHIBIT "J"
NOTICE
OF ASSIGNMENT
To: NIKE, Inc.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
From: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
, 19 _
1. We refer to that Credit Agreement, dated as of September 15,
1995 (which, as it may be amended, modified, renewed or extended from
time to time, is herein called the "Credit Agreement") among NIKE, Inc.
(the "Company"), certain of its Subsidiaries, certain banks party thereto
(each a "Bank"), including (the "Assignor")
and Bank of America National Trust and Savings Association, as agent for
the Banks (as such, the "Agent"). Capitalized terms used herein and in
any consent delivered in connection herewith and not otherwise defined
herein or in such consent shall have the meanings attributed to them in
the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Company and the Agent pursuant to Section 13.3.2 of
the Credit Agreement.
3. The Assignor and (the "Assignee") have
entered into an Assignment Agreement, dated as of , 19 ,
pursuant to which, among other things, the Assignor has sold,
assigned, delegated and transferred to the Assignee, and the Assignee
has purchased, accepted and assumed from the Assignor, an undivided
interest in and to all of the Assignor's rights and obligations under
the Credit Agreement such that Assignee's percentage of the Aggregate
Commitment shall equal %, effective as of the "Effective Date" (as
hereinafter defined). The "Effective Date" shall be the later of
, 19 or two Business Days (or such shorter period as a
greed to by the Agent) after this Notice of Assignment and any consents a
nd fees required by Sections 13.3.1 and 13.3.2 of the Credit Agreement
have been delivered to the Agent, provided that the Effective Date shall
not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. As of this date, the percentage of the Assignor in the
Aggregate Commitment and Advances is %. As of the Effective Date,
the percentage of the Assignor in the Aggregate Commitment and Loans will
be % (as such percentage may be reduced or increased by assignments
which become effective prior to the assignment to the Assignee becoming
effective) and the percentage of the Assignee in the Aggregate Commitment
and Loans will be %.
5. The Assignor and the Assignee hereby give to the Borrowers
and the Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the Agent before , 19 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Agent to determine
the Effective Date pursuant to Section 3 hereof if it occurs thereafter.
The Assignor shall notify the Agent if the Assignment Agreement does not
become effective on any proposed Effective Date as a result of the failure
to satisfy the conditions precedent agreed to by the Assignor and the
Assignee. At the request of the Agent, the Assignor will give the Agent
written confirmation of the occurrence of the Effective Date.
6. The Assignee hereby accepts and assumes the assignment and
delegation referred to herein and agrees as of the Effective Date (i)
to perform fully all of the obligations under the Credit Agreement
which it has hereby assumed and (ii) to be bound by the terms and
conditions of the Credit Agreement as if it were a "Bank".
7. The Assignor and the Assignee request and agree that any
payments to be made by the Agent to the Assignor on and after the
Effective Date shall, to the extent of the assignment referred to
herein, be made entirely to the Assignee, it being understood that
the Assignor and the Assignee shall make between themselves any
desired allocations.
8. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $2,500 required by Section
13.3.2 of the Credit Agreement.
9. The Assignor and the Assignee request and direct that the
Agent prepare and cause the Borrowers to execute and deliver new Notes
or, as appropriate, replacement notes, to the Assignor and the Assignee
in accordance with Section 13.3.2 of the Credit Agreement. The Assignor
and the Assignee agree to deliver to the Agent the original Note received
from it by the Borrowers upon its receipt of a new Note in the amount
set forth above.
10. The Assignee advises the Agent that the address listed below
is its address for notices under the Credit Agreement:
ASSIGNOR ASSIGNEE
By: By:
Title: Title:
EXHIBIT "2" to EXHIBIT "J"
CONSENT AND RELEASE
TO: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
, 19 _
1. We acknowledge receipt from (the
"Assignor") and (the "Assignee") of the Notice
of Assignment, dated as of , 19 (the "Notice").
Capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to them in the Notice.
2. In consideration of the assumption by the Assignee of the
obligations of the Assignor as referred to in the Notice, the Company
hereby (i) irrevocably consents, as required by Section 13.3 of the Credit
Agreement, to the assignment and delegation referred to in the Notice and
(ii) as of the Effective Date, irrevocably reduces the percentage of the
Assignor in the Aggregate Commitment by the percentage of the Aggregate
Commitment assigned to the Assignee and releases the Assignor from all
of its obligations to the Borrowers under the Loan Documents to the extent
that such obligations have been assumed by the Assignee.
3. The Company directs the Agent to prepare for issuance by the
Borrowers new Notes as requested by the Assignor and the Assignee in the
Notice.
4. In consideration of the assumption by the Assignee of the
obligations of the Assignor as referred to in the Notice, the Agent
hereby (i) irrevocably consents, as required by Section 13.3 of the
Credit Agreement, to the assignment and delegation referred to in the
Notice, (ii) as of the Effective Date, irrevocably releases the Assignor
from its obligations to the Agent under the Loan Documents to the extent
that such obligations have been assumed by the Assignee, and (iii) agrees
that, as of the Effective Date, the Agent shall consider the Assignee as a
"Bank" for all purposes under the Loan Documents to the extent of the
assignment and delegation referred to in the Notice.
NIKE, INC. BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: By:
Title: Title:
EXHIBIT "K"
Confidentiality Agreement
(Transferee's Letterhead)
To: [Name of Transferee]
Attention:
RE: Nike, Inc. (the "Company")
Gentlemen/Ladies:
You have asked to receive from us certain information (which may
be communicated both in written and verbal form) with respect to the
Company which is non-public, confidential or proprietary in nature
(collectively, the "Information") in order to evaluate your possible
participation in certain credit facilities to be extended to the Company
(the "Credit Facilities"). In consideration of our disclosure to you of
the Information, you agree as follows:
1. Non-Disclosure. You will keep the Information confidential
and, without our prior written consent, you will not disclose any of
the Information except:
(a) to your directors, employees, auditors or counsel
(collectively "representatives") to whom it is necessary
to show the Information, each of which shall be informed by
you of the confidential nature of the Information;
(b) in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency asserting
jurisdiction over you, or as may otherwise be required by law
(provided that you shall give us prior notice of the disclosure
permitted by this clause (b) unless such notice is prohibited by
the subpoena, order or law); and
(c) upon the request or demand of any regulatory agency or
authority having jurisdiction over you.
2. Use of Information. You will use the Information only
for the purposes of evaluating the proposed Credit Facilities and
making any necessary credit judgments with respect thereto. You will
not use the Information in a manner prohibited by any law, including
without limitation, the securities laws of the United States.
3. Return of Documents. You will, upon demand, return to us
all documents or other written material received from us and
all copies thereof made by you which contain the Information which
have not been properly disposed of by you.
4. Public Information. The restrictions contained herein
shall not apply to Information which (a) is or becomes generally available
to the public other than as a result of a disclosure by you or your
representatives; (b) becomes available to you on a non-confidential
basis from a source other than us or one of our agents or (c) was known
to you on a non-confidential basis prior to its disclosure to you by us
or one of our agents.
5. Disclaimer. It is understood and agreed that we are under
no obligation to verify the accuracy of any of the Information and make
no representation or warranty of any kind, and shall have no liability
with respect to, the accuracy, completeness or sufficiency of the
Information.
6. General Provisions. This agreement constitutes the entire
agreement of the parties hereto and supersedes all prior agreements of
the parties relating to the subject matter hereof. Upon your execution
of definitive loan documents, some or all of your confidentiality
obligations with respect to the information may be superseded by the
confidentiality provisions of the loan documents. This agreement shall
be governed by, and construed in accordance with, the laws of the State
of California.
If you are in agreement with the foregoing, please acknowledge
your acceptance of the terms and conditions contained herein by
executing and returning a copy of this agreement as provided below to
the attention of the undersigned by FAX ( ) - with the original
to follow by mail.
Very truly yours,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: _
Its:
Accepted and agreed to:
(Name of Participant)
By:
Its:
Date:
EXHIBIT "L"
Certificate for Subsidiary Borrowers
Date: , 199
To: Bank of America National Trust and Savings Association as
Agent for the Banks parties to the Credit Agreement dated
as of September 15, 1995 (as extended, renewed, amended or
restated from time to time, the "Credit Agreement") among
NIKE, Inc., certain of its Subsidiaries, certain Banks
which are signatory thereto and Bank of America National
Trust and Savings Association, as Agent of this certificate,
a "Subsidiary Borrower" for purposes of the Credit Agreement.
3. Each of the representations and warranties set forth in
Article V of the Credit Agreement is true and correct
as applied to the Company and the Subsidiary Borrower
as of this date. There exists no Default or Unmatured Default.
4. The Company is delivering herewith to the Agent in
substitution (without novation) of the existing Notes,
Notes executed by each of the Borrowers, including the
Subsidiary Borrower, payable to each of the Banks.
5. The Company hereby ratifies and reaffirms its obligations
as guarantor set forth in Article IX of the Credit Agreement
and hereby acknowledges and agrees that henceforth all
Obligations of the Subsidiary Borrower shall be deemed
included in the Guaranteed Obligations covered thereunder.
6. The Subsidiary Borrower hereby acknowledges its irrevocable
appointment of the Company as its agent and attorney-in-fact
as set forth in the last sentence of Section 2.5.9 of the
Credit Agreement.
7. By its execution and delivery of this Certificate, the
Subsidiary Borrower is intended to be, and shall be,
bound by the Credit Agreement, as though a party thereto,
and shall be deemed to have executed and delivered to the
Agent and each of the Banks an original, executed counterpart
of such Credit Agreement.
NIKE, Inc.
By:
Title:
[Name of Subsidiary Borrower]
By:
Title:
Receipt acknowledged:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
Title:
Date:
SCHEDULE "1"
SUBSIDIARIES AND OTHER INVESTMENTS
(See Section 5.8)
<TABLE>
<CAPTION>
NIKE, Inc. - Subsidiaries Addresses Ownership
<S> <C> <C>
NIKE, Inc. One Bowerman Drive
Beaverton, OR 97005 USA
NIKE Canada Ltd. 2445 Canoe Avenue NIKE, Inc. 100%
Coquitlam, B.C.
Canada V3K 6A9
NIKE Italy SrL Via dell Aeronautica 22 NIKE, Inc.
I-42100 NIKE UK 1%
Reggio Emilia, Italy
NIKE Retail Services, Inc. One Bowerman Drive NIKE, Inc. 100%
Beaverton, OR 97005 USA
NIKE U.K. Ltd. Coniston House, Washington Centre NIKE, Inc. 100%
District 4, Washington
Tyne & Wear NE38 7RN England
NIKE do Brasil Portal Trade Center NIKE, Inc. 100%
Rua Luiz Migliano
1110-Cj. 402
05711 Sao Paulo - S.P., Brazil
NIKE France S.A. Zone d'Activites des Bethunes NIKE, Inc. 99.9%
Avenue du Fief
95310 Saint-Ouen L'Aumne, France
NIKE Sports Korea 6th Floor Dongik Building NIKE, Inc. 99.9%
98 Nonhyun-Dong, Kangnam-Ku
Seoul, Korea
NIKE (European Apparel) GmbH c/o Marathon 7 NIKE, Inc. 100%
(in liquidation) 1213 PD Hilversum
The Netherlands
NIKE Denmark ApS Kokkedal Industripark 101 NIKE, Inc. 100%
2980 Kokkedal, Denmark
American NIKE S.A. Avenida Constitucion NIKE, Inc. 99.995%
Edificio B, 2-APDO 111
08960 Sant Just Desvern
Barcelona, Spain
NIKE Singapore Pte. Ltd. 6 Kim Chuan Drive NIKE, Inc. 100%
Singapore 1953
BRS NIKE Taiwan 13th Floor, #152, Sung Chiang Rd. NIKE, Inc. 99.9%
Taipei, Taiwan, R.O.C.
NIKE Holding B.V. Kleine Tocht 1 NIKE, Inc. 100%
1507 CB Zaandam, The Netherlands
NIKE Holland B.V. Kleine Tocht 1 NIKE Holding B.V. 100%
1507 CB Zaandam, The Netherlands
NIKE Belgium Holding N.V. Hoge Mauw 28 NIKE, Inc. 100%
B-2370 Arendonk, Belgium
NIKE Belgium N.V. Hoge Mauw 28 NIKE Belgium Holding B.V. 100%
B-2370 Arendonk, Belgium
NIKE Sales (Malaysia) Sdn. Bhd. Lot 1505 Sungei Way BATU 9 NIKE, Inc. 100%
Jalan Kelang Lama, Peti Surat 606
PEJ.POS Jalan Sultan, 46000 Petaling Jaya
Selangor, Malaysia
Tetra Plastics, Inc. 620 Spirit of St. Louis Blvd. NIKE, Inc. 100%
Chesterfield, MO 63005 USA
NIKE Finland O.Y. Hameentie 153 B NIKE, Inc. 100%
SF-00561 Helsinki, Finland
NIKE Europe B.V. Marathon 7 NIKE, Inc. 100%
1213 PD Hilversum
The Netherlands
NIKE Europe Holding B.V. Marathon 7 NIKE, Inc. 100%
1213 PD Hilversum
The Netherlands
NIKE European Operations Marathon 7 NIKE, Inc. 100%
Netherlands BV (NEON) 1213 PD Hilversum
The Netherlands
NIKE New Zealand Limited 50 Anzac Road, Browns Bay NIKE, Inc. 100%
Auckland 10, New Zealand
NIKE Australia Pty. Ltd. 28 Victoria Crescent NIKE, Inc. 100%
Abbotsford 3067, Australia
NIKE de Mexico, S.A. de C.V. Av. de las Americas No. 303-1 NIKE, Inc. 100%
Col Ladron de Guevara
CP 44680, Guadalajara
Jalisco, Mexico
NIKE Hong Kong Limited Unit 2 & 3, Tower 1, 18th Floor NIKE, Inc. 100%
Enterprises Square
9 Shueng Yuet Road
Kowloon Bay, Kowloon, Hong Kong
NIKE Switzerland A.G. Grindelstrasse 5 NIKE, Inc. 100%
8303 Basserfdorf, Switzerland
Sports Specialties Corporation 20 Goodyear NIKE, Inc. 100%
Irvine, CA 92718
NIKE de Chile S.A. Francisco Noguera 201 NIKE, Inc. 99%
Providencia NIKE International 1%
Santiago, Chile
NIKE International Ltd. One Bowerman Drive BRS, Inc. 99.9%
Beaverton, OR 97005 USA Other .1%
NIKE International & Cia Portal Trade Center Partnership
Rua Luiz Migliano
1110-Cj. 402
05711 Sao Paulo - S.P., Brazil
NIKE (Ireland) Ltd. One Bowerman Drive NIKE, Inc. 100%
Beaverton, OR 97005 USA
NIKE GmbH Donau Business Center NIKE, Inc. 100%
388 Handelskai/C42
1020 Vienna
Austria
NIKE Argentina SA Viamonte 570 NIKE, Inc. 100%
(1053) Buenos Aires, Argentina
Cole Haan Holdings, Inc. One Cole Haan Drive NIKE, Inc. 100%
Yarmouth, Maine 04096 USA
Downeast Casual One Cole Haan Drive
Yarmouth, Maine 04096 USA Cole Haan Holdings, Inc. 100%
Cole Haan One Cole Haan Drive
Yarmouth, Maine 04096 USA Cole Haan Holdings, Inc. 100%
Cole Haan Accessories, Ltd. (same address) Cole Haan 100%
Cole Haan Company Store (same address) Cole Haan 100%
Cole Haan SRL (same address) Cole Haan 100%
Canstar Sports Inc. NIKE, Inc. 100%
</TABLE>
SCHEDULE "2"
LIENS
(See Sections 5.14 & 6.15)
None
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE AUGUST 31, 1995 FORM 10-Q AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAY-31-1996
<PERIOD-END> AUG-31-1995
<CASH> 178,556
<SECURITIES> 0
<RECEIVABLES> 1,192,172
<ALLOWANCES> 33,784
<INVENTORY> 676,417
<CURRENT-ASSETS> 2,203,127
<PP&E> 934,801
<DEPRECIATION> 352,091
<TOTAL-ASSETS> 3,323,416
<CURRENT-LIABILITIES> 1,145,270
<BONDS> 14,082
<COMMON> 2,853
0
300
<OTHER-SE> 2,100,038
<TOTAL-LIABILITY-AND-EQUITY> 3,323,416
<SALES> 1,614,649
<TOTAL-REVENUES> 1,614,649
<CGS> 967,522
<TOTAL-COSTS> 967,522
<OTHER-EXPENSES> 362,836
<LOSS-PROVISION> 5,033
<INTEREST-EXPENSE> 11,377
<INCOME-PRETAX> 267,881
<INCOME-TAX> 103,100
<INCOME-CONTINUING> 164,781
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 164,781
<EPS-PRIMARY> 2.26
<EPS-DILUTED> 2.26
</TABLE>
