FIRST AMENDMENT
This FIRST AMENDMENT, dated as of August 24, 2007 (this "Amendment"), is
among NIKE, INC., an Oregon corporation with its principal place of business
at One Bowerman Drive, Beaverton, Oregon 97005-6453 (the "Borrower"), the Banks
(defined below) party hereto and BANK OF AMERICA, N.A., as administrative
agent for the Banks (the "Administrative Agent").
RECITALS:
A. The Borrower is a party to that certain Credit Agreement
dated as of December 1, 2006 (the "Credit Agreement"), among
the Borrower, the lenders from time to time party thereto
(the "Banks"), the Administrative Agent and the other agents,
joint lead arrangers and joint book managers party thereto;
B. The Borrower has requested that the Administrative Agent and
Majority Banks (i) amend the first sentence of Section 6.4 to
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the Credit Agreement as set forth herein and (ii) waive any
Default or Event of Default arising from or related to the
existence or formation of any Subsidiary as an entity other
than a corporation (collectively, the "Formation Default");
and
C. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend and modify the Credit Agreement
and to waive any Formation Default as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used herein but not defined
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herein shall have the meanings set forth in the Credit Agreement. References to
the Credit Agreement shall, hereafter, mean the Credit Agreement as amended by
this Amendment.
SECTION 2. Amendment. The first sentence of Section 6.4 of the Credit
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Agreement is hereby deleted in its entirety and replaced by the following:
"The Borrower will, and will cause each Subsidiary to, do all
things necessary to remain validly existing in its jurisdiction of
formation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted;
provided, that the Borrower may liquidate or dissolve any
Subsidiary into the Borrower or any other Subsidiary; provided,
however, that a Material Subsidiary may not liquidate or dissolve
into a Subsidiary that is not a Material Subsidiary."
SECTION 3. Waiver. The undersigned Majority Banks hereby waive any
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Formation Default arising on or before the Amendment Effective Date (defined
below). The foregoing waiver is not intended as, and neither such agreement nor
any failure by the Administrative Agent or any Bank to enforce any rights or
remedies with respect to any Default or Event of Default on or prior to the
Amendment Effective Date shall be deemed to constitute, a waiver of
any other Default or Event of Default other than any Formation Default in
existence on or before the Amendment Effective Date or of any of the
Administrative Agent's and/or Banks' rights and remedies with respect thereto.
SECTION 4. Representations and Warranties. The Borrower hereby represents
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and warrants to the Administrative Agent and the Banks, as follows:
(a) The representations and warranties of the Borrower contained in
Article V of the Credit Agreement and in any other Loan Document or which
are contained in any document furnished at any time under or in
connection therewith are true and correct in all material respects on and
as of the date hereof and on and as of the Amendment Effective Date with
the same effect as if made on and as of the date hereof or the Amendment
Effective Date, as the case may be, except to the extent such
representations and warranties specifically refer to an earlier date, in
which case they are true and correct in all material respects as of such
earlier date.
(b) After giving effect to this Amendment, the Borrower is in
compliance with all the terms and conditions of the Credit Agreement, as
amended by this Amendment, and the other Loan Documents on its part to be
observed or performed and no Default has occurred or is continuing under
the Credit Agreement (as amended hereby).
(c) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by the Borrower.
(d) Each of this Amendment and the Credit Agreement constitutes the
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms.
(e) Neither the execution and delivery by the Borrower of this
Amendment, nor the consummation of the transactions therein contemplated,
nor compliance with the provisions thereof will violate any Law, order,
writ, judgment, injunction, decree or award binding on the Borrower or
any Subsidiary or the Borrower's or any Subsidiary's articles of
incorporation or bylaws or the provisions of any indenture, instrument or
agreement to which the Borrower or any Subsidiary is a party or is
subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition
of any Lien in, of or on the property of the Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or agreement.
SECTION 5. Effectiveness. This Amendment shall become effective only upon
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satisfaction of the following conditions precedent (the first date upon which
each such condition has been satisfied being herein called (the "Amendment
Effective Date"):
(a) The Administrative Agent shall have received duly executed
Counterparts of this Amendment which, when taken together, bear the
authorized signatures of the Borrower, the Administrative Agent and the
Majority Banks.
(b) The representations and warranties set forth in Section 4 hereof
shall be true and correct on and as of the Amendment Effective Date.
(c) There is no litigation, arbitration, governmental investigation,
Proceeding or inquiry pending or, to the knowledge of any of the
Borrower's officers, threatened against or affecting the Borrower or any
Subsidiary which might materially adversely affect the ability of the
Borrower to perform its Obligations under this Amendment or the other
Loan Documents.
(d) The Administrative Agent on behalf of the Banks shall have
received such other documents, instruments and certificates as they shall
reasonably request and such other documents, instruments and certificates
shall be satisfactory in form and substance to the Banks and their
counsel.
SECTION 6. Costs and Expenses. On the Amendment Effective Date, the
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Borrower shall pay all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent) which are invoiced to the Borrower on or prior to the
Amendment Effective Date.
SECTION 7. Governing Law. This Amendment shall be governed by, and
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construed in accordance with the laws of Oregon.
SECTION 8. Miscellaneous. Article X entitled "General Provisions" is
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hereby incorporated by reference into, and shall apply to, this Amendment as
if set forth herein.
SECTION 9. Severability. If any court, arbitrator, or arbitration panel
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finds any provision of this Agreement to be invalid or otherwise unenforceable,
that provision will be void to the extent it is contrary to applicable law.
However, that finding will not affect the validity of any other provision of
this Amendment or the Credit Agreement, and the rest of this Amendment
will remain in full force and effect unless enforcement of this Amendment
without the invalidated provision would be grossly inequitable under all of
the circumstances or would frustrate the primary purposes of this Amendment.
Alternatively, if a court, arbitrator, or arbitration panel determines that any
provision of this Amendment is not enforceable as expressly written, it is the
intention of the parties that those provisions be modified by the court,
arbitrator, or arbitration panel only as is necessary for them to be
enforceable.
SECTION 10. Counterparts and Delivery. This Amendment may be executed in
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counterparts. Each counterpart will be considered an original, and all of them,
taken together, will constitute a single Amendment. Facsimile signatures will
be deemed original signatures for all purposes under this Amendment. This
Amendment may be delivered by facsimile or electronically, and any such
delivery will have the same effect as physical delivery of a signed original.
SECTION 11. Loan Document. This Amendment shall be deemed to be and, upon
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the Amendment Effective Date, shall constitute a Loan Document under and as
defined in the Credit Agreement.
[Signature pages follow]
NIKE, INC.
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
BANK OF AMERICA, N.A.,
Acknowledged as Administrative Agent
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
BANK OF AMERICA, N.A.,
as a bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
CITICORP USA, INC., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
THE BANK OF TOKYO-MITSUBISHI UFJ
LTD., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
DEUTSCHE BANK AG, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
HSBC BANK USA, N.A., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
WILLIAM STREET COMMITMENT
CORPORATION, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
JPMORGAN CHASE BANK, N.A., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
MERRILL LYNCH BANK USA, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
THE NORTHERN TRUST COMPANY, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
U.S. NATIONAL ASSOCIATION, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
WELLS FARGO BANK, N.A., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
ROYAL BANK OF CANADA., as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
CALYON NEW YORK BRANCH, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
THE ROYAL BANK OF SCOTLAND PLC, as a Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
LASALLE BANK NATIONAL ASSOCIATION, as a
Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
WESTPAC BANKING CORPORATION, as a
Bank
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
First Amendment
Signature Page