Exhibit 10.67
EXECUTION
COPY
______________________________________________________________
GUARANTY
FROM
FEDERAL EXPRESS CORPORATION,
as Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Dated as of April 1, 1996
AllianceAirport Authority, Inc.
Special Facilities Revenue Bonds, Series 1996
(Federal Express Corporation Project)
______________________________________________________________
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1 Guarantor Representations and Warranties.. 1
ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1 Obligations Guaranteed.................. 2
Section 2.2 Obligations Unconditional............... 2
Section 2.3 No Waiver or Set-Off.................... 4
Section 2.4 Guaranty Event of Default............... 4
Section 2.5 Waiver of Notice; Expenses.............. 4
Section 2.6 Dissolution or Merger of the Guarantor.. 4
Section 2.7 Benefit and Enforcement................. 5
ARTICLE III
NOTICES
Section 3.1 Notices................................. 5
ARTICLE IV
MISCELLANEOUS
Section 4.1 Effective Date; Termination............. 5
Section 4.2 Remedies Not Exclusive.................. 5
Section 4.3 Amendments.............................. 5
Section 4.4 Entire Agreement; Counterparts.......... 5
Section 4.5 Severability............................ 5
Section 4.6 Reinstatement........................... 5
Section 4.7 Governing Law........................... 6
GUARANTY
THIS GUARANTY made and entered into as of April 1, 1996 from FEDERAL
EXPRESS CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware and having its principal office at 2005 Corporate Avenue,
Memphis, Tennessee 38132 (the "Guarantor"), to THE FIRST NATIONAL BANK OF
CHICAGO, a banking association duly organized and existing under the laws of the
United States of America, and having its principal corporate trust office in
Chicago, Illinois, as trustee (the "Trustee"), under the Indenture referred to
below.
WITNESSETH:
WHEREAS, the AllianceAirport Authority, Inc., a nonprofit industrial
development corporation created and existing under the laws of the State of
Texas (the "Authority") intends to issue its Special Facilities Revenue Bonds,
Series 1996 (Federal Express Corporation Project), in the aggregate principal
amount of $249,540,000 (the "Bonds") under and pursuant to a Trust Indenture
(the "Indenture"), dated as of April 1, 1996, between the Authority and the
Trustee;
WHEREAS, the proceeds derived from the issuance and sale of the Bonds are
to be used to finance all or part of the cost of acquiring, constructing,
equipping and furnishing certain facilities described in the hereinafter defined
Facilities Agreement to be located at an airport commonly known as "Alliance
Airport", which facilities are to be leased by the Authority to the Guarantor
under a Land and Special Facilities Lease Agreement of even date herewith (the
"Facilities Agreement") by and between the Authority and the Guarantor;
WHEREAS, the Guarantor desires that the Authority issue the Bonds and apply
the proceeds as aforesaid and is willing to enter into this Guaranty in order to
induce the Authority to issue the Bonds, to enhance the marketability of the
Bonds and thereby achieve interest cost and other savings thereto, and in order
to provide an inducement to the purchase of the Bonds by all who shall at any
time become the registered owners of the Bonds (collectively, the
"Bondholders"); and
WHEREAS, all terms used in this Guaranty which are defined in the
Facilities Agreement have the same meanings in this Guaranty which are assigned
to such terms in the Facilities Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor does hereby represent, warrant, covenant and agree with the Trustee
for the benefit of the Bondholders as follows:
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ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1 Guarantor Representations and Warranties. The Guarantor does
hereby represent and warrant that it is a corporation duly incorporated and in
good standing under the laws of the State of Delaware, has the power to enter
into and perform this Guaranty and to own its corporate property and assets, has
duly authorized the execution and delivery of this Guaranty by proper corporate
action and neither this Guaranty, the authorization, execution, delivery and
performance hereof will violate in any material respect any provision of law,
any order of any court or agency of government or any agreement, indenture or
other instrument to which the Guarantor is a party or by which it or its
property is bound, or in any material aspect be in conflict with or result in a
breach of or constitute a default under any indenture, agreement or other
instrument or any provision of its restated certificate of incorporation,
bylaws, or any other requirement of law applicable to the Guarantor. This
Guaranty constitutes the legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and by general equitable principles.
ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1 Obligations Guaranteed.
(a) The Guarantor hereby unconditionally guarantees to the Trustee for the
benefit of the Bondholders the full and prompt payment of the principal of,
premium, if any, and interest on the Bonds and, to the extent permitted by law,
interest on overdue interest or premium, when and as the same shall become due
and payable as provided in the Indenture, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise. All payments by the
Guarantor hereunder shall be paid in lawful money of the United States of
America. Each and every default in payment of the principal of, premium, if
any, or interest on any Bond, or interest on overdue interest or premium, shall
give rise to a separate cause of action hereunder and separate suits may be
brought hereunder as each cause of action arises.
(b) The Guarantor further agrees that this Guaranty constitutes an
absolute, unconditional, present and continuing guaranty of payment and not of
collection, and waives any right to require that any resort be had by the
Trustee or the Bondholders to pursue (1) the Trustee's or any Bondholder's
rights against any
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other party, (2) any other right or remedy available to the Trustee or any
Bondholder by contract, applicable law or otherwise or (3) any security (other
than moneys on deposit in the Funds or Accounts held by the Trustee under the
Indenture) held by or for the benefit of the Bondholders for payment of the
principal of, premium, if any, or interest on the Bonds, or interest on overdue
interest or premium on the Bonds.
Section 2.2 Obligations Unconditional. The obligations of the Guarantor
under this Guaranty shall be absolute, unconditional and immediately
enforceable, subject to the provisions of Section 2.4 herein, when each payment
of principal, premium, if any, and interest is due and shall remain in full
force and effect on the Guarantor and any successors thereof until the entire
principal of, premium, if any, and interest on the Bonds and, to the extent
permitted by law, interest on overdue interest and premium, shall have been paid
in full or duly provided for in accordance with the Indenture and, to the extent
permitted by law, such obligations shall not be affected, modified, released or
impaired by any state of facts or the happening from time to time of any event,
including, without limitation, any of the following, whether or not with notice
to, or the consent of, the Guarantor:
(a) the waiver, compromise, settlement, release or termination of any
or all of the obligations, covenants or agreements of the Authority
contained in the Indenture, or of the payment, performance or observance
thereof, or the impossibility of performance or unenforceability of any of
such obligations, covenants or agreements;
(b) the failure to give notice to the Guarantor of the occurrence of
an Event of Default under the terms and provisions of this Guaranty, the
Indenture or the Facilities Agreement;
(c) the transfer, assignment or mortgaging of all or any part of the
interest of the Authority or the Guarantor in the Special Facilities or any
failure of title with respect to the Authority's or the Guarantor's
interest in the Special Facilities or the invalidity, unenforceability or
termination of the Facilities Agreement;
(d) the assignment of any of the obligations, covenants and agreements
contained in this Guaranty;
(e) the waiver, compromise, settlement, release or termination of the
Authority's obligations, covenants or agreements contained in the
Facilities Agreement, or of the payment, performance or observance thereof,
or the impossibility of performance or unenforceability of any of such
obligations, covenants or agreements;
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(f) the waiver, compromise, settlement, release or termination of any
of the obligations, covenants or agreements of the Guarantor under the
Facilities Agreement, or of the payment, performance or observance thereof;
(g) the extension of the time for payment of any principal of and
premium, if any, or interest on any Bond, owing or payable on such Bond or
of the time for performance of any obligations, covenants or agreements
under or arising out of the Facilities Agreement or the Indenture or the
extension or the renewal of either thereof;
(h) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Facilities Agreement
or the Indenture;
(i) the taking or the omission to take any of the actions referred to
in the Facilities Agreement, the Indenture, the Bonds or this Guaranty;
(j) any failure, omission or delay on the part of the Authority or the
Trustee to enforce, assert or exercise any right, power or remedy conferred
on the Trustee, the Authority or any other person in this Guaranty, the
Facilities Agreement or the Indenture, or any other act or acts on the part
of the Trustee, the Authority or any of the Bondholders;
(k) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition with
creditors or readjustment of, or other similar proceedings affecting the
Guarantor or the Authority or any or all of the assets of either of them,
or any allegation or contest of the validity of this Guaranty, the
Indenture or the Facilities Agreement, or the disaffirmance of this
Guaranty, the Indenture or the Facilities Agreement in any such proceeding;
it being specifically understood, consented and agreed to that this
Guaranty shall remain and continue in full force and effect and shall be
enforceable against the Guarantor to the same extent and with the same
force and effect as if such proceedings had not been instituted, and it is
the intent and purpose of this Guaranty that the Guarantor shall and does
hereby waive all rights and benefits which might accrue to the Guarantor by
reason of any such proceedings;
(l) to the extent permitted by law, any event or action that would, in
the absence of this clause, result in the release or discharge by operation
of law of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty;
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(m) the default or failure of the Guarantor fully to perform any of
its obligations set forth in this Guaranty;
(n) the damage to, or condemnation, destruction, redelivery,
repossession or surrender of, all or a portion of the Special Facilities or
the abandonment, non-completion or curtailment of the Special Facilities,
or the release, substitution or replacement of any property comprising all
or a portion of the Special Facilities;
(o) the release, substitution or replacement of any security pledged
under the Indenture;
(p) any determination of the illegality, irregularity, invalidity or
unenforceability of, or any defect in, the Bonds, the Facilities Agreement
or the Indenture or any of the provisions thereof;
(q) any present or future law or order of any government (de jure or
de facto) or of any agency thereof, purporting to reduce, amend or
otherwise affect the Bonds or to vary any terms of payment thereof;
(r) any claim of immunity on behalf of the Authority or any other
obligor on the Bonds or with respect to any property of the Authority or
any other obligor on the Bonds; or
(s) any other circumstances which might otherwise constitute a legal
or equitable discharge or defense of a surety or a guarantor.
Section 2.3 No Waiver or Set-Off.
(a) Nothing in this Guaranty shall be construed as a waiver by the
Guarantor of any rights or claims it may have against the Authority or the
Trustee under this Guaranty or otherwise, but any recovery upon such rights and
claims shall be had from the Authority or the Trustee separately.
(b) No act of commission or omission of any kind or at any time on the part
of the Authority or the Trustee, or their successors and assigns, in respect of
any matter whatsoever shall in any way impair the rights of the Trustee to
enforce any right, power or benefit under this Guaranty, and no set-off,
counterclaim, reduction, or diminution of any obligation, or any defense of any
kind or nature (other than performance by the Guarantor of its obligations
hereunder), which the Guarantor has or may have against the Authority or the
Trustee or any assignee or successor thereof shall be available hereunder to the
Guarantor.
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Section 2.4 Guaranty Event of Default.
(a) A "Guaranty Event of Default" shall exist if the Guarantor defaults in
any guarantee referred to in Section 2.1(a) hereof and such default continues
for one Business Day from the date such payment was due. At such time as the
Trustee has notice of a Guaranty Event of Default hereunder, the Trustee shall
notify the registered owners of such Guaranty Event of Default in the same
manner as is provided in the Indenture.
(b) Upon an event of default in payment of principal of or premium, if any,
on any Bond when and as the same shall become due, whether at the stated
maturity thereof, by acceleration, call for redemption or otherwise, or in the
event of a default in the payment of any interest on any Bond when and as the
same shall become due, the Trustee shall have the right to proceed first and
directly against the Guarantor under this Guaranty without resorting to any
security (other than moneys on deposit in the Funds or Accounts held by the
Trustee under the Indenture) held by the Authority or the Trustee under the
Indenture.
(c) All moneys received by the Trustee pursuant to any right given or
action taken under the provisions of this Guaranty shall, after payment of
accrued fees and expenses of the Trustee and the cost and expenses of the
proceedings resulting in the collection of such moneys and of the expenses,
liabilities and advances incurred or made by the Trustee, be deposited in the
Debt Service Fund (as established in the Indenture) for the benefit of the
Bondholders and such moneys shall be applied in accordance with the terms of the
Indenture.
(d) The Trustee shall be under no obligation to institute any suit or to
take any remedial action under this Guaranty, or to enter any appearance or in
any way defend in any suit in which it may be made defendant, or to take any
steps in the enforcement of any rights and powers under this Guaranty, until it
shall be indemnified to its satisfaction by the Bondholders against any and all
liability (including, without limitation, reasonable compensation for services,
costs and expenses, outlays, and counsel fees and expenses and other
disbursements) not due to its negligence or willful misconduct for any action so
taken.
Section 2.5 Waiver of Notice; Expenses. The Guarantor hereby expressly
waives notice from the Trustee and the Bondholders of their acceptance and
reliance on this Guaranty. The Guarantor agrees to pay all reasonable costs,
expenses and fees, including all reasonable attorneys' fees and expenses which
are incurred by the Trustee in enforcing this Guaranty or protecting the rights
of the Trustee or the Bondholders following a Guaranty Event of Default on the
part of the Guarantor, whether the same shall be enforced by suit or otherwise.
Section 2.6 Dissolution or Merger of the Guarantor. Except as hereinafter
provided, the Guarantor agrees that during the term of this Guaranty it will not
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dissolve or otherwise dispose of all or substantially all of its assets and will
not consolidate with or merge into another Person unless the surviving or
transferee Person, as applicable, is, and after such transaction shall be, a
solvent Person qualified to do business in the State and, concurrently with such
transaction, irrevocably and unconditionally assumes in writing, by means of an
instrument which is delivered to the Authority and the Trustee, all of the
obligations of the Guarantor herein.
Section 2.7 Benefit and Enforcement. This Guaranty shall not be deemed to
create any right, or to be in whole or in part for the benefit of any person
other than the Trustee, the Guarantor, the Bondholders, and their permitted
successors and assigns. This Guaranty is entered into by the Guarantor for the
benefit of the registered owners from time to time of the Bonds under the
Indenture and may be enforced by or on behalf of the registered owners of the
Bonds only by the Trustee by such actions, suits and proceedings, at law or in
equity, as it may be advised shall be necessary or expedient to preserve and
protect its interest and the interests of the Bondholders hereunder. However,
the Trustee shall proceed to enforce this Guaranty on behalf of the Bondholders
upon written request of the registered owners of not less than 25% in aggregate
principal amount of the Bonds then outstanding and upon being indemnified for
its expenses and any liability to be incurred by the Trustee other than
liability arising from its willful misconduct or negligence in connection with
any action so taken.
ARTICLE III
NOTICES
Section 3.1 Notices. The provisions of Article X(I) of the Indenture shall
govern the giving of any notice hereunder.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Effective Date; Termination. The obligations of the Guarantor
hereunder shall arise absolutely and unconditionally upon the Closing Date.
This Guaranty shall terminate on such date as the Indenture is discharged and
satisfied in accordance with Article VIII of the Indenture.
Section 4.2 Remedies Not Exclusive. No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Guaranty or now or
hereafter
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existing at law or in equity. No delay or omission to exercise any right or
power accruing upon any Guaranty Event of Default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle the Trustee to exercise any remedy reserved to it in this
Guaranty, it shall not be necessary to give any notice. In the event any
provision contained in this Guaranty should be breached, and thereafter duly
waived, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other breach hereunder. No waiver, amendment,
release or modification of this Guaranty shall be established by conduct, custom
or course of dealing, but solely by an instrument in writing duly executed by
the parties to this Guaranty.
Section 4.3 Amendments. This Guaranty may be amended by the Guarantor and
the Trustee only in accordance with the provisions of Article IX of the
Indenture.
Section 4.4 Entire Agreement; Counterparts. This Guaranty constitutes the
entire agreement, and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and may be executed simultaneously in several counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the
same instrument.
Section 4.5 Severability. The invalidity or unenforceability of any one
or more phrases, sentences, clauses or sections contained in this Guaranty shall
not affect the validity or enforceability of the remaining portions of this
Guaranty, or any part thereof.
Section 4.6. Reinstatement. This Guaranty shall continue to be effective,
or be reinstated, as the case may be, in respect of any of the obligations
guaranteed hereunder if at any time payment or any part thereof, of such
obligations is rescinded or must otherwise be restored or returned by any
Bondholder or the Trustee on behalf of any Bondholder upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Authority or the
Guarantor, or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Authority or the
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
Section 4.7 Governing Law. THIS GUARANTY SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
TENNESSEE.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
in its name and behalf by its duly authorized officer as of the date first above
written.
FEDERAL EXPRESS CORPORATION,
as Guarantor
By: /s/ CHARLES M. BUCHAS, JR.
----------------------------
Name: Charles M. Buchas, Jr.
----------------------
Title: Vice President and Treasurer
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ LELAND HANSEN
------------------
Name: Leland Hansen
-------------
Title: Assistant Vice President
------------------------
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