EXHIBIT 4.h
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N582FE)
This Ancillary Agreement I ("Agreement") dated April 22, 1996, as
amended and restated this 11th day of June, 1996 among Federal Express
Corporation, a Delaware corporation, Boatmen's Equipment Finance, Inc., a
Missouri corporation, First Security Bank of Utah, National Association, a
national banking association, in its capacity as Owner Trustee under the
Lease, and State Street Bank and Trust Company, a Massachusetts trust company,
as Indenture Trustee.
Reference is made to that certain leveraged lease dated as of
April 1, 1996, as amended and restated as of June 1, 1996 of one (1)
McDonnell Douglas MD-11F Aircraft initially bearing FAA Registration No.
N1751A (and currently anticipated to be changed to N582FE) (or any
replacement thereof under such lease). Capitalized terms used herein shall
have the meaning assigned to such terms in the Participation Agreement
(Federal Express Corporation Trust No. N582FE), dated as of April 1, 1996,
as amended and restated as of June 1, 1996 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee ("Lessee"), Boatmen's
Equipment Finance, Inc., as Owner Participant ("Owner Participant"), Morgan
Guaranty Trust Company of New York, Bank of America NT & SA, The Chase
Manhattan Bank (National Association), Commerzbank AG, Atlanta Agency and
NationsBank, N.A. (South), as Original Loan Participants ("Original Loan
Participants"), First Security Bank of Utah, National Association, not in
its individual capacity, except as otherwise stated, but solely as Owner
Trustee under the Trust Agreement referred to therein ("Owner Trustee"),
State Street Bank and Trust Company, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee under the Trust
Indenture, Mortgage and Security Agreement ("Indenture Trustee") and State
Street Bank and Trust Company, as Pass Through Trustee ("Pass Through
Trustee"). With respect to said transaction the parties agree as follows:
1. The words "Payment Default, Bankruptcy Default or" shall be added to
clause (i)(A) of the proviso to the first paragraph of Section
7.02(a) of the Lease before the words "Event of Default shall have
occurred and be continuing on the date the sublease is entered
into".
This Agreement is intended to be and shall be deemed an "Operative
Agreement". This Agreement is further intended to amend and modify certain
provisions of the other Operative Agreements as set forth herein, and in the
event of any conflict between the provisions of this Agreement and any other
Operative Agreement, the provisions hereof shall govern.
To the extent that this Agreement constitutes chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), no security interest in this Agreement may be created through
the transfer or possession of any counterpart other than the original
counterpart, which shall be the counterpart containing the receipt executed by
the Indenture Trustee on its signature page.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
This Agreement may be executed in separate counterparts, each of
which when so executed and delivered shall be an original (except that only
the counterpart bearing the receipt executed by the Indenture Trustee shall
be the original for purposes of perfecting a security interest therein as
chattel paper under the Uniform Commercial Code), but all such counterparts
shall together constitute but one and the same instrument.
This Agreement shall inure to the benefit of the addressees hereof
and their respective successors and assigns.
The parties hereto agree that acceptance of this Agreement may be
made by the Indenture Trustee, on behalf of the Holders from time to time of
the Certificates, by execution by the Indenture Trustee of the form of
acceptance provided below, with the same effect as if such Holders had
executed such form of acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: ___________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and
Managing Director -
Structured Finance
Agreed and Accepted:
BOATMEN'S EQUIPMENT FINANCE, INC.
By:_____________________________
Name:
Title:
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By:_____________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By:_____________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement I is
hereby acknowledged on this __ day of June 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Indenture Trustee
By: ___________________________________________
Name:
Title:
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N668FE)
This Ancillary Agreement I ("Agreement") dated May 24, 1996, as
amended and restated this 11th day of June, 1996 among Federal Express
Corporation, a Delaware corporation, PMCC Leasing Corporation, a Delaware
corporation, First Security Bank of Utah, National Association, a national
banking association, in its capacity as Owner Trustee under the Lease, and
State Street Bank and Trust Company, a Massachusetts trust company, as
Indenture Trustee.
Reference is made to that certain leveraged lease dated as of
May 15, 1996, as amended and restated as of June 1, 1996 of one (1) Airbus
A300F4-605R Aircraft initially bearing FAA Registration No. N668FE (or any
replacement thereof under such lease). Capitalized terms used herein shall
have the meaning assigned to such terms in the Participation Agreement
(Federal Express Corporation Trust No. N668FE), dated as of May 1, 1996,
as amended and restated as of June 1, 1996 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee ("Lessee"), PMCC Leasing
Corporation, as Owner Participant ("Owner Participant"), Morgan Guaranty
Trust Company of New York, Bank of America NT & SA, The Chase Manhattan
Bank (National Association), Commerzbank AG, Atlanta Agency and
NationsBank, N.A. (South), as Original Loan Participants ("Original Loan
Participants"), First Security Bank of Utah, National Association, not in
its individual capacity, except as otherwise stated, but solely as Owner
Trustee under the Trust Agreement referred to therein ("Owner Trustee"),
State Street Bank and Trust Company, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee under the Trust
Indenture and Security Agreement ("Indenture Trustee") and State Street
Bank and Trust Company, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee. With respect to said
transaction the parties agree as follows, anything in the Operative
Agreements to the contrary notwithstanding:
1. The references to Event of Default in Section 4.01(a) of
the Lease shall include Payment Default and Bankruptcy Default.
2. Clause (iii) of the first sentence of Section 4.02(a) of
the Lease shall also include a Payment Default.
3. The words "or substantial civil unrest" shall be inserted
after the words "such country shall not then be experiencing war" in Section
7.02(a)(i) of the Lease and "which is not experiencing war" in Section
7.02(a)(ii) of the Lease.
4. Section 10.01(c) of the Lease shall be replaced with and
read as follows:
(c) Payments to the Lessor. The total selling
price realized at a sale pursuant to Section 10.01(b) hereof
(the "Gross Sales Price") shall be retained by the Lessor (or
the Indenture Trustee as long as the Indenture is in force)
and, in addition, on or before the Proposed Termination Date,
the Lessee shall pay to the Lessor (or the Indenture Trustee as
long as the Indenture is in force), by wire transfer of
immediately available funds, the sum of:
(i) the excess, if any, of the Termination Value
for the Aircraft computed as of the Proposed Termination
Date over the Gross Sales Price; plus
(ii) the installment of Basic Rent due with
respect to the Aircraft on the Proposed Termination
Date to the extent payable in arrears but not to the
extent payable in advance; plus
(iii) all other amounts then due and payable by the
Lessee (including, without limitation, the aggregate
amount of any Make-Whole Premium) under this Lease and
any other Operative Agreement.
All expenses of the sale shall be borne by the Lessee.
5. The first proviso in Section 16.01(d) of the Lease shall be
replaced with and read as follows:
provided, that in the event such failure is curable
and so long as (but for no longer than 150 days after
such 30-day period) the Lessee shall have promptly
undertaken such cure after the Lessee receives notice
thereof which undertaking shall be diligently and
continuously pursued using the Lessee's reasonable
best efforts, and so long as, in the case of the
Lessee's obligation to remove Liens, during such
extended cure period there is no (i) material danger
of the sale, forfeiture or loss of the Lessor's
Estate, the Aircraft, the Airframe or any Engine or
any interest therein, (ii) material risk of civil
liabilities or (iii) risk of the assertion of criminal
charges against the Lessor, the Owner Participant or
the Indenture Trustee, such failure shall not
constitute an Event of Default;.
6. The definition of "Replacement Engine" in Schedule II to
the Participation Agreement shall read as follows:
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine, and suitable for installation
and use on the Airframe; provided, that an engine of another manufacturer of
equivalent or greater value, utility, remaining useful life and airworthiness,
and suitable for installation and use on the Airframe may constitute a
Replacement Engine if at the time of replacement General Electric is no longer
manufacturing engines certificated for use on the Airframe, the Lessee does
not at the time of replacement own or lease any General Electric engines
certificated for use on the Airframe or, except in connection with the return
of the Aircraft under Article 12 of the Lease, General Electric is no longer
manufacturing engines which reasonably fulfill the Lessee's operational
requirements; and provided further that such engine shall be of the same make,
model and manufacturer as the other engine installed on the Aircraft and shall
be an engine of a type then being utilized by the Lessee on a significant
number of other Airbus A300-600 airframes operated by the Lessee.
7. The Assignment and Assumption Agreement shall be
substantially in the form of Exhibit G-1 to the Participation Agreement, and
the Owner Participant Guaranty shall be substantially in the form of Exhibit
G-2 to the Participation Agreement.
This Agreement is intended to be and shall be deemed an
"Operative Agreement". This Agreement is further intended to amend and modify
certain provisions of the other Operative Agreements as set forth herein, and
in the event of any conflict between the provisions of this Agreement and any
other Operative Agreement, the provisions hereof shall govern.
To the extent that this Agreement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Agreement may be
created through the transfer or possession of any counterpart other than
the original counterpart, which shall be the counterpart containing the
receipt executed by the Indenture Trustee on its signature page.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS.
This Agreement may be executed in separate counterparts, each
of which when so executed and delivered shall be an original (except that only
the counterpart bearing the receipt executed by the Indenture Trustee shall be
the original for purposes of perfecting a security interest therein as chattel
paper under the Uniform Commercial Code), but all such counterparts shall
together constitute but one and the same instrument.
This Agreement shall inure to the benefit of the addressees
hereof and their respective successors and assigns.
The parties hereto agree that acceptance of this Agreement may
be made by the Indenture Trustee, on behalf of the Holders from time to
time of the Certificates, by execution by the Indenture Trustee of the form
of acceptance provided below, with the same effect as if such Holders had
executed such form of acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: Robert D. Henning
Title:Assistant Treasurer and
Managing Director -
Structured Finance
PMCC LEASING CORPORATION
By: _________________________________
Name:
Title:
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Owner Trustee
By: _________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
(NATIONAL ASSOCIATION),
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement
I is hereby acknowledged on this __ day of June 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N669FE)
This Ancillary Agreement I ("Agreement") dated June 11, 1996
among Federal Express Corporation, a Delaware corporation, PMCC Leasing
Corporation, a Delaware corporation, First Security Bank of Utah, National
Association, a national banking association, in its capacity as Owner Trustee
under the Lease, and State Street Bank and Trust Company, a Massachusetts
trust company, as Indenture Trustee.
Reference is made to that certain leveraged lease dated as of
June 1, 1996 of one (1) Airbus A300F4-605R Aircraft initially bearing FAA
Registration No. N669FE (or any replacement thereof under such lease).
Capitalized terms used herein shall have the meaning assigned to such terms in
the Participation Agreement (Federal Express Corporation Trust No.
N669FE), dated as of June 1, 1996 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee ("Lessee"), PMCC Leasing
Corporation, as Owner Participant ("Owner Participant"), First Security
Bank of Utah, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee under the Trust Agreement
referred to therein ("Owner Trustee"), State Street Bank and Trust Company,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee under the Trust Indenture and Security Agreement
("Indenture Trustee") and State Street Bank and Trust Company, not in its
individual capacity, except as otherwise stated, but solely as Pass Through
Trustee. With respect to said transaction the parties agree as follows,
anything in the Operative Agreements to the contrary notwithstanding:
1. The references to Event of Default in Section 4.01(a) of
the Lease shall include Payment Default and Bankruptcy Default.
2. Clause (iii) of the first sentence of Section 4.02(a) of
the Lease shall also include a Payment Default.
3. The words "or substantial civil unrest" shall be inserted
after the words "such country shall not then be experiencing war" in Section
7.02(a)(i) of the Lease and "which is not experiencing war" in Section
7.02(a)(ii) of the Lease.
4. Section 10.01(c) of the Lease shall be replaced with and
read as follows:
(c) Payments to the Lessor. The total selling
price realized at a sale pursuant to Section 10.01(b) hereof
(the "Gross Sales Price") shall be retained by the Lessor (or
the Indenture Trustee as long as the Indenture is in force)
and, in addition, on or before the Proposed Termination Date,
the Lessee shall pay to the Lessor (or the Indenture Trustee as
long as the Indenture is in force), by wire transfer of
immediately available funds, the sum of:
(i) the excess, if any, of the Termination Value
for the Aircraft computed as of the Proposed Termination
Date over the Gross Sales Price; plus
(ii) the installment of Basic Rent due with
respect to the Aircraft on the Proposed Termination
Date to the extent payable in arrears but not to the
extent payable in advance; plus
(iii) all other amounts then due and payable by
the Lessee (including, without limitation, the
aggregate amount of any Make-Whole Premium) under this
Lease and any other Operative Agreement.
All expenses of the sale shall be borne by the Lessee.
5. The first proviso in Section 16.01(d) of the Lease shall be
replaced with and read as follows:
provided, that in the event such failure is curable
and so long as (but for no longer than 150 days after
such 30-day period) the Lessee shall have promptly
undertaken such cure after the Lessee receives notice
thereof which undertaking shall be diligently and
continuously pursued using the Lessee's reasonable
best efforts, and so long as, in the case of the
Lessee's obligation to remove Liens, during such
extended cure period there is no (i) material danger
of the sale, forfeiture or loss of the Lessor's
Estate, the Aircraft, the Airframe or any Engine or
any interest therein, (ii) material risk of civil
liabilities or (iii) risk of the assertion of criminal
charges against the Lessor, the Owner Participant or
the Indenture Trustee, such failure shall not
constitute an Event of Default;.
6. The definition of "Replacement Engine" in Schedule II to
the Participation Agreement shall read as follows:
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine, and suitable for installation
and use on the Airframe; provided, that an engine of another manufacturer of
equivalent or greater value, utility, remaining useful life and airworthiness,
and suitable for installation and use on the Airframe may constitute a
Replacement Engine if at the time of replacement General Electric is no longer
manufacturing engines certificated for use on the Airframe, the Lessee does
not at the time of replacement own or lease any General Electric engines
certificated for use on the Airframe or, except in connection with the return
of the Aircraft under Article 12 of the Lease, General Electric is no longer
manufacturing engines which reasonably fulfill the Lessee's operational
requirements; and provided further that such engine shall be of the same make,
model and manufacturer as the other engine installed on the Aircraft and shall
be an engine of a type then being utilized by the Lessee on a significant
number of other Airbus A300-600 airframes operated by the Lessee.
7. The Assignment and Assumption Agreement shall be
substantially in the form of Exhibit G-1 to the Participation Agreement, and
the Owner Participant Guaranty shall be substantially in the form of Exhibit
G-2 to the Participation Agreement.
This Agreement is intended to be and shall be deemed an
"Operative Agreement". This Agreement is further intended to amend and modify
certain provisions of the other Operative Agreements as set forth herein, and
in the event of any conflict between the provisions of this Agreement and any
other Operative Agreement, the provisions hereof shall govern.
To the extent that this Agreement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Agreement may be
created through the transfer or possession of any counterpart other than
the original counterpart, which shall be the counterpart containing the
receipt executed by the Indenture Trustee on its signature page.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS.
This Agreement may be executed in separate counterparts, each
of which when so executed and delivered shall be an original (except that only
the counterpart bearing the receipt executed by the Indenture Trustee shall be
the original for purposes of perfecting a security interest therein as chattel
paper under the Uniform Commercial Code), but all such counterparts shall
together constitute but one and the same instrument.
This Agreement shall inure to the benefit of the addressees
hereof and their respective successors and assigns.
The parties hereto agree that acceptance of this Agreement may
be made by the Indenture Trustee, on behalf of the Holders from time to
time of the Certificates, by execution by the Indenture Trustee of the form
of acceptance provided below, with the same effect as if such Holders had
executed such form of acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: Robert D. Henning
Title:Assistant Treasurer and
Managing Director -
Structured Finance
PMCC LEASING CORPORATION
By: _________________________________
Name:
Title:
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Owner Trustee
By: _________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
(NATIONAL ASSOCIATION),
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement
I is hereby acknowledged on this __ day of June 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title: