EXHIBIT 4.4
YELLOW CORPORATION
10777 BARKLEY
OVERLAND PARK, KANSAS 66211
April 26, 1993
Citibank, N.A.
120 Wall Street
New York, New York 10043
Attention: Corporate trust Department
Re: Issuance of Medium-Term Notes
Gentlemen:
Yellow Corporation, a Delaware corporation (the "Company"), hereby
agrees with you as follows:
SECTION 1. Appointment of Paying Agent.
The Company proposes to issue and sell up to $ in aggregate
principal amount of notes due from nine months to thirty years from date of
issue (the "Notes"), and has appointed Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Placement Agent") as the Placement
Agent for such Notes. The Company hereby appoints Citibank, N.A. (the "Paying
Agent"), to act, on the terms and conditions specified herein, as issuing and
paying agent and registrar for the Notes.
SECTION 2. Note Form; Signature.
The Company will from time to time furnish the Paying Agent with an
adequate supply of registered Notes, without coupons, serially numbered, and
which will have the principal amount, date of issue, maturity date and rate of
interest left blank. Each will be signed (either manually or by mechanical
impression (facsimile signature) in the name and on behalf of the Company by any
two of the President, and any Vice President and the Treasurer of the Company,
or any one of the foregoing and any Assistant Treasurer of the Company acting
jointly (the "Requisite Officers"). The Notes will be substantially in the form
of Exhibit A hereto and shall have a maturity of not less
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than nine months from date of issue and not more than thirty years from date of
issue, and shall be issued in the order of the serial numbers imprinted thereon
in denominations of $150,000 and any larger denominations in integral multiples
of $1,000. The Paying Agent will keep such blank Notes in safekeeping.
SECTION 3. Requisite Officers.
From time to time and at or prior to the date a request is made for
completion and delivery of Notes pursuant to Section 4(a) hereof, the Company
will furnish the Paying Agent with a certificate of the Company certifying the
incumbency and specimen signatures of Requisite Officers. Until the Paying
Agent receives a subsequent incumbency certificate, the Paying Agent shall be
entitled to rely on the information set forth in the incumbency certificate it
last received for purposes of determining the Requisite Officers. The Paying
Agent shall not have any responsibility to determine whether any signature on a
Note purporting to be that of a Requisite Officer is genuine, so long as such
signature resembles the specimen signature set forth in the original incumbency
certificate or in a subsequent certificate delivered to the Paying Agent. Any
Note bearing the signatures of two persons each of whom is a Requisite Officer
on the date he signs such Note shall be a binding obligation of the Company upon
the completion and countersignature thereof by the Paying Agent, notwithstanding
that such person shall have died or shall have ceased to hold his office or
shall have ceased to be a Requisite Officer on the date such Note is completed,
countersigned or delivered by the Paying Agent except as the Company has
notified the Paying Agent otherwise by delivery of a new incumbency certificate.
SECTION 4. Completion, Authentication and Delivery of Notes.
(a) From time to time, the Paying Agent shall receive instructions
regarding the completion and delivery of Notes. The Paying Agent may rely on
such instructions if they are received from any person or persons authorized in
writing by Requisite Officers from time to time to the Paying Agent and given by
telephone, telex, computer linkup or other electronic means pursuant to written
agreements between the Company and the Paying Agent. Oral instructions will
promptly be confirmed in written form pursuant to Section 19(a) hereof. Such
instructions shall include:
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(i) Number of Notes to be issued;
(ii) Exact name of the person in whose name a Note is to be
registered (the "Registered Holder");
(iii) Exact address of the Registered Holder;
(iv) Taxpayer identification number of the Registered Holder;
(v) Principal amount of such Note;
(vi) Interest rate to be borne by such Note;
(vii) Date of maturity of such Note;
(viii) Original issue date and settlement date of such Note;
(ix) Amount to be received in payment of such Note (the "Purchase
Price");
(x) Interest Payment Dates;
(xi) Record Dates; and
(xii) Redemption Provisions, if any.
(b) Upon receipt of such instructions, the Paying Agent shall:
(i) complete each Note as to its Registered Holder, principal
amount, interest rate, date of maturity, interest payment dates, record
dates, redemption provisions (if any) and original issue date in
accordance with such instructions;
(ii) cause each Note to be manually countersigned by any one of the
officers or employees of the Paying Agent duly authorized for such purpose
and whose name has been promptly furnished to the Company at its request
pursuant to section 19(a) hereof;
(iii) deliver each Note to the Placement Agent or its designee,
which delivery shall be against receipt for
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payment on the settlement date as herein provided or as otherwise provided
in such instructions; and
(iv) retain one stub copy of each Note for its records and send to
the Company the other stub copy of each such Note.
(c) Instructions regarding the completion of a Note must be received
by the Paying Agent not later than 2:30 p.m., New York City time, on the
business day (which term shall mean, for the purposes of this Note, any day
which is not a Saturday, Sunday or a day in which banks or trust companies in
the City and State of New York are authorized or obligated by law, regulation or
executive order to remain closed) next preceding the date on which settlement
for the Note is to occur by telephone, facsimile transmission or other means
acceptable to the Paying Agent. Oral instructions will promptly be confirmed in
written form pursuant to Section 19(a) hereof.
SECTION 5. Proceeds of Sale of the Notes.
The Paying Agent will deliver Notes to the Placement Agent or its
designee only against payment of the Purchase price in immediately available
funds to the general banking account (No. [3849-1394]) maintained by the Company
with the Paying Agent for that purpose.
SECTION 6. Payment of Interest.
Unless otherwise specified in the Note, interest payments will
be made on April 15 and October 15 (the "Interest Payment Dates") and at
maturity. All such interest payments (other than interest due at maturity) will
be male to the Registered Holder in whose name the Note is registered at the
close of business on the March 31 or September 30 ("Record Dates") next
preceding such Interest Payment Date, unless other Record Dates are specified in
the Note. Notwithstanding the foregoing, if a Note is dated on or after the
Record Date and prior to but excluding the Interest Payment Date to which such
Record Date refers, the first payment of interest on such Note will be made on
the second succeeding Interest Payment Date. Interest on the Notes will accrue
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, or if no interest has been paid, from the original Issue Date
until the principal of the Note is paid or made available for payment. Interest
will be calculated on the basis of a 360-day year of twelve 30-day months. All
interest payments on
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the Notes (other than interest due at maturity) will be made by check of the
Paying Agent mailed to the Registered Holders, as such Registered Holders appear
on the Record Date in the Note Register referred to in Section 10 hereof, or at
such other place in the United States as such Registered Holder shall designate
to the Paying Agent in writing, provided such designation is received at least
five business days prior to the Record Date.
SECTION 7. Payment of Principal
The Paying Agent will pay the principal amount of each Note at
maturity, together with accrued interest due at maturity, in immediately
available funds against presentation of the Note.
SECTION 8. Information Regarding Amounts Due.
Unless otherwise instructed by the Company, promptly following each
Record Date, the Paying Agent will furnish the Company with a list of interest
payments to be made on the following Interest Payment Dates for each Note and in
total. The Paying Agent will provide to the Company by the fifteenth day of each
month a list of the principal and interest to be paid on Notes maturing in the
next succeeding month.
SECTION 9. Deposit of Funds.
The Company shall, on each Interest Payment Date on which interest
is payable, pay to the Paying Agent an amount in immediately available funds
sufficient to pay all interest due on the Notes on such Interest Payment Date
and shall, on the maturity date of any Note, pay to the Paying Agent an amount
in immediately available funds sufficient to pay the principal of any such Note,
together with accrued interest due at maturity.
SECTION 10. Registration; Transfer.
(a) The Paying Agent shall maintain a register in which it shall
register the names, addresses and taxpayer identification numbers of the holders
of the Notes in accordance with information provided pursuant to Section 4
thereof and shall register the transfer of the Notes to the extent permitted by
clause (c) below.
(b) The Company and the Paying Agent may deem and treat the
Registered Holder of any Note as the absolute owner
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of such Note for the purposes of receiving, payment of the principal of and
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company nor the Paying Agent shall be affected
by notice to the contrary.
(c) The Paying Agent shall not register the attempted transfer of
any Note unless it has received the written consent and confirmation of the
Company and the applicable Placement Agent to such transfer stating that such
transfer is subject to the transfer restrictions as set forth in the Note
(attached hereto as Exhibit A) and that such transfer is being made pursuant to
Rule 144A ("Rule l44A") of the Securities Act of 1933, as amended (the "1933
Act") to (i) a "qualified institutional buyer" (as defined in Rule l44A) under
Rule 144A or Regulation S of the 1933 Act or (ii) to an "accredited investor"
(as defined in Rule 501(a) of the 1933 Act). The Paying Agent shall register
such transfer in accordance with the conditions of such consent.
(d) All Notes presented for presented registration of transfer shall
be duly endorsed or be accompanied by a written instrument of transfer and a
certification that such transfer is pursuant to Rule 144A in a form reasonably
satisfactory to the Company, duly executed by the Registered Holder or his duly
authorized (in writing) attorney.
SECTION 11. Mutilated, Lost, Stolen or Destroyed Notes.
In case any Note shall become mutilated or destroyed, lost or
stolen, the Company in its discretion may execute and upon its request the
Paying Agent shall authenticate and deliver, a new Note having a number not
contemporaneously outstanding, in exchange and substitution for the affiliated
Note or in lieu of and substitution for the Note destroyed, lost or stolen. In
every such case, the applicant for a substituted Note shall furnish to the
Company and to the Paying Agent such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Paying Agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof. The Paying Agent may authenticate any such
substituted Note and deliver the same upon the written request or authorization
of the Requisite Officers. Upon the issuance of any substituted
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Note, the Company may require from the applicant the payment of a sum sufficient
to cover any expense connected therewith. In case any Note which has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish the Company and the Paying Agent
with such security or indemnity as may be required by them to save each of them
harmless, and, in the case of destruction, loss or theft, evidence to the
satisfaction of the Company of the destruction, loss or theft of such Note and
of the ownership thereof. All applications under this Section 11 shall be
processed by the Paying Agent.
SECTION 12. Satisfaction and Discharge.
The Company at any time may satisfy all of its obligations with
respect to the Notes by irrevocably depositing in trust with the Paying Agent
cash or U.S. Government Securities with maturity dates, interest rates or yields
and principal amounts sufficient to pay the principal of and interest on all
such Notes as and when the same become due and payable. In the event of any such
deposit, the Paying Agent agrees that it will hold such cash or U.S. Government
Securities so deposited, in trust for the benefit of the holders of Notes, as
trust funds for payment of the principal of and interest on the Notes to which
such deposit relates. For the purposes hereof, the term "U.S. Government
Securities" means direct obligations of the United States of America to pay
principal which obligations are not callable at the issuer's option, or direct
obligations of the United States of America to pay interest, in each case for
the payment of which the full faith and credit of the United States of America
is pledged.
SECTION 13. Return of the Unclaimed Funds.
Any cash or U.S. Government Securities deposited with the Paying
Agent and remaining unclaimed for two years after the date upon which the last
payment of principal of or interest on any Note to which such deposit relates
shall have become due and payable, shall be repaid to the Company by the Paying
Agent on demand, and the holder of any Note to which such deposit related
entitled to receive payment shall thereafter look only to the Company for the
payment thereof and all liability of the Paying Agent with respect to such cash
or U.S. Government Securities shall thereupon cease.
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SECTION 14. Resignation or Removal of Paying Agent.
The Paying Agent may at any time resign as such Agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided, however, that
such date shall not be less than three months after receipt of such notice by
the Company. The Paying Agent may be removed at any time by the filing with it
of an instrument in writing signed on behalf of the Company and specifying such
removal and the date when it is intended to become effective. Such resignation
or removal shall take effect upon the date of the appointment by the Company of
a successor Paying Agent, and the acceptance of such appointment by such
successor Paying Agent.
SECTION 15. Reliance on Instructions.
The Paying Agent shall incur no liability in acting hereunder upon
instructions pursuant to Section 4 hereof and as otherwise contemplated hereby
which the Paying Agent believed in good faith and without gross negligence to
have been properly given.
SECTION 16. Cancellation; Destruction of Cancelled and Unissued
Notes.
All Notes surrendered for payment, registration of transfer or
exchange shall upon receipt be promptly cancelled by the Paying Agent. All
cancelled Notes shall be destroyed by the Paying Agent and the Paying Agent
shall forthwith deliver a certificate of such destruction to the Company. Upon
the written request of the Company, the Paying Agent shall promptly destroy all
unissued Notes in its possession and forthwith deliver a certificate of such
destruction to the Company.
SECTION 17. Representation and Warranties of the Company.
Each instruction given to the Paying Agent in accordance with
Section 4 hereof shall constitute a representation and warranty to the Paying
Agent by the Company that the issuance and delivery of the Notes have been duly
and validly authorized by the Company and when completed, countersigned and
delivered pursuant hereto, the Notes will constitute the valid and legally
binding obligations of the Company.
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SECTION 18. Fees.
For its services under this Agreement, the Company agrees to pay the
compensation of the Paying Agent at such rates as shall be agreed upon between
the Company and the Paying Agent from time to time. The Company will reimburse
the Paying Agent upon request for all reasonable expenses, disbursements and
advances (including reasonable legal fees and expenses) incurred or made in
accordance with any of the provisions of this Agreement.
SECTION 19. Notices.
(a) All communications by or on behalf of the Company relating to
the completion, delivery or payment of the Notes are to be directed to Citibank,
N.A., Corporate Trust Services Department, MTN Unit, 111 Wall Street, 5th Floor,
New York, New York 10043 (or such other department or division as the Paying
Agent shall specify in writing to the Company). The Company will send all Notes
to be completed and delivered by the Paying Agent to such Corporate Trust
Services Department (or such other department or division as the Paying Agent
shall specify in writing to the Company) and send under separate cover a copy of
its letter transmitting such Notes to Citibank, NA. Corporate Trust Department,
120 Wall Street, 13th Floor, New York, New York 10043. At the request of the
Company, the Paying Agent will advise the Company from time to time of the names
of the officers and employees of the Paying Agent generally responsible for the
completion, delivery or payment of the Notes.
(b) Notices and other communications hereunder shall (except to the
extent otherwise expressly provided) be in writing and shall be addressed as
follows, or to such other address as the party receiving such notice shall have
previously specified:
If to the Company:
Yellow Corporation
P.O. Box 7563
10777 Barkley Avenue
Overland Park, Kansas 66211-1162
Attention: Vice President and Treasurer
Telephone: (913) 345-1020
Telecopy: (913) 345-3433
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If to the Paying Agent:
Citibank, NA.
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Corporate Trust Department
Telephone: (212) 412-6253
Telecopiers: (212) 480-1613
(212) 480-1614
SECTION 20. Information Furnished by the Paying Agent.
Upon the reasonable request of the Company, given at any time and
from time to time, the Paying Agent shall promptly provide the Company with
information with respect to the Notes issued hereunder to the extent such
information is reasonably available.
SECTION 21. Liability.
Neither the Paying Agent nor its officers or employees shall be
liable for any act or omission hereunder except in the case of gross negligence
or willful misconduct. The duties and obligations of the Paying Agent, its
officers and employees shall be determined by the express provisions of this
Agreement and they shall not be liable except for the performance of such duties
and obligations as are specifically set forth herein and no implied covenants
shall be read into this Agreement against them. Neither the Paying Agent nor its
officers shall be required to ascertain whether any issuance or sale of Notes
(or any amendment or termination of this Agreement) is in compliance with any
other agreement to which the Company is a party (whether or not the Paying Agent
is also a party to such other agreement).
SECTION 22. Indemnification.
The Company agrees to indemnify and hold harmless the Paying Agent,
its officers and employees from and against all liabilities, losses and
reasonable expenses (including reasonable legal fees and expenses) relating to
or arising out of their actions or inactions in any capacity hereunder, except
liabilities, losses and expenses caused by the gross negligence or willful
misconduct of the Paying Agent, its officers or
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employees. This indemnity shall survive termination of this Agreement.
SECTION 23. Benefit of Agreement.
This Agreement is solely for the benefit of the parties hereto and
their successors and assigns and no other person shall acquire or have any right
under or by virtue hereof.
SECTION 24. Governing Law.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
SECTION 25. Counterparts.
This Agreement may be executed by the parties hereto in any number
of counterparts, and by each of the parties hereto in separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
Please indicate your acceptance hereof by signing and returning to
us a copy of this Agreement. Very truly yours,
YELLOW CORPORATION
By /s/ P. A. SPANGLER
-----------------------------------
Vice President and Treasurer
Accepted and agreed to
as of the date first
written above:
CITIBANK, N.A.
By________________________________
Title: