1
Exhibit 10.77
AMENDED AND RESTATED
CREDIT AGREEMENT
among
FEDERAL EXPRESS CORPORATION,
THE LENDERS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
Dated as of May 12, 1995
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS 1
ARTICLE II. THE CREDITS 16
2.1. Commitment 16
2.2. Mandatory Payments; Termination 17
2.3. Ratable Loans; Types of Advances 17
2.4. Determination of Levels 17
2.5. Facility Fee; Agent's Fee; Reductions in Aggregate
Commitment 17
2.6. Minimum Amount of Each Advance 18
2.7. Optional Principal Payments 18
2.8. Method of Selecting Types and Interest Periods for
New Advances 18
2.9. Conversion and Continuation of Outstanding Advances 19
2.10. Changes in Interest Rate, etc 20
2.11. Rates Applicable After Maturity of Advances 20
2.12. Method of Payment 20
2.13. Notes; Telephonic Notices 20
2.14. Interest Payment Dates; Interest and Fee Basis 21
2.15. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions 21
2.16. Lending Installations 21
2.17. Non-Receipt of Funds by the Agent 22
2.18. Withholding Tax Exemption 22
ARTICLE III. CHANGE IN CIRCUMSTANCES 23
3.1. Yield Protection 23
3.2. Changes in Capital Adequacy Regulations 23
3.3. Availability of Types of Advances 24
3.4. Funding Indemnification 24
3.5. Lender Statements; Survival of Indemnity 24
ARTICLE IV. CONDITIONS PRECEDENT 25
4.1. Closing 25
4.2. Each Advance 26
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ARTICLE V. REPRESENTATIONS AND WARRANTIES 27
5.1. Corporate Existence and Standing 27
5.2. Authorization and Validity 27
5.3. No Conflict; Government Consent 27
5.4. Financial Statements 27
5.5. Taxes 28
5.6. Litigation and Contingent Obligations 28
5.7. Subsidiaries 28
5.8. ERISA 28
5.9. Accuracy of Information 28
5.10. Regulation U 29
5.11. Material Agreements 29
5.12. Compliance With Laws 29
5.13. Existing Liens 29
5.14. Investment Company Act 29
5.15. Citizenship 29
5.16. Status as Air Carrier 29
5.17. Pari Passu 30
ARTICLE VI. COVENANTS 30
6.1. Financial Reporting 30
6.2. Use of Proceeds 32
6.3. Notice of Default 32
6.4. Conduct of Business 32
6.5. Citizenship and Regulatory Certificates 32
6.6. Payment of Taxes 33
6.7. Insurance 33
6.8. Compliance with Laws 33
6.9. Maintenance of Properties 33
6.10. Inspection 33
6.11. Dividend Declarations and Restricted Investments 33
6.12. Leverage 34
6.13. Fixed Charge Coverage 34
6.14. Consolidated Adjusted Net Worth 34
6.15. Merger and Consolidation 34
6.16. Sales of Assets 35
6.17. Loans, Advances and Investments 36
6.18. Contingent Liabilities 37
6.19. Liens 38
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ARTICLE VII. DEFAULTS 40
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES 42
8.1. Acceleration 42
8.2. Amendments 42
8.3. Preservation of Rights 43
ARTICLE IX. GENERAL PROVISIONS 44
9.1. Survival of Representations 44
9.2. Governmental Regulation 44
9.3. Taxes 44
9.4. Headings 44
9.5. Entire Agreement 44
9.6. Several Obligations; Benefits of this Agreement 44
9.7. Expenses; Indemnification 44
9.8. Numbers of Documents 45
9.9. Severability of Provisions 45
9.10. Nonliability of Lenders 45
9.11. Choice of Law 45
9.12. Consent to Jurisdiction 45
9.13. Waiver of Jury Trial 46
9.14. Confidentiality 46
9.15. Accounting 46
9.16. Effect on Prior Agreement; Ratification 46
ARTICLE X. THE AGENT 47
10.1. Appointment 47
10.2. Powers 47
10.3. General Immunity 47
10.4. No Responsibility for Loans, Recitals, etc 47
10.5. Action on Instructions of Lenders 47
10.6. Employment of Agents and Counsel 48
10.7. Reliance on Documents; Counsel 48
10.8. Agent's Reimbursement and Indemnification 48
10.9. Rights as a Lender 48
10.10. Lender Credit Decision 49
10.11. Successor Agent 49
10.12. Distribution of Information 49
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ARTICLE XI. SETOFF; RATABLE PAYMENTS 50
11.1. Setoff 50
11.2. Ratable Payments 50
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS 50
12.1. Successors and Assigns 50
12.2. Participations 51
12.2.1. Permitted Participants; Effect 51
12.2.2. Voting Rights 51
12.2.3. Benefit of Setoff 51
12.3. Assignments 52
12.3.1. Permitted Assignments 52
12.3.2. Required Assignments 52
12.3.3. Effect; Effective Date 53
12.4. Dissemination of Information 53
12.5. Tax Treatment 53
ARTICLE XIII. NOTICES 53
13.1. Giving Notice 53
13.2. Change of Address 54
ARTICLE XIV. COUNTERPARTS 54
EXHIBITS
EXHIBIT "A" - Note 84
EXHIBIT "B" - Opinion of Counsel 86
EXHIBIT "C" - Assignment Agreement 90
EXHIBIT "D" - Loan/Credit Related Money Transfer Instruction 99
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SCHEDULES
SCHEDULE "1" - Significant Subsidiaries 100
SCHEDULE "2" - Compliance Calculations 101
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FEDERAL EXPRESS CORPORATION
AMENDED AND RESTATED
CREDIT AGREEMENT
This Agreement, dated as of May 12, 1995, is among Federal Express
Corporation, the Lenders and The First National Bank of Chicago, as Agent. The
parties hereto agree as follows:
WHEREAS, the Borrower (this and other capitalized terms shall have the
respective meanings set forth in Article I hereinbelow), the Agent, and certain
lenders (the "Prior Lenders") are parties to that certain Credit Agreement
dated as of May 7, 1993, as heretofore amended (as so amended the "Prior
Agreement"), pursuant to which the Prior Lenders agreed to make available to
the Borrower revolving credit loans on the terms and conditions set forth
therein (hereinafter the "Prior Credit Facility"); and
WHEREAS, the Borrower, the Agent, and the Lenders desire to
restructure the Prior Credit Facility and to amend and restate the Prior
Agreement in certain respects as more fully set forth herein, and to release
those Prior Lenders which are not continuing as Lenders (hereinafter the
"Withdrawing Lenders"); and
WHEREAS, pursuant to the terms of this Agreement, on the Effective
Date, (i) the Prior Credit Facility shall be restructured in the form of the
credit facility described herein, (ii) all loans and other obligations of the
Borrower to the Lenders outstanding as of such date shall be deemed to be loans
and obligations outstanding under the revolving credit facility described
herein, (iii) the Withdrawing Lenders shall no longer be parties to this
Agreement, and (iv) all provisions of this Amended and Restated Credit
Agreement not previously in effect shall become effective;
NOW, THEREFORE, in consideration of the undertakings set forth herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree that, effective upon the
Effective Date, the Prior Agreement is hereby amended and restated in its
entirety to read as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going 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
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(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) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same
Type and, in the case of Fixed Rate Advances, for the same Interest Period.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means The First National Bank of Chicago in its capacity as
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this amended and restated credit agreement, as it
may be amended or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the
sum of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means:
(a) at all times that the Borrower's debt ratings are at Level I:
.20% with respect to Eurodollar Advances and
.325% with respect to Fixed CD Rate Advances;
(b) at all times that the Borrower's debt ratings are at Level II:
.225% with respect to Eurodollar Advances and
.35% with respect to Fixed CD Rate Advances;
(c) at all times that the Borrower's debt ratings are at Level
III:
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.25% with respect to Eurodollar Advances and
.375% with respect to Fixed CD Rate Advances;
(d) at all times that the Borrower's debt ratings are at Level IV:
.35% with respect to Eurodollar Advances and
.475% with respect to Fixed CD Rate Advances;
and
(e) at all times that the Borrower's debt ratings are at Level V
or the Borrower's senior unsecured long- term debt is not rated:
.425% with respect to Eurodollar Advances and
.55% with respect to Fixed CD Rate Advances.
Each change in the Applicable Margin resulting from a change in the rating of
the Borrower's senior unsecured long-term debt by either S&P or Moody's shall
take effect at the time such change in such rating is publicly announced by the
relevant rating agency.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Assessment Rate" means, for any CD Interest Period, the assessment
rate per annum (rounded upwards to the next higher multiple of 1/100 of 1% if
the rate is not such a multiple) payable to the Federal Deposit Insurance
Corporation (or any successor) for the insurance of domestic deposits of First
Chicago, as reasonably determined by the Agent on the first day of such CD
Interest Period.
"Authorized Officer" means any one of the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, or the
Managing Director Corporate Finance and Assistant Treasurer of the Borrower or
any other officer or employee of the Borrower designated in writing as an
"Authorized Officer" under this Agreement by any one of the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, or the Managing Director Corporate Finance and Assistant Treasurer
of the Borrower.
"Beneficial Owner" means a Person deemed the "Beneficial Owner" of any
securities as to which such Person or any of such Person's Affiliates is or may
be deemed to be the beneficial owner pursuant to Rule 13d-3 or 13d-5 under the
Securities Exchange Act of 1934 (as the same may from time to time be amended,
modified or readopted), as well as any securities as to which such Person or
any of such Person's Affiliates has the right to become such a beneficial owner
(whether such right is exercisable immediately or only after the passage of
time or the occurrence of a specified event) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion rights,
exchange rights,
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rights, warrants or options, or otherwise. In determining the percentage of
the outstanding Voting Stock with respect to which a Person is the Beneficial
Owner, all shares as to which such Person is deemed the Beneficial Owner shall
be deemed outstanding.
"Borrower" means Federal Express Corporation, a Delaware corporation,
and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday)
on which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"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 GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
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 GAAP.
"Capitalized Operating Lease Value" means the present value, using a
discount rate equal to 12.5%, of the Borrower's future minimum lease payments
for aircraft leases scheduled to terminate more than 365 days after their
respective dates of execution.
"CD Interest Period" means, with respect to a Fixed CD Rate Advance, a
period of 30, 60, 90 or 180 days commencing on a Business Day selected by the
Borrower pursuant to this Agreement. If such CD Interest Period would end on a
day which is not a Business Day, such CD Interest Period shall end on the next
succeeding Business Day.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender 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 hereof.
"Consolidated Adjusted Net Worth" means, at any date as of which the
amount thereof is to be determined, (a) the sum of the amounts set forth as
preferred stock, common stock,
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capital in excess of par value or paid-in surplus and retained earnings on a
consolidated balance sheet of the Borrower and the Consolidated Subsidiaries
prepared as of such date in accordance with GAAP, minus (b) the sum of the
amounts set forth on such consolidated balance sheet as (i) the cost of any
shares of the Borrower's common stock held in the treasury and (ii) any surplus
resulting from any write-up of assets after the date of this Agreement and
(iii) the aggregate value of all goodwill, all determined in accordance with
GAAP.
"Consolidated Adjusted Total Assets" means, at any date as of which
the amount thereof is to be determined, (a) the aggregate amount set forth as
the assets of the Borrower and the Consolidated Subsidiaries on a consolidated
balance sheet of the Borrower and the Consolidated Subsidiaries prepared as of
such date in accordance with GAAP, minus (b) the aggregate book value as of
such date of determination of all assets of the Borrower or a Consolidated
Subsidiary subject on such date of determination to a Lien permitted by Section
6.19(j).
"Consolidated Cash Flow" means, on a consolidated basis for the
Borrower and its Consolidated Subsidiaries for the twelve most recent complete
fiscal months, the sum of (i) income (loss) before income taxes, plus (ii)
Interest Expense, plus (iii) Rent Expense, in each case as determined in
accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Borrower and the Consolidated Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP and after giving
appropriate effect to any outside minority interests in the Consolidated
Subsidiaries, excluding
(a) any aggregate net gain arising from the sale or other
disposition of any assets other than any such gain arising from the
sale or other disposition of assets (including aircraft) in the
ordinary course of business,
(b) any gain arising from any write-ups of assets,
(c) any unrealized capital gain or loss on any investment,
(d) any portion of the earnings of any Consolidated
Subsidiary which for any reason is unavailable for payment of
dividends to the Borrower or another Consolidated Subsidiary,
(e) any amount representing the interest of the Borrower
and the Consolidated Subsidiaries in the undistributed earnings of any
other Person (other than a Consolidated Subsidiary), and
(f) the net income (or net loss) of any Person prior to
the date it became a Consolidated Subsidiary.
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"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements in accordance with GAAP if such
statements were prepared as of such date.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, 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, or otherwise assures any creditor of such other
Person against loss, including, without limitation, any comfort letter,
operating agreement, take-or-pay contract or application for a Letter of
Credit.
"Continuing Director" means an individual who is a member of the Board
of Directors of the Borrower on the date of this Agreement or who shall have
become a member of the Board of Directors of the Borrower subsequent to such
date and who shall have been nominated or elected by a majority of the other
Continuing Directors then members of the Board of Directors of the Borrower.
"Conversion/Continuation Notice" is defined in Section 2.9.
"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 Borrower or any of its Subsidiaries,
are treated as a single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Current Market Price" means, with respect to any security on any
date, the last sale price or, in case no such sale takes place on such date,
the average of the closing bid and asked prices for such security, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock
Exchange, Inc. or, if such security is not then listed or admitted to trading
on the New York Stock Exchange, Inc., as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such security is listed or admitted to
trading or, if such security is not then listed or admitted to trading on any
national securities exchange, on the NASDAQ National Market System or, if such
security is not then quoted on such National Market System, the average of the
closing bid and asked prices for such security in the over-the-counter market,
as reported by NASDAQ or such other system then in use, or, if on any such date
such security is not then quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market-maker then
making a market in such security selected by the Board of Directors of the
Borrower or a duly authorized committee thereof; provided,
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however, that if on any such date such security is not listed or admitted to
trading on a national securities exchange or traded in the over-the-counter
market, the "Current Market Price" of such security on such date shall mean the
fair value thereof on such date as determined in good faith by the Board of
Directors of the Borrower or a duly authorized committee thereof.
"Current Maturities" means, as of any date with respect to the Long
Term Debt or the Capitalized Lease Obligations of any Person, any portion of
such Long Term Debt or Capitalized Lease Obligations, as the case may be, which
would in accordance with GAAP be classified as a current liability of such
Person.
"Dealer" means a Lender, First Tennessee Bank, N.A., Union Planters
National Bank of Memphis or any other national or state bank or trust company
or dealer or broker of government securities having either (A) capital, surplus
and undivided profits or (B) total equity of at least $250,000,000, or any
affiliate thereof authorized to deal in the commercial products described in
clauses (i), (ii), and (iii) of Section 6.17(e).
"Default" means an event described in Article VII.
"Effective Date" means the Business Day on or before June 1, 1995 on
which (a) the Borrower, the Agent and the Lenders have executed this Agreement,
(b) the Borrower has satisfied all of the terms and conditions of Section 4.1,
and (c) the Borrower has paid all fees then due to the Agent and the Lenders in
connection with this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the rate determined by the Agent to be
the arithmetic average of the rates reported to the Agent by each Reference
Lender as the rate at which deposits in U.S. dollars are offered by such
Reference Lender 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 such Reference
Lender's relevant Eurodollar Loan and having a maturity approximately equal to
such Eurodollar Interest Period. If any Reference Lender fails to provide such
quotation to the Agent, then the Agent shall determine the Eurodollar Base Rate
on the basis of the quotations of the remaining Reference Lender(s).
"Eurodollar Interest Period" means, with respect to a Eurodollar
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,
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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 calendar month, such Eurodollar Interest Period
shall end on the immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (i) an amount equal to (a) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a decimal), if any,
applicable to such Eurodollar Interest Period, and (ii) the Applicable Margin.
The Eurodollar Rate shall be rounded to the next higher multiple of 1/16 of 1%
if the rate is not such a multiple.
"FAA" means the Federal Aviation Administration or any other
governmental agency succeeding to the jurisdiction thereof.
"Facility Termination Date" means May 31, 2000 or any earlier date on
which the Commitments are cancelled by the Borrower or otherwise terminated
pursuant to this Agreement.
"Fair Market Value" means (i) as to securities which are publicly
traded, the average of the Current Market Prices of such securities for each
day during the period of 10 consecutive trading days immediately preceding the
date of determination and (ii) as to securities which are not publicly traded
or any other property, the fair value thereof as determined in good faith by
the Board of Directors of the Borrower or a duly authorized committee thereof.
"Federal Aviation Act" means the Federal Aviation Act of 1958, as
amended from time to time.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, 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.
(Chicago time) on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent in its
sole discretion.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
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"Fixed CD Base Rate" means, with respect to a Fixed CD Rate Advance
for the relevant CD Interest Period, the rate determined by the Agent to be the
arithmetic average of the rate reported to the Agent by each Reference Lender
as the prevailing bid rate for the purchase at face value at or before 10 a.m.
(Chicago time) on the first day of such CD Interest Period by three New York or
Chicago certificate of deposit dealers of recognized standing selected by such
Reference Lender of certificates of deposit of such Reference Lender in the
approximate amount of such Reference Lender's relevant Fixed CD Rate Loan and
having a maturity approximately equal to such CD Interest Period, provided that
if such quotations from such dealers are not available to such Reference
Lender, such Reference Lender shall notify the Agent of a reasonably equivalent
rate determined by it on the basis of a reliable alternative source for
certificate of deposit rates reflecting comparable and current interest rates
for such CD Interest Period selected by it in accordance with its usual
business practices. If any Reference Lender fails to provide such quotation to
the Agent, then the Agent shall determine the Fixed CD Base Rate on the basis
of the quotations of the remaining Reference Lender(s).
"Fixed CD Rate" means, with respect to a Fixed CD Rate Advance for the
relevant CD Interest Period, a rate per annum equal to the sum of (i) an amount
equal to (a) the Fixed CD Base Rate applicable to such CD Interest Period,
divided by (b) one minus the Reserve Requirement (expressed as a decimal), if
any, applicable to such CD Interest Period, and (ii) the Assessment Rate
applicable to such CD Interest Period, plus (iii) the Applicable Margin. The
Fixed CD Rate shall be rounded to the next higher multiple of 1/100 of 1% if
the rate is not such a multiple.
"Fixed CD Rate Advance" means an Advance which bears interest at a
Fixed CD Rate.
"Fixed CD Rate Loan" means a Loan which bears interest at a Fixed CD
Rate.
"Fixed Rate" means the Fixed CD Rate or the Eurodollar 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.
"Flight Equipment" means, collectively, aircraft, aircraft engines,
appliances and spare parts, all as defined in the Federal Aviation Act, and
related parts.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
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"Funded Debt" means any Indebtedness (other than items characterized
as Indebtedness pursuant to clause (vii) of the definition thereof) of the
Borrower or any Consolidated Subsidiary that is outstanding on the date of
determination.
"GAAP" means generally accepted principles of accounting as in effect
at the time of application to the provisions hereof provided that any
modification in generally accepted accounting principles which is made within
twelve months prior to any such application and which would result in a Default
or Unmatured Default shall be disregarded.
"Indebtedness" of a Person means without duplication, 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, (vii)
Contingent Obligations, and (viii) obligations created through asset
securitization financing programs.
"Interest Expense" means, for any period, the gross interest expense
(without regard to any offsetting interest income or reduction for capitalized
interest) of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Interest Period" means a CD Interest Period or a Eurodollar Interest
Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account (other than a demand deposit account maintained in the
ordinary course of business) or contribution of capital by such Person to any
other Person or any investment in, or purchase or other acquisition of, the
stock, partnership interests, notes, debentures or other securities of any
other Person made by such Person.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Level" means any of Level I, Level II, Level III, Level IV, or Level
V.
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"Level I" means, with respect to the Borrower's senior unsecured
long-term public debt and subject to Section 2.4, a rating equal to or better
than A- from S&P or A3 from Moody's.
"Level II" means, with respect to the Borrower's senior unsecured
long-term public debt and subject to Section 2.4, a rating equal to or better
than BBB+ from S&P or Baa1 from Moody's but less than a rating that would place
the Borrower at Level I.
"Level III" means, with respect to the Borrower's senior unsecured
long-term public debt and subject to Section 2.4, a rating equal to or better
than BBB from S&P or Baa2 from Moody's but less than a rating that would place
the Borrower at Level I or Level II.
"Level IV" means, with respect to the Borrower's senior unsecured
long-term public debt and subject to Section 2.4, a rating equal to or better
than BBB- from S&P or Baa3 from Moody's but less than a rating that would place
the Borrower at Level I, Level II or Level III.
"Level V" means, with respect to the Borrower's senior unsecured
long-term public debt and subject to Section 2.4, ratings lower than BBB- from
S&P and Baa3 from Moody's.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement and the Notes.
"Long Term Debt" means, as of any date with respect to any Person, all
liabilities of such Person outstanding on such date which would in accordance
with GAAP be classified as long term debt of such Person.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Moody's" means Moody's Investors Service, Inc. or, if Moody's shall
cease rating Indebtedness of the Borrower and its ratings business with respect
to Indebtedness of the Borrower shall have been transferred to a successor
Person, such successor Person; provided, however, that if Moody's ceases rating
securities similar to Indebtedness of the Borrower and its ratings business
with respect to Indebtedness of the Borrower shall not have been transferred to
any successor Person, then "Moody's" shall mean any other nationally
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recognized rating agency (other than S&P) selected by the Borrower that rates
any Indebtedness of the Borrower.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Note" means a promissory note, in substantially the form of Exhibit
"A" hereto, duly executed by the Borrower and payable to the order of a Lender
in the amount of its Commitment, including any amendment, modification, renewal
or replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.3.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each February, May, August, and
November after the date of this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"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 Borrower or any member of the Controlled Group may
have any liability.
"Prior Agreement" is defined in the recitals to this Agreement.
"Prior Credit Facility" is defined in the recitals to this Agreement.
"Prior Lenders" is defined in the recitals to this Agreement.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned
or leased by such Person.
"Purchaser" is defined in Section 12.3.1.
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"Reference Lenders" means First Chicago, The Chase Manhattan Bank,
N.A., and National Westminster Bank PLC.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and 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 stocks applicable to member banks of the Federal Reserve System.
"Rent Expense" means, for any period, the rental expense of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis
in accordance with GAAP excluding rental expense with respect to leases of
aircraft scheduled to terminate no more than 365 days after their respective
dates of execution.
"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, however, 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 waiver of
the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a CD Interest Period or a
Eurodollar Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on new non-personal time deposits of $100,000 or
more with a maturity equal to that of such CD Interest Period (in the case of
Fixed CD Rate Advances) or on Eurocurrency liabilities (in the case of
Eurodollar Advances).
"Restricted Investment" means any Investment other than an Investment
permitted by Sections 6.17(a) through (j).
"Restructuring Event" means any of the following: (1) any Person
becoming the Beneficial Owner of Voting Stock of the Borrower having more than
30 percent of the voting
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power of all of the then outstanding Voting Stock of the Borrower; (2)
individuals who are not Continuing Directors constituting a majority of the
Board of Directors of the Borrower; (3) the Borrower consolidating with or
merging into any other Person, or any other Person consolidating with or
merging into the Borrower, pursuant to a transaction in which capital stock of
the Borrower then outstanding (other than capital stock held by the Borrower or
capital stock held by any Person which is a party to such consolidation or
merger) is changed or exchanged unless the Borrower is the surviving entity and
no Default or Unmatured Default shall occur upon giving effect to such
consolidation or merger; (4) the Borrower, in one transaction or a series of
related transactions, conveying, transferring or leasing, directly or
indirectly, all or substantially all of the assets of the Borrower and its
Subsidiaries taken as a whole (other than to a Wholly-Owned Subsidiary of the
Borrower); or (5) the Borrower or any of its Subsidiaries paying or effecting a
dividend or distribution (including by way of recapitalization or
reclassification) in respect of its capital stock (other than solely to the
Borrower or any of its Wholly-Owned Subsidiaries and other than solely for
capital stock of the Borrower), or purchasing, redeeming, retiring, exchanging
or otherwise acquiring for value any of its capital stock (other than solely
from the Borrower or any of its Wholly-Owned Subsidiaries and other than solely
for capital stock of the Borrower), if the cash and Fair Market Value of the
securities and assets paid or distributed in connection therewith (determined
on the record date for such dividend or distribution or the effective date for
such purchase, redemption, retirement, exchange or other acquisition), together
with the cash and Fair Market Value of the securities and assets paid or
distributed in connection with all other such dividends, distributions,
purchases, redemptions, retirements, exchanges and acquisitions effected within
the 12-month period preceding the record date for such dividend or distribution
or the effective date for such purchase, redemption, retirement, exchange or
other acquisition (determined on the respective record or effective dates for
such other dividends, distributions, purchases, redemptions, retirements,
exchanges and acquisitions), exceeds 30 percent of the aggregate Fair Market
Value of all capital stock of the Borrower outstanding on the record date for
such dividend or distribution or the effective date for such purchase,
redemption, retirement, exchange or other acquisition (determined on such
record or effective date).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or, if S&P shall cease rating Indebtedness of the Borrower
and its ratings business with respect to Indebtedness of the Borrower shall
have been transferred to a successor Person, such successor Person; provided,
however, that if S&P ceases rating securities similar to Indebtedness of the
Borrower and its ratings business with respect to Indebtedness of the Borrower
shall not have been transferred to any successor Person, then "S&P" shall mean
any other nationally recognized rating agency (other than Moody's) selected by
the Borrower that rates any Indebtedness of the Borrower.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Significant Subsidiary" means, during each fiscal year of the
Borrower, any Subsidiary of the Borrower which had revenues (determined in
accordance with GAAP) for the immediately preceding fiscal year of the Borrower
in excess of 1.0% of the consolidated
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revenues (determined in accordance with GAAP) of the Borrower and the
Consolidated Subsidiaries for such immediately preceding fiscal year.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding Voting Stock of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, or (ii) any partnership,
association, joint venture or similar business organization more than 50% of
the ownership interests having power to direct the ordinary affairs thereof of
which shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of
the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries
as at the beginning of the twelve-month period ending with the month in which
such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements referred to in clause
(i) above.
"Tiger International" means Tiger International, Inc. a Delaware
corporation.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance, Eurodollar Advance or Fixed CD Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Voting Stock" means all outstanding shares of capital stock of the
Borrower entitled to vote generally in the election of directors.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership,
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association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Withdrawing Lenders" is defined in the recitals to this Agreement.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement
and prior to the Facility Termination Date, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not to exceed in the aggregate at any one
time outstanding the amount of its Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any time prior to the
Facility Termination Date. The Commitments to lend hereunder shall expire on
the Facility Termination Date.
2.2. Mandatory Payments; Termination. (a) The Borrower will
promptly give notice to the Agent and the Lenders of the occurrence of a
Restructuring Event. If, within 30 days after the later of the occurrence of a
Restructuring Event or the date on which the Agent and the Lenders have
received notice from the Borrower that a Restructuring Event has occurred, the
Agent on behalf of the Required Lenders notifies the Borrower in writing that
the Required Lenders desire the prepayment and cancellation of this Agreement
(such notice hereinafter a "Cancellation Notice"), then (i) the Borrower shall
within 30 days after its receipt of such Cancellation Notice prepay in full the
entire principal amount, if any, outstanding on the Notes and all of the other
Obligations, and (ii) on the earlier of (1) the date that the Borrower prepays
the Notes and all of the other Obligations pursuant to clause (i) of this
sentence, or (2) the 30th day after the Borrower receives such Cancellation
Notice, the outstanding balance of the Notes and all other Obligations shall
mature and be due and payable in full and the Aggregate Commitment and the
Commitment of each Lender shall be automatically and permanently terminated and
reduced to zero. As of the date of such Cancellation Notice, the Borrower
shall no longer be permitted to borrow additional Advances under this
Agreement.
(b) Any outstanding Advances and all other unpaid Obligations
shall mature and be paid in full by the Borrower on the Facility Termination
Date.
2.3. Ratable Loans; Types of Advances. Each Advance hereunder
shall consist of Loans made from the several Lenders ratably in proportion to
the ratio that their respective Commitments bear to the Aggregate Commitment.
The Advances may be Floating Rate Advances, Fixed CD Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9. Not more than fifteen Fixed Rate
Advances may be outstanding at any one time.
2.4. Determination of Levels. The applicable Level of the
Borrower's senior unsecured long-term public debt rating will be determined as
set forth in the respective definition of each Level unless there is a split of
ratings between the rating given by S&P and the rating given by Moody's. In
the event of a split in the Borrower's ratings, the higher of the Borrower's
ratings will determine the applicable Level except as provided in the following
sentence. In the event of a split of two or more ratings, the applicable Level
will be
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determined as set forth in the respective definition of each Level except that
for purposes of applying such definitions the higher of the two ratings will be
deemed to be reduced to the rating that is one rating below the actual rating.
2.5. Facility Fee; Agent's Fee; Reductions in Aggregate
Commitment. The Borrower agrees to pay to the Agent for the account of each
Lender a facility fee on the daily amount of such Lender's Commitment from the
Effective Date to and including the Facility Termination Date in the amount of
.10% per annum at all times that the Borrower's debt ratings are at Level I,
.11% per annum at all times that the Borrower's debt ratings are at Level II,
.125% per annum at all times that the Borrower's debt ratings are at Level III,
.175% per annum at all times that the Borrower's debt ratings are at Level IV,
and .20% per annum at all times that the Borrower's debt ratings are at Level
V. Each change in the rate of the facility fee resulting from a change in the
rating of the Borrower's senior unsecured long-term debt by either rating
agency shall take effect at the time such change in such rating is publicly
announced by the relevant rating agency. Such facility fee shall be payable on
each Payment Date hereafter and on the Facility Termination Date. The Borrower
shall pay to the Agent as compensation for its services hereunder the fees
specified in the letter agreement of April 5, 1995, between the Agent and the
Borrower as it may be amended or supplemented from time to time. The Borrower
may permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in the minimum amount of $20,000,000 and in integral
multiples of $10,000,000 in excess thereof, upon at least ten Business Days'
written notice to the Agent, which notice shall specify the amount of any such
reduction, provided, however, that the amount of the Aggregate Commitment may
not be reduced below the aggregate principal amount of the outstanding
Advances. All accrued facility fees shall be payable on the effective date of
any termination of the obligations of the Lenders to make Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Advance shall be in the
minimum amount of $5,000,000 (and in integral multiples of $1,000,000 if in
excess thereof), provided, however, that any Floating Rate Advance may be in
the amount of the unused Aggregate Commitment.
2.7. Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple
thereof, any portion of the outstanding Floating Rate Advances upon one
Business Day's prior notice to the Agent. A Fixed Rate Advance may not be paid
prior to the last day of the applicable Interest Period except pursuant to an
acceleration or a mandatory prepayment in accordance with this Agreement.
2.8. Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the case of
each Fixed Rate Advance, the Interest Period applicable to each Advance from
time to time. The Borrower shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing
Date of each Floating Rate Advance, at least one Business Day before the
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Borrowing Date of each Fixed CD Rate Advance and at least three Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII. Upon satisfaction
or waiver in accordance with the terms of this Agreement of the applicable
conditions precedent set forth in Article IV, the Agent will make the funds so
received from the Lenders available to the Borrower at the Agent's aforesaid
address.
2.9. Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and
until such Floating Rate Advances are converted into Fixed Rate Advances. Each
Fixed Rate Advance of any Type shall continue as a Fixed Rate Advance of such
Type until the end of the then applicable Interest Period therefor, at which
time such Fixed Rate Advance shall be automatically converted into a Floating
Rate Advance unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Fixed Rate Advance shall either continue as a Fixed Rate Advance
of such Type for the same or another Interest Period or be converted into an
Advance of another Type. Subject to the terms of Section 2.6, the Borrower may
elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Fixed Rate Advance shall be made on, and only on, the last day of the Interest
Period applicable thereto. The Borrower shall give the Agent irrevocable
notice (a "Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Fixed Rate Advance not later than 10:00 a.m. (Chicago time)
on the date of the requested conversion, in the case of a conversion of any
Advance into a Floating Rate Advance, at least one Business Day, in the case of
a conversion into or continuation of a Fixed CD Rate Advance, or at least three
Business Days, in the case of a conversion into or continuation of a Eurodollar
Advance, prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
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(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a Fixed Rate Advance, the
duration of the Interest Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a Fixed
Rate Advance into a Floating Rate Advance pursuant to Section 2.9 to but
excluding the date it becomes due or is converted into a Fixed Rate Advance
pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating Rate
for such day. 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. Each Fixed Rate Advance shall bear interest
from and including the first day of the Interest Period applicable thereto to
(but not including) the last day of such Interest Period at the interest rate
determined as applicable to such Fixed Rate Advance. No Interest Period may
end after the Facility Termination Date.
2.11. Rates Applicable After Maturity of Advances. Notwithstanding
anything to the contrary contained in Section 2.8 or 2.9, no Advance may be
made as, converted into or continued as a Fixed Rate Advance (except with the
consent of the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing. If any Advance is not paid at maturity, whether by
acceleration or otherwise, (i) each Fixed Rate Advance shall bear interest for
the remainder of the applicable Interest Period at the rate otherwise
applicable to such Fixed Rate Advance for such Interest Period plus 1% per
annum and at the end of each Interest Period shall automatically convert to a
Floating Rate Advance bearing interest in accordance with clause (ii) of this
Section, and (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate otherwise applicable to the Floating Rate
Advance plus 1% per annum.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (local time) on the date when
due. Each such payment shall be applied to any Advances and other amounts then
due in accordance with the written instructions from the Borrower to the Agent
accompanying such payment and shall be applied ratably by the Agent among the
Lenders. Each payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender in the same type of
funds that the Agent received at such Lender's address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized to charge the
account of the Borrower maintained with First Chicago for each payment of
principal, interest and fees as it becomes due hereunder.
2.13. Notes; Telephonic Notices. Each Lender is hereby authorized
to record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note or otherwise in accordance with its usual
business practices, provided, however, that the
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failure to so record shall not affect the Borrower's obligations under such
Note. The Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or persons the
Agent or any Lender in good faith believes to be an Authorized Officer acting
on behalf of the Borrower. The Borrower agrees to deliver promptly to the
Agent a written confirmation of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.14. Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted into a
Fixed Rate Advance on a day other than a Payment Date shall be payable on the
date of conversion. Interest accrued on each Fixed Rate Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the Fixed Rate Advance is prepaid, whether by acceleration or otherwise, and at
maturity. 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 Fixed Rate
Advances shall be calculated for actual days elapsed on the basis of a 360-day
year. All other interest and fees shall be calculated for actual days elapsed
on the basis of a 365- or 366-day year, as appropriate. 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 noon (local time) at the place
of payment. If any payment of principal of 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.
2.15. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate. Each Reference Lender agrees to furnish timely
information for the purpose of determining the Eurodollar Rate or the Fixed CD
Rate, as applicable.
2.16. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written notice
to the Agent and the Borrower, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments are to be made.
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2.17. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, 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 Lender, 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 Lenders, 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 Lender 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 (i) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day or (ii) in the case of
payment by the Borrower, the interest rate applicable to the relevant Loan.
2.18. Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such
form (or a successor form) on or before the date that such form expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, in each case certifying that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
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ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If 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, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from the Borrower (excluding federal taxation of the overall
net income of any Lender or applicable Lending Installation),
or changes the basis of taxation of payments to any Lender in
respect of its Loans or other amounts due it hereunder, or
(ii) 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 Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with loans, or requires
any Lender 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 Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Loans and its Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then, within 15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans or its obligation to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which
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affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or
not having the force of law, or if the Required Lenders determine that (i)
deposits of a type and maturity appropriate to match fund Fixed Rate Advances
are not available or (ii) the interest rate applicable to a Type of Advance
does not accurately reflect the cost of making or maintaining such Advance,
then the Agent shall suspend the availability of the affected Type of Advance
and require any Fixed Rate Advances of the affected Type to be converted to an
unaffected type. Subject to the provisions of Article II hereof, the Borrower
may select any unaffected Type for purposes of such conversion. If the
Borrower fails to select a new Type of Advance, the affected Advances shall be
converted to Floating Rate Advances.
3.4. Funding Indemnification. If any payment or conversion 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 or otherwise, or a
Fixed Rate Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower will indemnify each
Lender 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. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability of
the Borrower to such Lender under Sections 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under Section 3.3, so long as such
designation is not disadvantageous to such Lender as determined by such Lender
in its sole discretion. Each Lender shall deliver a written statement of such
Lender as to the amount due, if any, under Section 3.1, 3.2 or 3.4. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower 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 Lender 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
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by the Borrower of the written statement. The obligations of the Borrower
under Sections 3.1, 3.2 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Closing. The Lenders shall not be required to make the
initial Advance hereunder unless on or before the Effective Date the Borrower
has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of the Borrower,
together with all amendments, and a certificate of good
standing, both certified on or within 15 days prior to the
Effective Date by the appropriate governmental officer in its
jurisdiction of incorporation.
(ii) Copies, certified as of the Effective Date by the Secretary
or Assistant Secretary of the Borrower, of its by-laws and of
its Board of Directors' resolutions (and resolutions of other
bodies, if any are reasonably deemed necessary by counsel for
any Lender) authorizing the execution, delivery, and
performance of the Loan Documents.
(iii) An incumbency certificate, executed as of the Effective Date
by the Secretary or Assistant Secretary of the Borrower,
which shall identify by name and title and bear the signature
of the officers of the Borrower authorized to sign the Loan
Documents and to make borrowings hereunder, upon which
certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower.
(iv) A certificate, dated the Effective Date, signed by the Chief
Financial Officer or Treasurer of the Borrower, stating that
on such date no Default or Unmatured Default has occurred and
is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit "B" hereto.
(vi) Notes payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in substantially the
form of Exhibit "D" hereto, addressed to the Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have
reasonably requested.
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(viii) A written representation and warranty by the Borrower that,
as of the Effective Date, since February 28, 1995, there has
been no change in the business, Property, prospects,
condition (financial or otherwise) or results of operations
of the Borrower and its Subsidiaries taken as a whole which
could reasonably be expected to have a Material Adverse
Effect.
(ix) Payment of all fees due and owing to the Agent, the Prior
Lenders, and the Lenders as at the Effective Date, including,
without limitation, all accrued and unpaid facility fees
under the Prior Agreement.
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Advance. The Lenders shall not be required to make any
Advance, unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default and no Default
or Unmatured Default shall occur upon giving effect to the
application of the proceeds of such Advance.
(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.
(iii) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and
its Significant Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted and where the failure to have
such requisite authority would have a material adverse effect on the business
of the Borrower and the Significant Subsidiaries taken as a whole.
5.2. Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents
and to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to
the availability of equitable remedies if equitable remedies are sought.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower 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 Borrower or any of its Significant Subsidiaries
or the Borrower's or any Significant Subsidiary's articles of incorporation or
by-laws or the provisions of any material indenture, instrument or agreement to
which the Borrower or any of its Significant Subsidiaries 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 Significant 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, 1994 audited consolidated
financial statements and February 28, 1995 unaudited consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with GAAP in effect on the dates such
statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Consolidated Subsidiaries at
such
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dates and the consolidated results of their operations for the periods then
ended (except, in the case of such unaudited statements, for normal year-end
adjustments).
5.5. Taxes. The Borrower and its Significant Subsidiaries have
filed all United States federal tax returns and all other material 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 Borrower or any of its
Significant Subsidiaries, except such taxes, if any, as are being contested in
good faith and as to which adequate reserves determined in accordance with GAAP
have been provided. The charges, accruals and reserves on the books of the
Borrower and its Significant Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.6. Litigation and Contingent Obligations. Except for such
matters as are referenced in the form of opinion of counsel attached hereto as
Exhibit "B", 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 Borrower or any of its Significant
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. Other than any liability incident to such litigation, arbitration or
proceedings, the Borrower has no material contingent obligations not provided
for or disclosed in the financial statements referred to in Section 5.4.
5.7. Subsidiaries. Schedule "1" hereto contains an accurate list
of all of the presently existing Significant Subsidiaries of the Borrower,
setting forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or other
Subsidiaries. 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.
5.8. ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $80,000,000. 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 Borrower nor any other
member of the Controlled Group has withdrawn from any Plan or initiated steps
to do so, and no steps have been taken to reorganize or terminate any Plan.
5.9. Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender 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,
in light of the circumstances under which they were made, not misleading.
5.10. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
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5.11. Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any agreement (including, without limitation, this Agreement) or
instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement
to which it is a party, which default could reasonably be expected to have a
Material Adverse Effect.
5.12. Compliance With Laws. The Borrower and its Subsidiaries have
complied in all material respects 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 Property.
Neither the Borrower nor any Subsidiary has received any notice to the effect,
nor does any Authorized Officer have any actual knowledge, that its operations
are not in material compliance with any of the requirements of applicable
federal, state and local environmental, health and safety statutes and
regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could reasonably be expected to have a Material Adverse Effect.
5.13. Existing Liens. None of the assets of the Borrower or any of
its Subsidiaries is subject to any Lien other than those permitted by Section
6.19.
5.14. Investment Company Act. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.15. Citizenship. The Borrower is a citizen of the United States,
as defined in 49 U.S.C. Section 40102(a)(15). The Borrower is not a national
of any foreign country designated in Presidential Executive Order No. 8389 or
9193, as amended, and the regulations issued thereunder, as amended, or a
national of any foreign country designated in the Foreign Assets Control
Regulations or in the Cuban Assets Control Regulations of the United States
Treasury Department, 31 C.F.R., Chapter V, as amended.
5.16. Status as Air Carrier. The Borrower is authorized to engage
in all cargo domestic and international air service under certificates issued
pursuant to 49 U.S.C. Section 41103 and 49 U.S.C. Section 41102(a),
respectively, and the Borrower is the holder of a valid and effective operating
certificate issued by the FAA pursuant to Part 121 of the Federal Aviation
Regulations. Such certificates are in full force and effect and are adequate
for the conduct of the business of the Borrower as now conducted. There are no
actions, proceedings or investigations pending or, to the knowledge of any of
its officers, threatened (or any basis therefor known to the Borrower) to
amend, modify, suspend or revoke any such certificate in whole or in part,
which would have any material adverse effect on any such certificate or any of
the operations of the Borrower.
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5.17. Pari Passu. All the payment obligations of the Borrower
arising under or pursuant to the Loan Documents will at all times rank pari
passu with all other unsecured and unsubordinated payment obligations and
liabilities (including contingent obligations and liabilities) of the Borrower
(other than those which are mandatorily preferred by laws or regulations of
general application).
ARTICLE VI
COVENANTS
During the term of this Agreement and so long as any Obligations are
outstanding or any Commitment is in effect hereunder, unless the Required
Lenders shall otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years,
an unqualified audit report certified by independent
certified public accountants of recognized national standing,
acceptable to the Lenders, prepared in accordance with GAAP
on a consolidated basis for itself and the Consolidated
Subsidiaries, including a balance sheet as of the end of such
period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, accompanied by (a)
any management letter prepared by said accountants, and (b) a
certificate of said accountants that, in the course of their
examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such accountants,
any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(ii) Within 45 calendar days after the end of each of the first
three quarters of each fiscal year of the Borrower, for
itself and the Consolidated Subsidiaries, an unaudited
consolidated balance sheet as at the close of such period and
consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter,
all certified as complete and accurate and prepared in
accordance with GAAP by its Chief Financial Officer,
Treasurer or Controller.
(iii) Together with the financial statements required hereunder, a
certificate signed by its Chief Financial Officer or
Treasurer stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists,
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stating the nature and status thereof, and stating the steps
the Borrower is taking to cure such Default or Unmatured
Default.
(iv) As soon as available, and in any event within 45 calendar
days after the end of each of the first three quarters of
each fiscal year of the Borrower and within 90 calendar days
after the end of the fourth quarter of each fiscal year of
the Borrower, a schedule in substantially the form of
Schedule "2" hereto, certified as being accurate by the
Borrower's Chief Financial Officer, Treasurer or Controller,
showing, as of the end of such quarter, the Borrower's
calculation, in form and detail satisfactory to the Agent, of
the calculations required to be made to determine compliance
with each of Section 6.12, Section 6.13, and Section 6.14.
(v) Promptly upon becoming available, copies of:
(a) All financial statements, reports, notices and proxy
statements sent by the Borrower or any Significant
Subsidiary to its stockholders.
(b) All prospectuses (other than on Form S-8 or a similar
form) of the Borrower or any Consolidated Subsidiary
filed with the Securities and Exchange Commission or
any other governmental agency succeeding to the
jurisdiction thereof.
(c) All regular and periodic reports filed by the
Borrower or any Consolidated Subsidiary with any
securities exchange or with the Securities and
Exchange Commission or any other governmental agency
succeeding to the jurisdiction thereof.
(vi) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances as liquidity support for the
issuance of commercial paper by the Borrower, for Acquisitions not prohibited
under the following sentence, for general corporate purposes and working
capital of the Borrower, and to repay outstanding Advances. The Borrower will
not, nor will it permit any Subsidiary to, use any of the proceeds of the
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Advances to purchase or carry any "margin stock" (as defined in Regulation U)
or to make any Acquisition which has not been approved or consented to by the
board of directors or equivalent governing body of the Person whose assets or
equity interests are to be acquired.
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence
of any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse
Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Significant Subsidiary to, carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and to do all things necessary to remain duly incorporated,
validly existing and in good standing 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 and where
the failure to have such requisite authority could reasonably be expected to
have a Material Adverse Effect.
6.5. Citizenship and Regulatory Certificates. The Borrower will
continue to be (a) a citizen of the United States, as defined in 49 U.S.C.
Section 40102(a)(15), (b) authorized to engage in all cargo domestic and
international air service under certificates issued pursuant to 49 U.S.C.
Section 41103 and 49 U.S.C. Section 41102(a), respectively, (c) the holder of
all other certificates, rights, permits, franchises and concessions from
appropriate governments or governmental authorities necessary or appropriate to
enable the Borrower to conduct its business in all material respects as
presently being conducted, and (d) the holder of a valid and effective
operating certificate issued by the FAA pursuant to Part 121 of the Federal
Aviation Regulations. The Borrower will, and will cause each of its
Subsidiaries to, use its best efforts to maintain, preserve and keep in full
force and effect its certificates, rights, permits, franchises and concessions
from appropriate governments or governmental authorities and use its best
efforts from time to time to obtain appropriate renewals or replacements,
provided, that nothing in this Section 6.5 shall prevent the Borrower or any of
its Subsidiaries from abandoning, or permitting the amendment, expiration or
termination of, any such certificate, right, permit, franchise or concession
if, in the opinion of the Borrower, such abandonment, amendment, expiration or
termination is in the interest of the Borrower and not prejudicial in any
material respect to the Lenders.
6.6. Payment of Taxes. The Borrower will, and will cause each
Significant Subsidiary to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any property belonging to it, and all lawful claims which, if unpaid,
would become a Lien, except where failure to do any of the foregoing would not
have a material adverse effect on the business of the Borrower and the
Significant Subsidiaries taken as a whole and provided that neither the
Borrower nor a Significant Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim the payment of which is being contested in
good faith and by appropriate proceedings; and make monthly accruals of all of
the estimated liability of the Borrower and the Significant Subsidiaries for
such taxes, assessments, charges and levies, determined in accordance with
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GAAP, and establish adequate reserves determined in accordance with GAAP, for
such thereof as may be contested, and reflect such accruals and reserves in all
financial statements furnished hereunder.
6.7. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
on all its respective Property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will furnish to any
Lender upon request full information as to the insurance carried.
6.8. Compliance with Laws. The Borrower will, and will cause each
Significant Subsidiary to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject,
except where failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.9. Maintenance of Properties. The Borrower will, and will cause
each Significant Subsidiary to, do all things necessary to maintain, preserve,
protect and keep its Property 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, except where failure to do any of the foregoing could not reasonably be
expected to have a Material Adverse Effect.
6.10. Inspection. The Borrower will, and will cause each
Subsidiary to, permit the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records
of the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and
to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as the Lenders may designate upon
reasonable notice to the Borrower.
6.11. Dividend Declarations and Restricted Investments. The
Borrower will not, nor will it permit any Consolidated Subsidiary to, declare
any dividend on any of its shares payable more than 60 calendar days after the
declaration date, or make any Restricted Investment except Restricted
Investments made by the Borrower or a Consolidated Subsidiary provided that,
after giving effect to any such Restricted Investment, (i) the aggregate amount
of all such Restricted Investments existing on the date of such proposed action
shall not exceed (x) $200,000,000 plus (y) 75% (or in the case of a deficit,
minus 100%) of the Consolidated Net Income for the period commencing on June 1,
1992 and ending on and including the date of any such proposed action (the
"Computation Period") plus (z) the aggregate amount of the net cash proceeds
received by the Borrower during the Computation Period from the sale of its
stock and Indebtedness of the Borrower convertible into stock of the Borrower
(but only to the extent that any such Indebtedness has been converted into
shares of such stock during such period), and (ii) there shall exist no Default
or Unmatured Default.
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6.12. Leverage. The Borrower will maintain at all times a ratio of
(i) the sum of (a) the aggregate unpaid principal amount of all outstanding
Funded Debt of the Borrower and its Consolidated Subsidiaries, plus (b)
Capitalized Operating Lease Value of the Borrower, to (ii) the sum of (a) the
items listed in clause (i) above plus (b) Consolidated Adjusted Net Worth, of
not more than .765 to l.
6.13. Fixed Charge Coverage. The Borrower will at all times
maintain a ratio of (a) Consolidated Cash Flow to (b) the sum of Interest
Expense and Rent Expense, in an amount not less than 1.15 to 1.
6.14. Consolidated Adjusted Net Worth. The Borrower will maintain
Consolidated Adjusted Net Worth at all times (i) on or after the Effective Date
and prior to May 31, 1996 in an amount not less than $1.4 billion, and (ii)
thereafter in an amount not less than the sum of $1.4 billion plus 50% of
Consolidated Net Income earned in each fiscal year of the Borrower ending on or
after May 31, 1996 but without regard to any net loss in any such fiscal year.
6.15. Merger and Consolidation. The Borrower will not, nor will it
permit any Consolidated Subsidiary to, merge or consolidate with or into or
enter into any analogous reorganization or transaction with any other Person,
except
(a) Any Consolidated Subsidiary or other corporation may
merge or consolidate with the Borrower, provided that, after giving
effect to any such merger or consolidation, (i) the Borrower shall be
the continuing or surviving corporation and (ii) no Default or
Unmatured Default shall exist,
(b) Any Consolidated Subsidiary may merge with any other
Consolidated Subsidiary,
(c) Any Consolidated Subsidiary may be liquidated or
dissolved,
(d) Any Consolidated Subsidiary may merge or consolidate
with any other Person, provided, however, that, unless after giving
effect to any such merger or consolidation the Borrower owns, directly
or indirectly, 100% of such Consolidated Subsidiary, (i) such merger
or consolidation shall be deemed to be a sale of such Consolidated
Subsidiary to such other Person pursuant to either Section 6.16(c) or
6.16(e) (as appropriate under the terms of Section 6.16) and (ii) such
merger or consolidation shall be a violation of this Section 6.15
unless such deemed sale is permitted by either Section 6.16(c) or
6.16(e) and the Borrower complies with all of the terms of Section
6.16(c) or Section 6.16(e), as the case may be, regarding such deemed
sale, and
(e) Any other corporation may merge or consolidate with
any Consolidated Subsidiary, provided that, after giving effect to any
such merger or consolidation, (i) the continuing or surviving
corporation shall be a Consolidated Subsidiary and (ii) no Default or
Unmatured Default shall exist.
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6.16. Sales of Assets. The Borrower will not, nor will it permit
any Consolidated Subsidiary to, sell, transfer, convey (including, without
limitation, any sale, transfer or conveyance related to a sale and leaseback
transaction but excluding sales of inventory in the ordinary course of
business) or lease (or enter into any commitment to sell, transfer, convey or
lease) all or any part of its assets (whether in one or a series of
transactions) except
(a) Leases by the Borrower and the Consolidated
Subsidiaries of Flight Equipment to others provided that the aggregate
book value of all Flight Equipment leased to any other Person or
Persons by the Borrower or any Consolidated Subsidiary shall not at
any time exceed $500,000,000,
(b) Sales of property by the Borrower or a Consolidated
Subsidiary provided that at the time of any such sale or other
disposition the Borrower or the Consolidated Subsidiary making such
sale or disposition shall have previously acquired or shall be
simultaneously acquiring, in contemplation of such sale or other
disposition, substantially similar property, or shall have previously
entered into, or shall be simultaneously entering into, a binding
purchase agreement or purchase agreements to acquire substantially
similar property, which property is acquired within three years of
such sale or other disposition,
(c) Sales of property (other than sales of property
permitted by Section 6.16(e) but including any deemed sales of
property pursuant to Section 6.15(d)) determined by the Borrower to be
surplus or obsolete provided that the aggregate net book value of all
such surplus or obsolete property sold in any one fiscal year of the
Borrower shall not exceed 12.5% of Consolidated Adjusted Net Worth as
of the last day of the fiscal year of the Borrower immediately
preceding the fiscal year of the Borrower during which any such sale
of assets shall take place,
(d) Sales of any property in order concurrently or
subsequently to lease as lessee such or similar property, provided
that (i) any such sale takes place within 360 days after (A) in the
case of personal property, the date on which the Borrower acquired
such property, and (B) in the case of real property or fixtures, the
later of the date on which the Borrower acquired such property or the
date on which construction of all improvements on such property was
completed, and (ii) after giving effect to the creation of the
Capitalized Lease Obligations, if any, of the Borrower or a
Consolidated Subsidiary resulting from the lease of such property by
the Borrower or a Consolidated Subsidiary, the Borrower is in
compliance with Section 6.12,
(e) Sales (including any deemed sales pursuant to Section
6.15(d)) of property owned on February 7, 1989 by Tiger International
or any of its Subsidiaries provided that (i) the property being sold
is reasonably determined by the Borrower to be unnecessary for the
operation of an integrated, worldwide all cargo air and ground
transportation system, and (ii) all such property is sold for an
amount at least equal to the fair market value thereof, and
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(f) Sales of Property commonly known as "Federal Express
Stage 3 Kits" in accordance with the Borrower's ordinary business
practices.
6.17. Loans, Advances and Investments. The Borrower will not, nor
will it permit any Consolidated Subsidiary to, make or suffer to exist any
Investments, or commitments therefor, except
(a) Marketable direct obligations of the United States of
America, or an instrumentality or agency thereof, having a remaining
term to maturity of not more than one year,
(b) Certificates of deposit or other obligations having a
remaining term to maturity of not more than one year and issued by a
Lender, First Tennessee Bank, N.A., Union Planters National Bank of
Memphis or any other national or state bank or trust company having
capital, surplus and undivided profits in excess of $250,000,000 in
the aggregate,
(c) Other certificates of deposit having a remaining term
to maturity of not more than one year and issued by a bank or other
financial institution approved in accordance with the Borrower's
corporate investment guidelines and procedures provided that the
aggregate outstanding principal amount of all such certificates of
deposit shall not at any one time exceed $1,000,000,
(d) Time deposits in any currency having a remaining term
to maturity of not more than one year and held by (i) foreign branches
of American banks, each such bank having capital, surplus and
undivided profits in excess of $250,000,000, or (ii) foreign banks,
each such bank having total capital, surplus and undivided profits in
excess of $250,000,000 or its equivalent in other currencies,
(e) For a period not in excess of one year, (i)
marketable direct obligations of the United States of America, or an
instrumentality or agency thereof, or (ii) instruments fully supported
by marketable direct obligations of the United States of America, or
an instrumentality or agency thereof, or (iii) open market commercial
paper maturing within one year after acquisition of such commercial
paper, which is rated A1 or better by S&P or P1 or better by Moody's;
in each case, purchased by the Borrower or a Consolidated Subsidiary
and actually delivered to or held by a Dealer for the account of the
Borrower or a Consolidated Subsidiary under a repurchase agreement
with the Dealer from which such obligations or commercial paper was
purchased obligating such Dealer to repurchase such obligations or
commercial paper within fourteen calendar days after the date of such
repurchase agreement,
(f) Open market commercial paper maturing within one year
after the acquisition thereof, which is rated A1 or better by S&P or
P1 or better by Moody's,
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(g) Investments in the capital stock of a Consolidated
Subsidiary,
(h) Loans and advances by the Borrower to a Consolidated
Subsidiary,
(i) Loans and advances by a Consolidated Subsidiary to
the Borrower,
(j) Investments in any Person not otherwise permitted by
this Section 6.17, which together with all other Investments at the
time outstanding under this Section 6.17(j), do not exceed 12.5% of
Consolidated Adjusted Net Worth provided that at least 66-2/3% of such
Investments are reasonably related to the same fields of enterprise as
those in which the Borrower and the Consolidated Subsidiaries are now
engaged, and
(k) Restricted Investments made in compliance with
Section 6.11.
In determining from time to time the amount of the Investments permitted by
this Section 6.17, loans and advances shall be taken at the principal amount
thereof then remaining unpaid at the time of such determination and other
Investments shall be taken at the original cost thereof, regardless of any
subsequent appreciation or depreciation therein.
6.18. Contingent Liabilities. The Borrower will not, nor will it
permit any Consolidated Subsidiary to, assume, guarantee (including entering
into any contract which is, in economic effect, substantially equivalent to a
guaranty), endorse, contingently agree to purchase or to provide funds for the
payment of, agree to maintain the net worth or working capital or any other
financial test of, or otherwise become liable upon, any obligation of, any
Person, except
(a) By the endorsement of negotiable instruments for
deposit or collection (or similar transactions) in the ordinary course
of business,
(b) Guaranties of customs fees in the ordinary course of
business, and
(c) Any other Contingent Obligation which after having
given effect thereto would not cause the Borrower to fail to be in
compliance with Section 6.12.
In determining from time to time the amount of guaranties and contingent
liabilities permitted by this Section 6.18, guaranties and contingent
liabilities shall be taken at the principal amount then remaining unpaid at the
time of such determination on the indebtedness and obligations so guaranteed or
related to such contingent liabilities.
6.19. Liens. The Borrower will not, nor will it permit any
Consolidated Subsidiary to, create, incur, assume or suffer to exist, any Lien,
or enter into, or make any commitment to enter into, any arrangement for the
acquisition of any Property through conditional sales, lease-purchase or other
title retention agreement, except
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(a) Liens which may be hereafter created to secure
payment of the Notes and all amounts due the Lenders and the Agent, as
the case may be, under this Agreement,
(b) Deposits or pledges, made in the ordinary course of
business, to secure payment of workers' compensation, unemployment
insurance, old age pensions or other social security obligations,
(c) Deposits or pledges, made in the ordinary course of
business, to secure performance of bids, tenders, contracts (other
than contracts for Indebtedness), leases, public or statutory
obligations, surety bonds, or other deposits or pledges for purposes
of like general nature made in the ordinary course of business,
(d) Deposits or pledges for the purpose of securing an
appeal, stay or discharge in the course of legal proceedings, or Liens
for judgments or awards which were not incurred in connection with
Indebtedness or the obtaining of advances or credits, provided such
deposits, pledges and Liens do not, in the aggregate for the Borrower
and the Consolidated Subsidiaries, materially detract from the value
of their assets or properties or materially impair the use thereof in
the ordinary course of business and such appeal, judgment or award, as
the case may be, is being diligently contested or litigated in good
faith by appropriate proceedings being diligently conducted, and
provided further there has been set aside on the books of the Borrower
or the Consolidated Subsidiaries, as the case may be, reserves in
accordance with GAAP with respect thereto, which reserves shall be
maintained until the related liabilities are paid or otherwise
discharged, and provided further execution is not levied upon any such
judgment or award,
(e) Liens for taxes, fees, assessments and governmental
charges not delinquent or which are being contested in good faith by
appropriate proceedings being diligently conducted, provided there has
been set aside on the books of the Borrower or the Consolidated
Subsidiaries, as the case may be, adequate reserves in accordance with
GAAP with respect thereto, which reserves shall be maintained until
the related liabilities are paid or otherwise discharged, and provided
further, execution is not levied upon any such Lien,
(f) Mechanics', carriers', workers', repairmen's or other
like Liens arising in the ordinary course of business securing
obligations which are not overdue for a period of more than 90
calendar days, or which are being contested in good faith by
appropriate proceedings being diligently conducted provided there has
been set aside on the books of the Borrower and the Consolidated
Subsidiaries, as the case may be, adequate reserves in accordance with
GAAP with respect thereto, which reserves shall be maintained until
the related liabilities are paid or otherwise discharged, and provided
further, execution is not levied upon any such Lien,
(g) Lessors' interests under Capitalized Leases,
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(h) Liens on property acquired or constructed with the
proceeds of any tax-exempt airport bond financing,
(i) Liens securing Indebtedness of a Consolidated
Subsidiary to the Borrower,
(j) Liens existing on the property of a corporation or
other business entity immediately prior to its being consolidated with
or merged into the Borrower or a Consolidated Subsidiary or its
becoming a Consolidated Subsidiary, or Liens existing on any property
acquired by the Borrower or a Consolidated Subsidiary at the time such
is so acquired (whether or not the Indebtedness secured thereby shall
have been assumed), provided that (i) no such Lien was created or
assumed in contemplation of such consolidation or merger or such
entity's becoming a Consolidated Subsidiary or such acquisition of
property and (ii) each such Lien shall only cover the acquired
property and, if required by the terms of the instrument originally
creating such Lien, property which is an improvement to or is acquired
for specific use in connection with such acquired property,
(k) Liens on Flight Equipment acquired on or after the
date of this Agreement which (i) secure the payment of all or any part
of the purchase price of such Flight Equipment or improvements
thereon, (ii) are limited to the Flight Equipment so acquired and
improvements thereon, and (iii) attach to such Flight Equipment within
one year after the acquisition or improvement of such Flight
Equipment, and
(l) Liens not otherwise permitted by Sections 6.19(a)
through (k) provided that at all times the sum of (i) the aggregate
principal amount of all outstanding Long Term Debt of the Consolidated
Subsidiaries (excluding the Current Maturities of any such Long Term
Debt and any Long Term Debt of a Consolidated Subsidiary owing to the
Borrower) which is unsecured, plus (ii) the aggregate principal amount
of all outstanding Long Term Debt of the Borrower or a Consolidated
Subsidiary (excluding the Current Maturities of any such Long Term
Debt and any Long Term Debt of a Consolidated Subsidiary owing to the
Borrower) which is secured as permitted by this Section 6.19(l), does
not exceed 8% of Consolidated Adjusted Total Assets.
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 the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with
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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 or deemed made.
7.2. Nonpayment of principal of any Note when due, or nonpayment
of interest upon any Note or of any facility fee or other obligations under any
of the Loan Documents within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.5, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, or 6.19.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement which is not remedied within five days after
written notice from the Agent or any Lender.
7.5. Failure of the Borrower or any Consolidated Subsidiary to pay
when due or within any applicable grace period any portion of either any single
obligation constituting Indebtedness in excess of $20,000,000 (or the
equivalent thereof in any other currency) or Indebtedness in an aggregate
principal amount in excess of $60,000,000 (or the equivalent thereof in any
other currency); or any default or other event shall occur under or with
respect to either any agreement under which any single obligation constituting
Indebtedness in excess of $20,000,000 (or the equivalent thereof in any other
currency) was created or is governed, or any agreements under which
Indebtedness in an aggregate principal amount in excess of $60,000,000 (or the
equivalent thereof in any other currency) was created or is governed, the
effect of which, in either case, 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 either any single obligation constituting Indebtedness
in excess of $20,000,000 (or the equivalent thereof in any other currency) or
Indebtedness in an aggregate principal amount in excess of $60,000,000 (or the
equivalent thereof in any other currency) 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 Borrower or any
Consolidated Subsidiary shall not pay, or admit in writing its inability to
pay, its debts generally as they become due.
7.6. The Borrower or any Consolidated Subsidiary shall (i) have an
order for relief entered with respect to it under the Federal 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 Portion 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
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this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or
any Consolidated Subsidiary, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Consolidated
Subsidiary or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any
Consolidated Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 45 consecutive
days.
7.8. The Borrower or any Consolidated Subsidiary shall fail within 45
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $1,000,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.9. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $80,000,000 or any Reportable Event shall occur in
connection with any Plan.
7.10. An administrator, custodian or other representative, by or
pursuant to any legislative act, resolution or rule (other than the Federal
bankruptcy laws or any similar law, State or Federal, whether now or hereafter
existing) or any order or decree of any court or any governmental board or
agency (other than any order or decree issued pursuant to the Federal
bankruptcy laws or any similar law, State or Federal, whether now or hereafter
existing) shall take possession or control of all or such portions of the
property of any one or more of the Borrower and the Consolidated Subsidiaries
as would, in the sole opinion of the Required Lenders, materially interfere
with the operation of the business of the Borrower and the Consolidated
Subsidiaries, on a consolidated basis, and such possession or control shall
continue for 45 calendar days.
7.11. The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the release by the Borrower or
any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part
of the Agent or any Lender. If any other Default occurs, the
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Required Lenders (or the Agent, with the written consent of the Required
Lenders) may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within 14 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination, provided that the Borrower certifies to the Lenders to
their satisfaction that, upon giving effect to such rescission, no other
Indebtedness of the Borrower shall be accelerated by virtue of a
cross-acceleration to Indebtedness under this Agreement.
8.2. Amendments. Subject to the provisions of this Article VIII,
the Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower 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 Lenders or the Borrower hereunder or waiving
any Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
(i) Extend the maturity or the time of payment of any Loan or
Note or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon or
fees hereunder.
(ii) Reduce the percentage specified in the definition of Required
Lenders or amend, modify, or waive any provision requiring
action by the Required Lenders to require action by any other
Person in lieu of the Required Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Commitment
of any Lender hereunder, or permit the Borrower to assign its
rights under this Agreement.
(iv) Amend, modify, or waive Section 2.2(a), Section 4.1, Section
4.2, this Section 8.2, or Section 12.1.
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 12.3.3 without obtaining the consent
of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders
or the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a
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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 Borrower 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 Lenders 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 Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery
of the Notes and the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding income taxes on the overall net
income of any Lender) 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 Borrower, together with interest and penalties, if any.
9.4. 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.
9.5. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent
and the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and
no Lender 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 Lender to
perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed
so as to confer any
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right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
9.7. Expenses; Indemnification. The Borrower shall reimburse the
Agent for any and all reasonable costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent in connection with the preparation, negotiation, execution, delivery
(subject to, with respect to all the foregoing, the terms of that certain
commitment letter between the Agent and the Borrower dated April 5, 1995 as it
may be amended or supplemented from time to time), amendment, and modification,
of the Loan Documents. The Borrower also agrees to reimburse the Agent and the
Lenders for any and all reasonable costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for the Agent
and the Lenders, which attorneys may be employees of the Agent or the Lenders)
paid or incurred by the Agent or any Lender in connection with the collection
and enforcement of the Loan Documents and the protection of rights thereunder.
The Borrower further agrees to indemnify the Agent and each Lender, 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 Lender is a party thereto) 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. The obligations of the
Borrower under this Section shall survive the termination of this Agreement,
the cancellation of the Commitments, and the payment of all outstanding
Obligations.
9.8. 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
Lenders.
9.9. 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.
9.10. Nonliability of Lenders. The relationship between the
Borrower and the Lenders and the Agent shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
9.11. 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
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OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
9.12. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENT AND THE BORROWER HEREBY IRREVOCABLY AGREES
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 THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT
OR ANY LENDER 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 CHICAGO, ILLINOIS.
9.13. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH
LENDER 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.
9.14. Confidentiality. The Agent and each Lender agrees to hold
any confidential information which it may receive from the Borrower pursuant to
this Agreement or in the course of an inspection pursuant to Section 6.10 in
confidence, except for disclosure (i) to other Lenders and their respective
Affiliates, each of whom shall be made aware of the terms of this Section 9.14
and shall agree to abide thereby, (ii) to legal counsel, accountants, and other
professional advisors to the Agent or that Lender, (iii) to regulatory
officials (provided that, to the extent practicable and permissible, the Agent
and each Lender shall give the Borrower prior notice of such disclosure), (iv)
as required by law, regulation, or legal process, (v) in connection with any
legal proceeding to which the Agent or that Lender is a party, and (vi)
permitted by Section 12.4; provided that, in connection with any disclosure
permitted under clause (iv) or (v) hereinabove, the Agent or such Lender, as
appropriate, shall give the Borrower prior notice of such disclosure unless
such notice is prohibited by law, regulation, or process.
9.15. 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 GAAP.
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9.16. Effect on Prior Agreement; Ratification. The Borrower, the
Agent, and the Lenders agree that, on the Effective Date, all indebtedness,
liabilities and obligations of the Borrower to the Lenders outstanding under
the Prior Agreement and the promissory notes delivered thereunder shall, to the
extent not paid on such date, be deemed to be Obligations outstanding hereunder
and under the Notes. Each Lender party to the Prior Agreement shall, promptly
after receipt of its Note hereunder, return to the Borrower the promissory note
received by it in connection with the Prior Agreement. As of the Effective
Date, the Withdrawing Lenders shall cease to be "Lenders" for all purposes
under this Agreement. The Borrower, the Agent, and the Lenders agree that (i)
all terms and conditions of the Prior Agreement which are amended and restated
by this Agreement shall remain effective until such amendment and restatement
becomes effective hereunder, and (ii) the representations, warranties and
covenants set forth herein shall become effective concurrently with the
occurrence of the Effective Date.
ARTICLE X
THE AGENT
10.1. Appointment. The First National Bank of Chicago is hereby
appointed Agent hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Agent to act as the agent of such Lender.
The Agent agrees to act as such upon the express conditions contained in this
Article X. The Agent shall not have a fiduciary relationship in respect of the
Borrower or any Lender by reason of this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of
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any condition specified in Article IV, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith.
10.5. Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the requisite number of Lenders, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders of Notes unless the Required Lenders are not authorized to direct
the Agent to so act or so fail to act under the terms of this Agreement. The
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any
of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled
to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, telex, telecopy, telefacsimile, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents to the extent such expenses are or may be
obligations of the Borrower to the Agent and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any
of the terms thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Agent. The obligations of the
Lenders under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
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10.9. Rights as a Lender. With respect to its Commitment, Loans
made by it and the Note issued to it, the Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person. The Agent, in its individual capacity, is
not obligated to remain a Lender except as provided under Article XII.
10.10. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
10.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, and the Agent may be
removed at any time with or without cause by written notice received by the
Agent from the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders and with the consent of the Borrower (which shall not be
unreasonably withheld), a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders and consented to by the Borrower and
shall have accepted such appointment within thirty days after the retiring
Agent's giving notice of resignation, then the retiring Agent may appoint, on
behalf of the Lenders, a successor Agent, provided that the Borrower shall have
the right to remove such successor Agent and replace it with a successor of its
own designation with the consent of the Required Lenders (which shall not be
unreasonably withheld). Such successor Agent shall be a commercial bank having
capital and retained earnings of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent, and the retiring or
removed Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents. After any retiring or removed Agent's
resignation or removal hereunder as Agent, the provisions of this Article X
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder and under
the other Loan Documents.
10.12. Distribution of Information. The Borrower authorizes the
Agent, as the Agent may elect in its sole discretion, to discuss with and
furnish to the Lenders or to any other Person having an interest in the
Obligations (whether as a guarantor, pledgor of collateral, participant,
purchaser or otherwise) all financial statements, audit reports and other
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information pertaining to the Borrower and its Subsidiaries whether such
information was provided by the Borrower or prepared or obtained by the Agent,
subject to Section 9.14. Neither the Agent nor any of its employees, officers,
directors or agents makes any representation or warranty regarding any audit
reports or other analyses of the Borrower's and its Subsidiaries condition
which the Agent may elect to distribute, whether such information was provided
by the Borrower or prepared or obtained by the Agent, nor shall the Agent or
any of its employees, officers, directors or agents be liable to any person or
entity receiving a copy of such reports or analyses for any inaccuracy or
omission contained in or relating thereto.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2 or 3.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, 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 setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders 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 to accomplish the intent of this Section.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their
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respective successors and assigns, except that (i) the Borrower shall not have
the right to assign its rights or obligations under the Loan Documents and (ii)
any assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time,
without the consent of the Borrower or the Agent, assign all or any portion of
its rights under this Agreement and its Notes to a Federal Reserve Bank;
provided, however, that no such assignment shall release the transferor Lender
from its obligations hereunder. 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 12.3 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.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may,
in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents.
In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender 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.
12.2.3. Benefit of Setoff. Upon selling any
participating interest to a Participant pursuant to Section 12.2.1,
each Lender will have the option to, but shall not be required to,
give the Borrower and the Agent written notice of the fact that it has
made such a sale (without being required to specify the amount or any
other
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57
information concerning the participating interest sold) and the name
of the purchasing Participant (each Participant named in such a notice
is hereinafter referred to as an "Acknowledged Participant"). The
Borrower agrees that each Acknowledged Participant shall be deemed to
have the right of setoff provided in Section 11.1 as of the date of
the Borrower's receipt of the aforementioned notice 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 Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section
11.1 with respect to the amount of participating interests sold to
each Acknowledged Participant. The Lenders agree to share with each
Acknowledged Participant, and each Acknowledged Participant, by
exercising the right of setoff provided in Section 11.1, agrees to
share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Acknowledged Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time make one assignment to one bank or other entity (each a
"Purchaser") of all of its rights and obligations under the Loan
Documents. Any assignment under this Section 12.3 shall be
substantially in the form of Exhibit "C" hereto or in such other form
as may be agreed to by the parties thereto. Unless an acceleration of
the Obligations has occurred and is continuing, the consent of the
Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof. Such consent shall not be unreasonably
withheld. Notwithstanding anything in this Article XII to the
contrary, nothing in this Agreement shall prohibit or limit the right
of any Lender to make assignments (and no consent shall be required in
connection with such assignments) of all or any part of its interests
under the Loan Documents (i) to a Purchaser which is a Lender or an
Affiliate thereof and (ii) after the occurrence and during the
continuance of an acceleration of the Obligations, to any Purchaser.
12.3.2. Required Assignments. The Borrower shall have
the right, by giving at least 15 Business Days' prior written notice
to the affected Lender and the Agent, at any time when no Default or
Unmatured Default has occurred and is continuing, to require any
Lender to assign all of its rights and obligations under the Loan
Documents to a Purchaser approved by the Borrower. Such assignment
shall be substantially in the form of Exhibit "C" hereto or in such
other form as may be agreed to by the parties thereto but shall be on
terms and conditions reasonably satisfactory to the affected Lender.
If the affected Lender is a Reference Lender, the Agent, with the
consent of the Borrower (which shall not be unreasonably withheld),
shall appoint a new Reference Lender from among the Lenders. The
Borrower shall remain liable to the affected Lender for any
indemnification provided under Section 3.4 with respect to
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Loans of such Lender outstanding on the effective date of an
assignment required under this Section 12.3.2.
12.3.3. Effect; Effective Date. Upon (i) delivery to the
Agent of a notice of assignment, substantially in the form attached as
Exhibit "I" to Exhibit "C" hereto (a "Notice of Assignment"), together
with any consents required by Section 12.3.1, and (ii) payment of a
$4,000 fee to the Agent 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 Lender under
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by the Borrower, the Lenders or the
Agent shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment and Loans assigned to
such Purchaser and such Lender shall be immediately so released. Upon
the consummation of any assignment to a Purchaser pursuant to this
Section 12.3.3, the transferor Lender, the Agent and the Borrower
shall make appropriate arrangements so that a replacement Note is
issued to such transferor Lender and a new Note or, as appropriate, a
replacement Note, is issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes each
Lender 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
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective Transferee agrees
to be bound by Section 9.14 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.18.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.13
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 telex 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 and properly addressed with postage prepaid or if
delivered to the Borrower's delivery service and properly addressed, shall be
deemed given when received; any notice, if
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transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
13.2. Change of Address. The Borrower, the Agent and any Lender
may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
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. This
Agreement shall be effective upon receipt by the Agent of original or faxed
copies of such counterparts executed by the Borrower, the Agent and the
Lenders.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
FEDERAL EXPRESS CORPORATION
By: /s/ CHARLES M. BUCHAS, JR.
Charles M. Buchas, Jr.
Vice President and Treasurer
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Attn: Vice President and
Treasurer
Telephone: 901-395-4533
Telecopy: 901-395-3910
Copy all notices and credit matters to:
Federal Express Corporation
2005 Corporate Avenue
Memphis, Tennessee 38132
Attn: General Counsel
Telephone: 901-395-3382
Telecopy: 901-395-3456
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COMMITMENT
- ----------
$56,000,000 THE FIRST NATIONAL BANK OF
CHICAGO, Individually and as Agent
By: /s/ DAVID G. DIXON
David G. Dixon
Authorized Agent
One First National Plaza
Mail Suite 0362
Chicago, Illinois 60670
Attn: Transportation Division
Administrative Coordinator
Telephone: 312-732-8142
Telecopy: 312-732-3055
Copy all notices and credit matters to:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670-0362
Attn: Christina D. Zautcke
Telephone: 312-732-1336
Telecopy: 312-732-3055
Copy all Borrowing Notices to:
The First National Bank of Chicago
One First National Plaza
Mail Suite 0634
Chicago, Illinois 60670-0634
Attn: Gregory A. Baranowski
Telephone: (312) 732-8573
Telecopy: (312) 732-4840
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62
COMMITMENT
- ----------
$46,000,000 BANK OF AMERICA ILLINOIS
By: /s/ TIMOTHY C. HINTZ
Timothy C. Hintz
Managing Director
555 S. Flower Street
11th Floor
Los Angeles, California 90071
Attn: Timothy C. Hintz
Telephone: (213) 228-2810
Telecopy: (213) 228-2756
Copy all notices and credit matters to:
Bank of America National
Trust and Savings Association
555 S. Flower Street
11th Floor
Los Angeles, California 90071
Attn: Timothy C. Hintz
Telephone: (213) 228-2810
Telecopy: (213) 228-2756
Copy all Borrowing Notices to:
Bank of America National
Trust and Savings Association
Corporate Service Center #5693
1850 Gateway Boulevard
Concord, California 94520
Attn: Milt Haverty
Telephone: (510) 675-8254
Telecopy: (510) 675-7531 or 7532
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63
COMMITMENT
- ----------
$46,000,000 BANK OF TOKYO TRUST COMPANY
By: /s/ AMANDA S. RYAN
Amanda S. Ryan
Vice President
1251 Avenue of the Americas
12th Floor
New York, New York 10116
Attn: Amanda S. Ryan
Telephone: (212) 782-4322
Telecopy: (212) 782-6440
Copy all notices and credit matters to:
The Bank of Tokyo Trust Company
1251 Avenue of the Americas
12th Floor
New York, New York 10116
Attn: Amanda S. Ryan
Telephone: (212) 782-4322
Telecopy: (212) 782-6440
Copy all Borrowing Notices to:
The Bank of Tokyo Trust Company
1251 Avenue of the Americas
12th Floor
New York, New York 10116
Attn: Matthew Croghan
Telephone: (212) 782-4271
Telecopy: (212) 782-6402
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COMMITMENT
- ----------
$46,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE
By: /s/ KATHRYN W. SAX
Kathryn W. Sax
Vice President
Two Paces West
2727 Paces Ferry Rd.
Suite 1200
Atlanta, Georgia 30339
Attn: Kathryn W. Sax
Telephone: (404) 319-4903
Telecopy: (404) 319-4954
Copy all notices and credit matters to:
Canadian Imperial Bank of Commerce
Two Paces West
2727 Paces Ferry Rd.
Suite 1200
Atlanta, Georgia 30339
Attn: Kathryn W. Sax
Telephone: (404) 319-4903
Telecopy: (404) 319-4954
Copy all Borrowing Notices to:
Canadian Imperial Bank of Commerce
Two Paces West
2727 Paces Ferry Rd.
Suite 1200
Attn: Pluria Howell
Telephone: (404) 319-4814
Telecopy: (404) 319-4950
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COMMITMENT
- ----------
$46,000,000 THE CHASE MANHATTAN
BANK, N.A.
By: /s/ MATTHEW H. MASSIE
Matthew H. Massie
Vice President
One Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attn: Sherwood E. Exum,
Managing Director
Telephone: (212) 552-4655
Telecopy: (212) 552-5879
Copy all notices and credit matters to:
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attn: Matthew H. Massie
Telephone: (212) 552-4655
Telecopy: (212) 552-5879
Copy all Borrowing Notices to:
The Chase Manhattan Bank, N.A.
Two Chase Manhattan Plaza
5th Floor
Credit Administration
New York, New York 10081
Attn: Carlos Morales
Telephone: (212) 552-4517
Telecopy: (212) 552-4455
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COMMITMENT
- ----------
$46,000,000 CITICORP USA, INC.
By: /s/ M. KHURSHID ZAMAN
M. Khurshid Zaman
Authorized Signer
399 Park Avenue
12th Floor/Zone 2
New York, New York 10043
Attn: M. Khurshid Zaman
Telephone: (212) 559-0420
Telecopy: (212) 793-3734
Copy all notices and credit matters to:
Citibank, N.A.
399 Park Avenue
12th Floor/Zone 2
New York, New York 10043
Attn: M. Khurshid Zaman
Telephone: (212) 559-0420
Telecopy: (212) 793-3734
Copy all Borrowing Notices to:
Citibank, N.A.
Floor 7/Zone 2
1 Court Square
Long Island City
New York, New York 11120
Attn: Lillian Harvan
Telephone: (718) 248-4392
Telecopy: (718) 248-4844
Page 60
67
COMMITMENT
- ----------
$46,000,000 COMMERZBANK AG,
ATLANTA AGENCY
By: /s/ H. YERGY /s/ E. KAGERER
H. Yergy E. Kagerer
Vice President Asst Vice President
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Corporate Banking
Telephone: (404) 888-6500
Telecopy: (404) 888-6539
Copy all notices and credit matters to:
Commerzbank AG, Atlanta Agency
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Eric R. Kagerer
Telephone: (404) 888-6517
Telecopy: (404) 888-6539
Copy all Borrowing Notices to:
Commerzbank AG, Atlanta Agency
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Ute Brune
Telephone: (404) 888-6510
Telecopy: (404) 888-6539
Page 61
68
COMMITMENT
- ----------
$46,000,000 NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ MARIA AMARAL-LEBLANC
Maria Amaral-LeBlanc
Vice President
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By: /s/ MARIA AMARAL-LEBLANC
Maria Amaral-LeBlanc
Vice President
175 Water Street, 29th Floor
New York, New York 10038
Attn: Maria Amaral-LeBlanc
Telephone: (212) 602-4229
Telecopy: (212) 602-4500
Copy all notices and credit matters to:
National Westminster Bank PLC
175 Water Street, 29th Floor
New York, New York 10038
Attn: Maria Amaral-LeBlanc
Telephone: (212) 602-4229
Telecopy: (212) 602-4500
Copy all Borrowing Notices to:
National Westminster Bank PLC
175 Water Street, 19th Floor
New York, New York 10038
Attn: Nadira Fauder
Telephone: (212) 602-4180
Telecopy: (212) 602-4118
Page 62
69
COMMITMENT
- ----------
$46,000,000 NATIONSBANK OF GEORGIA, N.A.
By: /s/ JOHN E. BALL
John E. Ball
Senior Vice President
600 Peachtree Street, N.E.
21st Floor
Atlanta Georgia 30308-2213
Telephone: (615) 749-3469
Telecopy: (615) 749-4640
Copy all notices and credit matters to:
NationsBank
One NationsBank Plaza
Fifth Floor
Nashville, Tennessee 37239-1697
Attn: John E. Ball
Telephone: (615) 749-3469
Telecopy: (615) 749-4640
Copy all Borrowing Notices to:
NationsBank
100 North Tryon
Charlotte, North Carolina 28255
Attn:
Telephone: (704) 386-4576
Telecopy: (704) 386-8694
Page 63
70
COMMITMENT
- ----------
$46,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ STEPHEN B. KING
Stephen B. King
Vice President
60 Wall Street
New York, New York 10260
Attn: Stephen B. King
Telephone: (212) 648-7415
Telecopy: (212) 648-5336
Copy all notices and credit matters to:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260
Attn: Stephen B. King
Timothy V. O'Donovan
Vice President
Telephone: (212) 648-7415/8111
Telecopy: (212) 648-5336
Copy all Borrowing Notices to:
Multi-Option Unit - Loan Department
c/o J. P. Morgan Services, Inc.
500 Stanton-Christiana Road
Newark, Delaware 19713
Telephone: (302) 634-1800
Telecopy: (302) 634-1094
Page 64
71
COMMITMENT
- ----------
$35,000,000 THE BANK OF NEW YORK
By: /s/ GREGORY L. BATSON
Gregory L. Batson
Vice President
One Wall Street, 22nd Floor
New York, New York 10286
Attn: Gregory L. Batson
Telephone: (212) 635-6898
Telecopy: (212) 635-6434
Copy all notices and credit matters to:
The Bank of New York
One Wall Street, 22nd Floor
New York, New York 10286
Attn: Gregory L. Batson
Telephone: (212) 635-6898
Telecopy: (212) 635-6434
Copy all Borrowing Notices to:
The Bank of New York
One Wall Street
New York, New York 10286
Attn: Lorna O. Alleyne
Telephone: (212) 635-6737
Telecopy: (212) 635-6399, 6877
Page 65
72
COMMITMENT
- ----------
$35,000,000 THE FUJI BANK, LIMITED
By: /s/ SHINICHIRO FUJIMOTO
Shinichiro Fujimoto
Joint General Manager
Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E.
Atlanta, Georgia 30303-1208
Attn: Clarence J. Mahovlich
Telephone: (404) 653-2100
Telecopy: (404) 653-2119
Copy all notices and credit matters to:
The Fuji Bank, Limited
Marquis One Tower
245 Peachtree Center Ave., N.E.
Atlanta, Georgia 30303-1208
Attn: Clarence J. Mahovlich
Telephone: (404) 653-2100
Telecopy: (404) 653-2119
Copy all Borrowing Notices to:
The Fuji Bank, Limited
Marquis One Tower
245 Peachtree Center Ave., N.E.
Atlanta, Georgia 30303-1208
Attn: Connie Fowls
Telephone: (404) 653-2100
Telecopy: (404) 653-2119
Page 66
73
COMMITMENT
- ----------
$35,000,000 KREDIETBANK N.V. , GRAND CAYMAN
BRANCH
By: /s/ DIANE M. GRIMMIG
Name: Diane M. Grimmig
Title: Vice President
By: /s/ ROBERT SNAUFFER
Name: Robert Snauffer
Title: Vice President
125 W. 55th Street
New York, New York 10019
Attn: Senior Lending Officer
Telephone: (212) 541-0600
Telecopy: (212) 956-5580
Copy all notices and credit matters to:
Kredietbank N.V.
125 W. 55th Street
New York, New York 10019
Attn: Senior Lending Officer
Telephone: (212) 541-0600
Telecopy: (212) 956-5580
Nancy D. Halwig/Kojo Asakura
Kredietbank N.V.
Two Midtown Plaza, Suite 1750
1360 Peachtree St.
Atlanta, Georgia 30309
Telephone: (404) 876-2556
Telecopy: (404) 876-3212
Copy all Borrowing Notices to:
Lynda Resuma/Charlene Cumberbatch
Kredietbank, N.V.
125 W. 55th Street
New York, New York 10019
Attn: Loan Administration
Telephone: (212) 541-0600
Telecopy: (212) 956-5580
Page 67
74
COMMITMENT
- ----------
$35,000,000 THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By: /s/ SATORU OTSUBO
Name: Satoru Otsubo
Title: Joint General Manager
165 Broadway
New York, New York 10006
Attn: Kathy Dorsch
Telephone: (212) 335-4578
Telecopy: (212) 608-2371
Copy all notices and credit matters to:
The Long-Term Credit Bank of Japan, Ltd.
245 Peachtree Center Ave. N.E.
Marquis One Tower
Suite 2801
Atlanta, Georgia 30303
Attn: Rebecca Sedlar-Silbert
Vice President
Telephone: (404) 659-7210
Telecopy: (404) 658-9751
Copy all Borrowing Notices to:
The Long-Term Credit Bank of Japan, Ltd.
165 Broadway
New York, New York 10006
Attn: Gennie Mayo Williams
Analyst
Telephone: (212) 335-4787
Telecopy: (212) 608-3452
Page 68
75
COMMITMENT
- ----------
$35,000,000 MELLON BANK, N.A.
By: /s/ MARK F. JOHNSTON
Mark F. Johnston
Assistant Vice President
One Mellon Bank Center, Room 4530
Pittsburgh, PA 15258-0001
Attn:
Telephone: (412) 236-2793
Telecopy: (412) 236-1914
Copy all notices and credit matters to:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, PA 15258-0001
Attn: Mark Johnston
Telephone: (412) 236-2793
Telecopy: (412) 236-1914
Copy all Borrowing Notices to:
Mellon Bank, N.A.
3 Mellon Bank Center, Room 2305
Pittsburgh, PA 15259
Attn: Janice Pappert
Telephone: (412) 234-5049
Telecopy: (412)234-5049
Page 69
76
COMMITMENT
- ----------
$35,000,000 SOCIETE GENERALE, SOUTHWEST
AGENCY
By: /s/ THIERRY NAMUROY
Thierry Namuroy
Vice President
4800 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75210
Attn: Ralph Saheb
Telephone: (214) 979-2777
Telecopy: (214) 979-1104
Copy all notices and credit matters to:
Societe Generale, Southwest Agency
1111 Bagby, Suite 2020
Houston, Texas 77002
Attn: Thierry Namuroy
Telephone: (713) 759-6316
Telecopy: (713) 650-0824
Copy all Borrowing Notices to:
Societe Generale, Southwest Agency
4800 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75210
Attn: Ralph Saheb
Telephone: (214) 979-2777
Telecopy: (214) 979-1104
Page 70
77
COMMITMENT
- ----------
$35,000,000 THE TORONTO-DOMINION BANK
By: /s/ KIMBERLY BURLESON
Kimberly Burleson
Credit Manager
Three First National Plaza, Suite 1900
Chicago, Illinois 60602
Attn: Dylan MacKenzie
Managing Director/Corporate Accounts
Telephone: (312) 977-2119
Telecopy: (312) 782-6337
Copy all notices and credit matters to:
The Toronto-Dominion Bank
31 West 52nd Street
New York, New York 10019
Attn: Tom Westdyk
Manager/Corporate Finance
Telephone: (212) 468-0581
Telecopy: (212) 262-1926
Copy all Borrowing Notices to:
The Toronto-Dominion Bank
909 Fannin
Suite 1700
Houston, Texas 77010
Attn: Kimberly Burleson
Telephone: (713) 653-8241
Telecopy: (713) 951-9921
Page 71
78
COMMITMENT
- ----------
$35,000,000 UNION BANK OF SWITZERLAND
NEW YORK BRANCH
By: /s/ ROBERT W. CASEY, JR.
Robert W. Casey, Jr.
Vice President
By: /s/ LAURENT J. CHAIX
Laurent J. Chaix
Vice President
299 Park Avenue
New York, New York 10171-0026
Attn: Robert W. Casey
Telephone: (212) 821-3329
Telecopy: (212) 821-3383
Copy all notices and credit matters to:
Union Bank of Switzerland
299 Park Avenue
New York, New York 10171-0026
Attn: Robert W. Casey
Telephone: (212) 821-3329
Telecopy: (212) 821-3383
Copy all Borrowing Notices to:
Union Bank of Switzerland
299 Park Avenue
New York, New York 10171-0026
Attn: Michael Peterson
Loan Service Department
Telephone: (212) 821-3230
Telecopy: (212) 821-3259
Page 72
79
COMMITMENT
- ----------
$25,000,000 BANK OF HAWAII
By: /s/ JOSEPH T. DONALSON
Joseph T. Donalson
Vice President
1839 South Alma School Road, Suite 150
Mesa, Arizona 85210
Attn: Joseph T. Donalson
Telephone: (602) 752-8020
Telecopy: (602) 752-8007
Copy all notices and credit matters to:
Bank of Hawaii
1839 South Alma School Road, Suite 150
Mesa, Arizona 85210
Attn: Joseph T. Donalson
Telephone: (602) 752-8020
Telecopy: (602) 752-8007
Copy all Borrowing Notices to:
Bank of Hawaii
Attn: Iwalani Sabarre-Kapika
Telephone: (808) 484-3584
Telecopy: (808) 484-3506
Page 73
80
COMMITMENT
- ----------
$25,000,000 THE BANK OF NOVA SCOTIA
By: /s/ CLAUDE ASHBY
Claude Ashby
Agent
600 Peachtree, N.E., Suite 2700
Atlanta, Georgia 30308
Attn: Claude Ashby
Telephone: (404) 877-1560
Telecopy: (404) 888-8998
Copy all notices and credit matters to:
The Bank of Nova Scotia
1100 Louisiana, Suite 3000
Houston, Texas 77002
Attn: Paul G. Gonin
Telephone: (713) 759-3443
Telecopy: (713) 752-2425
Copy all Borrowing Notices to:
The Bank of Nova Scotia
600 Peachtree, N.E., Suite 2700
Atlanta, Georgia 30308
Attn: Phyllis Walker
Telephone: (404) 877-1557
Telecopy: (404) 888-8998
Page 74
81
COMMITMENT
- ----------
$25,000,000 CREDIT SUISSE
By: /s/ WILLIAM P. MURRAY
Name: William P. Murray
Title: Member Senior Management
By: /s/ KRISTINN R. KRISTINSSON
Name: Kristinn R. Kristinsson
Title: Associate
12 East 49th Street
New York, New York 10017
Attn: Kris Kristinsson
Telephone: (212) 238-5206
Telecopy: (212) 238-5247
Copy all notices and credit matters to:
Credit Suisse
191 Peachtree St. NE
Suite 3500
Atlanta, Georgia 30303
Attn: Michel A. Odermatt
Telephone: (404) 577-6100
Telecopy: (404) 577-9029
Copy all Borrowing Notices to:
Credit Suisse
12 East 49th Street
New York, New York 10017
Attn: Hazel Leslie
Telephone: (212) 238-5218
Telecopy: (212) 238-5247
Page 75
82
COMMITMENT
- ----------
$25,000,000 FIRST AMERICAN NATIONAL BANK
By: /s/ WILLIAM R. STUTTS
William R. Stutts
Vice President
4894 Poplar Avenue
Memphis, Tennessee 38117
Attn: William R. Stutts
Telephone: (901) 762-5675
Telecopy: (901) 762-5665
Copy all notices and credit matters to:
First American National Bank
4894 Poplar Avenue
Memphis, Tennessee 38117
Attn: William R. Stutts
Telephone: (901) 762-5675
Telecopy: (901) 762-5665
Copy all Borrowing Notices to:
First American National Bank
4894 Poplar Avenue
Memphis, Tennessee 38117
Attn: William R. Stutts
Telephone: (901) 762-5675
Telecopy: (901) 762-5665
Page 76
83
COMMITMENT
- ----------
$25,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By: /s/ JACKIE BRUNETTO
Jackie Brunetto
Vice President
One Ninety One Peachtree Tower
191 Peachtree Street, Suite 3600
Atlanta, Georgia 30303-1757
Attn: Jackie Brunetto
Telephone: (404) 420-3325
Telecopy: (404) 524-8509
Copy all notices and credit matters to:
The Industrial Bank of Japan, Limited,
Atlanta Agency
One Ninety One Peachtree Tower
191 Peachtree Street, Suite 3600
Atlanta, Georgia 30303-1757
Attn: Jackie Brunetto
Telephone: (404) 420-3325
Telecopy: (404) 524-8509
Copy all Borrowing Notices to:
The Industrial Bank of Japan, Limited,
Atlanta Agency
One Ninety One Peachtree Tower
191 Peachtree Street, Suite 3600
Atlanta, Georgia 30303-1757
Attn: Business Operations Department
Telephone: (404) 420-3307
Telecopy: (404) 577-6818
Page 77
84
COMMITMENT
- ----------
$25,000,000 NBD BANK
By: /s/ KIMBERLY R. ZAZULA
Kimberly R. Zazula
Second Vice President
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Kimberly R. Zazula
Telephone: (313) 225-2228
Telecopy: (313) 225-2649
Copy all notices and credit matters to:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Debbie Stuart
Telephone: (313) 225-3443
Telecopy: (313) 225-2649
Copy all Borrowing Notices to:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Debbie Stuart
Telephone: (313) 225-3443
Telecopy: (313) 225-2649
Page 78
85
COMMITMENT
- ----------
$25,000,000 ROYAL BANK OF CANADA
By: /s/ D. G. CALANCIE
D.G. Calancie
Senior Manager
Grand Cayman (North America No. 1) Branch
Financial Square, 23rd Floor
New York, New York 10005-3531
Attn: Manager, Loans Administration
Telephone: (212) 428-6311
Telecopy: (212) 428-2372
Copy all notices and credit matters to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York 10005-3531
Attn: D.G. Calancie
Telephone: (212) 428-6445
Telecopy: (212) 428-6459
Copy all Borrowing Notices to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York 10005-3531
Attn: D.G. Calancie
Telephone: (212) 428-6445
Telecopy: (212) 428-6459
Page 79
86
COMMITMENT
- ----------
$25,000,000 SAKURA BANK, LTD.
By: /s/ HIROYASU IMANISHI
Hiroyasu Imanishi
Vice President and Senior Manager
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attn: Charles S. Zimmerman
Telephone: (404) 521-3111
Telecopy: (404) 521-1133
Copy all notices and credit matters to:
Sakura Bank, Ltd.
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attn: Christy Joel
Telephone: (404) 521-3111
Telecopy: (404) 521-1133
Copy all Borrowing Notices to:
Sakura Bank, Ltd.
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attn: Christy Joel
Telephone: (404) 521-3111
Telecopy: (404) 521-1133
Page 80
87
COMMITMENT
- ----------
$25,000,000 TOKAI BANK, LTD., ATLANTA AGENCY
By: /s/ NOBUO MINAMIKAWA
Nobuo Minamikawa
Deputy Manager and Senior Vice President
Marquis Two Tower, Suite 2802
285 Peachtree Center Avenue, N.E.
Atlanta, Georgia 30303
Attn: Nobuo Minamikawa
Telephone: (404) 880-0000
Telecopy: (404) 653-0737
Copy all notices and credit matters to:
Tokai Bank, Ltd., Atlanta Agency
Marquis Two Tower, Suite 2802
285 Peachtree Center Avenue, N.E.
Atlanta, Georgia 30303
Attn: Bruce R. Dearing
Telephone: (404) 880-4601
Telecopy: (404) 653-0737
Copy all Borrowing Notices to:
Tokai Bank, Ltd., Atlanta Agency
Marquis Two Tower, Suite 2802
285 Peachtree Center Avenue, N.E.
Atlanta, Georgia 30303
Attn: Constance Houghton
Telephone: (404) 880-4623
Telecopy: (404) 653-0737
Page 81
88
COMMITMENT
- ----------
$25,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ ALAN S. BOOKSPAN
Alan S. Bookspan
Vice President
1211 Avenue of the Americas
New York, New York 10036
Attn: Alan S. Bookspan
Telephone: (212) 852-6023
Telecopy: (212) 852-6307
Copy all notices and credit matters to:
Westdeutsche Landesbank Girozentrale
1211 Avenue of the Americas
New York, New York 10036
Attn: David Smith
Telephone: (212) 852-6155
Telecopy: (212) 852-6300
Copy all Borrowing Notices to:
Westdeutsche Landesbank Girozentrale
1211 Avenue of the Americas
New York, New York 10036
Attn: David Smith
Telephone: (212) 852-6155
Telecopy: (212) 852-6300
Page 82
89
EXHIBIT "A"
NOTE
$________________________,
FEDERAL EXPRESS CORPORATION, a Delaware corporation (the "Borrower"),
promises to pay to the order of _____________________________ (the "Lender")
the lesser of the principal sum of ___________________ Dollars or the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower
pursuant to Article II of the Amended and Restated Credit Agreement (as the
same may be amended or modified, the "Agreement") hereinafter referred to, in
immediately available funds at the main office of The First National Bank of
Chicago in Chicago, Illinois, as Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date and shall make
such mandatory payments as are required to be made under the terms of Section
2.2 of the Agreement.
The Lender 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 Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Amended and Restated Credit Agreement, dated as of May 12,
1995 among the Borrower, The First National Bank of Chicago, individually and
as Agent, and the lenders named therein, including the Lender, to which
Agreement, as it may be amended from time to time, reference is hereby made for
a statement of the terms and conditions governing this Note, including 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.
FEDERAL EXPRESS CORPORATION
By:
Charles M. Buchas, Jr.
Vice President and Treasurer
Page 83
90
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF FEDERAL EXPRESS CORPORATION,
DATED MAY __, 1995
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- -----------------------------------------------------------------------------------------------------
Page 84
91
EXHIBIT "B"
OPINION OF COUNSEL
The Agent and the Lenders who are parties to the
Amended and Restated Credit Agreement described below.
_________________, 1995
Ladies and Gentlemen:
This is in regard to the Amended and Restated Credit Agreement dated
as of May 12, 1995 among Federal Express Corporation, the Lenders named therein
and The First National Bank of Chicago, as Agent (the "Agreement"). Unless the
context otherwise requires, all terms used in this opinion which are
specifically defined in the Agreement shall have the meanings given such terms
in the Agreement.
I am the Senior Vice President and General Counsel of the Borrower and
have acted as such in connection with the Agreement. I, or attorneys under my
supervision, have made such examination and investigation as I or they have
deemed necessary in order to give the following opinion.
Based upon the foregoing, it is my opinion that:
1. The Borrower is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware. The Borrower is duly authorized to execute and deliver the
Agreement and the Notes and perform its obligations under the
Agreement and the Notes and to borrow under the Agreement. The
Borrower has all corporate power required to carry on its ordinary
course of business.
2. Each Significant Subsidiary is a corporation duly
incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation.
3. Each of the Borrower and each Significant Subsidiary is
duly qualified as a foreign corporation in good standing to do
business in all jurisdictions where the failure to so qualify would
have a material adverse effect on the business of the Borrower and the
Significant Subsidiaries taken as a whole.
Page 85
92
4. The execution and delivery of the Agreement and the Notes
by the Borrower, the borrowings by the Borrower under the Agreement
and the performance by the Borrower of its obligations under the
Agreement and the Notes have been duly authorized by all necessary
corporate action and proceedings on the part of the Borrower and do
not at this time:
(a) require any consent of the Borrower's
shareholders; or
(b) contravene, or constitute a default under, any
provision of any law or regulation applicable to the Borrower
or of the certificate of incorporation or by-laws of the
Borrower or of any material contract, agreement, judgment,
order, decree, adjudication or other instrument binding upon
the Borrower, or by which the Borrower or its property may be
bound or affected, or result in the creation of any Lien on
any property now owned by the Borrower or any Significant
Subsidiary pursuant to the provisions of any agreement,
indenture or other instrument binding upon it.
5. The Agreement and the Notes delivered as of the date
hereof have been duly executed and delivered by the Borrower and
constitute the legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy or similar laws relating
generally to the enforcement of creditors' rights and subject also to
the availability of equitable remedies if equitable remedies are
sought.
6. There is no action, suit, proceeding or investigation of
which I am aware pending or threatened against or affecting the
Borrower or any Significant Subsidiary before any court, regulatory
commission, arbitration tribunal, governmental department,
administrative agency or instrumentality which, if such action, suit,
proceeding or investigation were determined adversely to the interest
of the Borrower and the Significant Subsidiaries, would have a
material, adverse effect on the business, condition (financial or
otherwise) or operations of the Borrower or any Significant
Subsidiary, except the excise tax dispute discussed in the Borrower's
Annual Report on Form 10-K for the fiscal year ended May 31, 1994 as
updated in the Borrower's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1995.
7. Neither the Borrower nor any Significant Subsidiary is in
default or violation in any respect which would have a material
adverse effect on the business or condition (financial or otherwise)
of the Borrower or any Significant Subsidiary with respect to any law,
rule, regulation, order, writ, judgment, injunction, decree,
adjudication, determination or award presently in effect and
applicable to it.
8. No approval, authorization, consent, adjudication or
order of any governmental authority, which has not been obtained by
the Borrower, is required to be obtained by the Borrower in connection
with the execution and delivery of the
Page 86
93
Agreement, the Notes, the borrowings under the Agreement or in
connection with the performance by the Borrower of its obligations
under the Agreement and the Notes.
9. The Borrower is not engaged principally or as one of
its important activities in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" (as such term is
defined in Regulation U of the Board of Governors of the Federal
Reserve System).
10. The Borrower is not an "investment company", within the
meaning of the Investment Borrower Act of 1940, as currently in
effect.
11. The laws of the State of Tennessee which limit
interest rates or other amounts payable with respect to borrowed money
or interest thereon are not applicable to the Agreement or the Notes.
12. The Borrower is not a national of any foreign
country designated in Presidential Executive Order No. 8389 or 9193,
as amended, and the regulations issued thereunder, as amended, or a
national of any foreign country designated in the Foreign Assets
Control Regulations or in the Cuban Assets Control Regulations of the
United States Treasury Department, 31 C.F.R., Subtitle B, Chapter V,
as amended.
13. The certificates issued to the Borrower pursuant to 49
U.S.C. Section 41102(a) and 49 U.S.C. Section 41103 and the operating
certificates issued to the Borrower pursuant to Part 121 of the
Federal Aviation Regulations are in full force and effect and are
adequate for the conduct of the business of the Borrower as now
conducted. There are no actions, proceedings or investigations
pending or, to my knowledge, threatened (or any basis therefor known
to me) to amend, modify, suspend or revoke any such certificate in
whole or in part which would have any material adverse effect on any
such certificate or the operations of the Borrower.
This opinion is limited to the effect of the laws of the State of
Tennessee, the General Corporation Law of the State of Delaware and the laws of
the United States of America, and I express no opinion with respect to the laws
of any other jurisdiction. As a result, I have with your permission assumed
for purposes of this opinion that, notwithstanding the contrary choice of law
provisions contained therein, the Loan Documents are governed by the laws of
the State of Tennessee.
This opinion may be relied upon by the Agent, the Lenders, and their
respective permitted participants, assignees, and other transferees. It is
understood that this opinion speaks as of the date given, notwithstanding any
delivery as contemplated above on any other date.
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EXHIBIT "C"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
______________________ (the "Assignor") and ___________________(the "Assignee")
is dated as of _____________, _____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Amended and
Restated Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement relating to the facilities listed in
Item 3 of Schedule 1 and the other Loan Documents. The aggregate Commitment
(or Loans, if the applicable Commitment has been terminated) purchased by the
Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the Agent)
after a Notice of Assignment substantially in the form of Exhibit "I" attached
hereto has been delivered to the Agent. Such Notice of Assignment must include
any consents required to be delivered to the Agent by Section 12.3.1 of the
Credit Agreement. 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
Sections 4 and 5 hereof are not made on the proposed Effective Date. The
Assignor will notify the Assignee of the proposed Effective Date no later than
the Business Day prior to the proposed Effective Date. As of the Effective
Date, (i) the Assignee shall have the rights and obligations of a Lender under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
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 interest assigned hereby. The Assignee
shall advance funds directly to the Agent with respect to all Loans and
reimbursement payments made on or after the Effective Date with respect to the
interest assigned hereby. [In consideration for the sale and assignment of
Loans hereunder, (i) the Assignee shall pay the Assignor, on the Effective
Date, an amount equal to
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the principal amount of the portion of all Floating Rate Loans assigned to the
Assignee hereunder and (ii) with respect to each Fixed Rate Loan made by the
Assignor and assigned to the Assignee hereunder which is 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 principal amount of the portion
of such Fixed Rate Loan assigned to the Assignee which is outstanding on the
Payment Date. If the Assignor and the Assignee agree that the Payment Date for
such Fixed Rate Loan shall be the Effective Date, they shall agree to the
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the existing Interest Period
applicable to such Fixed Rate Loan (the "Agreed Interest Rate") and any
interest received by the Assignee in excess of the Agreed Interest Rate shall
be remitted 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
Borrower 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 the portion of such Fixed Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement. In
the event a prepayment of any Fixed Rate Loan which is existing on the Payment
Date and assigned by the Assignor to the Assignee hereunder occurs after the
Payment Date but before the end of the Interest Period applicable to such Fixed
Rate Loan, the Assignee shall remit to the Assignor the excess of the
prepayment penalty paid with respect to the portion of such Fixed Rate Loan
assigned to the Assignee hereunder over the amount which would have been paid
if such prepayment penalty was calculated based on the Agreed Interest Rate.
The Assignee will also promptly remit to the Assignor (i) any principal
payments received from the Agent with respect to Fixed Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Agent which relate to the portion of the Loans assigned to the Assignee
hereunder 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 previously
paid by the Assignee to the Assignor.]* 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 THE ASSIGNEE. The [Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or facility fees is
made under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or commitment fees for the
period prior to the Effective Date or, in the case of Fixed Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the
amounts assigned to the
_______________
* Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
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Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder
if each interest rate was ___ of 1% less than the interest rate paid by the
Borrower or if the commitment fee was ___ of 1% less than the commitment fee
paid by the Borrower, as applicable. In addition, the] Assignee agrees to pay
___% of the processing fee required to be paid to the Agent in connection with
this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim. It is understood and agreed
that the assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of any
kind to the Assignee. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of the Borrower 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 Borrower 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 Borrower, (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto, (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender,
[and] (v) agrees that its payment instructions and notice instructions are as
set forth in the attachment to Schedule 1, [and (vi) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying that
the Assignee is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes].**
_______________
** to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
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8. 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
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right or obligation pursuant to Article XII 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 and (ii)
unless the prior written consent of the Assignor is obtained, the Assignee is
not thereby released from its obligations to the Assignor hereunder, if any
remain unsatisfied, including, without limitation, its obligations under
Sections 4, 5 and 8 hereof.
10. 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 interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment] [the dollar amount specified in Item
4 of Schedule 1 shall remain the same, but the percentage interest purchased
shall be recalculated based on the reduced Aggregate Commitment].***
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment 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.
12. GOVERNING LAW This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. 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 addresses set forth in the attachment to Schedule 1.
_______________
*** At option of parties.
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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: _____________________________
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SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
Amended and Restated Credit Agreement dated as of May 12, 1995 by and among
Federal Express Corporation, the Lenders party thereto, and The First
National Bank of Chicago, as Agent
2. Date of Assignment Agreement: ________________
3. Amounts (As of Date of Item 2 above):
a. Total of Commitments
(Loans)* under
Credit Agreement $
b. Assignee's Percentage
purchased under the
Assignment Agreement** %
4. Assignee's (Loan Amount)*
Commitment Amount
Purchased Hereunder: $
5. Proposed Effective Date: ________________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
___________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
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EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
___________________,
To: FEDERAL EXPRESS CORPORATION
2007 Corporate Avenue, 4th Floor
Memphis, Tennessee 38132
Attention: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO
One First National Plaza
Mail Suite 0362
Chicago, Illinois 60670
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Amended and Restated Credit Agreement (the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Borrower and the Agent pursuant to Section 12.3.3 of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___________, _____ (the "Assignment"), 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 the percentage interest specified in Item 3 of
Schedule 1 of all outstanding, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1, including,
without limitation, such interest in the Assignor's Commitment (if applicable)
and the Loans owing to the Assignor relating to such facilities. The Effective
Date of the Assignment shall be the later of the date specified in Item 5 of
Schedule 1 to the Assignment ("Schedule 1") or two Business Days (or such
shorter period as agreed to by the Agent) after this Notice of Assignment and
any consents and fees required by Sections 12.3.1 and 12.3.3 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. The Assignor and the Assignee hereby give to the Borrower and
the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
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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 satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $4,000 required by Section
12.3.3 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that its notice and payment
instructions are set forth in the attachment to Schedule 1.
8. Each party consenting to the Assignment in the space indicated
below hereby releases the Assignor from any obligations to it which have been
assigned to the Assignee.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
Title: Title:
ACKNOWLEDGED BY AND ACKNOWLEDGED BY AND
CONSENTED TO CONSENTED TO
THE FIRST NATIONAL BANK OF FEDERAL EXPRESS CORPORATION
CHICAGO, AS AGENT
By: By:
Title: Title:
[Attach photocopy of Schedule 1 to Assignment]
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EXHIBIT "D"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Amended and Restated Credit Agreement, dated as of May 12, 1995 (as
the same may be amended or modified, the "Credit Agreement"), among
Federal Express Corporation (the "Borrower"), the Agent, and the
Lenders named therein
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.13 of the Credit Agreement.
Facility Identification Number(s)
Customer/Account Name
Transfer Funds To
For Account No.
Reference/Attention To
Authorized Officer (Customer Representative) Date
(Please Print) Signature
Authorized Officer (Customer Representative) Date
(Please Print) Signature
Lender Officer Name Date
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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SCHEDULE "1"
SIGNIFICANT SUBSIDIARIES
(See Section 5.7)
Significant Percent Jurisdiction of
Subsidiary Ownership Organization
- ---------------------------------- --------- ------------------
Federal Express Canada Ltd. 100% Canada
Federal Express (Hong Kong)
Limited(1) 100% Hong Kong
________________________
(1) Federal Express (Hong Kong) Limited is a wholly-owned subsidiary of
Federal Express International, Inc. Federal Express International,
Inc. is a wholly-owned subsidiary of Federal Express Corporation.
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SCHEDULE "2"
COMPLIANCE CALCULATIONS
(See Section 6.1(iv))
SEE ATTACHED
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