\n CATEGORY 1 Rating GREATER THAN OR EQUAL TO A- from S&P
\n or GREATER THAN OR EQUAL TO A3 from Moody’s 0% 0.275% 0.100%
\n—————————————————————————————————————–
\n Rating = BBB+ from S&P
\n CATEGORY 2 or = Baa1 from Moody’s 0% 0.375% 0.125%
\n—————————————————————————————————————–
\n Rating = BBB from S&P
\n CATEGORY 3 or = Baa2 from Moody’s 0% 0.475% 0.150%
\n—————————————————————————————————————–
\n Rating = BBB- from S&P
\n CATEGORY 4 or = Baa3 from Moody’s 0% 0.800% 0.200%
\n—————————————————————————————————————–
\n Rating <\/p>\n For purposes of the foregoing, (i) if the ratings established or
\ndeemed to have been established by Moody’s and S&P for the Index Debt shall be
\nchanged (other than as a result of a change in the rating system of Moody’s or
\nS&P), such change shall be effective as of the date on which it is first
\nannounced by the applicable rating agency; (ii) if the ratings established or
\ndeemed to have been established by Moody’s and S&P for the Index Debt shall fall
\nwithin different Categories, the Applicable Rate shall be based on the higher of
\nthe two ratings unless one of the two ratings is two or more Categories lower
\nthan the other, in which case the Applicable Rate shall be determined by
\nreference to the Category next below that of the higher of the two ratings; and
\n(iii) if either Moody’s or S&P shall not have in effect a rating for the Index
\nDebt (other than by reason of the circumstances referred to in the last sentence
\nof this definition), then such rating agency shall be<\/p>\n
3<\/p>\n
deemed to have established a rating in Category 5. Each change in the Applicable
\nRate shall apply during the period commencing on the effective date of such
\nchange and ending on the date immediately preceding the effective date of the
\nnext such change. If the rating system of Moody’s or S&P shall change, the
\nBorrower and the Lenders shall negotiate in good faith to amend this definition
\nto reflect such changed rating system and, pending the effectiveness of any such
\namendment, the Applicable Rate shall be determined by reference to the rating
\nmost recently in effect prior to such change.<\/p>\n
“ASSIGNEE” has the meaning assigned to such term in Section 9.06(c).<\/p>\n
“ASSIGNMENT AND ACCEPTANCE” means an assignment and acceptance entered
\ninto by a Lender and an assignee (with the consent of any party whose consent is
\nrequired by Section 9.06), and accepted by the Administrative Agent, in the form
\nof EXHIBIT E.<\/p>\n
“ASSIGNOR” has the meaning assigned to such term in Section 9.06(c).<\/p>\n
“AVAILABILITY PERIOD” means the period from and including the
\nEffective Date to but excluding the earlier of the Maturity Date and the date of
\ntermination of the Commitments.<\/p>\n
“BENEFICIAL OWNER” means a Person deemed the “Beneficial Owner” of any
\nsecurities as to which such Person or any of such Person’s Affiliates is or may
\nbe deemed to be the beneficial owner pursuant to Rule 13d-3 or l3d-5 under the
\nSecurities Exchange Act of 1934 (as the same may from time to time be amended,
\nmodified or readopted), as well as any securities as to which such Person or any
\nof such Person’s Affiliates has the right to become such a beneficial owner
\n(whether such right is exercisable immediately or only after the passage of time
\nor the occurrence of a specified event) pursuant to any agreement, arrangement
\nor understanding, or upon the exercise of conversion rights, exchange rights,
\nrights, warrants or options, or otherwise. In determining the percentage of the
\noutstanding Voting Stock with respect to which a Person is the Beneficial Owner,
\nall shares as to which such Person is deemed the Beneficial Owner shall be
\ndeemed outstanding.<\/p>\n
“BENEFITTED LENDER” has the meaning assigned to such term in Section
\n9.07(a).<\/p>\n
“BOARD” means the Board of Governors of the Federal Reserve System of
\nthe United States of America.<\/p>\n
“BORROWER” means FedEx Corporation, a Delaware corporation.<\/p>\n
“BORROWING” means Loans of the same Type, made, converted or continued
\non the same date and, in the case of Eurodollar Loans, as to which a single
\nInterest Period is in effect.<\/p>\n
“BORROWING REQUEST” means a request by the Borrower for a Borrowing in
\naccordance with Section 2.03.<\/p>\n
“BUSINESS DAY” means any day that is not a Saturday, Sunday or other
\nday on which commercial banks in New York City are authorized or required by law
\nto remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
\nthe term “BUSINESS DAY” shall also exclude any day on which banks are not open
\nfor dealings in dollar deposits in the London interbank market.<\/p>\n
4<\/p>\n
“CAPITALIZED OPERATING LEASE VALUE” means the present value, using a
\ndiscount rate equal to 12.5%, of the Borrower’s and the consolidated
\nSubsidiaries’ future minimum lease payments for aircraft leases scheduled to
\nterminate more than 365 days after their respective dates of execution.<\/p>\n
“CAPITALIZED LEASE OBLIGATIONS” of any Person means the obligations of
\nsuch Person to pay rent or other amounts under any lease of (or other
\narrangement conveying the right to use) real or personal property, or a
\ncombination thereof, which obligations are required to be classified and
\naccounted for as capital leases (“CAPITALIZED LEASE”) on a balance sheet of such
\nPerson under GAAP, and the amount of such obligations shall be the capitalized
\namount thereof determined in accordance with GAAP.<\/p>\n
“CHANGE IN LAW” means (a) the adoption of any law, rule or regulation
\nafter the date of this Agreement, (b) any change in any law, rule or regulation
\nor in the interpretation or application thereof by any Governmental Authority
\nafter the date of this Agreement or (c) compliance by any Lender (or, for
\npurposes of Section 2.12(b), by any lending office of such Lender or by such
\nLender’s holding company, if any) with any request, guideline or directive
\n(whether or not having the force of law) of any Governmental Authority made or
\nissued after the date of this Agreement.<\/p>\n
“CHANGE OF CONTROL” means any of the following: (a) any Person or
\ngroup (within the meaning of the Securities Exchange Act of 1934 and the rules
\nof the Securities and Exchange Commission thereunder as in effect on the date
\nthereof) becoming the Beneficial Owner of Voting Stock of the Borrower having
\nmore than 30 percent of the voting power of all of the then outstanding Voting
\nStock of the Borrower or (b) individuals who are not Continuing Directors
\nconstituting a majority of the Board of Directors of the Borrower.<\/p>\n
“CODE” means the Internal Revenue Code of 1986, as amended from time
\nto time.<\/p>\n
“COMMITMENT” means, with respect to any Lender, the obligation of such
\nLender, if any, to make Loans hereunder, in an amount not to exceed the amount
\nset forth under the heading “Commitment” opposite such Lender’s name on SCHEDULE
\n2.01 or in the Assignment and Acceptance pursuant to which such Lender became a
\nparty hereto, as the same may be changed form time to time pursuant to the terms
\nhereof. The aggregate original amount of the Commitments on the Effective Date
\nis $750,000,000.<\/p>\n
“COMMONLY CONTROLLED ENTITY” means an entity, whether or not
\nincorporated, that is under common control with the Borrower within the meaning
\nof Section 4001 of ERISA or is part of a group that includes the Borrower and
\nthat is treated as a single employer under Section 414 of the Code.<\/p>\n
“CONDUIT LENDER” means any special purpose corporation organized and
\nadministered by any Lender for the purpose of making Loans otherwise required to
\nbe made by such Lender and designated by such Lender in a written instrument;
\nPROVIDED, that the designation by any Lender of a Conduit Lender shall not
\nrelieve the designating Lender of any of its obligations to fund a Loan under
\nthis Agreement if, for any reason, its Conduit Lender fails to fund any such
\nLoan, and the designating Lender (and not the Conduit Lender) shall have the
\nsole right and responsibility to deliver all consents and waivers required or
\nrequested under this Agreement with respect to its Conduit Lender, and PROVIDED,
\nFURTHER, that no Conduit Lender shall (a) be entitled to receive any greater
\namount pursuant to Section 2.12, 2.13, 2.14, 2.15 or 9.05 than the designating
\nLender would<\/p>\n
5<\/p>\n
have been entitled to receive in respect of the extensions of credit made by
\nsuch Conduit Lender or (b) be deemed to have any Commitment.<\/p>\n
“CONSOLIDATED ADJUSTED NET WORTH” means, at any date as of which the
\namount thereof is to be determined, (a) the sum of the amounts set forth as
\npreferred stock, common stock, capital in excess of par value or paid-in surplus
\nand retained earnings on a consolidated balance sheet of the Borrower and the
\nconsolidated Subsidiaries prepared as of such date in accordance with GAAP,
\nminus (b) the sum of the amounts set forth on such consolidated balance sheet as
\n(i) the cost of any shares of the Borrower’s common stock held in the treasury,
\n(ii) any surplus resulting from any write-up of assets after the date of this
\nAgreement and (iii) the aggregate value of all goodwill, all as determined in
\naccordance with GAAP.<\/p>\n
“CONSOLIDATED ADJUSTED TOTAL ASSETS” means, at any date as of which
\nthe amount thereof is to be determined, (a) the aggregate amount set forth as
\nthe assets of the Borrower and the consolidated Subsidiaries on a consolidated
\nbalance sheet of the Borrower and the consolidated Subsidiaries prepared as of
\nsuch date in accordance with GAAP, minus (b) the aggregate book value as of such
\ndate of determination of all assets of the Borrower or any consolidated
\nSubsidiary subject on such date of determination to a Lien permitted by Section
\n6.01(j).<\/p>\n
“CONSOLIDATED CASH FLOW” means, on a consolidated basis for the
\nBorrower and its consolidated Subsidiaries for any period, the sum of (i)
\nAdjusted Net Income plus (ii) Interest Expense plus (iii) Rent Expense, in each
\ncase as determined in accordance with GAAP for such period.<\/p>\n
“CONSOLIDATED NET INCOME” means, for any period, the net income (or
\nnet loss) of the Borrower and the consolidated Subsidiaries for such period,
\ndetermined on a consolidated basis in accordance with GAAP and after giving
\nappropriate effect to any outside minority interests in the consolidated
\nSubsidiaries, excluding<\/p>\n
(i) any aggregate net gain arising from the sale or other disposition
\n of any assets other than any such gain arising from the sale or other
\n disposition of assets (including aircraft) in the ordinary course of
\n business,<\/p>\n
(ii) any gain arising from any write-ups of assets,<\/p>\n
(iii) any unrealized capital gain or loss on any investment,<\/p>\n
(iv) any portion of the earnings of any consolidated Subsidiary which
\n for any reason is unavailable for payment of dividends to the Borrower or
\n another consolidated Subsidiary,<\/p>\n
(v) any amount representing the interest of the Borrower and the
\n consolidated Subsidiaries in the undistributed earnings of any other Person
\n (other than a consolidated Subsidiary),<\/p>\n
(vi) the net income (or net loss) of any Person prior to the date it
\n became a consolidated Subsidiary, and<\/p>\n
(vii) the effect of the application of Financial Accounting Standards
\n Board Statement No. 142.<\/p>\n
6<\/p>\n
“CONTINGENT OBLIGATION” of a Person means any agreement, undertaking
\nor arrangement by which such Person assumes, guarantees, endorses, contingently
\nagrees to purchase or provide funds for the payment of, or otherwise becomes or
\nis contingently liable upon, the obligation or liability of any other Person, or
\nagrees to maintain the net worth or working capital or other financial condition
\nof any other Person, or otherwise assures any creditor of such other Person
\nagainst loss, including, without limitation, any comfort letter, operating
\nagreement, or take-or-pay contract.<\/p>\n
“CONTINUING DIRECTOR” means an individual who is a member of the Board
\nof Directors of the Borrower on the date of this Agreement or who shall have
\nbecome a member of the Board of Directors of the Borrower subsequent to such
\ndate and who shall have been nominated or elected by a majority of the other
\nContinuing Directors then members of the Board of Directors of the Borrower.<\/p>\n
“CONTROL” means the possession, directly or indirectly, of the power
\nto direct or cause the direction of the management or policies of a Person,
\nwhether through the ability to exercise voting power, by contract or otherwise.
\n“CONTROLLING” and “CONTROLLED” have meanings correlative thereto.<\/p>\n
“CREDIT EXPOSURE” means, with respect to any Lender at any time, the
\nsum of the outstanding principal amount of such Lender’s Loans at such time.<\/p>\n
“CURRENT MATURITIES” means, as of any date with respect to the Long
\nTerm Debt or the Capitalized Lease Obligations of any Person, any portion of
\nsuch Long Term Debt or Capitalized Lease Obligations, as the case may be, which
\nwould in accordance with GAAP be classified as a current liability of such
\nPerson.<\/p>\n
“DEFAULT” means any event or condition which constitutes an Event of
\nDefault or which upon notice, lapse of time or both would, unless cured or
\nwaived, become an Event of Default.<\/p>\n
“DISCLOSED MATTERS” means the actions, suits and proceedings and the
\nenvironmental matters disclosed in SCHEDULE 3.06.<\/p>\n
“DOLLARS” or $” refers to lawful money of the United States of
\nAmerica.<\/p>\n
“EFFECTIVE DATE” means the date on which the conditions specified in
\nSection 4.01 are satisfied (or waived in accordance with Section 9.01).<\/p>\n
“ENVIRONMENTAL LAWS” means all laws, rules, regulations, codes,
\nordinances, orders, decrees, judgments, injunctions, notices or binding
\nagreements issued, promulgated or entered into by any Governmental Authority,
\nrelating in any way to the environment, preservation or reclamation of natural
\nresources, the management, release or threatened release of any Hazardous
\nMaterial or to health and safety matters.<\/p>\n
“ENVIRONMENTAL LIABILITY” means any liability, contingent or otherwise
\n(including any liability for damages, costs of environmental remediation, fines,
\npenalties or indemnities), of the Borrower or any Subsidiary directly or
\nindirectly resulting from or based upon (a) violation of any Environmental Law,
\n(b) the generation, use, handling, transportation, storage, treatment or
\ndisposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
\n(d) the release or threatened<\/p>\n
7<\/p>\n
release of any Hazardous Materials into the environment or (e) any contract,
\nagreement or other consensual arrangement pursuant to which liability is assumed
\nor imposed with respect to any of the foregoing.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time.<\/p>\n
“EURODOLLAR”, when used in reference to any Loan or Borrowing, refers
\nto whether such Loan, or the Loans comprising such Borrowing, are bearing
\ninterest at a rate determined by reference to the Adjusted LIBO Rate.<\/p>\n
“EVENT OF DEFAULT” has the meaning assigned to such term in Article
\nVII.<\/p>\n
“EXISTING REVOLVING CREDIT FACILITY” means the Credit Agreement dated
\nas of January 15, 1998 among the Borrower and Bank One, N.A. (formerly known as
\nThe First National Bank of Chicago), individually and as agent, and certain
\nlenders.<\/p>\n
“FAA” means the Federal Aviation Administration or any other
\ngovernmental agency succeeding to the jurisdiction thereof.<\/p>\n
“FEDERAL AVIATION ACT” means the Federal Aviation Act of 1958, as
\namended from time to time.<\/p>\n
“FEDERAL EXPRESS CORPORATION” means Federal Express Corporation, a
\nDelaware corporation.<\/p>\n
“FEDERAL FUNDS EFFECTIVE RATE” means, for any day, an interest rate
\nper annum equal to the weighted average (rounded upwards, if necessary, to the
\nnext 1\/100 of 1%) of the rates on overnight Federal funds transactions with
\nmembers of the Federal Reserve System arranged by Federal funds brokers, as
\npublished for such day on the next succeeding Business Day by the Federal
\nReserve Bank of New York, or, if such rate is not so published for any day that
\nis a Business Day, the average (rounded upwards, if necessary, to the next 1\/100
\nof 1%) of the quotations for such day for such transactions received by the
\nAdministrative Agent from three Federal funds brokers of recognized standing
\nselected by it.<\/p>\n
“FINANCIAL OFFICER” means the chief financial officer, principal
\naccounting officer, treasurer, staff vice president and assistant treasurer or
\ncontroller of the Borrower.<\/p>\n
“FLIGHT EQUIPMENT” means, collectively, aircraft, aircraft engines,
\nappliances and spare parts, all as defined in the Federal Aviation Act, and
\nrelated parts.<\/p>\n
“FUNDED DEBT” means, as of any date of determination, any Indebtedness
\n(excluding items characterized as Indebtedness pursuant to clause (vii) of the
\ndefinition thereof other than Contingent Obligations in respect of Indebtedness
\nof Persons other than the Borrower or its consolidated Subsidiaries) of the
\nBorrower and its consolidated Subsidiaries that is outstanding on such date.<\/p>\n
“GAAP” means generally accepted principles of accounting as in effect
\nfrom time to time in the United States of America.<\/p>\n
8<\/p>\n
“GOVERNMENTAL AUTHORITY” means the government of the United States of
\nAmerica, any other nation or any political subdivision thereof, whether state or
\nlocal, and any agency, authority, instrumentality, regulatory body, court,
\ncentral bank or other entity exercising executive, legislative, judicial,
\ntaxing, regulatory or administrative powers or functions of or pertaining to
\ngovernment.<\/p>\n
“GUARANTEE AGREEMENT” means that certain Guaranty of even date
\nherewith, executed by each Guarantor, substantially in the form of EXHIBIT C
\nattached hereto.<\/p>\n
“GUARANTOR” means each Subsidiary that executes the Guarantee
\nAgreement in accordance with Section 5.12 hereof. The initial Guarantors are set
\nforth on Schedule 5.12 hereto.<\/p>\n
“HAZARDOUS MATERIALS” means all explosive or radioactive substances or
\nwastes and all hazardous or toxic substances, wastes or other pollutants,
\nincluding petroleum or petroleum distillates, asbestos or asbestos containing
\nmaterials, polychlorinated biphenyls, radon gas, infectious or medical wastes
\nand all other substances or wastes of any nature regulated pursuant to any
\nEnvironmental Law.<\/p>\n
“HEDGE AGREEMENT” means any interest rate swap, exchange or cap
\nagreement.<\/p>\n
“INDEBTEDNESS” of a Person means, without duplication, such Person’s
\n(i) obligations for borrowed money, (ii) obligations representing the deferred
\npurchase price of Property or services (other than accounts payable arising in
\nthe ordinary course of such Person’s business payable on terms customary in the
\ntrade), (iii) obligations, whether or not assumed, secured by Liens or payable
\nout of the proceeds or production from property now or hereafter owned or
\nacquired by such Person, (iv) obligations which are evidenced by notes,
\nacceptances, or other similar instruments, (v) Capitalized Lease Obligations,
\n(vi) net liabilities under Hedge Agreements, (vii) Contingent Obligations, and
\n(viii) obligations created through asset securitization financing programs.<\/p>\n
“INDEX DEBT” means senior, unsecured, non-credit enhanced long-term
\nindebtedness for borrowed money of the Borrower.<\/p>\n
“INSOLVENCY” means, with respect to any Multiemployer Plan, the
\ncondition that such Plan is insolvent within the meaning of Section 4245 of
\nERISA.<\/p>\n
“INTEREST ELECTION REQUEST” means a request by the Borrower to convert
\nor continue a Borrowing in accordance with Section 2.05.<\/p>\n
“INTEREST EXPENSE” means, for any period, the gross interest expense
\n(without regard to any offsetting interest income or reduction for capitalized
\ninterest) of the Borrower and its consolidated Subsidiaries for such period
\ndetermined on a consolidated basis in accordance with GAAP.<\/p>\n
“INTEREST PAYMENT DATE” means (a) with respect to any ABR Loan, the
\nlast day of each March, June, September and December and (b) with respect to any
\nEurodollar Loan, the last day of the Interest Period applicable to the Borrowing
\nof which such Loan is a part and, in the case of a Eurodollar Borrowing with an
\nInterest Period of more than three months’ duration, each day prior to the last
\nday of such Interest Period that occurs at intervals of three months’ duration
\nafter the first day of such Interest Period.<\/p>\n
9<\/p>\n
“INTEREST PERIOD” means with respect to any Eurodollar Borrowing, the
\nperiod commencing on the date of such Borrowing and ending on the numerically
\ncorresponding day in the calendar month that is one, two, three or six months
\nthereafter, as the Borrower may elect; PROVIDED, that (i) if any Interest Period
\nwould end on a day other than a Business Day, such Interest Period shall be
\nextended to the next succeeding Business Day unless such next succeeding
\nBusiness Day would fall in the next calendar month, in which case such Interest
\nPeriod shall end on the next preceding Business Day and (ii) any Interest Period
\nthat commences on the last Business Day of a calendar month (or on a day for
\nwhich there is no numerically corresponding day in the last calendar month of
\nsuch Interest Period) shall end on the last Business Day of the last calendar
\nmonth of such Interest Period. For purposes hereof, the date of a Borrowing
\ninitially shall be the date on which such Borrowing is made and thereafter shall
\nbe the effective date of the most recent conversion or continuation of such
\nBorrowing.<\/p>\n
“INVESTMENT” of a Person means any loan, advance (other than
\ncommission, travel and similar advances to officers and employees made in the
\nordinary course of business), extension of credit (other than accounts
\nreceivable arising in the ordinary course of business on terms customary in the
\ntrade), deposit account (other than a demand deposit account maintained in the
\nordinary course of business) or contribution of capital by such Person to any
\nother Person or any investment in, or purchase or other acquisition of, the
\nstock, partnership interests, notes, debentures or other securities of any other
\nPerson made by such Person.<\/p>\n
“LENDER AFFILIATE” means (a) any Affiliate of any Lender, (b) any
\nPerson that is administered or managed by any Lender or any Affiliate of any
\nLender and that is engaged in making, purchasing, holding or otherwise investing
\nin commercial loans and similar extensions of credit in the ordinary course of
\nits business and (c) with respect to any Lender which is a fund that invests in
\ncommercial loans and similar extensions of credit, any other fund that invests
\nin commercial loans and similar extensions of credit and is managed or advised
\nby the same investment advisor as such Lender or by an Affiliate of such Lender
\nor investment advisor.<\/p>\n
“LENDERS” means the Persons listed on SCHEDULE 2.01 and any other
\nPerson that shall have become a party hereto pursuant to an Assignment and
\nAcceptance, other than any such Person that ceases to be a party hereto pursuant
\nto an Assignment and Acceptance. Unless the context otherwise requires, each
\nreference herein to the Lenders shall be deemed to include any Conduit Lender.<\/p>\n
“LIBO RATE” means, with respect to any Eurodollar Borrowing for any
\nInterest Period, the rate appearing on Page 3750 of the Telerate Service (or on
\nany successor or substitute page of such Service, or any successor to or
\nsubstitute for such Service, providing rate quotations comparable to those
\ncurrently provided on such page of such Service, as determined by the
\nAdministrative Agent from time to time for purposes of providing quotations of
\ninterest rates applicable to dollar deposits in the London interbank market) at
\napproximately 11:00 a.m., London time, two Business Days prior to the
\ncommencement of such Interest Period, as the rate for dollar deposits with a
\nmaturity comparable to such Interest Period. In the event that such rate is not
\navailable at such time for any reason, then the “LIBO RATE” with respect to such
\nEurodollar Borrowing for such Interest Period shall be the rate (rounded
\nupwards, if necessary, to the next 1\/16 of 1%) at which dollar deposits of
\n$5,000,000 and for a maturity comparable to such Interest Period are offered by
\nthe principal London office of the Administrative Agent in immediately available
\nfunds in the London interbank market at approximately 11:00 a.m., London time,
\ntwo Business Days prior to the commencement of such Interest Period.<\/p>\n
10<\/p>\n
“LIEN” means any lien (statutory or other), mortgage, pledge,
\nhypothecation, assignment, deposit arrangement, encumbrance or other security
\nagreement of any kind or nature whatsoever (including, without limitation, the
\ninterest of a vendor or lessor under any conditional sale, Capitalized Lease or
\nother title retention agreement).<\/p>\n
“LOANS” means the loans made by the Lenders to the Borrower pursuant
\nto this Agreement.<\/p>\n
“LOAN DOCUMENTS” means this Agreement, the Guarantee Agreement and the
\nNotes, if any.<\/p>\n
“LOAN PARTIES” means the collective reference to the Borrower and each
\nGuarantor.<\/p>\n
“LONG TERM DEBT” means, as of any date with respect to any Person, all
\nliabilities of such Person outstanding on such date which would in accordance
\nwith GAAP be classified as long term debt of such Person.<\/p>\n
“MARGIN STOCK” has the meaning assigned to such term in Regulation U.<\/p>\n
“MATERIAL ADVERSE EFFECT” means a material adverse effect on (i) the
\nbusiness, Property, condition (financial or otherwise), results of operations,
\nor prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
\nability of the Borrower to perform its obligations under the Loan Documents, or
\n(iii) the validity or enforceability of any of the Loan Documents or the rights
\nor remedies of the Administrative Agent or the Lenders thereunder.<\/p>\n
“MATERIAL INDEBTEDNESS” means Indebtedness (other than the Loans) of
\nany one or more of the Borrower and its consolidated Subsidiaries, in the case
\nof any single item of such Indebtedness, in excess of $20,000,000 (or the
\nequivalent thereof in any other currency) or, in the case of all such
\nIndebtedness, in an aggregate principal amount in excess of $60,000,000 (or the
\nequivalent thereof in any other currency).<\/p>\n
“MATURITY DATE” means September 28, 2006, or if such date is not a
\nBusiness Day, the next succeeding Business Day.<\/p>\n
“MOODY’S” means Moody’s Investors Service, Inc., or, if Moody’s shall
\ncease rating Indebtedness of the Borrower and its ratings business with respect
\nto Indebtedness of the Borrower shall have been transferred to a successor
\nPerson, such successor Person; PROVIDED, HOWEVER, that if Moody’s ceases rating
\nsecurities similar to Indebtedness of the Borrower and its ratings business with
\nrespect to such securities shall not have been transferred to any successor
\nPerson, then “Moody’s” shall mean any other nationally recognized rating agency
\n(other than S&P) selected by the Borrower and reasonably satisfactory to the
\nAdministrative Agent that rates any Indebtedness of the Borrower.<\/p>\n
“MULTIEMPLOYER PLAN” means a Plan that is a multiemployer plan as
\ndefined in Section 4001(a)(3) of ERISA.<\/p>\n
“NON-EXCLUDED TAXES” has the meaning assigned to such term in Section
\n2.14(a).<\/p>\n
“NON-U.S. LENDER” has the meaning assigned to such term in Section
\n2.14(d).<\/p>\n
11<\/p>\n
“NOTES” means any promissory notes executed by the Borrower in favor
\nof a Lender party hereto pursuant to Section 2.07(e).<\/p>\n
“OBLIGATIONS” means the unpaid principal of and interest on (including
\ninterest accruing after the maturity of the Loans and interest accruing after
\nthe filing of any petition in bankruptcy, or the commencement of any insolvency,
\nreorganization or like proceeding, relating to the Borrower, whether or not a
\nclaim for post-filing or post-petition interest is allowed in such proceeding)
\nthe Loans and all other obligations and liabilities of the Borrower to the
\nAdministrative Agent or to any Lender, whether direct or indirect, absolute or
\ncontingent, due or to become due, or now existing or hereafter incurred, which
\nmay arise under, out of, or in connection with, this Agreement, any other Loan
\nDocument, or any other document made, delivered or given in connection herewith
\nor therewith, whether on account of principal, interest, reimbursement
\nobligations, fees, indemnities, costs or expenses (including all fees, charges
\nand disbursements of counsel to the Administrative Agent or to any Lender that
\nare required to be paid by the Borrower pursuant hereto).<\/p>\n
“OTHER TAXES” means any and all present or future stamp or documentary
\ntaxes or any other excise or property taxes, charges or similar levies arising
\nfrom any payment made hereunder or from the execution, delivery or enforcement
\nof, or otherwise with respect to, this Agreement or any other Loan Document.<\/p>\n
“PARTICIPANT” has the meaning assigned to such term in Section
\n9.06(b).<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation established
\npursuant to Subtitle A of Title IV of ERISA (or any successor).<\/p>\n
“PERMITTED INVESTMENTS” means (a) marketable direct obligations issued
\nby, or unconditionally guaranteed by, the United States Government or issued by
\nany agency thereof and backed by the full faith and credit of the United States,
\nin each case maturing within one year from the date of acquisition; (b)
\ncertificates of deposit, time deposits, eurodollar time deposits or overnight
\nbank deposits having maturities of one year or less from the date of acquisition
\nissued by any Lender or by any commercial bank organized under the laws of the
\nUnited States or any state thereof having combined capital and surplus of not
\nless than $250,000,000; (c) commercial paper of an issuer rated at least A-1 by
\nS&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally
\nrecognized rating agency, if both of the two named rating agencies cease
\npublishing ratings of commercial paper issuers generally, and maturing within
\none year from the date of acquisition; (d) repurchase obligations of any Lender
\nor of any commercial bank satisfying the requirements of clause (b) of this
\ndefinition, having a term of not more than 30 days, with respect to securities
\nissued or fully guaranteed or insured by the United States government; (e)
\nsecurities with maturities of one year or less from the date of acquisition
\nissued or fully guaranteed by any state, commonwealth or territory of the United
\nStates, by any political subdivision or taxing authority of any such state,
\ncommonwealth or territory or by any foreign government, the securities of which
\nstate, commonwealth, territory, political subdivision, taxing authority or
\nforeign government (as the case may be) are rated at least A by S&P or A by
\nMoody’s; (f) securities with maturities of six months or less from the date of
\nacquisition backed by standby letters of credit issued by any Lender or any
\ncommercial bank satisfying the requirements of clause (b) of this definition; or
\n(g) shares of money market mutual or similar funds which invest exclusively in
\nassets satisfying the requirements of clauses (a) through (f) of this
\ndefinition.<\/p>\n
12<\/p>\n
“PERSON” means any natural person, corporation, limited liability
\ncompany, trust, joint venture, association, company, partnership, Governmental
\nAuthority or other entity.<\/p>\n
“PLAN” means at a particular time, any employee benefit plan that is
\ncovered by ERISA and in respect of which the Borrower or a Commonly Controlled
\nEntity is (or, if such plan were terminated at such time, would under Section
\n4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
\nERISA.<\/p>\n
“PRIME RATE” means the rate of interest per annum publicly announced
\nfrom time to time by The Chase Manhattan Bank as its prime rate in effect at its
\nprincipal office in New York City; each change in the Prime Rate shall be
\neffective from and including the date such change is publicly announced as being
\neffective.<\/p>\n
“PROPERTY” of a Person means any and all property, whether real,
\npersonal, tangible, intangible, or mixed, of such Person, or other assets owned
\nor leased by such Person.<\/p>\n
“REGISTER” has the meaning assigned to such term in Section 9.06(d).<\/p>\n
“REGULATION U” means Regulation U of the Board as from time to time in
\neffect and any successor or other regulation or official interpretation of the
\nBoard relating to the extension of credit by banks for the purpose of purchasing
\nor carrying Margin Stock applicable to member banks of the Federal Reserve
\nSystem.<\/p>\n
“RENT EXPENSE” means, for any period, the rental expense of the
\nBorrower and its consolidated Subsidiaries for such period determined on a
\nconsolidated basis in accordance with GAAP excluding rental expense with respect
\nto leases of aircraft scheduled to terminate no more than 365 days after their
\nrespective dates of execution.<\/p>\n
“REORGANIZATION” means, with respect to any Multiemployer Plan, the
\ncondition that such plan is in reorganization within the meaning of Section 4241
\nof ERISA.<\/p>\n
“REPORTABLE EVENT” means any of the events set forth in Section
\n4043(c) of ERISA, other than those events for which the thirty day notice period
\nhas been waived under the Regulations of PBGC.<\/p>\n
“REQUIRED LENDERS” means, at any time, Lenders having Credit Exposures
\nand unused Commitments representing at least 51% of the sum of the total Credit
\nExposures and unused Commitments at such time.<\/p>\n
“REQUIREMENT OF LAW” means, as to any Person, the Certificate of
\nIncorporation and By-Laws or other organizational or governing documents of such
\nPerson, and any law, treaty, rule or regulation or determination of an
\narbitrator or a court or other Governmental Authority, in each case applicable
\nto or binding upon such Person or any of its property or to which such Person or
\nany of its property is subject.<\/p>\n
“RESTRICTED INVESTMENT” means any Investment other than an Investment
\npermitted by Section 6.05.<\/p>\n
“RESTRICTED MARGIN STOCK” means Margin Stock owned by the Borrower or
\nany Subsidiary which represents not more than 33-1\/3% of the aggregate value
\n(determined in<\/p>\n
13<\/p>\n
accordance with Regulation U), on a consolidated basis, of the Property and
\nassets of the Borrower and the Subsidiaries (other than Margin Stock) that is
\nsubject to the provisions of Article 6 (including Section 6.01).<\/p>\n
“SIGNIFICANT SUBSIDIARY” means, during each fiscal year of the
\nBorrower, any Subsidiary of the Borrower which had revenues (determined in
\naccordance with GAAP) for the immediately preceding fiscal year of the Borrower
\nin excess of 2.0% of the consolidated revenues (determined in accordance with
\nGAAP) of the Borrower and the consolidated Subsidiaries for such immediately
\npreceding fiscal year.<\/p>\n
“SINGLE EMPLOYER PLAN” means any Plan that is covered by Title IV of
\nERISA, but that is not a Multiemployer Plan.<\/p>\n
“S&P” means Standard & Poor’s Ratings Group, a division of
\nMcGraw-Hill, Inc., or, if S&P shall cease rating Indebtedness of the Borrower
\nand its ratings business with respect to Indebtedness of the Borrower shall have
\nbeen transferred to a successor Person, such successor Person; PROVIDED,
\nHOWEVER, that if S&P ceases rating securities similar to Indebtedness of the
\nBorrower and its ratings business with respect to such securities shall not have
\nbeen transferred to any successor Person, then “S&P” shall mean any other
\nnationally recognized rating agency (other than Moody’s) selected by the
\nBorrower and reasonably satisfactory to the Administrative Agent that rates any
\nIndebtedness of the Borrower.<\/p>\n
“STATUTORY RESERVE RATE” means a fraction (expressed as a decimal),
\nthe numerator of which is the number one and the denominator of which is the
\nnumber one minus the aggregate of the maximum reserve percentages (including any
\nmarginal, special, emergency or supplemental reserves) expressed as a decimal
\nestablished by the Board to which the Administrative Agent is subject with
\nrespect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
\nto as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
\npercentages shall include those imposed pursuant to such Regulation D.
\nEurodollar Loans shall be deemed to constitute eurocurrency funding and to be
\nsubject to such reserve requirements without benefit of or credit for proration,
\nexemptions or offsets that may be available from time to time to any Lender
\nunder such Regulation D or any comparable regulation. The Statutory Reserve Rate
\nshall be adjusted automatically on and as of the effective date of any change in
\nany reserve percentage.<\/p>\n
“SUBSIDIARY” of a Person means (i) any corporation more than 50% of
\nthe outstanding Voting Stock of which shall at the time be owned or controlled,
\ndirectly or indirectly, by such Person or by one or more of its subsidiaries or
\nby such Person and one or more of its subsidiaries, or (ii) any partnership,
\nassociation, joint venture or similar business organization more than 50% of the
\nownership interests having power to direct the ordinary affairs thereof of which
\nshall at the time be so owned or controlled.<\/p>\n
“SUBSIDIARY” means any subsidiary of the Borrower.<\/p>\n
“TAXES” means any and all present or future taxes, levies, imposts,
\nduties, deductions, charges or withholdings imposed by any Governmental
\nAuthority.<\/p>\n
“364-DAY COMMITMENT” has the meaning attributed to the term
\n“Commitment” in the 364-Day Credit Agreement.<\/p>\n
14<\/p>\n
“364-DAY CREDIT AGREEMENT” means the 364-Day Credit Agreement dated as
\nof the date hereof among the Borrower, the lenders party thereto and The Chase
\nManhattan Bank, as administrative agent.<\/p>\n
“364-DAY GUARANTEE AGREEMENT” means that certain Guaranty of the
\nobligations under the 364-Day Credit Agreement of even date herewith, executed
\nby each Guarantor, substantially in the form of EXHIBIT C attached hereto.<\/p>\n
“364-DAY LOANS” has the meaning attributed to the term “Loans” in the
\n364-Day Credit Agreement.<\/p>\n
“TRANSACTIONS” means the execution, delivery and performance by each
\nLoan Party of the Loan Documents to which it is a party, the borrowing of Loans
\nby the Borrower and the use of the proceeds thereof by the Borrower.<\/p>\n
“TRANSFEREE” means any Assignee or Participant.<\/p>\n
“TYPE”, when used in reference to any Loan or Borrowing, refers to
\nwhether the rate of interest on such Loan, or on the Loans comprising such
\nBorrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
\nBase Rate.<\/p>\n
“UNFUNDED LIABILITIES” means the sum of the amount (if any) by which
\nthe present value of the accrued benefits under each Single Employer Plan
\nexceeds the fair market value of such Plan assets allocable to such benefits,
\naggregating all such Plans in which benefits exceed the value of such assets,
\nall determined as of the then most recent valuation date for such Plans.<\/p>\n
“UNRESTRICTED MARGIN STOCK” means any Margin Stock owned by the
\nBorrower or any Subsidiary which is not Restricted Margin Stock.<\/p>\n
“UTILIZATION FEES” has the meaning set forth in Section 2.09(b).<\/p>\n
“VOTING STOCK” means all outstanding shares of capital stock of a
\nPerson entitled to vote generally in the election of directors.<\/p>\n
“WHOLLY-OWNED SUBSIDIARY” of a Person means (i) any subsidiary all of
\nthe outstanding voting securities (other than directors’ qualifying shares and
\nother de minimis local ownership required by law) of which shall at the time be
\nowned or controlled, directly or indirectly, by such Person or one or more
\nWholly-Owned Subsidiaries of such Person, or by such Person and one or more
\nWholly-Owned Subsidiaries of such Person, or (ii) any Person 100% of the
\nownership interests (other than directors’ qualifying shares and other de
\nminimis local ownership required by law) having ordinary voting power of which
\nshall at the time be so owned or controlled. Unless otherwise specified herein,
\nreferences to “Wholly-Owned Subsidiaries” herein shall be deemed to refer to
\nWholly-Owned Subsidiaries of the Borrower.<\/p>\n
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
\nthis Agreement, Loans may be classified and referred to by Type (E.G., a
\nEurodollar Loan”) and Borrowings also may be classified and referred to by Type
\n(E.G., a Eurodollar Borrowing”).<\/p>\n
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
\napply equally to the singular and plural forms of the terms defined. Whenever
\nthe context may require, any<\/p>\n
15<\/p>\n
pronoun shall include the corresponding masculine, feminine and neuter forms.
\nThe words “include”, “includes” and “including” shall be deemed to be followed
\nby the phrase “without limitation”. The word “will” shall be construed to have
\nthe same meaning and effect as the word “shall”. Unless the context requires
\notherwise (a) any definition of or reference to any agreement, instrument or
\nother document herein shall be construed as referring to such agreement,
\ninstrument or other document as from time to time amended, supplemented or
\notherwise modified (subject to any restrictions on such amendments, supplements
\nor modifications set forth herein), (b) any reference herein to any Person shall
\nbe construed to include such Person’s successors and assigns, (c) the words
\n“herein”, “hereof” and “hereunder”, and words of similar import, shall be
\nconstrued to refer to this Agreement in its entirety and not to any particular
\nprovision hereof, (d) all references herein to Articles, Sections, Exhibits and
\nSchedules shall be construed to refer to Articles and Sections of, and Exhibits
\nand Schedules to, this Agreement and (e) the words “asset” and “property” shall
\nbe construed to have the same meaning and effect and to refer to any and all
\ntangible and intangible assets and properties, including cash, securities,
\naccounts and contract rights.<\/p>\n
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
\nprovided herein, all terms of an accounting or financial nature shall be
\nconstrued in accordance with GAAP, as in effect from time to time; PROVIDED
\nthat, if the Borrower notifies the Administrative Agent that the Borrower
\nrequests an amendment to any provision hereof to eliminate the effect of any
\nchange occurring after the date hereof in GAAP or in the application thereof on
\nthe operation of such provision (or if the Administrative Agent notifies the
\nBorrower that the Required Lenders request an amendment to any provision hereof
\nfor such purpose), regardless of whether any such notice is given before or
\nafter such change in GAAP or in the application thereof, then such provision
\nshall be interpreted on the basis of GAAP as in effect and applied immediately
\nbefore such change shall have become effective until such notice shall have been
\nwithdrawn or such provision amended in accordance herewith.<\/p>\n
ARTICLE II<\/p>\n
The Credits<\/p>\n
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set
\nforth herein, each Lender agrees to make Loans to the Borrower from time to time
\nduring the Availability Period in an aggregate principal amount that will not
\nresult in (a) such Lender’s Credit Exposure exceeding such Lender’s Commitment
\nor (b) the sum of the total Credit Exposures exceeding the total Commitments.
\nWithin the foregoing limits and subject to the terms and conditions set forth
\nherein, the Borrower may borrow, prepay and reborrow Loans.<\/p>\n
SECTION 2.02. LOANS AND BORROWINGS. (a)Each Loan shall be made as part
\nof a Borrowing consisting of Loans made by the Lenders ratably in accordance
\nwith their respective Commitments. The failure of any Lender to make any Loan
\nrequired to be made by it shall not relieve any other Lender of its obligations
\nhereunder; PROVIDED that the Commitments of the Lenders are several and no
\nLender shall be responsible for any other Lender’s failure to make Loans as
\nrequired.<\/p>\n
(b) Subject to Section 2.11, each Borrowing shall be comprised
\nentirely of ABR Loans or Eurodollar Loans as the Borrower may request in
\naccordance herewith. Each Lender at its option may make any Eurodollar Loan by
\ncausing any domestic or foreign branch or Lender Affiliate<\/p>\n
16<\/p>\n
to make such Loan; PROVIDED that any exercise of such option shall not affect
\nthe obligation of the Borrower to repay such Loan in accordance with the terms
\nof this Agreement.<\/p>\n
(c) At the commencement of each Interest Period for any Eurodollar
\nBorrowing, such Borrowing shall be in an aggregate amount that is an integral
\nmultiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
\nBorrowing is made, such Borrowing shall be in an aggregate amount that is an
\nintegral multiple of $1,000,000 and not less than $5,000,000; PROVIDED that an
\nABR Borrowing may be in an aggregate amount that is equal to the entire unused
\nbalance of the total Commitments. Borrowings of more than one Type may be
\noutstanding at the same time; PROVIDED that there shall not at any time be more
\nthan a total of 15 Eurodollar Borrowings outstanding.<\/p>\n
(d) Notwithstanding any other provision of this Agreement, the
\nBorrower shall not be entitled to request, or to elect to convert or continue,
\nany Borrowing if the Interest Period requested with respect thereto would end
\nafter the Maturity Date.<\/p>\n
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing, the
\nBorrower shall notify the Administrative Agent of such request by telephone (a)
\nin the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
\ntime, at least three Business Days before the date of the proposed Borrowing or
\n(b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City
\ntime, on the date of the proposed Borrowing. Each such telephonic Borrowing
\nRequest shall be irrevocable and shall be confirmed promptly by hand delivery or
\ntelecopy to the Administrative Agent of a written Borrowing Request in the form
\nof EXHIBIT A. Each such telephonic and written Borrowing Request shall specify
\nthe following information in compliance with Section 2.02:<\/p>\n
(i) the aggregate amount of the requested Borrowing;<\/p>\n
(ii) the date of such Borrowing, which shall be a Business Day;<\/p>\n
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
\n Borrowing;<\/p>\n
(iv) in the case of a Eurodollar Borrowing, the initial Interest
\n Period to be applicable thereto, which shall be a period contemplated by
\n the definition of the term “Interest Period”; and<\/p>\n
(v) the location and number of the Borrower’s account to which funds
\n are to be disbursed, which shall comply with the requirements of Section
\n 2.04.<\/p>\n
If no election as to the Type of Borrowing is specified, then the requested
\nBorrowing shall be an ABR Borrowing. If no Interest Period is specified with
\nrespect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
\nto have selected an Interest Period of one month’s duration. Promptly following
\nreceipt of a Borrowing Request in accordance with this Section, the
\nAdministrative Agent shall advise each Lender of the details thereof and of the
\namount of such Lender’s Loan to be made as part of the requested Borrowing.<\/p>\n
SECTION 2.04. FUNDING OF BORROWINGS. (a) Each Lender shall make each
\nLoan to be made by it hereunder on the proposed date thereof by wire transfer of
\nimmediately<\/p>\n
17<\/p>\n
available funds by 12:00 noon, New York City time, to the account of the
\nAdministrative Agent most recently designated by it for such purpose by notice
\nto the Lenders. The Administrative Agent will make such Loans available to the
\nBorrower by promptly crediting the amounts so received, in like funds, to an
\naccount of the Borrower maintained with the Administrative Agent in New York
\nCity and designated by the Borrower in the applicable Borrowing Request.<\/p>\n
(b) Unless the Administrative Agent shall have received notice from a
\nLender prior to the proposed date of any Borrowing that such Lender will not
\nmake available to the Administrative Agent such Lender’s share of such
\nBorrowing, the Administrative Agent may assume that such Lender has made such
\nshare available on such date in accordance with paragraph (a) of this Section
\nand may, in reliance upon such assumption, make available to the Borrower a
\ncorresponding amount. In such event, if a Lender has not in fact made its share
\nof the applicable Borrowing available to the Administrative Agent, then the
\napplicable Lender and the Borrower severally agree to pay to the Administrative
\nAgent forthwith on demand such corresponding amount with interest thereon, for
\neach day from and including the date such amount is made available to the
\nBorrower to but excluding the date of payment to the Administrative Agent, at
\n(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
\ncase of the Borrower, the interest rate applicable to ABR Loans. If such Lender
\npays such amount to the Administrative Agent, then such amount shall constitute
\nsuch Lender’s Loan included in such Borrowing.<\/p>\n
SECTION 2.05. INTEREST ELECTIONS. (a) Each Borrowing initially shall
\nbe of the Type specified in the applicable Borrowing Request and, in the case of
\na Eurodollar Borrowing, shall have an initial Interest Period as specified in
\nsuch Borrowing Request. Thereafter, the Borrower may elect to convert such
\nBorrowing to a different Type or to continue such Borrowing and, in the case of
\na Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
\nthis Section. The Borrower may elect different options with respect to different
\nportions of the affected Borrowing, in which case each such portion shall be
\nallocated ratably among the Lenders holding the Loans comprising such Borrowing,
\nand the Loans comprising each such portion shall be considered a separate
\nBorrowing.<\/p>\n
(b) To make an election pursuant to this Section, the Borrower shall
\nnotify the Administrative Agent of such election by telephone by the time that a
\nBorrowing Request would be required under Section 2.03 if the Borrower were
\nrequesting a Borrowing of the Type resulting from such election to be made on
\nthe effective date of such election. Each such telephonic Interest Election
\nRequest shall be irrevocable and shall be confirmed promptly by hand delivery or
\ntelecopy to the Administrative Agent of a written Interest Election Request in
\nthe form of EXHIBIT B.<\/p>\n
(c) Each telephonic and written Interest Election Request shall
\nspecify the following information in compliance with Section 2.02:<\/p>\n
(i) the Borrowing to which such Interest Election Request applies and,
\n if different options are being elected with respect to different portions
\n thereof, the portions thereof to be allocated to each resulting Borrowing
\n (in which case the information to be specified pursuant to clauses (iii)
\n and (iv) below shall be specified for each resulting Borrowing);<\/p>\n
(ii) the effective date of the election made pursuant to such Interest
\n Election Request, which shall be a Business Day;<\/p>\n
18<\/p>\n
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
\n Eurodollar Borrowing; and<\/p>\n
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
\n Interest Period to be applicable thereto after giving effect to such
\n election, which shall be a period contemplated by the definition of the
\n term “Interest Period”.<\/p>\n
If any such Interest Election Request requests a Eurodollar Borrowing but does
\nnot specify an Interest Period, then the Borrower shall be deemed to have
\nselected an Interest Period of one month’s duration.<\/p>\n
(d) Promptly following receipt of an Interest Election Request, the
\nAdministrative Agent shall advise each Lender of the details thereof and of such
\nLender’s portion of each resulting Borrowing.<\/p>\n
(e) If the Borrower fails to deliver a timely Interest Election
\nRequest with respect to a Eurodollar Borrowing prior to the end of the Interest
\nPeriod applicable thereto, then, unless such Borrowing is repaid as provided
\nherein, at the end of such Interest Period such Borrowing shall be converted to
\nan ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
\nDefault has occurred and is continuing and the Administrative Agent, at the
\nrequest of the Required Lenders, so notifies the Borrower, then, so long as an
\nEvent of Default is continuing (i) no outstanding Borrowing may be converted to
\nor continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
\nBorrowing shall be converted to an ABR Borrowing at the end of the Interest
\nPeriod applicable thereto.<\/p>\n
SECTION 2.06. TERMINATION AND REDUCTION OF COMMITMENTS. Unless
\npreviously terminated, the Commitments shall terminate on the Maturity Date.<\/p>\n
(a) The Borrower may at any time terminate, or from time to time
\nreduce, the Commitments; PROVIDED that (i) each reduction of the Commitments
\nshall be in an amount that is an integral multiple of $10,000,000 and not less
\nthan $20,000,000 and (ii) the Borrower shall not terminate or reduce the
\nCommitments if, after giving effect to any concurrent prepayment of the Loans in
\naccordance with Section 2.08, the Credit Exposures of the Lenders would exceed
\nthe total Commitments.<\/p>\n
(b) The Borrower shall notify the Administrative Agent of any election
\nto terminate or reduce the Commitments under paragraph (a) of this Section at
\nleast three Business Days prior to the effective date of such termination or
\nreduction, specifying such election and the effective date thereof. Promptly
\nfollowing receipt of any notice, the Administrative Agent shall advise the
\nLenders of the contents thereof. Each notice delivered by the Borrower pursuant
\nto this Section shall be irrevocable; PROVIDED that a notice of termination of
\nthe Commitments delivered by the Borrower may state that such notice is
\nconditioned upon the effectiveness of other credit facilities, in which case
\nsuch notice may be revoked by the Borrower (by notice to the Administrative
\nAgent on or prior to the specified effective date) if such condition is not
\nsatisfied. Any termination or reduction of the Commitments shall be permanent.
\nEach reduction of the Commitments shall be made ratably among the Lenders in
\naccordance with their respective Commitments.<\/p>\n
19<\/p>\n
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
\nhereby unconditionally promises to pay to the Administrative Agent for the
\naccount of each Lender the then unpaid principal amount of each Loan on the
\nMaturity Date.<\/p>\n
(b) Each Lender shall maintain in accordance with its usual practice
\nan account or accounts evidencing the indebtedness of the Borrower to such
\nLender resulting from each Loan made by such Lender, including the amounts of
\nprincipal and interest payable and paid to such Lender from time to time
\nhereunder.<\/p>\n
(c) The Administrative Agent shall maintain accounts in which it shall
\nrecord (i) the amount of each Loan made hereunder, the Type thereof and the
\nInterest Period applicable thereto, (ii) the amount of any principal or interest
\ndue and payable or to become due and payable from the Borrower to each Lender
\nhereunder and (iii) the amount of any sum received by the Administrative Agent
\nhereunder for the account of the Lenders and each Lender’s share thereof.<\/p>\n
(d) The entries made in the accounts maintained pursuant to paragraph
\n(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
\namounts of the obligations recorded therein; PROVIDED that the failure of any
\nLender or the Administrative Agent to maintain such accounts or any error
\ntherein shall not in any manner affect the obligation of the Borrower to repay
\nthe Loans in accordance with the terms of this Agreement.<\/p>\n
(e) Any Lender may request that Loans made by it be evidenced by a
\npromissory note. In such event, the Borrower shall prepare, execute and deliver
\nto such Lender a promissory note payable to the order of such Lender (or, if
\nrequested by such Lender, to such Lender and its registered assigns) and in a
\nform approved by the Administrative Agent. Thereafter, the Loans evidenced by
\nsuch promissory note and interest thereon shall at all times (including after
\nassignment pursuant to Section 9.06) be represented by one or more promissory
\nnotes in such form payable to the order of the payee named therein (or, if such
\npromissory note is a registered note, to such payee and its registered assigns).<\/p>\n
SECTION 2.08. PREPAYMENT OF LOANS. (a) The Borrower shall have the
\nright at any time and from time to time to prepay any Borrowing in whole or in
\npart, subject to prior notice in accordance with paragraph (b) of this Section.<\/p>\n
(b) The Borrower shall notify the Administrative Agent by telephone
\n(confirmed by telecopy) of any prepayment hereunder (i) in the case of
\nprepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
\ntime, three Business Days before the date of prepayment or (ii) in the case of
\nprepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
\none Business Day before the date of prepayment. Each such notice shall be
\nirrevocable and shall specify the prepayment date and the principal amount of
\neach Borrowing or portion thereof to be prepaid; PROVIDED that, if a notice of
\nprepayment is given in connection with a conditional notice of termination of
\nthe Commitments as contemplated by Section 2.06, then such notice of prepayment
\nmay be revoked if such notice of termination is revoked in accordance with
\nSection 2.06. Promptly following receipt of any such notice relating to a
\nBorrowing, the Administrative Agent shall advise the Lenders of the contents
\nthereof. Each partial prepayment of any Borrowing shall be in an amount that
\nwould be permitted in the case of an advance of a Borrowing of the same Type as
\nprovided in Section 2.02. Each prepayment of a Borrowing shall be applied
\nratably to the Loans included in the prepaid Borrowing. Partial prepayments of
\nLoans shall be in an aggregate principal<\/p>\n
20<\/p>\n
amount of $5,000,000 or a whole multiple thereof. Prepayments shall be
\naccompanied by accrued interest to the extent required by Section 2.10.<\/p>\n
SECTION 2.09. FEES. (a) The Borrower agrees to pay to the
\nAdministrative Agent for the account of each Lender a facility fee, which shall
\naccrue at the Applicable Rate on the daily amount of the Commitment of such
\nLender (whether used or unused) during the period from and including the
\nEffective Date to but excluding the date on which such Commitment terminates;
\nPROVIDED that, if such Lender continues to have any Credit Exposure after its
\nCommitment terminates, then such facility fee shall continue to accrue on the
\ndaily amount of such Lender’s Credit Exposure from and including the date on
\nwhich its Commitment terminates to but excluding the date on which such Lender
\nceases to have any Credit Exposure. Accrued facility fees shall be payable in
\narrears on the last day of March, June, September and December of each year and
\non the date on which the Commitments terminate, commencing on the first such
\ndate to occur after the date hereof; PROVIDED that any facility fees accruing
\nafter the date on which the Commitments terminate shall be payable on demand.
\nAll facility fees shall be computed on the basis of a year of 360 days and shall
\nbe payable for the actual number of days elapsed (including the first day but
\nexcluding the last day).<\/p>\n
(b) If on any day the sum of the aggregate outstanding principal
\namount of all Loans and all 364-Day Loans exceeds the sum of (i) the product of
\n(A) one-third (1\/3) TIMES (B) the Commitment and (ii) the product of (A)
\none-third (1\/3) TIMES (B) the 364-Day Commitment, then the Borrower shall pay to
\nthe Administrative Agent, for the pro rata benefit of each Lender, a fee (the
\n“UTILIZATION FEE”) of 0.125% per annum on the sum of the Borrower’s outstanding
\nLoans and outstanding 364-Day Loans. Accrued Utilization Fees shall be payable
\nin arrears on the last day of March, June, September and December of each year
\n(as well as on the Maturity Date and on any day that the Commitment is reduced).
\nAll Utilization Fees shall be computed on the basis of a year of 360 days and
\nshall be payable for the actual number of days elapsed (including the first day
\nbut excluding the last day).<\/p>\n
(c) The Borrower agrees to pay to the Administrative Agent, for its
\nown account, fees payable in the amounts and at the times separately agreed upon
\nbetween the Borrower and the Administrative Agent.<\/p>\n
(d) All fees payable hereunder shall be paid on the dates due, in
\nimmediately available funds, to the Administrative Agent. Fees paid shall not be
\nrefundable under any circumstances.<\/p>\n
SECTION 2.10. INTEREST. (a) The Loans comprising each ABR Borrowing
\nshall bear interest at a rate per annum equal to the Alternate Base Rate plus
\nthe Applicable Rate.<\/p>\n
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
\nat a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in
\neffect for such Borrowing plus the Applicable Rate.<\/p>\n
(c) Notwithstanding the foregoing, if any principal of or interest on
\nany Loan or any fee or other amount payable by the Borrower hereunder is not
\npaid when due, whether at stated maturity, upon acceleration or otherwise, such
\noverdue amount shall bear interest, after as well as before judgment, at a rate
\nper annum equal to (i) in the case of overdue principal of any Loan, 2%<\/p>\n
21<\/p>\n
plus the rate otherwise applicable to such Loan as provided above or (ii) in the
\ncase of any other amount, 2% plus the rate applicable to ABR Loans as provided
\nabove.<\/p>\n
(d) Accrued interest on each Loan shall be payable in arrears on each
\nInterest Payment Date for such Loan; PROVIDED that (i) interest accrued pursuant
\nto paragraph (c) of this Section shall be payable on demand, (ii) in the event
\nof any repayment or prepayment of any Loan (other than a prepayment of an ABR
\nLoan prior to the end of the Availability Period), accrued interest on the
\nprincipal amount repaid or prepaid shall be payable on the date of such
\nrepayment or prepayment, (iii) in the event of any conversion of any Eurodollar
\nLoan prior to the end of the current Interest Period therefor, accrued interest
\non such Loan shall be payable on the effective date of such conversion and (iv)
\nall accrued interest shall be payable upon termination of the Commitments.<\/p>\n
(e) All interest hereunder shall be computed on the basis of a year of
\n360 days, except that interest computed by reference to the Alternate Base Rate
\nat times when the Alternate Base Rate is based on the Prime Rate shall be
\ncomputed on the basis of a year of 365 days (or 366 days in a leap year), and in
\neach case shall be payable for the actual number of days elapsed (including the
\nfirst day but excluding the last day). The applicable Alternate Base Rate,
\nAdjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
\nand such determination shall be conclusive absent manifest error.<\/p>\n
SECTION 2.11. ALTERNATE RATE OF INTEREST. If prior to the commencement
\nof any Interest Period for a Eurodollar Borrowing:<\/p>\n
(a) the Administrative Agent determines (which determination shall be
\n conclusive absent manifest error) that adequate and reasonable means do not
\n exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
\n applicable, for such Interest Period; or<\/p>\n
(b) the Administrative Agent is advised by the Required Lenders that
\n the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
\n Period will not adequately and fairly reflect the cost to such Lenders (or
\n Lender) of making or maintaining their Loans (or its Loan) included in such
\n Borrowing for such Interest Period;<\/p>\n
then the Administrative Agent shall give notice thereof to the Borrower and the
\nLenders by telephone or telecopy as promptly as practicable thereafter and,
\nuntil the Administrative Agent notifies the Borrower and the Lenders that the
\ncircumstances giving rise to such notice no longer exist, (i) any Interest
\nElection Request that requests the conversion of any Borrowing to, or
\ncontinuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
\nand (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
\nBorrowing shall be made as an ABR Borrowing.<\/p>\n
SECTION 2.12. INCREASED COSTS. (a) If any Change in Law shall:<\/p>\n
(i) impose, modify or deem applicable any reserve, special deposit or
\n similar requirement against assets of, deposits with or for the account of,
\n or credit extended by, any Lender (except any such reserve requirement
\n reflected in the Adjusted LIBO Rate); or<\/p>\n
(ii) impose on any Lender or the London interbank market any other
\n condition affecting this Agreement or Eurodollar Loans made by such Lender;<\/p>\n
22<\/p>\n
and the result of any of the foregoing shall be to increase the cost to such
\nLender of making or maintaining any Eurodollar Loan (or of maintaining its
\nobligation to make any such Loan) or to reduce the amount of any sum received or
\nreceivable by such Lender (whether of principal, interest or otherwise), then
\nthe Borrower will pay to such Lender such additional amount or amounts as will
\ncompensate such Lender for such additional costs incurred or reduction suffered.<\/p>\n
(b) If any Lender determines that any Change in Law regarding capital
\nrequirements has or would have the effect of reducing the rate of return on such
\nLender’s capital or on the capital of such Lender’s holding company, if any, as
\na consequence of this Agreement or the Loans made by such Lender to a level
\nbelow that which such Lender or such Lender’s holding company could have
\nachieved but for such Change in Law (taking into consideration such Lender’s
\npolicies and the policies of such Lender’s holding company with respect to
\ncapital adequacy), then from time to time the Borrower will pay to such Lender
\nsuch additional amount or amounts as will compensate such Lender or such
\nLender’s holding company for any such reduction suffered.<\/p>\n
(c) A certificate of a Lender setting forth the amount or amounts
\nnecessary to compensate such Lender or its holding company, as the case may be,
\nas specified in paragraph (a) or (b) of this Section, setting forth in
\nreasonable detail the calculations upon which such Lender determined such
\namount, shall be delivered to the Borrower and shall be conclusive absent
\nmanifest error. The Borrower shall pay such Lender the amount shown as due on
\nany such certificate within 15 days after receipt thereof.<\/p>\n
(d) Failure or delay on the part of any Lender to demand compensation
\npursuant to this Section shall not constitute a waiver of such Lender’s right to
\ndemand such compensation; PROVIDED that the Borrower shall not be required to
\ncompensate a Lender pursuant to this Section for any increased costs or
\nreductions incurred more than six months prior to the date that such Lender
\nnotifies the Borrower of the Change in Law giving rise to such increased costs
\nor reductions and of such Lender’s intention to claim compensation therefor;
\nPROVIDED FURTHER that, if the Change in Law giving rise to such increased costs
\nor reductions is retroactive, then the six-month period referred to above shall
\nbe extended to include the period of retroactive effect thereof.<\/p>\n
SECTION 2.13. BREAK FUNDING PAYMENTS. In the event of (a) the payment
\nof any principal of any Eurodollar Loan other than on the last day of an
\nInterest Period applicable thereto (including as a result of an Event of
\nDefault), (b) the conversion of any Eurodollar Loan other than on the last day
\nof the Interest Period applicable thereto, (c) the failure to borrow, convert,
\ncontinue or prepay any Loan on the date specified in any notice delivered
\npursuant hereto (regardless of whether such notice is permitted to be revocable
\nunder Section 2.08(b) and is revoked in accordance herewith), or (d) the
\nassignment of any Eurodollar Loan other than on the last day of the Interest
\nPeriod applicable thereto as a result of a request by the Borrower pursuant to
\nSection 2.16, then, in any such event, the Borrower shall compensate each Lender
\nfor the loss, cost and expense attributable to such event. In the case of a
\nEurodollar Loan, the loss to any Lender attributable to any such event shall be
\ndeemed to include an amount determined by such Lender to be equal to the excess,
\nif any, of (i) the amount of interest that such Lender would pay for a deposit
\nequal to the principal amount of such Loan for the period from the date of such
\npayment, conversion, failure or assignment to the last day of the then current
\nInterest Period for such Loan (or, in the case of a failure to borrow, convert
\nor continue, the duration of the Interest Period that would have resulted from
\nsuch borrowing, conversion or continuation) if the interest rate payable on such
\ndeposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
\nthe amount of interest that such Lender would earn on such principal amount for
\nsuch period if such Lender were to invest such principal amount<\/p>\n
23<\/p>\n
for such period at the interest rate that would be bid by such Lender (or an
\nAffiliate of such Lender) for dollar deposits from other banks in the eurodollar
\nmarket at the commencement of such period. A certificate of any Lender setting
\nforth any amount or amounts that such Lender is entitled to receive pursuant to
\nthis Section shall be delivered to the Borrower, setting forth in reasonable
\ndetail the calculations upon which such Lender determined such amount, and shall
\nbe conclusive absent manifest error. The Borrower shall pay such Lender the
\namount shown as due on any such certificate within 15 days after receipt
\nthereof.<\/p>\n
SECTION 2.14. TAXES. (a) All payments made by the Borrower under this
\nAgreement shall be made free and clear of, and without deduction or withholding
\nfor or on account of, any present or future income, stamp or other taxes,
\nlevies, imposts, duties, charges, fees, deductions or withholdings, now or
\nhereafter imposed, levied, collected, withheld or assessed by any Governmental
\nAuthority, excluding net income taxes and franchise taxes (imposed in lieu of
\nnet income taxes) imposed on the Administrative Agent or any Lender as a result
\nof a present or former connection between the Administrative Agent or such
\nLender and the jurisdiction of the Governmental Authority imposing such tax or
\nany political subdivision or taxing authority thereof or therein (other than any
\nsuch connection arising solely from the Administrative Agent or such Lender
\nhaving executed, delivered or performed its obligations or received a payment
\nunder, or enforced, this Agreement or any other Loan Document). If any such
\nnon-excluded taxes, levies, imposts, duties, charges, fees, deductions or
\nwithholdings (“NON-EXCLUDED TAXES”) or Other Taxes are required to be withheld
\nfrom any amounts payable to the Administrative Agent or any Lender hereunder,
\nthe amounts so payable to the Administrative Agent or such Lender shall be
\nincreased to the extent necessary to yield to the Administrative Agent or such
\nLender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
\nsuch other amounts payable hereunder at the rates or in the amounts specified in
\nthis Agreement, PROVIDED, HOWEVER, that the Borrower shall not be required to
\nincrease any such amounts payable to any Lender with respect to any Non-Excluded
\nTaxes (i) that are attributable to such Lender’s failure to comply with the
\nrequirements of paragraph (d) or (e) of this Section or (ii) that are United
\nStates withholding taxes imposed on amounts payable to such Lender at the time
\nsuch Lender becomes a party to this Agreement, except to the extent that such
\nLender’s assignor (if any) was entitled, at the time of assignment, to receive
\nadditional amounts from the Borrower with respect to such Non-Excluded Taxes
\npursuant to this paragraph.<\/p>\n
(b) In addition, the Borrower shall pay any Other Taxes to the
\nrelevant Governmental Authority in accordance with applicable law.<\/p>\n
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
\nBorrower, as promptly as possible thereafter the Borrower shall send to the
\nAdministrative Agent for its own account or for the account of the relevant
\nLender, as the case may be, a certified copy of an original official receipt
\nreceived by the Borrower showing payment thereof. If the Borrower fails to pay
\nany Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
\nauthority or fails to remit to the Administrative Agent the required receipts or
\nother required documentary evidence, the Borrower shall indemnify the
\nAdministrative Agent and the Lenders for any incremental taxes, interest or
\npenalties that may become payable by the Administrative Agent or any Lender as a
\nresult of any such failure.<\/p>\n
(d) Each Lender (or Transferee) that is not a “U.S. Person” as defined
\nin Section 7701(a)(30) of the Code (a “NON-U.S. LENDER”) shall deliver to the
\nBorrower and the Administrative Agent (or, in the case of a Participant, to the
\nLender from which the related participation shall have been purchased) two
\ncopies of either U.S. Internal Revenue Service Form W-8BEN or Form W-<\/p>\n
24<\/p>\n
8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
\nwithholding tax under Section 871(h) or 881(c) of the Code with respect to
\npayments of “portfolio interest”, a statement substantially in the form of
\nEXHIBIT F and a Form W-8BEN, or any subsequent versions thereof or successors
\nthereto, properly completed and duly executed by such Non-U.S. Lender claiming
\ncomplete exemption from, or a reduced rate of, U.S. federal withholding tax on
\nall payments by the Borrower under this Agreement and the other Loan Documents.
\nSuch forms shall be delivered by each Non-U.S. Lender on or before the date it
\nbecomes a party to this Agreement (or, in the case of any Participant, on or
\nbefore the date such Participant purchases the related participation). In
\naddition, each Non-U.S. Lender shall deliver such forms promptly upon the
\nobsolescence or invalidity of any form previously delivered by such Non-U.S.
\nLender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
\ndetermines that it is no longer in a position to provide any previously
\ndelivered certificate to the Borrower (or any other form of certification
\nadopted by the U.S. taxing authorities for such purpose). Notwithstanding any
\nother provision of this paragraph, a Non-U.S. Lender shall not be required to
\ndeliver any form pursuant to this paragraph that such Non-U.S. Lender is not
\nlegally able to deliver.<\/p>\n
(e) A Lender that is entitled to an exemption from or reduction of
\nnon-U.S. withholding tax under the law of the jurisdiction in which the Borrower
\nis located, or any treaty to which such jurisdiction is a party, with respect to
\npayments under this Agreement shall deliver to the Borrower (with a copy to the
\nAdministrative Agent), at the time or times prescribed by applicable law or
\nreasonably requested by the Borrower, such properly completed and executed
\ndocumentation prescribed by applicable law as will permit such payments to be
\nmade without withholding or at a reduced rate, PROVIDED that such Lender is
\nlegally entitled to complete, execute and deliver such documentation and in such
\nLender’s judgment such completion, execution or submission would not materially
\nprejudice the legal position of such Lender.<\/p>\n
(f) The agreements in this Section shall survive the termination of
\nthis Agreement and the payment of the Loans and all other amounts payable
\nhereunder.<\/p>\n
SECTION 2.15. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
\nSET-OFFS. (a) The Borrower shall make each payment required to be made by it
\nhereunder (whether of principal, interest or fees, or under Section 2.12, 2.13
\nor 2.14, or otherwise) prior to 12:00 noon, New York City time, on the date when
\ndue, in immediately available funds, without set-off or counterclaim. Any
\namounts received after such time on any date may, in the discretion of the
\nAdministrative Agent, be deemed to have been received on the next succeeding
\nBusiness Day for purposes of calculating interest thereon. All such payments
\nshall be made to the Administrative Agent at its offices at 270 Park Avenue, New
\nYork, New York and except that payments pursuant to Sections 2.12, 2.13, 2.14
\nand 9.05 shall be made directly to the Persons entitled thereto. The
\nAdministrative Agent shall distribute any such payments received by it for the
\naccount of any other Person to the appropriate recipient promptly following
\nreceipt thereof. If any payment hereunder shall be due on a day that is not a
\nBusiness Day, the date for payment shall be extended to the next succeeding
\nBusiness Day, and, in the case of any payment accruing interest, interest
\nthereon shall be payable for the period of such extension. All payments
\nhereunder shall be made in dollars.<\/p>\n
(b) If at any time insufficient funds are received by and available to
\nthe Administrative Agent to pay fully all amounts of principal, interest and
\nfees then due hereunder, such funds shall be applied (i) first, to pay interest
\nand fees then due hereunder, ratably among the parties entitled thereto in
\naccordance with the amounts of interest and fees then due to such parties, and
\n(ii)<\/p>\n
25<\/p>\n
second, to pay principal then due hereunder, ratably among the parties entitled
\nthereto in accordance with the amounts of principal then due to such parties.<\/p>\n
(c) If any Lender shall, by exercising any right of set-off or
\ncounterclaim or otherwise, obtain payment in respect of any principal of or
\ninterest on any of its Loans resulting in such Lender receiving payment of a
\ngreater proportion of the aggregate amount of its Loans and accrued interest
\nthereon than the proportion received by any other Lender, then the Lender
\nreceiving such greater proportion shall purchase (for cash at face value)
\nparticipations in the Loans of other Lenders to the extent necessary so that the
\nbenefit of all such payments shall be shared by the Lenders ratably in
\naccordance with the aggregate amount of principal of and accrued interest on
\ntheir respective Loans; PROVIDED that (i) if any such participations are
\npurchased and all or any portion of the payment giving rise thereto is
\nrecovered, such participations shall be rescinded and the purchase price
\nrestored to the extent of such recovery, without interest, and (ii) the
\nprovisions of this paragraph shall not be construed to apply to any payment made
\nby the Borrower pursuant to and in accordance with the express terms of this
\nAgreement or any payment obtained by a Lender as consideration for the
\nassignment of or sale of a participation in any of its Loans, other than to the
\nBorrower or any Subsidiary or Affiliate thereof (as to which the provisions of
\nthis paragraph shall apply). The Borrower consents to the foregoing and agrees,
\nto the extent it may effectively do so under applicable law, that any Lender
\nacquiring a participation pursuant to the foregoing arrangements may exercise
\nagainst the Borrower rights of set-off and counterclaim with respect to such
\nparticipation as fully as if such Lender were a direct creditor of the Borrower
\nin the amount of such participation.<\/p>\n
(d) Unless the Administrative Agent shall have received notice from
\nthe Borrower prior to the date on which any payment is due to the Administrative
\nAgent for the account of the Lenders hereunder that the Borrower will not make
\nsuch payment, the Administrative Agent may assume that the Borrower has made
\nsuch payment on such date in accordance herewith and may, in reliance upon such
\nassumption, distribute to the Lenders the amount due. In such event, if the
\nBorrower has not in fact made such payment, then each of the Lenders severally
\nagrees to repay to the Administrative Agent forthwith on demand the amount so
\ndistributed to such Lender with interest thereon, for each day from and
\nincluding the date such amount is distributed to it to but excluding the date of
\npayment to the Administrative Agent, at the Federal Funds Effective Rate.<\/p>\n
(e) If any Lender shall fail to make any payment required to be made
\nby it pursuant to Section 2.04(b) or 2.15(d), then the Administrative Agent may,
\nin its discretion (notwithstanding any contrary provision hereof), apply any
\namounts thereafter received by the Administrative Agent for the account of such
\nLender to satisfy such Lender’s obligations under such Sections until all such
\nunsatisfied obligations are fully paid.<\/p>\n
SECTION 2.16. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
\nany Lender requests compensation under Section 2.12, or if the Borrower is
\nrequired to pay any additional amount to any Lender or any Governmental
\nAuthority for the account of any Lender pursuant to Section 2.14, then such
\nLender shall use reasonable efforts to designate a different lending office for
\nfunding or booking its Loans hereunder or to assign its rights and obligations
\nhereunder to another of its offices, branches or affiliates, if, in the judgment
\nof such Lender, such designation or assignment (i) would eliminate or reduce
\namounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the
\nfuture and (ii) would not subject such Lender to any unreimbursed cost or
\nexpense and would not otherwise be disadvantageous to such Lender. To the extent
\nreasonably possible, each Lender shall use reasonable efforts to designate a
\ndifferent lending office for funding or booking its Loans hereunder or to assign
\nits rights and obligations hereunder to<\/p>\n
26<\/p>\n
another of its offices, branches or affiliates, if, in the judgment of such
\nLender, such designation or assignment would avoid the unavailability of
\nEurodollar Loans under Section 2.11, so long as such designation is not
\ndisadvantageous to such Lender as determined by such Lender in its sole
\ndiscretion.<\/p>\n
The Borrower hereby agrees to pay all reasonable costs and expenses
\nincurred by any Lender in connection with any such designation or assignment.<\/p>\n
(b) The Borrower shall, at its sole expense and effort, have the
\nright, by giving at least 15 Business Days’ prior written notice to the affected
\nLender and the Administrative Agent, at any time when no Default or Event of
\nDefault has occurred and is continuing, to require any Lender to assign all of
\nits rights and obligations under the Loan Documents to any other Lender (other
\nthan a Conduit Lender) approved by the Borrower. Such assignment shall be
\nsubstantially in the form of EXHIBIT E hereto or in such other form as may be
\nagreed to by the parties thereto but shall be on terms and conditions reasonably
\nsatisfactory to the affected Lender. The Borrower shall remain liable to the
\naffected Lender for any indemnification provided under Section 2.13 with respect
\nto Loans of such Lender outstanding on the effective date of an assignment
\nrequired under this Section 2.16(b), as well as for all other Obligations owed
\nto such Lender under this Agreement as of such effective date.<\/p>\n
ARTICLE III<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
The Borrower represents and warrants to the Lenders that:<\/p>\n
SECTION 3.01. ORGANIZATION; POWERS. The Borrower and each of the
\nSignificant Subsidiaries is duly organized, validly existing and in good
\nstanding under the laws of the jurisdiction of its organization, has all
\nrequisite power and authority to carry on its business as now conducted and,
\nexcept where the failure to do so, individually or in the aggregate, could not
\nreasonably be expected to result in a Material Adverse Effect, is qualified to
\ndo business in, and is in good standing in, every jurisdiction where such
\nqualification is required.<\/p>\n
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are
\nwithin the Borrower’s and each of the Guarantors’ corporate powers and authority
\nand have been duly authorized by all necessary corporate action. The Loan
\nDocuments (i) have been duly executed and delivered by the Borrower and each of
\nthe Guarantors and (ii) constitute legal, valid and binding obligations of the
\nBorrower and each of the Guarantors, enforceable in accordance with their
\nrespective terms, subject to applicable bankruptcy, insolvency, reorganization,
\nmoratorium or other laws affecting creditors’ rights generally and subject to
\ngeneral principles of equity, regardless of whether considered in a proceeding
\nin equity or at law.<\/p>\n
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
\n(a) do not require any consent or approval of, registration or filing with, or
\nany other action by, any Governmental Authority, except such as have been
\nobtained or made and are in full force and effect, (b) will not violate any
\napplicable law or regulation or the charter, by-laws or other organizational
\ndocuments of the Borrower, any Guarantor or any of the Significant Subsidiaries
\nor any order of any Governmental Authority, (c) will not violate or result in a
\ndefault under any indenture, agreement or<\/p>\n
27<\/p>\n
other instrument binding upon the Borrower, any Guarantor or any of the
\nSignificant Subsidiaries or their assets, or give rise to a right thereunder to
\nrequire any payment to be made by the Borrower, any Guarantor or any of the
\nSignificant Subsidiaries, and (d) will not result in the creation or imposition
\nof any Lien on any asset of the Borrower or any of the Significant Subsidiaries.<\/p>\n
SECTION 3.04. FINANCIAL STATEMENTS. The Borrower has heretofore
\nfurnished to the Lenders its consolidated balance sheet, related profit and loss
\nand reconciliation of surplus statements, and a statement of cash flows as of
\nand for the fiscal year ended May 31, 2001, reported on by Arthur Andersen LLP,
\nindependent public accountants. Such financial statements present fairly, in all
\nmaterial respects, the consolidated financial condition and operations of the
\nBorrower and its consolidated Subsidiaries as of such date and the consolidated
\nresults of their operations for the periods then ended, in accordance with GAAP.<\/p>\n
SECTION 3.05. TAXES. The Borrower and each of its Significant
\nSubsidiaries has timely filed or caused to be filed all Tax returns and reports
\nrequired to have been filed and has paid or caused to be paid all Taxes required
\nto have been paid by it, except (a) Taxes that are being contested in good faith
\nby appropriate proceedings and for which the Borrower or such Significant
\nSubsidiary, as applicable, has set aside on its books adequate reserves or (b)
\nto the extent that the failure to do so could not reasonably be expected to
\nresult in a Material Adverse Effect.<\/p>\n
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
\nactions, suits or proceedings by or before any arbitrator or Governmental
\nAuthority pending against or, to the knowledge of the Borrower, threatened
\nagainst or affecting the Borrower or any of its Significant Subsidiaries (i)
\nthat could reasonably be expected, individually or in the aggregate, to result
\nin a Material Adverse Effect (other than the Disclosed Matters listed on
\nSCHEDULE 3.06) or (ii) that involve this Agreement or the Transactions.<\/p>\n
(b) Except for the Disclosed Matters listed on SCHEDULE 3.06 and
\nexcept with respect to any matters that, individually or in the aggregate, could
\nnot reasonably be expected to result in a Material Adverse Effect, neither the
\nBorrower nor any of its Significant Subsidiaries (i) has failed to comply with
\nany Environmental Law or to obtain, maintain or comply with any permit, license
\nor other approval required under any Environmental Law, (ii) has become subject
\nto any Environmental Liability, (iii) has received notice of any claim with
\nrespect to any Environmental Liability or (iv) knows of any basis for any
\nEnvironmental Liability.<\/p>\n
(c) Other than any liability incident to the Disclosed Matters, the
\nBorrower and its Significant Subsidiaries have no material contingent
\nobligations not provided for or disclosed in the financial statements referred
\nto in Section 3.04. Since the date of this Agreement, there has been no change
\nin the status of the Disclosed Matters that, individually or in the aggregate,
\nhas resulted in a Material Adverse Effect.<\/p>\n
SECTION 3.07. SUBSIDIARIES. SCHEDULE 3.07 hereto contains an accurate
\nlist of all of the presently existing Significant Subsidiaries of the Borrower,
\nsetting forth their respective jurisdictions of incorporation and the percentage
\nof their respective capital stock owned by the Borrower or other Subsidiaries.
\nAll of the issued and outstanding shares of capital stock of such Significant
\nSubsidiaries have been duly authorized and issued and are fully paid and
\nnon-assessable.<\/p>\n
SECTION 3.08. ERISA. Neither a Reportable Event nor an “accumulated
\nfunding deficiency” (within the meaning of Section 412 of the Code or Section
\n302 of ERISA) has<\/p>\n
28<\/p>\n
occurred during the five-year period prior to the date on which this
\nrepresentation is made or deemed made with respect to any Plan, and each Plan
\nhas complied in all material respects with the applicable provisions of ERISA
\nand the Code. No termination of a Single Employer Plan has occurred, and no Lien
\nin favor of the PBGC or a Plan has arisen, during such five-year period. The
\npresent value of all accrued benefits under each Single Employer Plan (based on
\nthose assumptions used to fund such Plans) did not, as of the last annual
\nvaluation date prior to the date on which this representation is made or deemed
\nmade, exceed the value of the assets of such Plan allocable to such accrued
\nbenefits by a material amount. Neither the Borrower nor any Commonly Controlled
\nEntity has had a complete or partial withdrawal from any Multiemployer Plan that
\nhas resulted or could reasonably be expected to result in a material liability
\nunder ERISA, and neither the Borrower nor any Commonly Controlled Entity would
\nbecome subject to any material liability under ERISA if the Borrower or any such
\nCommonly Controlled Entity were to withdraw completely from all Multiemployer
\nPlans as of the valuation date most closely preceding the date on which this
\nrepresentation is made or deemed made. No such Multiemployer Plan is in
\nReorganization or Insolvency.<\/p>\n
SECTION 3.09. ACCURACY OF INFORMATION. None of the reports, financial
\nstatements, certificates or other information furnished by or on behalf of the
\nBorrower to the Administrative Agent or any Lender in connection with the
\nnegotiation of this Agreement or delivered hereunder by the Borrower (as
\nsubsequently modified, superseded or supplemented by other information so
\nfurnished), contains, when taken as a whole, any material misstatement of fact
\nor omits to state any material fact necessary to make the statements therein, in
\nthe light of the circumstances under which they were made, not misleading.<\/p>\n
SECTION 3.10. REGULATION U. Margin Stock constitutes less than 25% of
\nthe aggregate value (determined in accordance with Regulation U), on a
\nconsolidated basis, of the Property and assets of the Borrower and its
\nSubsidiaries that is subject to the provisions of Article 6 (including Section
\n6.01).<\/p>\n
SECTION 3.11. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
\neach of its Significant Subsidiaries is in compliance with all laws, regulations
\nand orders of any Governmental Authority applicable to it or its property and
\nall indentures, agreements and other instruments binding upon it or its
\nproperty, except where the failure to do so, individually or in the aggregate,
\ncould not reasonably be expected to result in a Material Adverse Effect. No
\nDefault has occurred and is continuing.<\/p>\n
SECTION 3.12. PROPERTIES; LIENS. The Borrower and each of the
\nSignificant Subsidiaries has good title to, or valid leasehold interests in, all
\nits real and personal property material to its business, except for any such
\ndefects that, individually or in the aggregate, could not reasonably be expected
\nto result in a Material Adverse Effect, and none of such property is subject to
\nany Lien except as permitted by Section 6.01.<\/p>\n
SECTION 3.13. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
\nBorrower nor any of its Subsidiaries is (a) an investment company” as defined
\nin, or subject to regulation under, the Investment Company Act of 1940 or (b) a
\nholding company” as defined in, or subject to regulation under, the Public
\nUtility Holding Company Act of 1935.<\/p>\n
SECTION 3.14. CITIZENSHIP. Federal Express Corporation is a citizen of
\nthe United States, as defined in 49 U.S.C. Section 40102(a)(15) (a “CITIZEN”).
\nEach other Subsidiary that must<\/p>\n
29<\/p>\n
be a Citizen in order to conduct its business as currently conducted is a
\nCitizen. Neither Federal Express Corporation nor any such other Subsidiary is a
\nnational of any foreign country designated in Presidential Executive Order No.
\n8389 or 9193, as amended, and the regulations issued thereunder, as amended, or
\na national of any foreign country designated in the Foreign Assets Control
\nRegulations or in the Cuban Assets Control Regulations of the United States
\nTreasury Department, 31 C.F.R., Chapter V, as amended.<\/p>\n
SECTION 3.15. STATUS AS AIR CARRIER. Federal Express Corporation, and
\neach other Subsidiary that must be so authorized in order to conduct its
\nbusiness as currently conducted, (i) is authorized to engage in all cargo
\ndomestic and international air service under certificates issued pursuant to 49
\nU.S.C. Section 41103 and 49 U.S.C. Section 41102(a), respectively, and
\n(ii) is the holder of a valid and effective operating certificate issued by
\nthe FAA pursuant to Part 119 of the regulations under the Federal Aviation
\nAct. Such certificates are in full force and effect and are adequate for the
\nconduct of the business of the Borrower and its Subsidiaries as now
\nconducted. There are no actions, proceedings or investigations pending or, to
\nthe knowledge of the executive officers of the Borrower, threatened (or any
\nbasis therefor known to the Borrower) to amend, modify, suspend or revoke any
\nsuch certificate in whole or in part, which would have any material adverse
\neffect on any such certificate or any of the operations of the Borrower or
\nits Subsidiaries.<\/p>\n
SECTION 3.16. PARI PASSU. All the payment obligations of the Borrower
\nand the Guarantors arising under or pursuant to the Loan Documents will at all
\ntimes rank pari passu, with all other unsecured and unsubordinated payment
\nobligations and liabilities (including contingent obligations and liabilities)
\nof the Borrower and the Guarantors (other than those which are mandatorily
\npreferred by laws or regulations of general application).<\/p>\n
ARTICLE IV<\/p>\n
CONDITIONS<\/p>\n
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
\nLoans shall not become effective until the date on which each of the following
\nconditions is satisfied (or waived in accordance with Section 9.01):<\/p>\n
(a) The Administrative Agent (or its counsel) shall have received (i)
\nfrom each party hereto either a counterpart of this Agreement signed on behalf
\nof such party or written evidence satisfactory to the Administrative Agent
\n(which may include telecopy transmission of a signed signature page of this
\nAgreement) that such party has signed a counterpart of this Agreement and (ii)
\nthe Guarantee Agreement, executed and delivered by each Guarantor.<\/p>\n
(b) The Administrative Agent shall have received satisfactory evidence
\nthat the Existing Revolving Credit Facility shall have been terminated and all
\namounts thereunder shall have been paid in full.<\/p>\n
(c) The Administrative Agent shall have received a written opinion
\nfrom counsel to the Borrower, substantially in the form of EXHIBIT D.<\/p>\n
(d) The Administrative Agent shall have received such documents and
\ncertificates as the Administrative Agent or its counsel may reasonably request
\nrelating to the organization, existence and good standing of the Borrower and
\nthe domestic Significant Subsidiaries<\/p>\n
30<\/p>\n
and the authorization of the Transactions, all in form and substance
\nsatisfactory to the Administrative Agent and its counsel.<\/p>\n
(e) The Administrative Agent shall have received a certificate, dated
\nthe Effective Date and signed by the President or a Financial Officer of the
\nBorrower, confirming compliance with the conditions set forth in paragraphs (a)
\nand (b) of Section 4.02.<\/p>\n
(f) Since May 31, 2001, there has been no change in the business,
\nProperty, prospects, condition (financial or otherwise) or results of operations
\nof the Borrower and its Subsidiaries taken as a whole which could reasonably be
\nexpected to have a Material Adverse Effect and the Administrative Agent shall
\nhave received a written representation and warranty by the Borrower as of the
\nEffective Date.<\/p>\n
(g) The Administrative Agent shall have received (i) satisfactory
\naudited consolidated financial statements of the Borrower for the two most
\nrecent fiscal years ended prior to the Effective Date as to which such financial
\nstatements are available, and (ii) satisfactory unaudited interim consolidated
\nfinancial statements of the Borrower for each quarterly period ended subsequent
\nto the date of the latest financial statements delivered pursuant to clause (i)
\nof this paragraph as to which such financial statements are available.<\/p>\n
(h) The Administrative Agent shall have received all fees and other
\namounts due and payable on or prior to the Effective Date, including, to the
\nextent invoiced, reimbursement or payment of all out-of-pocket expenses required
\nto be reimbursed or paid by the Borrower hereunder.<\/p>\n
The Administrative Agent shall notify the Borrower and the Lenders of the
\nEffective Date, and such notice shall be conclusive and binding. Notwithstanding
\nthe foregoing, the obligations of the Lenders to make Loans hereunder shall not
\nbecome effective unless each of the foregoing conditions is satisfied (or waived
\npursuant to Section 9.01) at or prior to 3:00 p.m., New York City time, on
\nOctober 15, 2001 (and, in the event such conditions are not so satisfied or
\nwaived, the Commitments shall terminate at such time).<\/p>\n
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
\na Loan on the occasion of any Borrowing is subject to the satisfaction of the
\nfollowing conditions:<\/p>\n
(a) The representations and warranties of the Borrower set forth in
\n this Agreement shall be true and correct on and as of the date of such
\n Borrowing.<\/p>\n
(b) At the time of and immediately after giving effect to such
\n Borrowing no Default shall have occurred and be continuing.<\/p>\n
Each Borrowing shall be deemed to constitute a representation and warranty by
\nthe Borrower on the date thereof as to the matters specified in paragraphs (a)
\nand (b) of this Section.<\/p>\n
31<\/p>\n
ARTICLE V<\/p>\n
AFFIRMATIVE COVENANTS<\/p>\n
Until the Commitments have expired or been terminated and the
\nprincipal of and interest on each Loan and all fees payable hereunder shall have
\nbeen paid in full, the Borrower covenants and agrees with the Lenders that:<\/p>\n
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
\nwill furnish to the Administrative Agent and each Lender:<\/p>\n
(a) within 90 days after the end of each fiscal year of the Borrower,
\n its audited consolidated balance sheet, related profit and loss and
\n reconciliation of surplus statements, and a statement of cash flows as of
\n the end of and for such year, setting forth in each case the figures for
\n the previous fiscal year, all reported on by Arthur Andersen LLP or other
\n independent public accountants of recognized national standing (without a
\n “going concern” or like qualification or exception and without any
\n qualification or exception as to the scope of such audit);<\/p>\n
(b) within 45 days after the end of each of the first three fiscal
\n quarters of each fiscal year of the Borrower, an unaudited consolidated
\n balance sheet and consolidated profit and loss and reconciliation of
\n surplus statements and a statement of cash flows as of the end of and for
\n such fiscal quarter and the then elapsed portion of the fiscal year,
\n setting forth in each case the figures for the corresponding period or
\n periods of (or, in the case of the balance sheet, as of the end of) the
\n previous fiscal year, all certified by one of its Financial Officers as
\n presenting fairly in all material respects the financial condition and
\n results of operations of the Borrower and its consolidated Subsidiaries on
\n a consolidated basis in accordance with GAAP consistently applied, subject
\n to normal year-end audit adjustments and the absence of footnotes;<\/p>\n
(c) concurrently with any delivery of financial statements under
\n clause (a) or (b) above, a certificate of a Financial Officer of the
\n Borrower (i) certifying as to whether a Default or Event of Default has
\n occurred and, if a Default or Event of Default has occurred, specifying the
\n details thereof and any action taken or proposed to be taken with respect
\n thereto and (ii) setting forth reasonably detailed calculations
\n demonstrating compliance with Sections 5.10 and 5.11, substantially in the
\n form of SCHEDULE 5.01(c) hereto;<\/p>\n
(d) concurrently with any delivery of financial statements under
\n clause (a) above, a certificate of the accounting firm that reported on
\n such financial statements stating whether they obtained knowledge during
\n the course of their examination of such financial statements of any Default
\n or Event of Default (which certificate may be limited to the extent
\n required by accounting rules or guidelines);<\/p>\n
(e) promptly after the same become publicly available, copies of all
\n regular and periodic reports, proxy statements and prospectuses filed by
\n the Borrower, any Guarantor or any Significant Subsidiary with the
\n Securities and Exchange Commission, or any Governmental Authority
\n succeeding to any or all of the functions of said Commission, or with any
\n national securities exchange, or distributed by the Borrower to its
\n shareholders generally, as the case may be; and<\/p>\n
32<\/p>\n
(f) promptly following any request therefor, such other information
\n (including non-financial information) as the Administrative Agent or
\n any Lender may from time to time reasonably request.<\/p>\n
SECTION 5.02. USE OF PROCEEDS. The proceeds of the Loans will be used
\nonly for general corporate purposes, including commercial paper back-up and
\nacquisitions. No part of the proceeds of any Loan will be used, whether directly
\nor indirectly, for any purpose that entails a violation of any of the
\nRegulations of the Board, including Regulation U.<\/p>\n
SECTION 5.03. NOTICE OF MATERIAL EVENTS. The Borrower will, and will
\ncause each Subsidiary to, furnish to the Administrative Agent and each Lender
\nprompt written notice of the occurrence of any Default or Event of Default or
\nany other development that results in, or could reasonably be expected to result
\nin, a Material Adverse Effect. Each notice delivered under this Section shall be
\naccompanied by a statement of a Financial Officer or other executive officer of
\nthe Borrower setting forth the details of the event or development requiring
\nsuch notice and any action taken or proposed to be taken with respect thereto.<\/p>\n
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Except as permitted by
\nSections 6.03 and 6.04, the Borrower will, and will cause each Significant
\nSubsidiary to, carry on and conduct its business in substantially the same
\nmanner and in substantially the same fields of enterprise as it is presently
\nconducted and to do all things necessary to remain duly incorporated, validly
\nexisting and in good standing as a domestic corporation in its jurisdiction of
\nincorporation and maintain all requisite authority to conduct its business in
\neach jurisdiction in which its business is conducted and where the failure to
\nhave such requisite authority could reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n
SECTION 5.05. CITIZENSHIP AND REGULATORY CERTIFICATES. The Borrower
\nwill cause Federal Express Corporation and each other applicable Subsidiary to
\ncontinue to be (a) a citizen of the United States, as defined in 49 U.S.C.
\nSection 40102(a)(15), (b) authorized to engage in all cargo domestic and
\ninternational air service under certificates issued pursuant to 49 U.S.C.
\nSection 41103 and 49 U.S.C. Section 41102(a), respectively, (c) the holder of
\nall other certificates, rights, permits, franchises and concessions from
\nappropriate Governmental Authorities necessary or appropriate to enable the
\nBorrower and its Subsidiaries to conduct their business in all material
\nrespects as presently being conducted, and (d) the holder of a valid and
\neffective operating certificate issued by the FAA pursuant to Part 119 of the
\nregulations under the Federal Aviation Act. The Borrower will, and will cause
\neach of its Subsidiaries to, use its best efforts to maintain, preserve and
\nkeep in full force and effect its material certificates, rights, permits,
\nfranchises and concessions from appropriate Governmental Authorities and use
\nits best efforts from time to time to obtain appropriate renewals or
\nreplacements, PROVIDED, that nothing in this Section 5.05 shall prevent the
\nBorrower or any of its Subsidiaries from abandoning, or permitting the
\namendment, expiration or termination of, any such certificate, right, permit,
\nfranchise or concession if, in the opinion of the Borrower, such abandonment,
\namendment, expiration or termination is in the interest of the Borrower and
\nnot prejudicial in any material respect to the Lenders.<\/p>\n
SECTION 5.06. PAYMENT OF TAXES. The Borrower will, and will cause each
\nSubsidiary to, pay and discharge all taxes, assessments and governmental charges
\nor levies imposed upon it or upon its income or profits, or upon any property
\nbelonging to it, and all lawful claims which, if unpaid, would become a Lien,
\nexcept where failure to do any of the foregoing would not have a Material
\nAdverse Effect and provided that neither the Borrower nor a Subsidiary shall be<\/p>\n
33<\/p>\n
required to pay any such tax, assessment, charge, levy or claim the payment of
\nwhich is being contested in good faith and by appropriate proceedings; and make
\nmonthly accruals of all of the estimated liability of the Borrower and
\nSubsidiaries for such taxes, assessments, charges and levies, determined in
\naccordance with GAAP, and establish adequate reserves determined in accordance
\nwith GAAP, for such thereof as may be contested, and reflect such accruals and
\nreserves in all financial statements furnished hereunder.<\/p>\n
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause
\neach of its Subsidiaries to, comply with all laws, rules, regulations and orders
\nof any Governmental Authority applicable to it or its property, except where the
\nfailure to do so, individually or in the aggregate, could not reasonably be
\nexpected to result in a Material Adverse Effect.<\/p>\n
SECTION 5.08. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
\nand will cause each of its Significant Subsidiaries to, (a) keep and maintain
\nall property material to the conduct of its business in good working order and
\ncondition, ordinary wear and tear excepted, except where failure to do so could
\nnot reasonably be expected to have a Material Adverse Effect and (b) maintain,
\nwith financially sound and reputable insurance companies, insurance on its
\nproperty in such amounts and against such risks as are consistent with prudent
\nbusiness practice, and the Borrower will furnish to any Lender upon request full
\ninformation as to the insurance carried.<\/p>\n
SECTION 5.09. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will,
\nand will cause each of its Subsidiaries to, keep proper books of record and
\naccount in which full, true and correct entries are made of all dealings and
\ntransactions in relation to its business and activities. The Borrower will, and
\nwill cause each of its Subsidiaries to, permit any representatives designated by
\nthe Administrative Agent or any Lender, upon reasonable prior notice, to visit
\nand inspect its properties, to examine and make extracts from its books of
\naccounts and other financial records, and to discuss its affairs, finances and
\ncondition with its officers and independent accountants, all at such reasonable
\ntimes and intervals as the Lenders may designate.<\/p>\n
SECTION 5.10. LEVERAGE. The Borrower will maintain at all times a
\nratio of (i) the sum of (a) the aggregate unpaid principal amount of all
\noutstanding Funded Debt, PLUS (b) Capitalized Operating Lease Value, to (ii) the
\nsum of (a) the items listed in clause (i) above PLUS (b) Consolidated Adjusted
\nNet Worth, of not more than .70 to 1.<\/p>\n
SECTION 5.11. FIXED CHARGE COVERAGE. The Borrower will, for each
\nperiod of four consecutive fiscal quarters of the Borrower ending after August
\n31, 2001, maintain a ratio of (a) Consolidated Cash Flow for such period to (b)
\nthe sum of Interest Expense and Rent Expense for such period, in an amount not
\nless than 1.25 to 1.<\/p>\n
SECTION 5.12. GUARANTEE AGREEMENT. (a) Within thirty days after (A)
\nacquiring or establishing any Subsidiary that constitutes a Significant
\nSubsidiary or (B) any Subsidiary guaranteeing either the Obligations (as defined
\ntherein) under the 364-Day Credit Agreement or any public debt securities issued
\nby the Borrower, upon its acquisition or establishment or the issuance of any
\nsuch guarantee, as the case may be, the Borrower shall cause such Subsidiary to
\nexecute the Guarantee Agreement pursuant to an Addendum thereto in the form of
\nAnnex I to the Guarantee Agreement, and to deliver documentation, to the extent
\nrequested by the Administrative Agent, similar to that described in Section
\n4.01(c) and (d) relating to the authorization for, execution and delivery of,
\nand validity of such Significant Subsidiary’s obligations as a Guarantor, such
\ndocumentation to be in form and substance reasonably satisfactory to the
\nAdministrative Agent.<\/p>\n
34<\/p>\n
(b) If at any time the Guarantors do not consist of Subsidiaries of
\nthe Borrower which, in the aggregate, had revenues (determined in accordance
\nwith GAAP) for the immediately preceding fiscal year of the Borrower in excess
\nof 90% of the consolidated revenues (determined in accordance with GAAP) of the
\nBorrower and the consolidated Subsidiaries for such immediately preceding fiscal
\nyear, then the Borrower shall promptly cause one or more additional Subsidiaries
\neach to execute the Guarantee Agreement pursuant to an Addendum thereto in the
\nform of Annex I to the Guarantee Agreement, and to deliver documentation, to the
\nextent requested by the Administrative Agent, similar to that described in
\nSection 4.01(c) and (d) relating to the authorization for, execution and
\ndelivery of, and validity of such Subsidiary’s obligations as a Guarantor, such
\ndocumentation to be in form and substance reasonably satisfactory to the
\nAdministrative Agent, so that the aggregate consolidated revenues (determined in
\naccordance with GAAP) of the Guarantors for such fiscal year equal or exceed 90%
\nof the consolidated revenues (determined in accordance with GAAP) of the
\nBorrower and the consolidated Subsidiaries for such fiscal year.<\/p>\n
ARTICLE VI<\/p>\n
NEGATIVE COVENANTS<\/p>\n
Until the Commitments have expired or terminated and the principal of
\nand interest on each Loan and all fees payable hereunder have been paid in full,
\nthe Borrower covenants and agrees with the Lenders that:<\/p>\n
SECTION 6.01. LIENS. The Borrower will not, nor will it permit any
\nconsolidated Subsidiary to, create, incur, assume or suffer to exist, any Lien
\non, or enter into, or make any commitment to enter into, any arrangement for the
\nacquisition of, any Property (other than Unrestricted Margin Stock) through
\nconditional sales, lease-purchase or other title retention agreement, except:<\/p>\n
(a) Liens which may be hereafter created to secure payment of the
\nObligations;<\/p>\n
(b) Liens incurred or deposits or pledges, made in the ordinary course
\nof business, to secure payment of workers’ compensation, unemployment insurance,
\nold age pensions or other social security obligations;<\/p>\n
(c) Liens incurred or deposits or pledges, made in the ordinary course
\nof business, to secure performance of bids, tenders, contracts (other than
\ncontracts for Indebtedness), leases, public or statutory obligations, surety
\nbonds, or other Liens or deposits or pledges for purposes of like general nature
\nmade in the ordinary course of business;<\/p>\n
(d) Deposits or pledges for the purpose of securing an appeal, stay or
\ndischarge in the course of legal proceedings, or Liens for judgments or awards
\nwhich were not incurred in connection with Indebtedness or the obtaining of
\nadvances or credits, provided such deposits, pledges and Liens do not, in the
\naggregate for the Borrower and the consolidated Subsidiaries, materially detract
\nfrom the value of their assets or properties or materially impair the use
\nthereof in the ordinary course of business and such appeal, judgment or award,
\nas the case may be, is being diligently contested or litigated in good faith by
\nappropriate proceedings being diligently conducted, and provided further there
\nhas been set aside on the books of the Borrower or the consolidated
\nSubsidiaries, as the case may be, reserves in accordance with GAAP with respect
\nthereto, which reserves shall be maintained<\/p>\n
35<\/p>\n
until the related liabilities are paid or otherwise discharged, and provided
\nfurther execution is not levied upon any such judgment or award;<\/p>\n
(e) Liens for taxes, fees, assessments and governmental charges not
\ndelinquent or which are being contested in good faith by appropriate proceedings
\nbeing diligently conducted, provided there has been set aside on the books of
\nthe Borrower or the consolidated Subsidiaries, as the case may be, adequate
\nreserves in accordance with GAAP with respect thereto, which reserves shall be
\nmaintained until the related liabilities are paid or otherwise discharged, and
\nprovided further, execution is not levied upon any such Lien;<\/p>\n
(f) Mechanics’, carriers’, workers’, repairmen’s or other like Liens
\narising in the ordinary course of business securing obligations which are not
\noverdue for a period of more than 90 calendar days, or which are being contested
\nin good faith by appropriate proceedings being diligently conducted provided
\nthere has been set aside on the books of the Borrower and the consolidated
\nSubsidiaries, as the case may be, adequate reserves in accordance with GAAP with
\nrespect thereto, which reserves shall be maintained until the related
\nliabilities are paid or otherwise discharged, and provided further, execution is
\nnot levied upon any such Lien;<\/p>\n
(g) Lessors’ interests under Capitalized Leases;<\/p>\n
(h) Liens on property acquired or constructed with the proceeds of any
\ntax-exempt bond financing to secure such financing;<\/p>\n
(i) Liens securing Indebtedness of a consolidated Subsidiary to the
\nBorrower or any Guarantor or, in the case of Indebtedness of a consolidated
\nSubsidiary which is not a Guarantor, to any consolidated Subsidiary which is not
\na Guarantor;<\/p>\n
(j) Liens existing on the property of a corporation or other business
\nentity immediately prior to its being consolidated with or merged into the
\nBorrower or a consolidated Subsidiary or its becoming a consolidated Subsidiary,
\nor Liens existing on any property acquired by the Borrower or a consolidated
\nSubsidiary at the time such is so acquired (whether or not the Indebtedness
\nsecured thereby shall have been assumed), provided that (i) no such Lien was
\ncreated or assumed in contemplation of such consolidation or merger or such
\nentity’s becoming a consolidated Subsidiary or such acquisition of property and
\n(ii) each such Lien shall only cover the acquired property and, if required by
\nthe terms of the instrument originally creating such Lien, property which is an
\nimprovement to or is acquired for specific use in connection with such acquired
\nproperty;<\/p>\n
(k) Liens on Flight Equipment acquired on or after the date of this
\nAgreement which (i) secure the payment of all or any part of the purchase price
\nof such Flight Equipment or improvements thereon, (ii) are limited to the Flight
\nEquipment so acquired and improvements thereon, and (iii) attach to such Flight
\nEquipment within one year after the acquisition or improvement of such Flight
\nEquipment;<\/p>\n
(l) Liens in favor of customs and revenue authorities arising as a
\nmatter of law to secure payment of customs duties in connection with the
\nimportation of goods;<\/p>\n
(m) Zoning, building or other restrictions, variances, covenants,
\nrights of way, encumbrances, easements and other minor irregularities in title,
\nnone of which, individually or in the aggregate, (i) interfere in any material
\nrespect with the present use or occupancy of the affected<\/p>\n
36<\/p>\n
parcel by the Borrower or any Subsidiary, (ii) have no more than an immaterial
\neffect on the value thereof or its use or (iii) would impair the ability of such
\nparcel to be sold for its present use;<\/p>\n
(n) Liens arising solely by virtue of any law or regulation relating
\nto banker’s liens, rights of set-off or similar rights and remedies as to
\ndeposit accounts or other funds maintained with a creditor depository
\ninstitution;<\/p>\n
(o) Liens to secure Indebtedness for the purpose of financing all or
\nany part of the purchase price or the cost of construction or improvement of the
\nproperty subject to such Lien; PROVIDED, HOWEVER, that (i) the principal amount
\nof any Indebtedness secured by such Lien does not exceed 100% of such purchase
\nprice or cost and (ii) such Lien does not extend to or cover any other property
\nother than such item of property so acquired, constructed or improved;<\/p>\n
(p) Liens arising out of the refinancing, extension, renewal or
\nrefunding of any Indebtedness secured by any Lien permitted by clauses (h), (j),
\n(k) and (o) of this Section, PROVIDED that such Indebtedness is not increased
\nand is not secured by any additional assets; and<\/p>\n
(q) Liens not otherwise permitted by Sections 6.01 (a) through (p)
\nprovided that, as of the date any Lien is incurred and as of the end of each
\nfiscal quarter of the Borrower ending after August 31, 2001, the sum of (i) the
\naggregate principal amount of all outstanding Long Term Debt of the consolidated
\nSubsidiaries which are not Guarantors (excluding the Current Maturities of any
\nsuch Long Term Debt and any Long Term Debt of a consolidated Subsidiary owing to
\nthe Borrower), plus (ii) the aggregate principal amount of all outstanding Long
\nTerm Debt of the Borrower or any Guarantor (excluding the Current Maturities of
\nany such Long Term Debt and any Long Term Debt of a consolidated Subsidiary
\nowing to the Borrower) which is secured as permitted by this Section 6.01(q),
\ndoes not exceed 8% of Consolidated Adjusted Total Assets.<\/p>\n
SECTION 6.02. RESTRICTED INVESTMENTS. The Borrower will not, nor will
\nit permit any consolidated Subsidiary to, make any Restricted Investment except
\nRestricted Investments made by the Borrower or a consolidated Subsidiary so long
\nas, after giving effect to any such Restricted Investment (i) the aggregate
\namount of all such Restricted Investments existing on the date of such proposed
\naction shall not exceed (x) $750,000,000 plus (y) 75% (or in the case of a
\ndeficit, minus 100%) of the Consolidated Net Income for the period commencing on
\nJune 1, 2001 and ending on and including the date of any such proposed action
\n(the “COMPUTATION PERIOD”) plus (z) the aggregate amount of the net cash
\nproceeds received by the Borrower during the Computation Period from the sale of
\nits stock and Indebtedness of the Borrower convertible into stock of the
\nBorrower (but only to the extent that any such Indebtedness has been converted
\ninto shares of such stock during such period), and (ii) there shall exist no
\nDefault or Event of Default.<\/p>\n
SECTION 6.03. MERGER AND CONSOLIDATION. The Borrower will not, nor
\nwill it permit any consolidated Subsidiary to, merge or consolidate with or into
\nor enter into any analogous reorganization or transaction with any other Person,
\nor sell all or substantially all of the assets of the Borrower and its
\nconsolidated Subsidiaries taken as a whole, except:<\/p>\n
(a) Any consolidated Subsidiary or other corporation or entity may
\nmerge or consolidate with the Borrower, PROVIDED that, after giving effect to
\nany such merger or consolidation, (i) the Borrower shall be the continuing or
\nsurviving corporation and (ii) no Default or Event of Default shall exist;<\/p>\n
37<\/p>\n
(b) Any consolidated Subsidiary may merge with or into any
\nconsolidated Subsidiary so long as, after giving effect thereto, no Default or
\nEvent of Default shall exist;<\/p>\n
(c) The Borrower or any consolidated Subsidiary may transfer its
\nassets to the Borrower or any consolidated Subsidiary, so long as after giving
\neffect thereto, no Default or Event of Default shall exist;<\/p>\n
(d) Any consolidated Subsidiary other than a Significant Subsidiary
\nmay be liquidated or dissolved; and<\/p>\n
(e) Any corporation or other entity may merge or consolidate with any
\nconsolidated Subsidiary, provided that, after giving effect to any such merger
\nor consolidation, (i) the continuing or surviving entity shall be a consolidated
\nSubsidiary, (ii) no Default or Event of Default shall exist, and (iii) the
\nBorrower owns, directly or indirectly, 100% of such consolidated Subsidiary;
\nPROVIDED, further, that the requirements of clauses (i) and (iii) will not apply
\nto a merger or consolidation of any consolidated Subsidiary in connection with a
\ntransaction permitted under Section 6.04(c).<\/p>\n
SECTION 6.04. SALES OF ASSETS. The Borrower will not, nor will it
\npermit any consolidated Subsidiary to, sell, transfer, convey (including,
\nwithout limitation, any sale, transfer or conveyance related to a sale and
\nleaseback transaction but excluding sales of inventory in the ordinary course of
\nbusiness) or lease (or enter into any commitment to sell transfer, convey or
\nlease) all or any part of its assets (other than Unrestricted Margin Stock)
\n(whether in one or a series of transactions) except:<\/p>\n
(a) Leases by the Borrower and consolidated Subsidiaries of Flight
\nEquipment to others provided that the aggregate book value of all Flight
\nEquipment leased to any other Person or Persons by the Borrower or any such
\nconsolidated Subsidiary shall not at any time exceed $500,000,000;<\/p>\n
(b) Sales of property by the Borrower or a consolidated Subsidiary
\nprovided that at the time of any such sale or other disposition the Borrower or
\nconsolidated Subsidiary making such sale or disposition shall have previously
\nacquired or shall be simultaneously acquiring, in contemplation of such sale or
\nother disposition, substantially similar property, or shall have previously
\nentered into, or shall be simultaneously entering into, a binding purchase
\nagreement or purchase agreements to acquire substantially similar property,
\nwhich property is acquired within three years of such sale or other disposition;<\/p>\n
(c) Sales of property (including any deemed sales of property pursuant
\nto Section 6.03(e)) provided that the aggregate net book value of all such
\nproperty sold in any one fiscal year of the Borrower shall not exceed 12.5% of
\nConsolidated Adjusted Net Worth as of the last day of the fiscal year of the
\nBorrower immediately preceding the fiscal year of the Borrower during which any
\nsuch sale of assets shall take place;<\/p>\n
(d) Sales of any property in order concurrently or subsequently to
\nlease as lessee such or similar property, provided that (i) any such sale takes
\nplace within 360 days after (A) in the case of personal property, the date on
\nwhich the Borrower or the applicable consolidated Subsidiary acquired such
\nproperty, and (B) in the case of real property or fixtures, the later of the
\ndate on which the Borrower or the applicable consolidated Subsidiary acquired
\nsuch property or the date on which<\/p>\n
38<\/p>\n
construction of all improvements on such property was completed, and (ii) after
\ngiving effect to the creation of the Capitalized Lease Obligations, if any, of
\nthe Borrower or a consolidated Subsidiary resulting from the lease of such
\nproperty by the Borrower or a consolidated Subsidiary, the Borrower is in
\ncompliance with Section 5.10; and<\/p>\n
(e) Transfers of assets permitted pursuant to Section 6.03.<\/p>\n
Notwithstanding the foregoing in this Section 6.04, the Borrower and its
\nconsolidated Subsidiaries will be permitted to sell, transfer or otherwise
\ndispose of Unrestricted Margin Stock without regard to the foregoing
\nrestrictions contained in this Section 6.04.<\/p>\n
SECTION 6.05. LOANS, ADVANCES AND INVESTMENTS. The Borrower will not,
\nnor will it permit any consolidated Subsidiary to, make or suffer to exist any
\nInvestments, or commitments therefor, except:<\/p>\n
(a) Investments in Permitted Investments;<\/p>\n
(b) Investments in the capital stock of a consolidated Subsidiary;<\/p>\n
(c) Loans and advances by the Borrower to a consolidated Subsidiary;<\/p>\n
(d) Loans and advances by a consolidated Subsidiary to any other
\nconsolidated Subsidiary or to the Borrower;<\/p>\n
(e) Investments in any Person not otherwise permitted by this Section
\n6.05, which together with all other Investments at the time outstanding under
\nthis Section 6.05(e), do not exceed 12.5% of Consolidated Adjusted Net Worth
\nprovided that at least 66-2\/3% of such Investments are reasonably related to the
\nsame fields of enterprise as those in which the Borrower and the consolidated
\nSubsidiaries are now engaged; and<\/p>\n
(f) Restricted Investments made in compliance with Section 6.02.<\/p>\n
In determining from time to time the amount of the Investments permitted by this
\nSection 6.05, loans and advances shall be taken at the principal amount thereof
\nthen remaining unpaid at the time of such determination and other Investments
\nshall be taken at the original cost thereof, regardless of any subsequent
\nappreciation or depreciation therein.<\/p>\n
SECTION 6.06. CONTINGENT LIABILITIES. The Borrower will not, nor will
\nit permit any consolidated Subsidiary to become liable with respect to any
\nContingent Obligation, except:<\/p>\n
(a) the Guarantee Agreement and the 364-Day Guarantee Agreement;<\/p>\n
(b) by the endorsement of negotiable instruments for deposit or
\ncollection (or similar transactions) in the ordinary course of business;<\/p>\n
(c) guaranties of customs fees in the ordinary course of business;<\/p>\n
(d) Contingent Obligations in respect of surety and appeal bonds and
\nsimilar obligations incurred in the ordinary course of business;<\/p>\n
39<\/p>\n
(e) Contingent Obligations with respect to letters of credit entered
\ninto in the ordinary course of business, PROVIDED that the aggregate amount of
\nsuch letters of credit shall not exceed $200,000,000 at any time outstanding;<\/p>\n
(f) Contingent Obligations in respect of obligations (other than
\nIndebtedness) of Wholly-Owned Subsidiaries incurred in the ordinary course of
\nbusiness; and<\/p>\n
(g) any other Contingent Obligation which after having given effect
\nthereto would not cause the Borrower to fail to be in compliance with Section
\n5.10.<\/p>\n
In determining from time to time the amount of guaranties and contingent
\nliabilities permitted by this Section 6.06, guaranties and contingent
\nliabilities shall be taken at the principal amount then remaining unpaid at the
\ntime of such determination on the indebtedness and obligations so guaranteed or
\nrelated to such contingent liabilities.<\/p>\n
SECTION 6.07. NEGATIVE COVENANTS IN SUBSIDIARY AGREEMENTS. The
\nBorrower will not permit any of its Subsidiaries to enter into, after the date
\nhereof, any agreement, instrument or indenture that, directly or indirectly,
\ncontains negative covenants restricting any of the following (or otherwise
\nprohibits or restricts, or has the effect of prohibiting or restricting, any of
\nthe following):<\/p>\n
(a) the incurrence or payment of Indebtedness owed to the Borrower or
\nany other Subsidiary of the Borrower;<\/p>\n
(b) the granting of Liens, PROVIDED that the foregoing shall not apply
\nto (i) restrictions and conditions imposed by law or by this Agreement; (ii)
\nrestrictions and conditions existing on the date hereof (but shall apply to any
\nextension or renewal of, or any amendment or modification expanding the scope
\nof, any such restriction or condition), (iii) customary restrictions and
\nconditions contained in agreements relating to the sale of a Subsidiary pending
\nsuch sale, provided such restrictions and conditions apply only to the
\nSubsidiary that is to be sold and such sale is permitted hereunder, (iv)
\nrestrictions or conditions imposed by any agreement relating to secured
\nIndebtedness permitted by this Agreement if such restrictions or conditions
\napply only to the property or assets securing such Indebtedness and (v)
\ncustomary provisions in leases and other contracts restricting the assignment
\nthereof and customary transfer restrictions and rights of first refusal in
\nshareholders’ agreements in existence on the date hereof or consistent with past
\npractice;<\/p>\n
(c) the declaration or payment of dividends; and<\/p>\n
(d) the making of loans, advances or other Investments to or in the
\nBorrower or any other Subsidiary of the Borrower.<\/p>\n
SECTION 6.08. SALES OF UNRESTRICTED MARGIN STOCK. The Borrower shall
\nnot, and shall not permit any Subsidiary to, (a) sell or otherwise dispose of
\nany capital stock constituting Unrestricted Margin Stock other than in exchange
\nfor cash or cash equivalents or (b) fail to maintain the proceeds of any such
\nsale or other disposition as cash, cash equivalents or short-term investments;
\nPROVIDED that (i) to the extent that the Borrower shall elect to reduce the
\nCommitments pursuant to Section 2.06(a) at any time after any such sale or other
\ndisposition, the requirements of clause (b) above shall cease to apply to the
\nportion of such proceeds as shall be equal to the aggregate<\/p>\n
40<\/p>\n
amount of any such reductions and (ii) this Section shall not apply to sales or
\nother dispositions of Unrestricted Margin Stock pursuant to Section 6.03(c).<\/p>\n
SECTION 6.09. SUBSIDIARY INDEBTEDNESS. The Borrower will not permit
\nany of its Subsidiaries to create or issue any unsecured notes or debentures.<\/p>\n
ARTICLE VII<\/p>\n
EVENTS OF DEFAULT<\/p>\n
If any of the following events (“EVENTS OF DEFAULT”) shall occur:<\/p>\n
(a) the Borrower shall fail to pay any principal of any Loan when and
\n as the same shall become due and payable, whether at the due date thereof
\n or at a date fixed for prepayment thereof or otherwise;<\/p>\n
(b) the Borrower shall fail to pay any interest on any Loan or any fee
\n or any other amount (other than an amount referred to in clause (a) of this
\n Article) payable under this Agreement, when and as the same shall become
\n due and payable, and such failure shall continue unremedied for a period of
\n five days;<\/p>\n
(c) any representation or warranty made or deemed made by or on behalf
\n of the Borrower or any Subsidiary in or in connection with this Agreement
\n or any amendment or modification hereof, or in any report, certificate,
\n financial statement or other document furnished pursuant to or in
\n connection with this Agreement or any amendment or modification hereof,
\n shall prove to have been inaccurate in any material respect on or as of the
\n date made or deemed made;<\/p>\n
(d) the Borrower shall fail to observe or perform any covenant,
\n condition or agreement contained in Section 5.02, 5.03, 5.10, 5.11, 6.01,
\n 6.02, 6.03, 6.04, 6.05, 6.06, or 6.08;<\/p>\n
(e) the Borrower shall fail to observe or perform any covenant,
\n condition or agreement contained in this Agreement (other than those
\n specified in clause (a), (b), (c) or (d) of this Article), and such failure
\n shall continue unremedied for a period of 5 days after written notice
\n thereof to the Borrower from the Administrative Agent or any Lender;<\/p>\n
(f) the Borrower or any consolidated Subsidiary shall fail to make any
\n payment (whether of principal or interest and regardless of amount) in
\n respect of any Material Indebtedness, when and as the same shall become due
\n and payable, after giving effect to any applicable grace period;<\/p>\n
(g) any event or condition occurs that results in any Material
\n Indebtedness becoming due prior to its scheduled maturity or that enables
\n or permits (with or without the giving of notice, the lapse of time or
\n both) the holder or holders of any Material Indebtedness or any trustee or
\n agent on its or their behalf to cause any Material Indebtedness to become
\n due, or to require the prepayment, repurchase, redemption or defeasance
\n thereof, prior to its scheduled maturity; PROVIDED that this clause (g)
\n shall not apply to secured Indebtedness that becomes due as a result of the
\n voluntary sale or transfer of the property or assets securing<\/p>\n
41<\/p>\n
such Indebtedness; PROVIDED that this clause (g) shall not apply to secured
\n Indebtedness that becomes due in accordance with its terms as a result of
\n the voluntary or involuntary sale, transfer or disposition of the property
\n or assets securing such Indebtedness;<\/p>\n
(h) an involuntary proceeding shall be commenced or an involuntary
\n petition shall be filed seeking (i) liquidation, reorganization or other
\n relief in respect of the Borrower or any consolidated Subsidiary or its
\n debts, or of a substantial part of its assets, under any Federal, state or
\n foreign bankruptcy, insolvency, receivership or similar law now or
\n hereafter in effect or (ii) the appointment of a receiver, trustee,
\n custodian, sequestrator, conservator or similar official for the Borrower
\n or any consolidated Subsidiary or for a substantial part of its assets,
\n and, in any such case, such proceeding or petition shall continue
\n undismissed for 60 days or an order or decree approving or ordering any of
\n the foregoing shall be entered;<\/p>\n
(i) the Borrower or any consolidated Subsidiary shall (i) voluntarily
\n commence any proceeding or file any petition seeking liquidation,
\n reorganization or other relief under any Federal, state or foreign
\n bankruptcy, insolvency, receivership or similar law now or hereafter in
\n effect, (ii) consent to the institution of, or fail to contest in a timely
\n and appropriate manner, any proceeding or petition described in clause (h)
\n of this Article, (iii) apply for or consent to the appointment of a
\n receiver, trustee, custodian, sequestrator, conservator or similar official
\n for the Borrower or any consolidated Subsidiary or for a substantial part
\n of its assets, (iv) file an answer admitting the material allegations of a
\n petition filed against it in any such proceeding, (v) make a general
\n assignment for the benefit of creditors or (vi) take any action for the
\n purpose of effecting any of the foregoing;<\/p>\n
(j) the Borrower or any consolidated Subsidiary shall fail to pay, or
\n admit in writing its inability to pay, its debts generally as they become
\n due;<\/p>\n
(k) The Borrower or any of its consolidated Subsidiaries shall be the
\n subject of any proceeding or investigation pertaining to the release by the
\n Borrower or any of its consolidated Subsidiaries, or any other Person of
\n any toxic or hazardous waste or substance into the environment, or any
\n violation of any federal, state or local environmental, health or safety
\n law or regulation, which, in either case, could reasonably be expected to
\n have a Material Adverse Effect;<\/p>\n
(l) Any provision of any Loan Document shall at any time for any
\n reason cease to be valid and binding and enforceable against the Borrower
\n or any Significant Subsidiary, or the validity, binding effect or
\n enforceability thereof against the Borrower or any Significant Subsidiary
\n shall be contested by any Person, or the Borrower or any Significant
\n Subsidiary shall deny that it has any or further liability or obligation
\n thereunder, or any Loan Document shall be terminated, invalidated or set
\n aside, or be declared ineffective or inoperative or in any way cease to
\n give or provide to the Lenders and the Administrative Agent the benefits
\n purported to be created thereby;<\/p>\n
(m) The Borrower or any Consolidated Subsidiary shall fail within 45
\n days to pay, bond or otherwise discharge any judgment or order for the
\n payment of money in excess of $1,000,000, which is not stayed on appeal or
\n otherwise being appropriately contested in good faith.;<\/p>\n
42<\/p>\n
(n) the Unfunded Liabilities exceed in the aggregate $80,000,000 or
\n any Reportable Event shall occur in connection with any Plan; or<\/p>\n
(o) a Change of Control shall occur;<\/p>\n
then, and in every such event (other than an event with respect to the Borrower
\ndescribed in clause (h) or (i) of this Article), and at any time thereafter
\nduring the continuance of such event, the Administrative Agent may, and at the
\nrequest of the Required Lenders shall, by notice to the Borrower, take either or
\nboth of the following actions, at the same or different times: (i) terminate the
\nCommitments, and thereupon the Commitments shall terminate immediately, and (ii)
\ndeclare the Loans then outstanding to be due and payable in whole (or in part,
\nin which case any principal not so declared to be due and payable may thereafter
\nbe declared to be due and payable), and thereupon the principal of the Loans so
\ndeclared to be due and payable, together with accrued interest thereon and all
\nfees and other obligations of the Borrower accrued hereunder, shall become due
\nand payable immediately, without presentment, demand, protest or other notice of
\nany kind, all of which are hereby waived by the Borrower; and in case of any
\nevent with respect to the Borrower described in clause (h) or (i) of this
\nArticle, the Commitments shall automatically terminate and the principal of the
\nLoans then outstanding, together with accrued interest thereon and all fees and
\nother obligations of the Borrower accrued hereunder, shall automatically become
\ndue and payable, without presentment, demand, protest or other notice of any
\nkind, all of which are hereby waived by the Borrower.<\/p>\n
If, within 14 days after acceleration of the maturity of the
\nObligations or termination of the obligations of the Lenders to make Loans
\nhereunder as a result of any Default (other than any Default as described in
\nclause (h) or (i) of this Article) and before any judgment or decree for the
\npayment of the Obligations due shall have been obtained or entered, the Required
\nLenders (in their sole discretion) shall so direct, the Administrative Agent
\nshall, by notice to the Borrower, rescind and annul such acceleration and\/or
\ntermination, provided that the Borrower certifies to the Lenders to their
\nsatisfaction that, upon giving effect to such rescission, no other Indebtedness
\nof the Borrower shall be accelerated by virtue of a cross-default or
\ncross-acceleration to Indebtedness under this Agreement.<\/p>\n
ARTICLE VIII<\/p>\n
THE AGENTS<\/p>\n
SECTION 8.01. APPOINTMENT. Each Lender hereby irrevocably designates
\nand appoints the Administrative Agent as the agent of such Lender under this
\nAgreement and the other Loan Documents, and each such Lender irrevocably
\nauthorizes the Administrative Agent, in such capacity, to take such action on
\nits behalf under the provisions of this Agreement and the other Loan Documents
\nand to exercise such powers and perform such duties as are expressly delegated
\nto the Administrative Agent by the terms of this Agreement and the other Loan
\nDocuments, together with such other powers as are reasonably incidental thereto.
\nNotwithstanding any provision to the contrary elsewhere in this Agreement, the
\nAdministrative Agent shall not have any duties or responsibilities, except those
\nexpressly set forth herein, or any fiduciary relationship with any Lender, and
\nno implied covenants, functions, responsibilities, duties, obligations or
\nliabilities shall be read into this Agreement or any other Loan Document or
\notherwise exist against the Administrative Agent.<\/p>\n
43<\/p>\n
SECTION 8.02. DELEGATION OF DUTIES. The Administrative Agent may
\nexecute any of its duties under this Agreement and the other Loan Documents by
\nor through agents or attorneys-in-fact and shall be entitled to advice of
\ncounsel concerning all matters pertaining to such duties. The Administrative
\nAgent shall not be responsible for the negligence or misconduct of any agents or
\nattorneys in-fact selected by it with reasonable care.<\/p>\n
SECTION 8.03. EXCULPATORY PROVISIONS. Neither any Agent nor any of
\ntheir respective officers, directors, employees, agents, attorneys-in-fact or
\nAffiliates shall be (i) liable for any action lawfully taken or omitted to be
\ntaken by it or such Person under or in connection with this Agreement or any
\nother Loan Document (except to the extent that any of the foregoing are found by
\na final and nonappealable decision of a court of competent jurisdiction to have
\nresulted from its or such Person’s own gross negligence or willful misconduct)
\nor (ii) responsible in any manner to any of the Lenders for any recitals,
\nstatements, representations or warranties made by any Loan Party or any officer
\nthereof contained in this Agreement or any other Loan Document or in any
\ncertificate, report, statement or other document referred to or provided for in,
\nor received by the Agents under or in connection with, this Agreement or any
\nother Loan Document or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of this Agreement or any other Loan Document or
\nfor any failure of any Loan Party a party thereto to perform its obligations
\nhereunder or thereunder. The Agents shall not be under any obligation to any
\nLender to ascertain or to inquire as to the observance or performance of any of
\nthe agreements contained in, or conditions of, this Agreement or any other Loan
\nDocument, or to inspect the properties, books or records of any Loan Party.<\/p>\n
SECTION 8.04. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
\nAgent shall be entitled to rely, and shall be fully protected in relying, upon
\nany instrument, writing, resolution, notice, consent, certificate, affidavit,
\nletter, telecopy, telex or teletype message, statement, order or other document
\nor conversation believed by it to be genuine and correct and to have been
\nsigned, sent or made by the proper Person or Persons and upon advice and
\nstatements of legal counsel (including counsel to the Borrower), independent
\naccountants and other experts selected by the Administrative Agent. The
\nAdministrative Agent may deem and treat the payee of any Note as the owner
\nthereof for all purposes unless a written notice of assignment, negotiation or
\ntransfer thereof shall have been filed with the Administrative Agent. The
\nAdministrative Agent shall be fully justified in failing or refusing to take any
\naction under this Agreement or any other Loan Document unless it shall first
\nreceive such advice or concurrence of the Required Lenders (or, if so specified
\nby this Agreement, all Lenders) as it deems appropriate or it shall first be
\nindemnified to its satisfaction by the Lenders against any and all liability and
\nexpense that may be incurred by it by reason of taking or continuing to take any
\nsuch action. The Administrative Agent shall in all cases be fully protected in
\nacting, or in refraining from acting, under this Agreement and the other Loan
\nDocuments in accordance with a request of the Required Lenders (or, if so
\nspecified by this Agreement, all Lenders), and such request and any action taken
\nor failure to act pursuant thereto shall be binding upon all the Lenders and all
\nfuture holders of the Loans.<\/p>\n
SECTION 8.05. NOTICE OF DEFAULT. The Administrative Agent shall not be
\ndeemed to have knowledge or notice of the occurrence of any Default or Event of
\nDefault unless the Administrative Agent has received notice from a Lender or the
\nBorrower referring to this Agreement, describing such Default or Event of
\nDefault and stating that such notice is a “notice of default”. In the event that
\nthe Administrative Agent receives such a notice, the Administrative Agent shall
\ngive notice thereof to the Lenders. The Administrative Agent shall take such
\naction with respect to such Default or Event of Default as shall be reasonably
\ndirected by the Required Lenders (or, if so<\/p>\n
44<\/p>\n
specified by this Agreement, all Lenders); PROVIDED that unless and until the
\nAdministrative Agent shall have received such directions, the Administrative
\nAgent may (but shall not be obligated to) take such action, or refrain from
\ntaking such action, with respect to such Default or Event of Default as it shall
\ndeem advisable in the best interests of the Lenders.<\/p>\n
SECTION 8.06. NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender
\nexpressly acknowledges that neither the Agents nor any of their respective
\nofficers, directors, employees, agents, attorneys-in-fact or Affiliates have
\nmade any representations or warranties to it and that no act by any Agent
\nhereafter taken, including any review of the affairs of a Loan Party or any
\nAffiliate of a Loan Party, shall be deemed to constitute any representation or
\nwarranty by any Agent to any Lender. Each Lender represents to the Agents that
\nit has, independently and without reliance upon any Agent or any other Lender,
\nand based on such documents and information as it has deemed appropriate, made
\nits own appraisal of and investigation into the business, operations, property,
\nfinancial and other condition and creditworthiness of the Loan Parties and their
\nAffiliates and made its own decision to make its Loans hereunder and enter into
\nthis Agreement. Each Lender also represents that it will, independently and
\nwithout reliance upon any Agent or any other Lender, and based on such documents
\nand information as it shall deem appropriate at the time, continue to make its
\nown credit analysis, appraisals and decisions in taking or not taking action
\nunder this Agreement and the other Loan Documents, and to make such
\ninvestigation as it deems necessary to inform itself as to the business,
\noperations, property, financial and other condition and creditworthiness of the
\nLoan Parties and their Affiliates. Except for notices, reports and other
\ndocuments expressly required to be furnished to the Lenders by the
\nAdministrative Agent hereunder, the Administrative Agent shall not have any duty
\nor responsibility to provide any Lender with any credit or other information
\nconcerning the business, operations, property, condition (financial or
\notherwise), prospects or creditworthiness of any Loan Party or any Affiliate of
\na Loan Party that may come into the possession of the Administrative Agent or
\nany of its officers, directors, employees, agents, attorneys-in-fact or
\nAffiliates.<\/p>\n
SECTION 8.07. INDEMNIFICATION. The Lenders agree to indemnify each
\nAgent in its capacity as such (to the extent not reimbursed by the Borrower and
\nwithout limiting the obligation of the Borrower to do so), ratably according to
\ntheir respective Aggregate Exposure Percentages in effect on the date on which
\nindemnification is sought under this Section (or, if indemnification is sought
\nafter the date upon which the Commitments shall have terminated and the Loans
\nshall have been paid in full, ratably in accordance with such Aggregate Exposure
\nPercentages immediately prior to such date), from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements of any kind whatsoever that may at any time
\n(whether before or after the payment of the Loans) be imposed on, incurred by or
\nasserted against such Agent in any way relating to or arising out of, the
\nCommitments, this Agreement, any of the other Loan Documents or any documents
\ncontemplated by or referred to herein or therein or the transactions
\ncontemplated hereby or thereby or any action taken or omitted by such Agent
\nunder or in connection with any of the foregoing; PROVIDED that no Lender shall
\nbe liable for the payment of any portion of such liabilities, obligations,
\nlosses, damages, penalties, actions, judgments, suits, costs, expenses or
\ndisbursements that are found by a final and nonappealable decision of a court of
\ncompetent jurisdiction to have resulted from such Agent’s gross negligence or
\nwillful misconduct. The agreements in this Section shall survive the payment of
\nthe Loans and all other amounts payable hereunder.<\/p>\n
SECTION 8.08. AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its
\nAffiliates may make loans to, accept deposits from and generally engage in any
\nkind of business with<\/p>\n
45<\/p>\n
any Loan Party as though such Agent were not an Agent. With respect to its Loans
\nmade or renewed by it, each Agent shall have the same rights and powers under
\nthis Agreement and the other Loan Documents as any Lender and may exercise the
\nsame as though it were not an Agent, and the terms “Lender” and “Lenders” shall
\ninclude each Agent in its individual capacity.<\/p>\n
SECTION 8.09. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
\nmay resign as Administrative Agent upon 10 days’ notice to the Lenders and the
\nBorrower. If the Administrative Agent shall resign as Administrative Agent under
\nthis Agreement and the other Loan Documents, then the Required Lenders shall
\nappoint from among the Lenders a successor agent for the Lenders, which
\nsuccessor agent shall (unless an Event of Default under Section 7(a) or Section
\n7(i) with respect to the Borrower shall have occurred and be continuing) be
\nsubject to approval by the Borrower (which approval shall not be unreasonably
\nwithheld or delayed), whereupon such successor agent shall succeed to the
\nrights, powers and duties of the Administrative Agent, and the term
\n“Administrative Agent” shall mean such successor agent effective upon such
\nappointment and approval, and the former Administrative Agent’s rights, powers
\nand duties as Administrative Agent shall be terminated, without any other or
\nfurther act or deed on the part of such former Administrative Agent or any of
\nthe parties to this Agreement or any holders of the Loans. If no successor agent
\nhas accepted appointment as Administrative Agent by the date that is 10 days
\nfollowing a retiring Administrative Agent’s notice of resignation, the retiring
\nAdministrative Agent’s resignation shall nevertheless thereupon become
\neffective, and the Lenders shall assume and perform all of the duties of the
\nAdministrative Agent hereunder until such time, if any, as the Required Lenders
\nappoint a successor agent as provided for above. After any retiring
\nAdministrative Agent’s resignation as Administrative Agent, the provisions of
\nthis Section 8 shall inure to its benefit as to any actions taken or omitted to
\nbe taken by it while it was Administrative Agent under this Agreement and the
\nother Loan Documents.<\/p>\n
SECTION 8.10. DOCUMENTATION AGENT AND SYNDICATION AGENT. Neither the
\nDocumentation Agent nor the Syndication Agent shall have any duties or
\nresponsibilities hereunder in its capacity as such.<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 9.01. AMENDMENTS AND WAIVERS. (a) Neither this Agreement, any
\nother Loan Document, nor any terms hereof or thereof may be amended,
\nsupplemented or modified except in accordance with the provisions of this
\nSection 9.01. The Required Lenders and each Loan Party party to the relevant
\nLoan Document may, or, with the written consent of the Required Lenders, the
\nAdministrative Agent and each Loan Party party to the relevant Loan Document
\nmay, from time to time, (a) enter into written amendments, supplements or
\nmodifications hereto and to the other Loan Documents for the purpose of adding,
\ndeleting or modifying any provisions to this Agreement or the other Loan
\nDocuments or changing in any manner the rights of the Lenders or of the Loan
\nParties hereunder or thereunder or (b) waive, on such terms and conditions as
\nthe Required Lenders or the Administrative Agent, as the case may be, may
\nspecify in such instrument, any of the requirements of this Agreement or the
\nother Loan Documents or any Default or Event of Default and its consequences;
\nPROVIDED, HOWEVER, that no such waiver and no such amendment, supplement or
\nmodification shall (i) forgive the principal amount or extend the final
\nscheduled date of maturity of any Loan, reduce the stated rate of any interest
\nor fee payable hereunder (except (x) in connection<\/p>\n
46<\/p>\n
with the waiver of applicability of any post-default increase in interest rates
\n(which waiver shall be effective with the consent of each adversely affected
\nLender) and (y) that any amendment or modification of defined terms used in the
\nfinancial covenants in this Agreement shall not constitute a reduction in the
\nrate of interest or fees for purposes of this clause (i)) or extend the
\nscheduled date of any payment thereof, or increase the amount or extend the
\nexpiration date of any Lender’s Commitment, in each case without the written
\nconsent of each Lender directly affected thereby; (ii) eliminate or reduce the
\nvoting rights of any Lender under this Section 9.01 without the written consent
\nof such Lender; (iii) reduce any percentage specified in the definition of
\nRequired Lenders, consent to the assignment or transfer by the Borrower of any
\nof its rights and obligations under this Agreement and the other Loan Documents,
\nrelease any of the Significant Subsidiaries from their material obligations
\nunder the Guarantee Agreement, in each case without the written consent of all
\nLenders; (iv) amend, modify or waive any provision of Section 2.15 without the
\nwritten consent of the Lenders adversely affected thereby; and (v) amend, modify
\nor waive any provision of Section 8 without the written consent of the
\nAdministrative Agent. Any such waiver and any such amendment, supplement or
\nmodification shall apply equally to each of the Lenders and shall be binding
\nupon the Loan Parties, the Lenders, the Administrative Agent and all future
\nholders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
\nand the Administrative Agent shall be restored to their former position and
\nrights hereunder and under the other Loan Documents, and any Default or Event of
\nDefault waived shall be deemed to be cured and not continuing; but no such
\nwaiver shall extend to any subsequent or other Default or Event of Default, or
\nimpair any right consequent thereon.<\/p>\n
(b) Notwithstanding the foregoing, this Agreement may be amended (or
\namended and restated) with the written consent of the Required Lenders, the
\nAdministrative Agent and the Borrower (i) to add one or more additional credit
\nfacilities to this Agreement and to permit the extensions of credit from time to
\ntime outstanding thereunder and the accrued interest and fees in respect thereof
\nto share ratably in the benefits of this Agreement and the other Loan Documents
\nwith the Loans and extensions of credit and the accrued interest and fees in
\nrespect thereof and (ii) to include appropriately the Lenders holding such
\ncredit facilities in any determination of the Required Lenders.<\/p>\n
SECTION 9.02. NOTICES. All notices, requests and demands to or upon
\nthe respective parties hereto to be effective shall be in writing (including by
\ntelecopy), and, unless otherwise expressly provided herein, shall be deemed to
\nhave been duly given or made when delivered, or three Business Days after being
\ndeposited in the mail, postage prepaid, or, in the case of telecopy notice, when
\nreceived, addressed as follows in the case of the Borrower and the
\nAdministrative Agent, and as set forth in an administrative questionnaire
\ndelivered to the Administrative Agent in the case of the Lenders, or to such
\nother address as may be hereafter notified in writing by the respective parties
\nhereto:<\/p>\n
47<\/p>\n
Borrower: FedEx Corporation
\n 942 S. Shady Grove Road
\n Memphis, Tennessee 38120
\n Attention: Treasurer
\n Telecopy: (901) 818-7121
\n Telephone: (901) 818-7040<\/p>\n
with a copy to: FedEx Corporation
\n 942 S. Shady Grove Road
\n Memphis, Tennessee 38120
\n Attention: Kenneth R. Masterson
\n Telecopy: (901) 818-7590
\n Telephone: (901) 818-7580<\/p>\n
Administrative Agent: The Chase Manhattan Bank
\n Loan & Agency Services Group
\n One Chase Manhattan Plaza, 8th Floor
\n New York, New York 10081
\n Attention: Mo-Lin Sum
\n Telecopy: 212-552-5650
\n Telephone: 212-552-7312<\/p>\n
with copy to: The Chase Manhattan Bank
\n 270 Park Avenue, 38th Floor
\n New York 10017
\n Attention: Matthew Massie
\n Telecopy: 212-270-5100
\n Telephone: 212-270-5432<\/p>\n
PROVIDED that any notice, request or demand to or upon the Administrative Agent
\nor the Lenders shall not be effective until received.<\/p>\n
SECTION 9.03. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
\nand no delay in exercising, on the part of the Administrative Agent or any
\nLender, any right, remedy, power or privilege hereunder or under the other Loan
\nDocuments shall operate as a waiver thereof; nor shall any single or partial
\nexercise of any right, remedy, power or privilege hereunder preclude any other
\nor further exercise thereof or the exercise of any other right, remedy, power or
\nprivilege. The rights, remedies, powers and privileges herein provided are
\ncumulative and not exclusive of any rights, remedies, powers and privileges
\nprovided by law.<\/p>\n
SECTION 9.04. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
\nrepresentations and warranties made hereunder, in the other Loan Documents and
\nin any document, certificate or statement delivered pursuant hereto or in
\nconnection herewith shall survive the execution and delivery of this Agreement
\nand the making of the Loans and other extensions of credit hereunder.<\/p>\n
SECTION 9.05. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a)
\nto pay or reimburse the Administrative Agent for all its reasonable
\nout-of-pocket costs and expenses<\/p>\n
48<\/p>\n
incurred in connection with the development, preparation and execution of, and
\nany amendment, supplement or modification to, this Agreement and the other Loan
\nDocuments and any other documents prepared in connection herewith or therewith,
\nand the consummation and administration of the transactions contemplated hereby
\nand thereby, including the reasonable fees and disbursements of counsel to the
\nAdministrative Agent as separately agreed by the Administrative Agent and the
\nBorrower, and filing and recording fees and expenses, with statements with
\nrespect to the foregoing to be submitted to the Borrower prior to the Effective
\nDate (in the case of amounts to be paid on the Effective Date) and from time to
\ntime thereafter on a quarterly basis or such other periodic basis as the
\nAdministrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
\nand the Administrative Agent for all its reasonable out-of-pocket costs and
\nexpenses incurred in connection with the enforcement or preservation of any
\nrights under this Agreement, the other Loan Documents and any such other
\ndocuments, including the fees and disbursements of counsel (including the
\nallocated fees and expenses of in-house counsel) to each Lender and of counsel
\nto the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
\nAdministrative Agent harmless from, any and all recording and filing fees and
\nany and all liabilities with respect to stamp, excise and other taxes, if any,
\nthat are payable in connection with the execution and delivery of, or
\nconsummation or administration of any of the transactions contemplated by, or
\nany amendment, supplement or modification of, or any waiver or consent under or
\nin respect of, this Agreement, the other Loan Documents and any such other
\ndocuments, and (d) to pay, indemnify, and hold each Lender and the
\nAdministrative Agent and their respective officers, directors, employees,
\naffiliates and agents (each, an “INDEMNITEE”) harmless from and against any and
\nall other liabilities, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements of any kind or nature whatsoever with respect
\nto the execution, delivery, enforcement, performance and administration of this
\nAgreement and the other Loan Documents, including any of the foregoing relating
\nto the use of proceeds of the Loans or the violation of, noncompliance with or
\nliability under, any Environmental Law applicable to the operations of the
\nBorrower, any Guarantor or any Subsidiary or any of the Properties and the
\nreasonable fees and expenses of legal counsel in connection with claims, actions
\nor proceedings by any Indemnitee against any Loan Party under any Loan Document
\n(all the foregoing in this clause (d), collectively, the “INDEMNIFIED
\nLIABILITIES”), PROVIDED, that the Borrower shall have no obligation hereunder to
\nany Indemnitee with respect to Indemnified Liabilities to the extent such
\nIndemnified Liabilities are found by a final and nonappealable decision of a
\ncourt of competent jurisdiction to have resulted from the gross negligence or
\nwillful misconduct of such Indemnitee. Without limiting the foregoing, and to
\nthe extent permitted by applicable law, the Borrower agrees not to assert and to
\ncause its Subsidiaries not to assert, and hereby waives and agrees to cause its
\nSubsidiaries to waive, all rights for contribution or any other rights of
\nrecovery with respect to all claims, demands, penalties, fines, liabilities,
\nsettlements, damages, costs and expenses of whatever kind or nature, under or
\nrelated to Environmental Laws, that any of them might have by statute or
\notherwise against any Indemnitee. All amounts due under this Section 9.05 shall
\nbe payable not later than 10 days after written demand therefore, which shall
\nset forth in reasonable detail the nature, basis and description of such
\nIndemnified Liability. Statements payable by the Borrower pursuant to this
\nSection 9.05 shall be submitted to FedEx Corporation, Attn: Treasurer (Telephone
\nNo. (901) 818-7040 (Telecopy No. (901) 818-7121), at the address of the Borrower
\nset forth in Section 9.02, or to such other Person or address as may be
\nhereafter designated by the Borrower in a written notice to the Administrative
\nAgent. The agreements in this Section 9.05 shall survive repayment of the Loans
\nand all other amounts payable hereunder.<\/p>\n
SECTION 9.06. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
\n(a) This Agreement shall be binding upon and inure to the benefit of the
\nBorrower, the Lenders, the Administrative Agent, all future holders of the Loans
\nand their respective successors and assigns,<\/p>\n
49<\/p>\n
except that the Borrower may not assign or transfer any of its rights or
\nobligations under this Agreement without the prior written consent of each
\nLender.<\/p>\n
(b) Any Lender other than any Conduit Lender may, without the consent
\nof the Borrower, in accordance with applicable law, at any time sell to one or
\nmore banks, financial institutions or other entities (each, a “PARTICIPANT”)
\nparticipating interests in any Loan owing to such Lender, any Commitment of such
\nLender or any other interest of such Lender hereunder and under the other Loan
\nDocuments. In the event of any such sale by a Lender of a participating interest
\nto a Participant, such Lender’s obligations under this Agreement to the other
\nparties to this Agreement shall remain unchanged, such Lender shall remain
\nsolely responsible for the performance thereof, such Lender shall remain the
\nholder of any such Loan for all purposes under this Agreement and the other Loan
\nDocuments, and the Borrower and the Administrative Agent shall continue to deal
\nsolely and directly with such Lender in connection with such Lender’s rights and
\nobligations under this Agreement and the other Loan Documents. In no event shall
\nany Participant under any such participation have any right to approve any
\namendment or waiver of any provision of any Loan Document, or any consent to any
\ndeparture by any Loan Party therefrom, except to the extent that such amendment,
\nwaiver or consent would reduce the principal of, or interest on, the Loans or
\nany fees payable hereunder, or postpone the date of the final maturity of the
\nLoans, in each case to the extent subject to such participation. The Borrower
\nagrees that if amounts outstanding under this Agreement and the Loans are due or
\nunpaid, or shall have been declared or shall have become due and payable upon
\nthe occurrence of an Event of Default, each Participant shall, to the maximum
\nextent permitted by applicable law, be deemed to have the right of setoff in
\nrespect of its participating interest in amounts owing under this Agreement to
\nthe same extent as if the amount of its participating interest were owing
\ndirectly to it as a Lender under this Agreement, PROVIDED that, in purchasing
\nsuch participating interest, such Participant shall be deemed to have agreed to
\nshare with the Lenders the proceeds thereof as provided in Section 9.07(a) as
\nfully as if it were a Lender hereunder. The Borrower also agrees that each
\nParticipant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14
\nwith respect to its participation in the Commitments and the Loans outstanding
\nfrom time to time as if it were a Lender; PROVIDED that, in the case of Section
\n2.13, such Participant shall have complied with the requirements of said Section
\nand PROVIDED, FURTHER, that no Participant shall be entitled to receive any
\ngreater amount pursuant to any such Section than the transferor Lender would
\nhave been entitled to receive in respect of the amount of the participation
\ntransferred by such transferor Lender to such Participant had no such transfer
\noccurred.<\/p>\n
(c) Any Lender other than any Conduit Lender (an “ASSIGNOR”) may, in
\naccordance with applicable law, at any time and from time to time assign to any
\nLender or any Lender Affiliate or, with the consent of the Borrower and the
\nAdministrative Agent (which, in each case, shall not be unreasonably withheld or
\ndelayed), to an additional bank, financial institution or other entity (an
\n“ASSIGNEE”) all or any part of its rights and obligations under this Agreement
\nand the other Loan Documents pursuant to an Assignment and Acceptance, executed
\nby such Assignee, such Assignor and any other Person whose consent is required
\npursuant to this paragraph, and delivered to the Administrative Agent for its
\nacceptance and recording in the Register (as defined below); PROVIDED that,
\nunless otherwise agreed by the Borrower and the Administrative Agent, no such
\nassignment to an Assignee (other than any Lender or any Lender Affiliate) shall
\nbe in an aggregate principal amount of less than $5,000,000, and after giving
\neffect to such assignment, such assigning Lender shall have Commitments and
\nLoans in an aggregate amount of at least $5,000,000 in each case described in
\nthis sentence except in the case of an assignment of all of a Lender’s interests
\nunder this Agreement. For purposes of the proviso contained in the preceding
\nsentence, the amount described therein shall be aggregated in respect of each
\nLender and its Lender Affiliates, if any. The Assignee<\/p>\n
50<\/p>\n
shall purchase, at par, all Loans and pay all accrued interest and other amounts
\nowing to such Assignor under this Agreement on or prior to the date of
\nassignment for any assignment pursuant to Section 2.16. Upon such execution,
\ndelivery, acceptance and recording, from and after the effective date determined
\npursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
\na party hereto and, to the extent provided in such Assignment and Acceptance,
\nhave the rights and obligations of a Lender hereunder with a Commitment and\/or
\nLoans as set forth therein, and (y) the Assignor thereunder shall, to the extent
\nprovided in such Assignment and Acceptance, be released from its obligations
\nunder this Agreement (and, in the case of an Assignment and Acceptance covering
\nall of an Assignor’s rights and obligations under this Agreement, such Assignor
\nshall cease to be a party hereto). Notwithstanding any provision of this Section
\n9.06, the consent of the Borrower shall not be required for any assignment that
\noccurs after the occurrence and during the continuance of an acceleration of the
\nObligations. Notwithstanding the foregoing, any Conduit Lender may assign at any
\ntime to its designating Lender hereunder without the consent of the Borrower or
\nthe Administrative Agent any or all of the Loans it may have funded hereunder
\nand pursuant to its designation agreement and without regard to the limitations
\nset forth in the first sentence of this Section 9.06(c).<\/p>\n
(d) The Administrative Agent shall, on behalf of the Borrower,
\nmaintain at its address referred to in Section 9.02 a copy of each Assignment
\nand Acceptance delivered to it and a register (the “REGISTER”) for the
\nrecordation of the names and addresses of the Lenders and the Commitment of, and
\nthe principal amount of the Loans owing to, each Lender from time to time. The
\nentries in the Register shall be conclusive, in the absence of manifest error,
\nand the Borrower, each other Loan Party, the Administrative Agent and the
\nLenders shall treat each Person whose name is recorded in the Register as the
\nowner of the Loans and any Notes evidencing the Loans recorded therein for all
\npurposes of this Agreement. Any assignment of any Loan, whether or not evidenced
\nby a Note, shall be effective only upon appropriate entries with respect thereto
\nbeing made in the Register (and each Note shall expressly so provide). Any
\nassignment or transfer of all or part of a Loan evidenced by a Note shall be
\nregistered on the Register only upon surrender for registration of assignment or
\ntransfer of the Note evidencing such Loan, accompanied by a duly executed
\nAssignment and Acceptance, and thereupon one or more new Notes shall be issued
\nto the designated Assignee.<\/p>\n
(e) Upon its receipt of an Assignment and Acceptance executed by an
\nAssignor, an Assignee and any other Person whose consent is required by Section
\n9.06(c), together with payment to the Administrative Agent of a registration and
\nprocessing fee of $4,000, the Administrative Agent shall (i) promptly accept
\nsuch Assignment and Acceptance and (ii) record the information contained therein
\nin the Register on the effective date determined pursuant thereto.<\/p>\n
(f) For avoidance of doubt, the parties to this Agreement acknowledge
\nthat the provisions of this Section 9.06 concerning assignments relate only to
\nabsolute assignments and that such provisions do not prohibit assignments
\ncreating security interests, including any pledge or assignment by a Lender to
\nany Federal Reserve Bank in accordance with applicable law.<\/p>\n
(g) The Borrower, upon receipt of written notice from the relevant
\nLender, agrees to issue Notes to any Lender requiring Notes to facilitate
\ntransactions of the type described in paragraph (f) above.<\/p>\n
(h) The Borrower, each Lender and the Administrative Agent hereby
\nconfirms that it will not institute against a Conduit<\/p>\n
51<\/p>\n
Lender or join any other Person in instituting against a Conduit Lender any
\nbankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
\nunder any state bankruptcy or similar law, for one year and one day after the
\npayment in full of the latest maturing commercial paper note issued by such
\nConduit Lender; PROVIDED, however, that each Lender designating any Conduit
\nLender hereby agrees to indemnify, save and hold harmless each other party
\nhereto for any loss, cost, damage or expense arising out of its inability to
\ninstitute such a proceeding against such Conduit Lender during such period of
\nforbearance.<\/p>\n
SECTION 9.07. ADJUSTMENTS; SET-OFF. (a) Except to the extent that this
\nAgreement expressly provides for payments to be allocated to a particular Lender
\nor to the Lenders, if any Lender (a “BENEFITTED LENDER”) shall, at any time
\nafter the Loans and other amounts payable hereunder shall immediately become due
\nand payable pursuant to Section 7, receive any payment of all or part of the
\nObligations owing to it, or receive any collateral in respect thereof (whether
\nvoluntarily or involuntarily, by set-off, pursuant to events or proceedings of
\nthe nature referred to in Section 7(i), or otherwise), in a greater proportion
\nthan any such payment to or collateral received by any other Lender, if any, in
\nrespect of the Obligations owing to such other Lender, such Benefitted Lender
\nshall purchase for cash from the other Lenders a participating interest in such
\nportion of the Obligations owing to each such other Lender, or shall provide
\nsuch other Lenders with the benefits of any such collateral, as shall be
\nnecessary to cause such Benefitted Lender to share the excess payment or
\nbenefits of such collateral ratably with each of the Lenders; PROVIDED, HOWEVER,
\nthat if all or any portion of such excess payment or benefits is thereafter
\nrecovered from such Benefitted Lender, such purchase shall be rescinded, and the
\npurchase price and benefits returned, to the extent of such recovery, but
\nwithout interest.<\/p>\n
(b) In addition to any rights and remedies of the Lenders provided by
\nlaw, if an Event of Default shall have occurred and be continuing, each Lender
\nshall have the right, without prior notice to the Borrower, any such notice
\nbeing expressly waived by the Borrower to the extent permitted by applicable
\nlaw, upon any amount becoming due and payable by the Borrower hereunder (whether
\nat the stated maturity, by acceleration or otherwise), to set off and
\nappropriate and apply against such amount any and all deposits (general or
\nspecial, time or demand, provisional or final), in any currency, and any other
\ncredits, indebtedness or claims, in any currency, in each case whether direct or
\nindirect, absolute or contingent, matured or unmatured, at any time held or
\nowing by such Lender or any branch or agency thereof to or for the credit or the
\naccount of the Borrower, as the case may be. Each Lender agrees promptly to
\nnotify the Borrower and the Administrative Agent after any such setoff and
\napplication made by such Lender, PROVIDED that the failure to give such notice
\nshall not affect the validity of such setoff and application.<\/p>\n
SECTION 9.08. COUNTERPARTS. This Agreement may be executed by one or
\nmore of the parties to this Agreement on any number of separate counterparts,
\nand all of said counterparts taken together shall be deemed to constitute one
\nand the same instrument. Delivery of an executed signature page of this
\nAgreement by facsimile transmission shall be effective as delivery of a manually
\nexecuted counterpart hereof. A set of the copies of this Agreement signed by all
\nthe parties shall be lodged with the Borrower and the Administrative Agent.<\/p>\n
SECTION 9.09. SEVERABILITY. Any provision of this Agreement that is
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction.<\/p>\n
52<\/p>\n
SECTION 9.10. INTEGRATION. This Agreement and the other Loan Documents
\nrepresent the entire agreement of the Borrower, the Administrative Agent and the
\nLenders with respect to the subject matter hereof and thereof, and there are no
\npromises, undertakings, representations or warranties by the Administrative
\nAgent or any Lender relative to the subject matter hereof not expressly set
\nforth or referred to herein or in the other Loan Documents.<\/p>\n
SECTION 9.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
\nOBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
\nCONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.<\/p>\n
SECTION 9.12. SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
\nirrevocably and unconditionally:<\/p>\n
(a) submits for itself and its property in any legal action or
\nproceeding relating to this Agreement and the other Loan Documents to which it
\nis a party, or for recognition and enforcement of any judgment in respect
\nthereof, to the non-exclusive general jurisdiction of the courts of the State of
\nNew York, the courts of the United States for the Southern District of New York,
\nand appellate courts from any thereof;<\/p>\n
(b) consents that any such action or proceeding may be brought in such
\ncourts and waives any objection that it may now or hereafter have to the venue
\nof any such action or proceeding in any such court or that such action or
\nproceeding was brought in an inconvenient court and agrees not to plead or claim
\nthe same;<\/p>\n
(c) agrees that service of process in any such action or proceeding
\nmay be effected by mailing a copy thereof by registered or certified mail (or
\nany substantially similar form of mail), postage prepaid, to the Borrower at its
\naddress set forth in Section 9.02 or at such other address of which the
\nAdministrative Agent shall have been notified pursuant thereto;<\/p>\n
(d) agrees that nothing herein shall affect the right to effect
\nservice of process in any other manner permitted by law or shall limit the right
\nto sue in any other jurisdiction; and<\/p>\n
(e) waives, to the maximum extent not prohibited by law, any right it
\nmay have to claim or recover in any legal action or proceeding referred to in
\nthis Section any special, exemplary, punitive or consequential damages.<\/p>\n
SECTION 9.13. ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:<\/p>\n
(a) it has been advised by counsel in the negotiation, execution and
\ndelivery of this Agreement and the other Loan Documents;<\/p>\n
(b) neither the Administrative Agent nor any Lender has any fiduciary
\nrelationship with or duty to the Borrower arising out of or in connection with
\nthis Agreement or any of the other Loan Documents, and the relationship between
\nAdministrative Agent and Lenders, on one hand, and the Borrower, on the other
\nhand, in connection herewith or therewith is solely that of debtor and creditor;
\nand<\/p>\n
53<\/p>\n
(c) no joint venture is created hereby or by the other Loan Documents
\nor otherwise exists by virtue of the transactions contemplated hereby among the
\nLenders or among the Borrower and the Lenders.<\/p>\n
SECTION 9.14. RELEASE OF GUARANTORS. Upon the consummation of any
\nliquidation, dissolution, merger, consolidation, sale or other transfer of a
\nGuarantor other than Federal Express Corporation (collectively, a “TRANSFER”),
\nand provided no Default or Event of Default has occurred and is continuing or
\nwould occur as a result of such Transfer, such Guarantor shall automatically be
\nreleased from all of its obligations under the Guarantee Agreement, and, if the
\nBorrower so requests, the Lenders shall promptly execute an instrument, in form
\nand substance reasonably satisfactory to the Borrower and the Administrative
\nAgent, evidencing such release.<\/p>\n
SECTION 9.15. CONFIDENTIALITY. Each of the Administrative Agent and
\neach Lender agrees to keep confidential all non-public information provided to
\nit or its Affiliates by any Loan Party or its Affiliates pursuant to this
\nAgreement that is designated by such Loan Party as confidential; PROVIDED that
\nnothing herein shall prevent the Administrative Agent or any Lender from
\ndisclosing any such information (a) to the Administrative Agent, any other
\nLender or any Lender Affiliate, (b) subject to an agreement to comply with the
\nprovisions of this Section, to any actual or prospective Transferee or any
\ndirect or indirect counterparty to any Hedge Agreement (or any professional
\nadvisor to such counterparty), (c) to its employees, directors, agents,
\nattorneys, accountants and other professional advisors or those of any of its
\naffiliates who are made aware of the confidential requirements of this Section
\n9.15, (d) upon the request or demand of any Governmental Authority, (e) in
\nresponse to any order of any court or other Governmental Authority or as may
\notherwise be required pursuant to any Requirement of Law, (f) if required to do
\nso in connection with any litigation or similar proceeding, (g) that has been
\npublicly disclosed, (h) to the National Association of Insurance Commissioners
\nor any similar organization or any nationally recognized rating agency that
\nrequires access to information about a Lender’s investment portfolio in
\nconnection with ratings issued with respect to such Lender, or (i) in connection
\nwith the exercise of any remedy hereunder or under any other Loan Document. The
\nprovisions of this Section 9.15 shall survive any expiration or termination of
\nthis Agreement for a period of one-year.<\/p>\n
SECTION 9.16. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
\nAGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
\nIN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
\nDOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.<\/p>\n
SECTION 9.17. WAIVER. Each Lender party hereto which is also party to
\nthe Existing Revolving Credit Facility hereby waives compliance by the Borrower
\nwith the requirement of ten Business Days’ (as defined therein) written notice
\nthereunder for the reduction of the Aggregate Commitment (as defined therein)
\npursuant to subsection 2.5(d) thereto.<\/p>\n
SECTION 9.18. INTEREST RATE LIMITATION. Notwithstanding anything
\nherein to the contrary, if at any time the interest rate applicable to any Loan,
\ntogether with all fees, charges and other amounts which are treated as interest
\non such Loan under applicable law (collectively, the “CHARGES”), shall exceed
\nthe maximum lawful rate (the “MAXIMUM RATE”) which may be contracted for,
\ncharged, taken, received or reserved by the Lender holding such Loan in
\naccordance with applicable law, the rate of interest payable in respect of such
\nLoan hereunder, together with all Charges payable in respect thereof, shall be
\nlimited to the Maximum Rate and, to the extent lawful,<\/p>\n
54<\/p>\n
the interest and Charges that would have been payable in respect of such Loan
\nbut were not payable as a result of the operation of this Section shall be
\ncumulated and the interest and Charges payable to such Lender in respect of
\nother Loans or periods shall be increased (but not above the Maximum Rate
\ntherefor) until such cumulated amount, together with interest thereon at the
\nFederal Funds Effective Rate to the date of repayment, shall have been received
\nby such Lender.<\/p>\n
SECTION 9.19. HEADINGS. The section and other headings contained in
\nthis Agreement are for reference purposes only and shall not affect the meaning
\nor interpretation of this Agreement.<\/p>\n
[BALANCE OF PAGE INTENTIONALLY BLANK]<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Credit
\nAgreement to be duly executed by their respective authorized officers as of the
\nday and year first above written.<\/p>\n
FEDEX CORPORATION, as Borrower<\/p>\n
By: \/s\/ Burnetta B. Williams
\n ————————-
\n Name: Burnetta B. Williams
\n Title: Staff Vice-President and
\n Assistant Treasurer<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent and as a Lender<\/p>\n
By: \/s\/ Matthew H. Massie
\n ———————-
\n Name: Matthew H. Massie
\n Title: Managing Director<\/p>\n
BANK OF AMERICA, N.A., as a
\n Co-Syndication Agent and as a Lender<\/p>\n
By: \/s\/ Chas A. McDonell
\n ———————
\n Name: Chas A. McDonell
\n Title: Managing Director<\/p>\n
BANK ONE, NA., as a Co-Documentation
\n Agent and as a Lender<\/p>\n
By: \/s\/ Christopher C. Cavaiani
\n —————————
\n Name: Christopher C. Cavaiani
\n Title: Vice President<\/p>\n
CITICORP USA, INC., as a Co-Syndication
\n Agent and as a Lender<\/p>\n
By: \/s\/ Margaret A. Blake
\n ———————
\n Name: Margaret A. Blake
\n Title: Vice President<\/p>\n
COMMERZBANK A.G., New York and Grand
\n Cayman Branches, as a Co-Documentation
\n Agent and as a Lender<\/p>\n
By: \/s\/ Harry P. Yergey
\n ——————–
\n Name: Harry P. Yergey
\n Title: SVP & Manager<\/p>\n
By: \/s\/ Subash R. Viswanathan
\n ————————–
\n Name: Subash R. Viswanathan
\n Title: Senior Vice President<\/p>\n
THE ROYAL BANK OF SCOTLAND PLC,
\n as a Co-Documentation Agent and
\n as a Lender<\/p>\n
By: \/s\/ Maria Amaral-LeBlanc
\n ————————-
\n Name: Maria Amaral-LeBlanc
\n Title: Vice President<\/p>\n
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
\n as a Co-Documentation Agent
\n and as a Lender<\/p>\n
By: \/s\/ Joseph P. Devoe
\n ——————–
\n Name: Joseph P. Devoe
\n Title: VP & Manager<\/p>\n
THE BANK OF NOVA SCOTIA,
\n as a Lender<\/p>\n
By: \/s\/ A. S. Norsworthy
\n ———————
\n Name: A. S. Norsworthy
\n Title: Sr. Team Leader-
\n Loan Operations<\/p>\n
KBC BANK, N.V., as a Lender<\/p>\n
By: \/s\/ Robert Snauffer
\n ———————-
\n Name: Robert Snauffer
\n Title: First Vice President<\/p>\n
By: \/s\/ Eric Raskin
\n ———————–
\n Name: Eric Raskin
\n Title: Vice President<\/p>\n
KREDITANSTALT FUR WIEDERAUFBAU,
\n as a Lender<\/p>\n
By: \/s\/ Rolf Kuhlmann
\n ——————
\n Name: Rolf Kuhlmann
\n Title: Vice President<\/p>\n
By: \/s\/ Boris Sakrauski
\n ——————-
\n Name: Boris Sakrauski
\n Title: Senior Project Manager<\/p>\n
MELLON BANK, N.A., as a Lender<\/p>\n
By: \/s\/ Mark F. Johnston
\n ———————
\n Name: Mark F. Johnston
\n Title: Vice President<\/p>\n
SUMITOMO MITSUI BANKING CORPORATION,
\n as a Lender<\/p>\n
By: \/s\/ Bob Granfelt
\n ———————–
\n Name: Bob Granfelt
\n Title: Vice President and Manager<\/p>\n
REGIONS BANK, as a Lender<\/p>\n
By: \/s\/ David L. Waller
\n ——————–
\n Name: David L. Waller
\n Title: Vice President
\n National Division<\/p>\n
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
\n as a Lender<\/p>\n
By: \/s\/ James W. Masters
\n ———————
\n Name: James W. Masters
\n Title: Senior Vice President<\/p>\n
KEYBANK NATIONAL ASSOCIATION,
\n as a Lender<\/p>\n
By: \/s\/ Mark A. Loschiavo
\n ———————-
\n Name: Mark A. LoSchiavo
\n Title: Assistant Vice President<\/p>\n
MERRILL LYNCH BANK USA,
\n as a Lender<\/p>\n
By: \/s\/ D. Kevin Imlay
\n ——————–
\n Name: D. Kevin Imlay
\n Title: Senior Lending Officer<\/p>\n
UNION PLANTERS BANK, N.A.,
\n as a Lender<\/p>\n
By: \/s\/ B. Gordin McMurtry
\n ———————–
\n Name: B. Gordin McMurtry
\n Title: Senior Vice President<\/p>\n
AMSOUTH BANK, as a Lender<\/p>\n
By: \/s\/ S. Floyd Hanney, III
\n ————————-
\n Name: S. Floyd Hanney, III
\n Title: Senior Vice President<\/p>\n
THE BANK OF NEW YORK,
\n as a Lender<\/p>\n
By: \/s\/ Steven P. Cavaluzzo
\n ————————
\n Name: Steven P. Cavaluzzo
\n Title: Vice President<\/p>\n
CREDIT SUISSE FIRST BOSTON,
\n as a Lender<\/p>\n
By: \/s\/ Robert N. Finney
\n ———————-
\n Name: Robert N. Finney
\n Title: Managing Director<\/p>\n
By: \/s\/ Vitaly G. Butenko
\n ———————-
\n Name: Vitaly G. Butenko
\n Title: Asst. Vice President<\/p>\n
DEUTSCHE VERKEHRSBANK AG, as a Lender<\/p>\n
By: \/s\/ Constance Laudenschlager
\n —————————–
\n Name: Constance Laudenschlager
\n Title: Senior Vice President<\/p>\n
By: \/s\/ James M. Morton
\n ——————-
\n Name: James M. Morton
\n Title: Assistant Vice President<\/p>\n
THE FIFTH THIRD BANK,
\n as a Lender<\/p>\n
By: \/s\/ Megan S. Heisel
\n ——————–
\n Name: Megan S. Heisel
\n Title: Large Corporate Banking
\n Officer<\/p>\n
FIRST TENNESSEE BANK NATIONAL
\n ASSOCIATION, as a Lender<\/p>\n
By: \/s\/ James H. Moore, Jr.
\n ———————–
\n Name: James H. Moore, Jr.
\n Title: Senior Vice President<\/p>\n
FIRST UNION NATIONAL BANK,
\n as a Lender<\/p>\n
By: \/s\/ David L. Driggers
\n ———————
\n Name: David L. Driggers
\n Title: Managing Director<\/p>\n
INTESABCI, NEW YORK BRANCH, as a Lender<\/p>\n
By: \/s\/ Frank Maffei
\n —————–
\n Name: Frank Maffei
\n Title: Vice President<\/p>\n
By: \/s\/ J. Dickerhof
\n ——————
\n Name: J. Dickerhof
\n Title: Vice President<\/p>\n
THE NORTHERN TRUST COMPANY,
\n as a Lender<\/p>\n
By: \/s\/ Ashish S. Bhagwat
\n ———————-
\n Name: Ashish S. Bhagwat
\n Title: Second Vice-President<\/p>\n
THE SANWA BANK LIMITED, acting through
\n its New York Branch, as a Lender<\/p>\n
By: \/s\/ P. Bartlett Wu
\n ——————-
\n Name: P. Bartlett Wu
\n Title: Vice President<\/p>\n
SUNTRUST BANK, INC.,
\n as a Lender<\/p>\n
By: \/s\/ Bryan W. Ford
\n ——————
\n Name: Bryan W. Ford
\n Title: Vice President<\/p>\n
SCHEDULE 2.01<\/p>\n
LENDERS AND COMMITMENTS<\/p>\n
\n\nNames of Lenders Commitments
\n <\/p>\nTHE CHASE MANHATTAN BANK $ 52,500,000<\/p>\n
BANK OF AMERICA, N.A. $ 45,000,000<\/p>\n
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $ 45,000,000<\/p>\n
BANK ONE, NA. $ 45,000,000<\/p>\n
CITICORP USA, INC. $ 45,000,000<\/p>\n
COMMERZBANK AG, NEW YORK AND $ 45,000,000
\n GRAND CAYMAN BRANCHES<\/p>\n
THE ROYAL BANK OF SCOTLAND PLC $ 45,000,000<\/p>\n
KBC BANK N.V. $ 30,000,000<\/p>\n
KREDITANSTALT FUR WIEDERAUFBAU $ 30,000,000<\/p>\n
MELLON BANK, N.A. $ 30,000,000<\/p>\n
SUMITOMO MITSUI BANKING CORPORATION $ 30,000,000<\/p>\n
THE BANK OF NOVA SCOTIA $ 30,000,000<\/p>\n
KEYBANK NATIONAL ASSOCIATION $ 22,500,000<\/p>\n
MERRILL LYNCH BANK USA $ 22,500,000<\/p>\n
REGIONS BANK $ 22,500,000<\/p>\n
THE INDUSTRIAL BANK OF JAPAN, LIMITED $ 22,500,000<\/p>\n
UNION PLANTERS BANK, N.A. $ 22,500,000<\/p>\n
AMSOUTH BANK $ 15,000,000<\/p>\n
CREDIT SUISSE FIRST BOSTON $ 15,000,000<\/p>\n
DEUTSCHE VERKEHRSBANK AG $ 15,000,000<\/p>\n
FIRST TENNESSEE BANK NATIONAL ASSOCIATION $ 15,000,000<\/p>\n
FIRST UNION NATIONAL BANK $ 15,000,000<\/p>\n
INTESABCI, NEW YORK BRANCH $ 15,000,000<\/p>\n
SUNTRUST BANK, INC. $ 15,000,000<\/p>\n
THE BANK OF NEW YORK $ 15,000,000<\/p>\n
THE FIFTH THIRD BANK $ 15,000,000<\/p>\n
THE NORTHERN TRUST COMPANY $ 15,000,000<\/p>\n
THE SANWA BANK LIMITED, NEW YORK BRANCH $ 15,000,000
\n————————————— ————-<\/p>\n
Total: $ 750,000,000<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE 3.06<\/p>\n
DISCLOSED MATTERS
\n (SEE SECTION 3.06)<\/p>\n
NONE<\/p>\n
SCHEDULE 3.07<\/p>\n
SIGNIFICANT SUBSIDIARIES
\n (SEE SECTION 3.07)<\/p>\n
\n\n Significant Percent Jurisdiction of Address of Registrant
\n Subsidiary Ownership Organization Guarantor’s Executive Offices
\n ———– ——— ————— —————————–
\n <\/p>\n 3610 Hacks Cross Road
\n Federal Express Corporation 100% Delaware Memphis, TN 38125<\/p>\n
1000 FedEx Drive
\n FedEx Ground Package System, Inc. 100% Delaware Moon Township, PA 15108<\/p>\n
5895 Explorer Drive
\n Federal Express Canada Ltd.1 100% Canada Mississauga, Ontario L4W 5K6<\/p>\n
6075 Poplar Avenue, Suite 300
\n FedEx Freight System, Inc. 100% Delaware Memphis, TN 38119<\/p>\n
2200 Forward Drive
\n American Freightways, Inc.2 100% Arkansas Harrison, AR 72601<\/p>\n
6411 Guadalupe Mines Road
\n Viking Freight, Inc.3 100% California San Jose, CA 95120
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
———————–<\/p>\n
1 Federal Express Canada Ltd. is a Wholly-Owned Subsidiary of Federal
\n Express Corporation.<\/p>\n
2 American Freightways, Inc. is a Wholly-Owned Subsidiary of FedEx Freight
\n System, Inc.<\/p>\n
3 Viking Freight, Inc. is a Wholly-Owned Subsidiary of FedEx Freight System,
\n Inc.<\/p>\n
SCHEDULE 5.01(c)<\/p>\n
COMPLIANCE CALCULATIONS
\n (SEE SECTION 5.01(c))<\/p>\n
SEE ATTACHED<\/p>\n
FEDEX CORPORATION
\n COMPLIANCE CALCULATIONS
\n REVOLVING CREDIT AGREEMENTS, DATED AS OF SEPTEMBER 28, 2001
\n IN THOUSANDS OF US$<\/p>\n
PAGE 1 OF 2<\/p>\n
SECTION 5.10
\n LEVERAGE TEST<\/p>\n
\n\n 1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
\n FY __ FY __ FY __ FY __
\n
\nTotal Funded Debt (sum) $_____ $_____ $_____ $_____
\nCapitalized Operating Lease Value* $_____ $_____ $_____ $_____
\nTotal Defined Debt $_____ $_____ $_____ $_____
\n $_____ $_____ $_____ $_____<\/p>\nTotal Defined Debt $_____ $_____ $_____ $_____
\nConsolidated Adjusted Net Worth $_____ $_____ $_____ $_____
\nTotal Defined Capitalization $_____ $_____ $_____ $_____<\/p>\n
Defined Capitalization Ratio** _____ _____ _____ _____<\/p>\n
Maximum Defined Capitalization Ratio 0.70 0.70 0.70 0.70<\/p>\n
Total Additional Defined Debt Allowed $_____ $_____ $_____ $_____<\/p>\n
<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
* Capitalized Operating Lease Value is the present value of Aircraft
\n Leases discounted at 12.5%.<\/p>\n
** The Defined Capitalization Ratio is Total Defined Debt to Total
\n Defined Capitalization.<\/p>\n
FEDEX CORPORATION
\n COMPLIANCE CALCULATIONS
\n REVOLVING CREDIT AGREEMENTS, DATED AS OF SEPTEMBER 28, 2001
\n IN THOUSANDS OF US$<\/p>\n
PAGE 2 OF 2
\n SECTION 5.11
\n FIXED CHARGE COVERAGE TEST<\/p>\n
\n\n
\nPrior Fiscal Year Detail 1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
\n FY __ FY __ FY __ FY __
\nAdjusted Net Income $_____ $_____ $_____ $_____
\nInterest Expense $_____ $_____ $_____ $_____
\nRent Expense $_____ $_____ $_____ $_____
\nConsolidated Cash Flow* $_____ $_____ $_____ $_____<\/p>\nInterest Expense $_____ $_____ $_____ $_____
\nRent Expense $_____ $_____ $_____ $_____
\nTotal Fixed Charges** $_____ $_____ $_____ $_____<\/p>\n
Current Fiscal Year Detail 1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
\n FY __ FY __ FY __ FY __
\nAdjusted Net Income $_____ $_____ $_____ $_____
\nInterest Expense $_____ $_____ $_____ $_____
\nRent Expense $_____ $_____ $_____ $_____
\nConsolidated Cash Flow $_____ $_____ $_____ $_____<\/p>\n
Interest Expense $_____ $_____ $_____ $_____
\nRent Expense $_____ $_____ $_____ $_____
\nTotal Fixed Charges $_____ $_____ $_____ $_____<\/p>\n
1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
\n FY __ FY __ FY __ FY __
\n12 Month Consolidated Cash Flow $_____ $_____ $_____ $_____
\nDivided By:
\n12 Month Total Fixed Charges $_____ $_____ $_____ $_____
\nEquals:
\nFixed Charge Coverage $_____ $_____ $_____ $_____<\/p>\n
Minimum Fixed Charge Coverage Ratio 1.25 1.25 1.25 1.25<\/p>\n
12 Month Consolidated Cash Flow Over\/(Under) $_____ $_____ $_____ $_____<\/p>\n
<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
* Consolidated Cash Flow is the sum of Adjusted Net Income, Interest and
\n Rent Expense.<\/p>\n
** Total Fixed Charges is the sum of Interest Expense and Rent Expense.<\/p>\n
The Ratio is calculated on a rolling 12-month basis to eliminate
\n seasonality.<\/p>\n
SCHEDULE 5.12<\/p>\n
SUBSIDIARY GUARANTORS<\/p>\n
\n\n Jurisdiction of Address of Subsidiary’s
\n Subsidiary Organization Executive Offices
\n ———- ————— ———————–<\/p>\n
\n 2200 Forward Drive
\n American Freightways, Inc. Arkansas Harrison, AR 72601<\/p>\n 7304 West Market Street
\n Caribbean Transportation Services, Inc. Delaware Greensboro, NC 27409<\/p>\n
3610 Hacks Cross Road
\n Federal Express Corporation Delaware Memphis, TN 38125<\/p>\n
215-225 Euston Road
\n Alexandria<\/p>\n
Federal Express (Australia) Pty. Ltd. Australia NSW 2015 Australia<\/p>\n
3610 Hacks Cross Road
\n Federal Express Aviation Services, Incorporated Delaware Memphis, TN 38125<\/p>\n
5895 Explorer Drive
\n Federal Express Canada Ltd. Canada Mississauga, Ontario L4W 5K6<\/p>\n
3610 Hacks Cross Road
\n Federal Express Europe, Inc. Delaware Memphis TN 38125<\/p>\n
Airport Building 119
\n Federal Express Europe, Inc. & Co., V.O.F.\/S.N.C. Belgium 1820 Melsbroek, Belgium<\/p>\n
3610 Hacks Cross Road
\n Federal Express Holdings S.A. Delaware Memphis, TN 38125<\/p>\n
Calle Insurgentes; Sur 899
\n Federal Express Holdings (Mexico) y Napoles 03810
\n Compania S.N.C. de C.V. Mexico Mexico D.F., Mexico<\/p>\n
125\/135 Av. Louis Roche 92230,
\n Federal Express International (France) SNC France Gennevilliers<\/p>\n
3610 Hacks Cross Road
\n Federal Express International, Inc. Delaware Memphis, TN 38125<\/p>\n
Kyodo Building
\n 16 Ichibancho
\n Chiyoda-Ku
\n Federal Express Japan K.K. Japan Tokyo 102-0082 Japan
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\n Jurisdiction of Address of Subsidiary’s
\n Subsidiary Organization Executive Offices
\n ———- ————— ———————–<\/p>\n
<\/p>\n 3610 Hacks Cross Road
\n Federal Express Pacific, Inc. Delaware Memphis, TN 38125<\/p>\n
3 Khaki Bukit Road #2
\n Block A, Unit 3E
\n Eunos Warehouse Complex
\n Federal Express (Singapore) Pte. Ltd. Singapore Singapore 417837<\/p>\n
Havensite Mall
\n Charlotte Amalie
\n St. Thomas,
\n Federal Express Virgin Islands, Inc. U.S. Virgin Islands U.S. Virgin Islands<\/p>\n
942 S. Shady Grove Road
\n FedEx Corporate Services, Inc. Delaware Memphis, TN 38120<\/p>\n
2088 South Arlington Road
\n FedEx Custom Critical, Inc. Ohio Akron, OH 44306<\/p>\n
6075 Poplar Avenue, Suite 300
\n FedEx Freight System, Inc. Delaware Memphis, TN 38119<\/p>\n
1000 FedEx Drive
\n FedEx Ground Package System, Inc. Delaware Moon Township, PA 15108<\/p>\n
3930 Nashua Drive, Suite 201
\n FedEx Ground Package System, Ltd. Wyoming Mississauga, Ontario L4V 1M5<\/p>\n
5455 Darrow Road
\n FedEx Supply Chain Services, Inc. Ohio Hudson, OH 44236<\/p>\n
6075 Poplar Avenue, Suite 434
\n FedEx Trade Networks, Inc. Delaware Memphis, TN 38119<\/p>\n
128 Dearborn Street
\n Tower Group International, Inc. New York Buffalo, NY 14207<\/p>\n
5915 Airport Rd., Suite 1100
\n Tower Group International Canada Inc. Canada Mississauga, Ontario LV4 1T1<\/p>\n
6411 Guadalupe Mines Road
\n Viking Freight, Inc. California San Jose, CA 95120<\/p>\n
220 Montgomery Street, Suite 448
\n World Tariff, Limited California San Francisco, CA 94101
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT A<\/p>\n
FORM OF BORROWING REQUEST<\/p>\n
Pursuant to Section 2.03 of the Five-Year Credit Agreement dated as of
\nSeptember 28, 2001 (as amended, supplemented or otherwise modified from time to
\ntime, the “CREDIT AGREEMENT”), among FEDEX CORPORATION, a Delaware corporation
\n(the “BORROWER”), the several banks and other financial institutions from time
\nto time parties to this Agreement (the “LENDERS”), THE CHASE MANHATTAN BANK, a
\nNew York banking corporation, as administrative agent (in such capacity, the
\n“ADMINISTRATIVE AGENT”), CITICORP USA, INC. and BANK OF AMERICA, N.A., as
\nCo-Syndication Agents, and BANK ONE, NA, COMMERZBANK A.G., BANK OF
\nTOKYO-MITSUBISHI TRUST COMPANY and THE ROYAL BANK OF SCOTLAND PLC as
\nCo-Documentation Agents, the undersigned hereby delivers this Borrowing Request.<\/p>\n
The Borrower hereby requests that a [Eurodollar \/ ABR] Loan be made in
\nthe aggregate principal amount of _____________ on ____ __, 200_ [with an
\nInterest Period of ___ months].<\/p>\n
The undersigned hereby certifies as follows:<\/p>\n
(a) The representations and warranties made by the Borrower in or
\n pursuant to the Loan Documents are true and correct on and as of the date
\n hereof with the same effect as if made on the date hereof; and<\/p>\n
(b) No Default has occurred and is continuing on the date hereof or
\n after giving effect to the Loans requested to be made on such date.<\/p>\n
Capitalized terms used herein and not defined herein shall have the
\nmeanings given to them in the Credit Agreement.<\/p>\n
The Borrower agrees that if prior to the time of the borrowing
\nrequested hereby any matter certified to herein by it will not be true and
\ncorrect in all material respects at such time as if then made, it will
\nimmediately so notify the Administrative Agent. Except to the extent, if any,
\nthat prior to the time of the borrowing requested hereby the Administrative
\nAgent shall receive written notice to the contrary from the Borrower, each
\nmatter certified to herein shall be deemed once again to be certified as true
\nand correct in all material respects at the date of such borrowings as if then
\nmade.<\/p>\n
Please wire transfer the proceeds of the borrowing as directed by the
\nBorrower on the attached Schedule 1.<\/p>\n
The Borrower has caused this Borrowing Request to be executed and
\ndelivered, and the certification and warranties contained herein to be made, by
\nthe undersigned Financial Officer this ___ day of ________, 200_.<\/p>\n
FEDEX CORPORATION<\/p>\n
By: _________________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT B<\/p>\n
FORM OF INTEREST ELECTION REQUEST<\/p>\n
Pursuant to subsection 2.05(b) of the Five-Year Credit Agreement,
\ndated as of September 28, 2001 (as amended, supplemented or otherwise modified
\nfrom time to time, the “CREDIT AGREEMENT”), among FEDEX CORPORATION, a Delaware
\ncorporation (the “BORROWER”), the several banks and other financial institutions
\nfrom time to time parties to this Agreement (the “LENDERS”), THE CHASE MANHATTAN
\nBANK, a New York banking corporation, as administrative agent (in such capacity,
\nthe “ADMINISTRATIVE AGENT”), CITICORP USA, INC. and BANK OF AMERICA, N.A., as
\nCo-Syndication Agents, and BANK ONE, NA, COMMERZBANK A.G., BANK OF
\nTOKYO-MITSUBISHI TRUST COMPANY and THE ROYAL BANK OF SCOTLAND PLC as
\nCo-Documentation Agents, this represents the Borrower’s request to convert or
\ncontinue Loans as follows:<\/p>\n
1 Date of conversion\/continuation: __________________<\/p>\n
2. Amount of Loans being converted\/continued: $________________<\/p>\n
3. Type of Loans being converted\/continued:<\/p>\n
\/ \/ a. Eurodollar Loans
\n \/ \/ b. ABR Loans<\/p>\n
4. Nature of conversion\/continuation:<\/p>\n
\/ \/ a. Conversion of ABR Loans to Eurodollar ABR Loans
\n \/ \/ b. Conversion of Eurodollar Loans to ABR Loans
\n \/ \/ c. Continuation of Eurodollar Loans as such<\/p>\n
5. Interest Periods:<\/p>\n
If Loans are being continued as or converted to Eurodollar
\n Loans, the duration of the new Interest Period that commences
\n on the conversion\/ continuation date:
\n ________________ month(s)<\/p>\n
2<\/p>\n
In the case of a conversion to or continuation of Eurodollar Loans,
\nthe undersigned officer, to the best of his or her knowledge, on behalf of the
\nBorrower, certifies that no Default or Event of Default has occurred and is
\ncontinuing under the Credit Agreement.<\/p>\n
DATED: FEDEX CORPORATION
\n ———————–<\/p>\n
By: ____________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT C<\/p>\n
FORM OF GUARANTY<\/p>\n
THIS GUARANTY (this “GUARANTY”) is made as of the 28th day of September,
\n2001, by each Subsidiary listed on Schedule I hereto (collectively, the “INITIAL
\nGUARANTORS”, and together with each Subsidiary which becomes a party to this
\nAgreement by executing an Addendum hereto in the form attached as Annex I, the
\n“GUARANTORS”) in favor of the Administrative Agent, for the ratable benefit of
\nthe Lenders, under (and as defined in) the Credit Agreement referred to below.<\/p>\n
W I T N E S S E T H:
\n – – – – – – – – – –<\/p>\n
WHEREAS, FedEx Corporation, a Delaware corporation (the “BORROWER”), The
\nChase Manhattan Bank, as administrative agent (in such capacity, the
\n“ADMINISTRATIVE AGENT”), and certain Lenders have entered into a certain
\nFive-Year Credit Agreement dated as of September 28, 2001 (as the same may be
\namended, supplemented or otherwise modified from time to time, the “CREDIT
\nAGREEMENT”), providing, subject to the terms and conditions thereof, for
\nextensions of credit to be made by the Lenders to the Borrower;<\/p>\n
WHEREAS, it is a condition precedent to the initial extensions of credit by
\nthe Lenders under the Credit Agreement that each of the Guarantors execute and
\ndeliver this Guaranty, whereby each of the Guarantors shall guarantee the
\npayment when due, subject to SECTION 8 hereof, of any and all of the
\nObligations; and<\/p>\n
WHEREAS, in consideration of the financial and other support that the
\nBorrower has provided, and such financial and other support as the Borrower may
\nin the future provide, to the Guarantors, and in order to induce the Lenders and
\nthe Administrative Agent to enter into the Credit Agreement, each of the
\nGuarantors is willing to guarantee the Obligations of the Borrower under the
\nCredit Agreement;<\/p>\n
NOW, THEREFORE, in consideration of the premises and other good and
\nvaluable consideration, the receipt and sufficiency of which are hereby
\nacknowledged, the parties hereto agree as follows:<\/p>\n
SECTION 1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
\nused herein shall have the meanings ascribed to them in the Credit Agreement.<\/p>\n
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Guarantors
\nrepresents and warrants (which representations and warranties shall be deemed to
\nhave been renewed at the time of each borrowing by the Borrower under the Credit
\nAgreement) that:<\/p>\n
(a) It is a corporation, limited liability company, partnership or
\n other commercial entity duly incorporated or formed, validly existing and
\n in good standing under the laws of its jurisdiction of incorporation or
\n formation and has all requisite authority to conduct its<\/p>\n
2<\/p>\n
business as a foreign Person in each jurisdiction in which its business is
\n conducted, except where the failure to have such requisite authority would
\n not have a Material Adverse Effect.<\/p>\n
(b) It has the power and authority and legal right to execute and
\n deliver this Guaranty and to perform its obligations hereunder. The
\n execution and delivery by it of this Guaranty and the performance by it of
\n its obligations hereunder have been duly authorized by proper proceedings,
\n and this Guaranty constitutes a legal, valid and binding obligation of such
\n Guarantor enforceable against such Guarantor in accordance with its terms,
\n except as enforceability may be limited by bankruptcy, insolvency or
\n similar laws affecting the enforcement of creditors’ rights generally, and
\n subject also to the availability of equitable remedies if equitable
\n remedies are sought.<\/p>\n
(c) Neither the execution and delivery by it of this Guaranty, nor the
\n consummation by it of the transactions herein contemplated, nor compliance
\n by it with the terms and provisions hereof, will violate any law, rule,
\n regulation, order, writ, judgment, injunction, decree or award binding on
\n it or its certificate or articles of incorporation or by-laws, limited
\n liability company or partnership agreement or the provisions of any
\n indenture, instrument or material agreement to which it is a party or is
\n subject, or by which it, or its property, is bound, or conflict with or
\n constitute a default thereunder, or result in the creation or imposition of
\n any Lien in, of or on its property pursuant to the term of any such
\n indenture, instrument or material agreement. No order, consent, approval,
\n license, authorization, or validation of, or filing, recording or
\n registration with, or exemption by, any governmental authority, is required
\n to authorize, or is required in connection with the execution, delivery and
\n performance by it of, or the legality, validity, binding effect or
\n enforceability of, this Guaranty.<\/p>\n
SECTION 3. THE GUARANTY. Subject to SECTION 8 hereof, each of the
\nGuarantors hereby unconditionally guarantees, jointly with the other Guarantors
\nand severally, the full and punctual payment when due (whether at stated
\nmaturity, upon acceleration or otherwise) of the Obligations, (the foregoing,
\nsubject to the provisions of SECTION 8 hereof, being referred to collectively as
\nthe “GUARANTEED OBLIGATIONS”). Upon failure by the Borrower to pay punctually
\nany such amount, each of the Guarantors agrees that it shall forthwith on demand
\npay such amount at the place and in the manner specified in the Credit Agreement
\nor the relevant Loan Document, as the case may be. Each of the Guarantors hereby
\nagrees that this Guaranty is an absolute, irrevocable and unconditional guaranty
\nof payment and is not a guaranty of collection.<\/p>\n
SECTION 4. GUARANTY UNCONDITIONAL. Subject to SECTION 8 hereof, the
\nobligations of each of the Guarantors hereunder shall be unconditional and
\nabsolute and, without limiting the generality of the foregoing, shall not be
\nreleased, discharged or otherwise affected by:<\/p>\n
(a) any extension, renewal, settlement, indulgence, compromise, waiver
\n or release of or with respect to the Guaranteed Obligations or any part
\n thereof or any agreement relating thereto, or with respect to any
\n obligation of any other guarantor of any of the Guaranteed Obligations,
\n whether (in any such case) by operation of law or otherwise, or any failure
\n or omission to enforce any right, power or remedy with respect to the
\n Guaranteed Obligations or any part thereof or any agreement relating
\n thereto, or with respect to any obligation of any other guarantor of any of
\n the Guaranteed Obligations;<\/p>\n
3<\/p>\n
(b) any modification or amendment of or supplement to the Credit
\n Agreement or any other Loan Document, including, without limitation, any
\n such amendment which may increase the amount of the Obligations guaranteed
\n hereby;<\/p>\n
(c) any release, surrender, compromise, settlement, waiver,
\n subordination or modification, with or without consideration, of any
\n collateral securing the Guaranteed Obligations or any part thereof, any
\n other guaranties with respect to the Guaranteed Obligations or any part
\n thereof, or any other obligation of any person or entity with respect to
\n the Guaranteed Obligations or any part thereof, or any nonperfection or
\n invalidity of any direct or indirect security for the Guaranteed
\n Obligations;<\/p>\n
(d) any change in the corporate, partnership or other existence,
\n structure or ownership of the Borrower or any other guarantor of any of the
\n Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
\n other similar proceeding affecting the Borrower or any other guarantor of
\n the Guaranteed Obligations, or any of their respective assets or any
\n resulting release or discharge of any obligation of the Borrower or any
\n other guarantor of any of the Guaranteed Obligations;<\/p>\n
(e) the existence of any claim, setoff or other rights which the
\n Guarantors may have at any time against the Borrower, any other guarantor
\n of any of the Guaranteed Obligations, the Administrative Agent, any Lender
\n or any other Person, whether in connection herewith or in connection with
\n any unrelated transactions, PROVIDED that nothing herein shall prevent the
\n assertion of any such claim by separate suit or compulsory counterclaim;<\/p>\n
(f) the enforceability or validity of the Guaranteed Obligations or
\n any part thereof or the genuineness, enforceability or validity of any
\n agreement relating thereto or with respect to any collateral securing the
\n Guaranteed Obligations or any part thereof, or any other invalidity or
\n unenforceability relating to or against the Borrower or any other guarantor
\n of any of the Guaranteed Obligations, for any reason related to the Credit
\n Agreement, any other Loan Document, or any provision of applicable law or
\n regulation purporting to prohibit the payment by the Borrower or any other
\n guarantor of the Guaranteed Obligations, of any of the Guaranteed
\n Obligations;<\/p>\n
(g) the failure of the Administrative Agent to take any steps to
\n perfect and maintain any security interest in, or to preserve any rights
\n to, any security or collateral for the Guaranteed Obligations, if any;<\/p>\n
(h) the election by, or on behalf of, any one or more of the Lenders,
\n in any proceeding instituted under Chapter 11 of Title 11 of the United
\n States Code (11 U.S.C. 101 et seq.) (the “BANKRUPTCY CODE”), of the
\n application of Section 1111(b)(2) of the Bankruptcy Code;<\/p>\n
(i) any borrowing or grant of a security interest by the Borrower, as
\n debtor-in-possession, under Section 364 of the Bankruptcy Code;<\/p>\n
(j) the disallowance, under Section 502 of the Bankruptcy Code, of all
\n or any portion of the claims of any of the Lenders or the Administrative
\n Agent for repayment of all or any part of the Guaranteed Obligations;<\/p>\n
4<\/p>\n
(k) the failure of any other Guarantor to sign or become party to this
\n Guaranty or any amendment, change, or reaffirmation hereof; or<\/p>\n
(l) any other act or omission to act or delay of any kind by the
\n Borrower, any other guarantor of the Guaranteed Obligations, the
\n Administrative Agent, any Lender or any other Person or any other
\n circumstance whatsoever which might, but for the provisions of this SECTION
\n 4, constitute a legal or equitable discharge of any Guarantor’s obligations
\n hereunder.<\/p>\n
SECTION 5. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
\nCIRCUMSTANCES. Except as otherwise provided in Section 9.14 of the Credit
\nAgreement, each of the Guarantors’ obligations hereunder shall remain in full
\nforce and effect until all Guaranteed Obligations shall have been paid in full
\nand the Commitments under the Credit Agreement shall have terminated or expired.
\nIf at any time any payment of any portion of the Obligations is rescinded or
\nmust be otherwise restored or returned upon the insolvency, bankruptcy or
\nreorganization of the Borrower or otherwise, each Guarantor’s obligations
\nhereunder with respect to such payment shall be reinstated as though such
\npayment had been due but not made at such time.<\/p>\n
SECTION 6. GENERAL WAIVERS. Each of the Guarantors irrevocably waives
\nacceptance hereof, presentment, demand or action on delinquency, protest, the
\nbenefit of any statutes of limitations and, to the fullest extent permitted by
\nlaw, any notice not provided for herein, as well as any requirement that at any
\ntime any action be taken by any Person against the Borrower, any other guarantor
\nof the Guaranteed Obligations, or any other Person.<\/p>\n
SECTION 7. SUBORDINATION OF SUBROGATION. Until the Obligations have been
\nindefeasibly paid in full in cash and the Commitments under the Credit Agreement
\nshall have terminated or expired, the Guarantors (i) shall have no right of
\nsubrogation with respect to such Obligations and (ii) waive any right to enforce
\nany remedy which the Lenders or the Administrative Agent now have or may
\nhereafter have against the Borrower, any endorser or any guarantor of all or any
\npart of the Obligations or any other Person, and the Guarantors waive any
\nbenefit of, and any right to participate in, any security or collateral given to
\nthe Lenders and the Administrative Agent to secure the payment or performance of
\nall or any part of the Obligations or any other liability of the Borrower to the
\nLenders. Should any Guarantor have the right, notwithstanding the foregoing, to
\nexercise its subrogation rights, each Guarantor hereby expressly and irrevocably
\n(a) subordinates any and all rights at law or in equity to subrogation,
\nreimbursement, exoneration, contribution, indemnification or set off that the
\nGuarantor may have to the indefeasible payment in full in cash of the
\nObligations and (b) waives any and all defenses available to a surety, guarantor
\nor accommodation co-obligor until the Obligations are indefeasibly paid in full
\nin cash. Each Guarantor acknowledges and agrees that this subordination is
\nintended to benefit the Administrative Agent and the Lenders and shall not limit
\nor otherwise affect such Guarantor’s liability hereunder or the enforceability
\nof this Guaranty, and that the Administrative Agent, the Lenders and their
\nrespective successors and assigns are intended third party beneficiaries of the
\nwaivers and agreements set forth in this SECTION 7.<\/p>\n
SECTION 8. LIMITATION. Notwithstanding any provision herein contained to
\nthe contrary, each Guarantor’s liability under this Guaranty (which liability is
\nin any event in addition to amounts for which such entity may be primarily
\nliable) shall be limited to an amount not to exceed as of any date of
\ndetermination the greater of:<\/p>\n
(a) the net amount of all Loans advanced to the Borrower under this
\n Agreement and then re-loaned or otherwise transferred to, or for the
\n benefit of, such Guarantor; and<\/p>\n
5<\/p>\n
(b) the amount which could be claimed by the Administrative Agent and
\n the Lenders from such Guarantor under this Guaranty without rendering such
\n claim voidable or avoidable under Section 548 of Chapter 11 of the
\n Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
\n Act, Uniform Fraudulent Conveyance Act or similar statute or common law
\n after taking into account, among other things, such Guarantor’s right of
\n contribution and indemnification from each other Guarantor under SECTION 9.<\/p>\n
SECTION 9. CONTRIBUTION WITH RESPECT TO GUARANTY OBLIGATIONS.<\/p>\n
(a) To the extent that any Guarantor shall make a payment under this
\n Guaranty (a “GUARANTOR PAYMENT”) which, taking into account all other
\n Guarantor Payments then previously or concurrently made by any other
\n Guarantor, exceeds the amount which such Guarantor would otherwise have
\n paid if each Guarantor had paid the aggregate Obligations satisfied by such
\n Guarantor Payment in the same proportion that such Guarantor’s “Allocable
\n Amount” (as defined below) (as determined immediately prior to such
\n Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
\n Guarantors as determined immediately prior to the making of such Guarantor
\n Payment, THEN, following indefeasible payment in full in cash of the
\n Obligations and termination or expiration of the Commitments under the
\n Credit Agreement, such Guarantor shall be entitled to receive contribution
\n and indemnification payments from, and be reimbursed by, each other
\n Guarantor for the amount of such excess, PRO RATA based upon their
\n respective Allocable Amounts in effect immediately prior to such Guarantor
\n Payment.<\/p>\n
(b) As of any date of determination, the “ALLOCABLE AMOUNT” of any
\n Guarantor shall be equal to the maximum amount of the claim which could
\n then be recovered from such Guarantor under this Guaranty without rendering
\n such claim voidable or avoidable under Section 548 of Chapter 11 of the
\n Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
\n Act, Uniform Fraudulent Conveyance Act or similar statute or common law.<\/p>\n
(c) This SECTION 9 is intended only to define the relative rights of
\n the Guarantors and nothing set forth in this SECTION 9 is intended to or
\n shall impair the obligations of the Guarantors, jointly and severally, to
\n pay any amounts as and when the same shall become due and payable in
\n accordance with the terms of this Agreement.<\/p>\n
(d) The parties hereto acknowledge that the rights of contribution and
\n indemnification hereunder shall constitute assets of the Guarantor to which
\n such contribution and indemnification is owing.<\/p>\n
(e) The rights of the indemnifying Guarantors against other Guarantors
\n under this SECTION 9 shall be exercisable upon the full and indefeasible
\n payment of the Obligations and the termination or expiration of the
\n Commitments under the Credit Agreement.<\/p>\n
SECTION 10. STAY OF ACCELERATION. If acceleration of the time for payment
\nof any of the Obligations is stayed upon the insolvency, bankruptcy or
\nreorganization of the Borrower, all such amounts otherwise subject to
\nacceleration under the terms of the Credit Agreement, or any other Loan Document
\nshall nonetheless be payable by each of the Guarantors hereunder forthwith on
\ndemand by the Administrative Agent.<\/p>\n
6<\/p>\n
SECTION 11. NO WAIVERS. No failure or delay by the Administrative Agent or
\nany Lender in exercising any right, power or privilege hereunder shall operate
\nas a waiver thereof nor shall any single or partial exercise thereof preclude
\nany other or further exercise thereof or the exercise of any other right, power
\nor privilege. The rights and remedies provided in this Guaranty, the Credit
\nAgreement, and the other Loan Documents shall be cumulative and not exclusive of
\nany rights or remedies provided by law.<\/p>\n
SECTION 12. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of the
\nAdministrative Agent and the Lenders and their respective successors and
\npermitted assigns and in the event of an assignment of any amounts payable under
\nthe Credit Agreement, or the other Loan Documents in accordance with the
\nrespective terms thereof, the rights hereunder, to the extent applicable to the
\nindebtedness so assigned, may be transferred with such indebtedness. This
\nGuaranty shall be binding upon each of the Guarantors and their respective
\nsuccessors and assigns.<\/p>\n
SECTION 13. CHANGES IN WRITING. Neither this Guaranty nor any provision
\nhereof may be changed, waived, discharged or terminated orally, but only in
\nwriting signed by each of the Guarantors and the Administrative Agent with the
\nconsent of the Lenders required for such change, waiver, discharge or
\ntermination pursuant to the terms of the Credit Agreement.<\/p>\n
SECTION 14. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND THE
\nADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO,
\nOR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
\nTHIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN
\nCONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
\nINTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
\nOF NEW YORK.<\/p>\n
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.<\/p>\n
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
\nOF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
\nCONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
\nTHEM IN CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
\nWHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
\nEXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, BUT THE PARTIES
\nHERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
\nCOURT LOCATED OUTSIDE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL
\nDISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
\nTO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.<\/p>\n
(b) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT THE
\nADMINISTRATIVE AGENT, ANY LENDER OR ANY INDEMNITEE SHALL HAVE THE RIGHT TO
\nPROCEED AGAINST SUCH GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
\nENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH GUARANTOR OR
\n(2) ENFORCE A JUDGMENT OR OTHER COURT ORDER<\/p>\n
7<\/p>\n
ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GUARANTORS AGREES THAT IT WILL NOT
\nASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
\nENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. EACH OF THE
\nGUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
\nWHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).<\/p>\n
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
\nWAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
\nSOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
\nRELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
\nCONNECTION WITH THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
\nEXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
\nAND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
\nDECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
\nORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN
\nEVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
\nTRIAL BY JURY.<\/p>\n
(d) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
\nPARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
\nPROVISIONS OF THIS SECTION 15, WITH ITS COUNSEL.<\/p>\n
SECTION 16. NO STRICT CONSTRUCTION. The parties hereto have participated
\njointly in the negotiation and drafting of this Guaranty. In the event an
\nambiguity or question of intent or interpretation arises, this Guaranty shall be
\nconstrued as if drafted jointly by the parties hereto and no presumption or
\nburden of proof shall arise favoring or disfavoring any party by virtue of the
\nauthorship of any provisions of this Guaranty.<\/p>\n
SECTION 17. TAXES, EXPENSES OF ENFORCEMENT, ETC. All payments required to
\nbe made by any of the Guarantors hereunder shall be made without setoff or
\ncounterclaim and free and clear of and without deduction or withholding for or
\non account of, any present or future taxes, levies, imposts, duties or other
\ncharges of whatsoever nature imposed by any government or any political or
\ntaxing authority thereof; PROVIDED, HOWEVER, that if any of the Guarantors is
\nrequired by law to make such deduction or withholding, such Guarantor shall
\nforthwith pay to the Administrative Agent or any Lender, as applicable, such
\nadditional amount as results in the net amount received by the Administrative
\nAgent or any Lender, as applicable, equaling the full amount which would have
\nbeen received by the Administrative Agent or any Lender, as applicable, had no
\nsuch deduction or withholding been made. The Guarantors also agree to reimburse
\nthe Administrative Agent and the Lenders for any reasonable costs, internal
\ncharges and out-of-pocket expenses (including reasonable attorneys’ fees and
\ntime charges of attorneys for the Administrative Agent and the Lenders, which
\nattorneys may be employees of the Administrative Agent or the Lenders) paid or
\nincurred by the Administrative Agent or any Lender in connection with the
\ncollection and enforcement of amounts due under the Loan Documents, including
\nwithout limitation this Guaranty.<\/p>\n
SECTION 18. SETOFF. At any time after all or any part of the Guaranteed
\nObligations have become due and payable (by acceleration or otherwise), each
\nLender and the Administrative Agent may, without notice to any Guarantor and
\nregardless of the acceptance of any security or collateral<\/p>\n
8<\/p>\n
for the payment hereof, appropriate and apply toward the payment of all or any
\npart of the Guaranteed Obligations (i) any indebtedness due or to become due
\nfrom such Lender or the Administrative Agent to any Guarantor, and (ii) any
\nmoneys, credits or other property belonging to any Guarantor, at any time held
\nby or coming into the possession of such Lender or the Administrative Agent or
\nany of their respective affiliates.<\/p>\n
SECTION 19. FINANCIAL INFORMATION. Each Guarantor hereby assumes
\nresponsibility for keeping itself informed of the financial condition of the
\nBorrower and any and all endorsers and\/or other Guarantors of all or any part of
\nthe Guaranteed Obligations, and of all other circumstances bearing upon the risk
\nof nonpayment of the Guaranteed Obligations, or any part thereof, that diligent
\ninquiry would reveal, and each Guarantor hereby agrees that none of the Lenders
\nor the Administrative Agent shall have any duty to advise such Guarantor of
\ninformation known to any of them regarding such condition or any such
\ncircumstances. If any Lender or the Administrative Agent, in its sole
\ndiscretion, undertakes at any time or from time to time to provide any such
\ninformation to a Guarantor, such Lender or the Administrative Agent shall be
\nunder no obligation (i) to undertake any investigation not a part of its regular
\nbusiness routine, (ii) to disclose any information which such Lender or the
\nAdministrative Agent, pursuant to accepted or reasonable commercial finance or
\nbanking practices, wishes to maintain confidential or (iii) to make any other or
\nfuture disclosures of such information or any other information to such
\nGuarantor.<\/p>\n
SECTION 20. SEVERABILITY. Wherever possible, each provision of this
\nGuaranty shall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Guaranty shall be prohibited by or
\ninvalid under such law, such provision shall be ineffective to the extent of
\nsuch prohibition or invalidity without invalidating the remainder of such
\nprovision or the remaining provisions of this Guaranty.<\/p>\n
SECTION 21. MERGER. This Guaranty represents the final agreement of each of
\nthe Guarantors with respect to the matters contained herein and may not be
\ncontradicted by evidence of prior or contemporaneous agreements, or subsequent
\noral agreements, between the Guarantor and any Lender or the Administrative
\nAgent.<\/p>\n
SECTION 22. EXECUTION IN COUNTERPARTS. This Guaranty may be executed in any
\nnumber of counterparts, all of which taken together shall constitute one
\nagreement, and any of the parties hereto may execute this Guaranty by signing
\nany such counterpart.<\/p>\n
SECTION 23. HEADINGS. Section headings in this Guaranty are for convenience
\nof reference only and shall not govern the interpretation of any provision of
\nthis Guaranty.<\/p>\n
9<\/p>\n
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be
\nduly executed by its authorized officer as of the day and year first above
\nwritten.<\/p>\n
[GUARANTORS]<\/p>\n
By: __________________________
\n Name:
\n Title:<\/p>\n
SCHEDULE I TO GUARANTY<\/p>\n
\n\n Jurisdiction of Address of Subsidiary’s
\n Subsidiary Organization Executive Offices
\n ———- ————— ———————–<\/p>\n
\n 2200 Forward Drive
\n American Freightways, Inc. Arkansas Harrison, AR 72601<\/p>\n 7304 West Market Street
\nCaribbean Transportation Services, Inc. Delaware Greensboro, NC 27409<\/p>\n
3610 Hacks Cross Road
\n Federal Express Corporation Delaware Memphis, TN 38125<\/p>\n
215-225 Euston Road
\n Alexandria
\n Federal Express (Australia) Pty Ltd. Australia NSW 2015 Australia<\/p>\n
Federal Express Aviation Services, 3610 Hacks Cross Road
\n Incorporated Delaware Memphis, TN 38125<\/p>\n
5895 Explorer Drive
\n Federal Express Canada Ltd. Canada Mississauga, Ontario L4W 5K6<\/p>\n
3610 Hacks Cross Road
\n Federal Express Europe, Inc. Delaware Memphis, TN 38125<\/p>\n
Federal Express Europe, Inc. & Co., Airport Building 119
\n V.O.F.\/S.N.C. Belgium 1820 Melsbroek, Belgium<\/p>\n
3610 Hacks Cross Road
\n Federal Express Holdings S.A. Delaware Memphis, TN 38125<\/p>\n
Calle Insurgentes
\n Sur 899
\n Federal Express Holdings (Mexico) y Napoles 03810
\n Compania S.N.C. de C.V. Mexico Mexico D.F., Mexico<\/p>\n
Federal Express International 125\/135 Av. Louis Roche 92230,
\n (France) SNC France Gennevilliers<\/p>\n
3610 Hacks Cross Road
\n Federal Express International, Inc. Delaware Memphis, TN 38125<\/p>\n
Kyodo Building
\n 16 Ichibancho
\n Chiyoda-Ku
\n Federal Express Japan K.K. Japan Tokyo 102-0082 Japan<\/p>\n
3610 Hacks Cross Road
\n Federal Express Pacific, Inc. Delaware Memphis, TN 38125<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
2<\/p>\n
\n\n Jurisdiction of Address of Subsidiary’s
\n Subsidiary Organization Executive Offices
\n ———- ————— ———————–<\/p>\n
<\/p>\n 3 Khaki Bukit Road #2
\n Block A, Unit 3E
\n Eunos Warehouse Complex
\n Federal Express (Singapore) Pte. Ltd. Singapore Singapore 417837<\/p>\n
Havensite Mall
\n Charlotte Amalie
\n St. Thomas,
\n Federal Express Virgin Islands, Inc. U.S. Virgin Islands U.S. Virgin Islands<\/p>\n
942 S. Shady Grove Road
\n FedEx Corporate Services, Inc. Delaware Memphis, TN 38120<\/p>\n
2088 South Arlington Road
\n FedEx Custom Critical, Inc. Ohio Akron, OH 44306<\/p>\n
6075 Poplar Avenue, Suite 300
\n FedEx Freight System, Inc. Delaware Memphis, TN 38119<\/p>\n
1000 FedEx Drive
\n FedEx Ground Package System, Inc. Delaware Moon Township, PA 15108<\/p>\n
3930 Nashua Drive, Suite 201
\n FedEx Ground Package System, Ltd. Wyoming Mississauga, Ontario L4V 1M5<\/p>\n
5455 Darrow Road
\n FedEx Supply Chain Services, Inc. Ohio Hudson, OH 44236<\/p>\n
6075 Poplar Avenue, Suite 434
\n FedEx Trade Networks, Inc. Delaware Memphis, TN 38119<\/p>\n
128 Dearborn Street
\n Tower Group International, Inc. New York Buffalo, NY 14207<\/p>\n
5915 Airport Rd., Suite 1100
\n Tower Group International Canada Inc. Canada Mississauga, Ontario LV4 1T1<\/p>\n
6411 Guadalupe Mines Road
\n Viking Freight, Inc. California San Jose, CA 95120<\/p>\n
220 Montgomery Street, Suite 448
\n World Tariff, Limited California San Francisco, CA 94101<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
ANNEX I TO GUARANTY<\/p>\n
FORM OF ADDENDUM<\/p>\n
Reference is hereby made to the Guaranty (the “GUARANTY”) made as of the
\n28th day of September, 2001 by each Subsidiary listed on Schedule I thereto
\n(collectively, the “INITIAL GUARANTORS”, together with each Significant
\nSubsidiary which has become a party thereto and with the undersigned, the
\n“GUARANTORS”) in favor of the Administrative Agent, for the ratable benefit of
\nthe Lenders, under the Credit Agreement. Capitalized terms used herein and not
\ndefined herein shall have the meanings given to them in the Guaranty. By its
\nexecution below, the undersigned [NAME OF NEW GUARANTOR], a __________________,
\nagrees to become, and does hereby become, a Guarantor under the Guaranty and
\nagrees to be bound by such Guaranty as if originally a party thereto. By its
\nexecution below, the undersigned represents and warrants as to itself that all
\nof the representations and warranties contained in SECTION 2 of the Guaranty are
\ntrue and correct in all respects as of the date hereof.<\/p>\n
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a ____________________has
\nexecuted and delivered this Addendum counterpart to the Guaranty as of this __
\nday of ________, 200_.<\/p>\n
[NAME OF NEW GUARANTOR]<\/p>\n
By: _______________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT E<\/p>\n
FORM OF ASSIGNMENT AND ACCEPTANCE<\/p>\n
Reference is made to the Five-Year Credit Agreement, dated as of
\nSeptember 28, 2001 (as amended, supplemented or otherwise modified from time to
\ntime, the “CREDIT AGREEMENT”), among FedEx Corporation (the “BORROWER”), the
\nLenders party thereto and The Chase Manhattan Bank, as administrative agent for
\nthe Lenders (in such capacity, the “ADMINISTRATIVE AGENT”), CITICORP USA, INC.
\nand BANK OF AMERICA, N.A., as Co-Syndication Agents, and BANK ONE, NA,
\nCOMMERZBANK A.G., BANK OF TOKYO-MITSUBISHI TRUST COMPANY and THE ROYAL BANK OF
\nSCOTLAND PLC as Co-Documentation Agents. Unless otherwise defined herein, terms
\ndefined in the Credit Agreement and used herein shall have the meanings given to
\nthem in the Credit Agreement.<\/p>\n
The Assignor identified on Schedule l hereto (the “ASSIGNOR”) and the
\nAssignee identified on Schedule l hereto (the “ASSIGNEE”) agree as follows:<\/p>\n
1. The Assignor hereby irrevocably sells and assigns to the Assignee
\n without recourse to the Assignor, and the Assignee hereby irrevocably
\n purchases and assumes from the Assignor without recourse to the Assignor,
\n as of the Effective Date (as defined below), the interest described in
\n Schedule 1 hereto (the “ASSIGNED INTEREST”) in and to the Assignor’s rights
\n and obligations under the Credit Agreement with respect to those credit
\n facilities contained in the Credit Agreement as are set forth on Schedule 1
\n hereto (individually, an “ASSIGNED FACILITY”; collectively, the “ASSIGNED
\n FACILITIES”), in a principal amount for each Assigned Facility as set forth
\n on Schedule 1 hereto.<\/p>\n
2. The Assignor (a) makes no representation or warranty and assumes no
\n responsibility with respect to any statements, warranties or
\n representations made in or in connection with the Credit Agreement or with
\n respect to the execution, legality, validity, enforceability, genuineness,
\n sufficiency or value of the Credit Agreement, any other Loan Document or
\n any other instrument or document furnished pursuant thereto, other than
\n that the Assignor has not created any adverse claim upon the interest being
\n assigned by it hereunder and that such interest is free and clear of any
\n such adverse claim and (b) makes no representation or warranty and assumes
\n no responsibility with respect to the financial condition of the Borrower,
\n any of its Affiliates or any other obligor or the performance or observance
\n by the Borrower, any of its Affiliates or any other obligor of any of their
\n respective obligations under the Credit Agreement or any other Loan
\n Document or any other instrument or document furnished pursuant hereto or
\n thereto.<\/p>\n
3. The Assignee (a) represents and warrants that it is legally authorized
\n to enter into this Assignment and Acceptance; (b) confirms that it has
\n received a copy of the Credit Agreement, together with copies of the
\n financial statements delivered pursuant to Section 3.04 thereof and such
\n other documents and information as it has deemed appropriate to make its
\n own credit analysis and decision to enter into this Assignment and
\n Acceptance; (c) agrees that it will, independently and without reliance
\n upon the Assignor, the Administrative Agent or any Lender and based on such
\n documents and information as it shall deem appropriate at the time,
\n continue to make its own credit decisions in taking or not taking action
\n under the<\/p>\n
2<\/p>\n
Credit Agreement, the other Loan Documents or any other instrument or
\n document furnished pursuant hereto or thereto; (d) appoints and authorizes
\n the Administrative Agent to take such action as agent on its behalf and to
\n exercise such powers and discretion under the Credit Agreement, the other
\n Loan Documents or any other instrument or document furnished pursuant
\n hereto or thereto as are delegated to the Administrative Agent by the terms
\n thereof, together with such powers as are incidental thereto; and (e)
\n agrees that it will be bound by the provisions of the Credit Agreement and
\n will perform in accordance with its terms all the obligations which by the
\n terms of the Credit Agreement are required to be performed by it as a
\n Lender including, if it is organized under the laws of a jurisdiction
\n outside the United States, its obligation pursuant to Section 2.14(d) of
\n the Credit Agreement.<\/p>\n
4. The effective date of this Assignment and Acceptance shall be the
\n Effective Date of Assignment described in Schedule 1 hereto (the “EFFECTIVE
\n DATE”). Following the execution of this Assignment and Acceptance, it will
\n be delivered to the Administrative Agent for acceptance by it and recording
\n by the Administrative Agent pursuant to the Credit Agreement, effective as
\n of the Effective Date (which shall not, unless otherwise agreed to by the
\n Administrative Agent, be earlier than five Business Days after the date of
\n such acceptance and recording by the Administrative Agent).<\/p>\n
5. Upon such acceptance and recording, from and after the Effective Date,
\n the Administrative Agent shall make all payments in respect of the Assigned
\n Interest (including payments of principal, interest, fees and other
\n amounts) to the Assignor for amounts which have accrued to the Effective
\n Date and to the Assignee for amounts which have accrued subsequent to the
\n Effective Date.<\/p>\n
6. From and after the Effective Date, (a) the Assignee shall be a party to
\n the Credit Agreement and, to the extent provided in this Assignment and
\n Acceptance, have the rights and obligations of a Lender thereunder and
\n under the other Loan Documents and shall be bound by the provisions thereof
\n and (b) the Assignor shall, to the extent provided in this Assignment and
\n Acceptance, relinquish its rights and be released from its obligations
\n under the Credit Agreement.<\/p>\n
7. This Assignment and Acceptance shall be governed by and construed in
\n accordance with the laws of the State of New York.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
\nAcceptance to be executed as of the date first above written by their respective
\nduly authorized officers on Schedule 1 hereto.<\/p>\n
Schedule 1
\n to Assignment and Acceptance with respect to the
\n Five-Year Credit Agreement, dated as of September 28, 2001
\n among the Borrower, the Lenders party thereto,
\n the Co-Documentation Agents, the Co-Syndication Agents,
\n and The Chase Manhattan Bank, as Administrative Agent<\/p>\n
Name of Assignor: _______________________<\/p>\n
Name of Assignee: _______________________<\/p>\n
Effective Date of Assignment: _________________<\/p>\n
\n\n Principal Commitment
\n Credit Facility Assigned Amount Assigned Percentage Assigned
\n ———————— ————— ——————-
\n
\n $———- —-.———-%<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
[Name of Assignee] [Name of Assignor]<\/p>\n
By: _________________________ By: _________________________
\n Name: Name:
\n Title: Title:<\/p>\n
Accepted for Recordation Required Consents (if any):
\nin the Register:<\/p>\n
THE CHASE MANHATTAN BANK, as FEDEX CORPORATION, as Borrower
\nAdministrative Agent<\/p>\n
By: _________________________
\nBy: _________________________ Name:
\n Name: Title:
\n Title:
\n THE CHASE MANHATTAN BANK, as
\n Administrative Agent<\/p>\n
By: _________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT F<\/p>\n
FORM OF EXEMPTION CERTIFICATE<\/p>\n
Reference is made to the Five-Year Credit Agreement, dated as of
\nSeptember 28, 2001 (as amended, supplemented or otherwise modified from time to
\ntime, the “CREDIT AGREEMENT”), among FedEx Corporation (the “BORROWER”), the
\nLenders party thereto, the Co-Documentation Agents and Co-Syndication Agents
\nnamed therein and The Chase Manhattan Bank, as administrative agent (in such
\ncapacity, the “ADMINISTRATIVE AGENT”). Unless otherwise defined herein, terms
\ndefined in the Credit Agreement and used herein shall have the meanings given to
\nthem in the Credit Agreement. ______________________ (the “NON-U.S. LENDER”) is
\nproviding this certificate pursuant to Section 2.14(d) of the Credit Agreement.
\nThe Non-U.S. Lender hereby represents and warrants that:<\/p>\n
1. The Non-U.S. Lender is the sole record and beneficial owner of the
\nLoans in respect of which it is providing this certificate.<\/p>\n
2. The Non-U.S. Lender is not a “bank” for purposes of Section
\n881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”). In
\nthis regard, the Non-U.S. Lender further represents and warrants that:<\/p>\n
(a) the Non-U.S. Lender is not subject to regulatory or other
\nlegal requirements as a bank in any jurisdiction; and<\/p>\n
(b) the Non-U.S. Lender has not been treated as a bank for
\npurposes of any tax, securities law or other filing or submission made to any
\nGovernmental Authority, any application made to a rating agency or qualification
\nfor any exemption from tax, securities law or other legal requirements.<\/p>\n
3. The Non-U.S. Lender is not a 10-percent shareholder of the Borrower
\nwithin the meaning of Section 881(c)(3)(B) of the Code.<\/p>\n
4. The Non-U.S. Lender is not a controlled foreign corporation
\nreceiving interest from a related person within the meaning of Section
\n881(c)(3)(C) of the Code.<\/p>\n
IN WITNESS WHEREOF, the undersigned has duly executed this
\ncertificate.<\/p>\n
[NAME OF NON-U.S. LENDER]<\/p>\n
By: _______________________________
\n Name:
\n Title:<\/p>\n
Date: ____________________<\/p>\n
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