Exhibit (d)(2)
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is
dated as of August 15, 2003, by and between Airborne, Inc., a Delaware
corporation, as Issuer (the "Company"), each of the entities identified as
Guarantors on the signature page hereto (collectively the "Guarantors"), and
The Bank of New York, a New York banking corporation (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company, the Guarantors and the Trustee are parties to
that certain Indenture, dated as of March 25, 2002 (the "Indenture";
capitalized terms used and not otherwise defined herein have the meanings
given such terms in the Indenture), pursuant to which the Company issued
$150,000,000 in aggregate principal amount of 5.75% Convertible Senior Notes
due April 1, 2007 (the "Notes");
WHEREAS, the Company has entered into an Agreement and Plan of
Merger dated as of March 25, 2003 (the "Merger Agreement") with DHL Worldwide
Express, B.V., a company organized and existing under the laws of the
Netherlands ("DHL") and Atlantis Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of DHL ("Atlantis"), pursuant to which
Atlantis shall merge with and into the Company (the "Merger");
WHEREAS, the Company shall continue as the surviving corporation of
the Merger and will be a wholly-owned subsidiary of DHL (the "Surviving
Corporation");
WHEREAS, the merger consideration to be paid in connection with the
Merger is one share of common stock of ABX Air, Inc., a Delaware corporation
("ABX Air") and $21.25 in cash (collectively, the "Merger Consideration") for
each share of Company common stock;
WHEREAS, pursuant to Section 8.1 of the Indenture, the Surviving
Corporation has requested the Trustee to enter into this Supplemental
Indenture; and
WHEREAS, Section 8.1 of the Indenture provides that the Company, the
Guarantors and the Trustee may enter into a Supplemental Indenture without the
consent of any Holders of securities of the Company for the purpose of
evidencing the succession of another Person to the Company and the assumption
by such successor of the covenants and obligations of the Company contained in
the Indenture and in the Notes;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Surviving Corporation, the Guarantors and the Trustee mutually covenant and
agree as follows:
ARTICLE 1
SUCCESSOR TO THE COMPANY
SECTION 1.1. Assumption of Obligations by Successor Company. The
Surviving Corporation, as the surviving corporation, hereby expressly assumes
(i) the due and punctual payment of the principal of, premium, if any, and
interest (including Liquidated Damages, if any) on all of the Securities as
applicable, and (ii) the performance or observance of every covenant of the
Indenture on the part of the Company to be performed or observed.
SECTION 1.2. Conversion Rights. Pursuant to Section 12.11 of the
Indenture, the Surviving Corporation hereby agrees that the Holder of each
Security Outstanding as of the date of this Supplemental Indenture shall have
the right hereafter, during the period such Security shall be convertible as
specified in Section 12.11 of the Indenture, to convert such Securities only
into the Merger Consideration.
SECTION 1.3. Adiustments of Conversion. The Surviving Corporation
hereby agrees that the ABX Air common stock isssuable pursuant to Section 1.2
hereof shall be subject to adjustments that are as nearly equivalent as may be
practicable to the adjustments provided for in Article 12 of the Indenture.
ARTICLE 2.
CONDITIONS PRECEDENT
SECTION 2.1. Officer's Certificate. Trustee shall have received an
Officer's Certificate in a form reasonably satisfactory to Trustee and its
counsel stating that the Merger and this Supplemental Indenture comply with
Article VII of the Indenture and that all conditions precedent set forth in
the Indenture have been complied with.
SECTION 2.2. Opinion of Counsel. Trustee shall have received
originally executed copies of a favorable written opinion from (A) the general
counsel for the Surviving Corporation, stating that this Supplemental
Indenture has been duly authorized, executed and delivered by the Surviving
Corporation, and (B) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, outside counsel for the
Surviving Corporation, stating that (i) the execution of the Supplemental
Indenture is authorized and permitted by the Indenture, (ii) this Supplemental
Indenture constitutes a valid and legally binding obligation of the Surviving
Corporation enforceable against the Surviving Corporation in accordance with
its terms, (iii) the Merger and this Supplemental Indenture comply with
Article VII of the Indenture and (iv) all conditions precedent set forth in
the Indenture have been complied with.
SECTION 2.3. No Events of Default. As of the date hereof and after
giving effect to the Merger, no Event of Default, and no event that after
notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing.
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ARTICLE 3
MISCELLANEOUS
SECTION 3.1. Section 8.1 of the Indenture; Time Amendments Become
Operative. This Supplemental Indenture is a supplemental indenture pursuant to
Section 8.1 of the Indenture. Upon execution and delivery of this Supplemental
Indenture, the Indenture shall be amended and supplemented in accordance
herewith, the terms and conditions of this Supplemental Indenture shall be
part of the terms and conditions of the Indenture for any and all purposes,
and all the terms and conditions of both shall be read together as though they
constitute one and the same instrument, except that in case of conflict, the
provisions of this Supplemental Indenture will control. Notwithstanding an
earlier execution date, the amendments contained in this Supplemental
Indenture shall not become operative until the date and time the Merger is
consummated.
SECTION 3.2. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, THE UNITED STATES OF AMERICA.
SECTION 3.3. Counterparts. The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
SECTION 3.4. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.5. Full Force and Effect. Except as they have been
modified in this Supplemental Indenture, each and every term and provision of
the Indenture shall continue in full force and effect, and all references to
the Indenture in the Indenture shall be deemed to mean the Indenture as
supplemented and amended pursuant hereto.
SECTION 3.6. Trustee. The Trustee makes no representation as to the
validity, sufficiency or legality of this Supplemental Indenture; the
statements made herein are deemed to be those of the Surviving Corporation and
not the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
AIRBORNE, INC.,
as Issuer
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
AIRBORNE EXPRESS, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel and
Corporate Secretary
ABX AIR, INC., as Guarantor
By: /s/ W. Xxxxxx Xxxxx
---------------------------
Name: W. Xxxxxx Xxxxx
Title: Secretary
SKY COURIER, INC., as Guarantor
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
WILMINGTON AIR PARK, LLC, (successor to
Wilmington Air Park, Inc.), as Guarantor
By: ABX Air, Inc.
Its: sole member
By: /s/ W. Xxxxxx Xxxxx
---------------------------
Name: W. Xxxxxx Xxxxx
Title: Secretary
AIRBORNE FTZ, INC., as Guarantor
By: /s/ W. Xxxxxx Xxxxx
---------------------------
Name: W. Xxxxxx Xxxxx
Title: Secretary
AVIATION FUEL, INC., as Guarantor
By: /s/ W. Xxxxxx Xxxxx
---------------------------
Name: W. Xxxxxx Xxxxx
Title: Secretary
SOUND SUPPRESSION, INC., as Guarantor
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President, Administration
