EXHIBIT 4.f
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N586FE)
October 23, 1996
Ameritech Credit Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
First Security Bank,
National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
State Street Bank and Trust Company
0 Xxxxxxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen,
In connection with that certain Participation Agreement (Federal
Express Corporation Trust No. N586FE), dated as of April 1, 1996, as amended
and restated as of September 1, 1996 and as further amended and restated as of
October 15, 1996 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee ("Lessee"), Ameritech Credit Corporation, as Owner
Participant ("Owner Participant"), Xxxxxx Guaranty Trust Company of New York,
Bank of America National Trust & Savings Association, The Chase Manhattan
Bank, Commerzbank AG, Atlanta Agency and NationsBank, N.A. (South), as
Original Loan Participants ("Original Loan Participants"), First Security
Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Owner Trustee under the Trust Agreement
referred to therein ("Owner Trustee"), State Street Bank and Trust Company,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee under the Trust Indenture ("Indenture Trustee"), and State
Street Bank and Trust Company, not in its individual capacity, except as
otherwise stated, but solely as Pass Through Trustee under the Pass Through
Trust Agreement ("Pass Through Trustee"), and that certain Lease Agreement
(Federal Express Corporation Trust N586FE) dated as of September 1, 1996, as
amended and restated as of October 15, 1996 (the "Lease") by and between First
Security Bank, National Association, not in its individual capacity but solely
as Owner Trustee, as Lessor, and Federal Express Corporation, as Lessee, the
undersigned agree as follows, notwithstanding anything else in the
Participation Agreement, the Lease or any other Operative Agreement to the
contrary:
1. The words "Default or" shall be added to clause (i)(A) of the proviso
to the first paragraph of Section 7.02(a) of the Lease before the
words "Event of Default shall have occurred and be continuing on the
date the sublease is entered into".
2. For purposes of Section 7.02(a)(ii) of the Lease, the Lessee may not
without the prior written consent of the Lessor subject the Airframe
or permit the Airframe to be subjected to any interchange agreements.
3. Sections 13.01(a)(i) and 13.02(a) of the Lease shall require the
Lessee to maintain war risk insurance if the Aircraft is operated in
a war zone or a recognized area of armed hostilities, unless the
Lessee has obtained indemnification or insurance from the Government
satisfactory to the Lessor and the Indenture Trustee.
4. For purposes of Section 14.01 of the Lease, if an Event of Default
shall have occurred and be continuing, two (2) days' notice only
shall be required to be given to the Lessee by the Lessor, the
Indenture Trustee, the Loan Participants or the Owner Participant, as
the case may be, in order for such Person or its authorized
representative to inspect the Aircraft and the Aeronautics
Authority-required books and records of the Lessee or any sublessee
relating to the maintenance of the Aircraft.
This Ancillary Agreement is intended for all purposes of the Lease
and the other Operative Agreements to be an Ancillary Agreement for the
benefit of the Owner Participant, the Owner Trustee, the Loan Participants,
each Holder from time to time of any Certificate and the Indenture Trustee,
and an Operative Agreement.
This Ancillary Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York, including
matters of construction, validity and performance, without giving effect to
principles of conflicts of laws.
To the extent that this Ancillary Agreement constitutes chattel paper
(as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Ancillary Agreement may
be created through the transfer or possession of any counterpart other than
the original counterpart, which shall be the counterpart containing the
receipt executed by the Indenture Trustee on its signature page.
This Ancillary Agreement may be executed in separate counterparts,
each of which when so executed and delivered shall be an original (except that
only the counterpart bearing the receipt executed by the Indenture Trustee
shall be the original for purposes of perfecting a security interest therein
as chattel paper under the Uniform Commercial Code), but all such counterparts
shall together constitute but one and the same instrument.
This Ancillary Agreement shall inure to the benefit of the addressees
hereof and their respective successors and assigns.
Terms used herein without definition shall have the respective
meanings set forth in the Lease.
This Ancillary Agreement is intended to amend the Lease, and
provisions of this Ancillary Agreement shall control in the event any
provision of the Lease should conflict with any provision hereof. The
provisions of Section 22.03 of the Lease are hereby incorporated herein.
The parties hereto agree that acceptance of this Ancillary Agreement
may be made by the Indenture Trustee, on behalf of the Loan Participants and
the Holders from time to time of the Certificates, by execution by the
Indenture Trustee of the form of acceptance provided below, with the same
effect as if the Loan Participants and such Holders had executed such form of
acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer and
Managing Director -
Structured Finance
Agreed and Accepted:
AMERITECH CREDIT CORPORATION
By: _______________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By: _______________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: _______________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement I is
hereby acknowledged on this __ day of October 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Indenture Trustee
By: _______________________________
Name:
Title:
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N662FE)
This Ancillary Agreement I ("Agreement") dated September 23, 1996, as
amended and restated this 23rd day of October, 1996 among Federal Express
Corporation, a Delaware corporation, PMCC Leasing Corporation, a Delaware
corporation, First Security Bank, National Association, a national banking
association, in its capacity as Owner Trustee under the Lease, and State
Street Bank and Trust Company, a Massachusetts trust company, as Indenture
Trustee.
Reference is made to that certain leveraged lease dated as of
September 1, 1996, as amended and restated as of October 15, 1996 of one (1)
Airbus A300F4-605R Aircraft initially bearing FAA Registration No. N662FE (or
any replacement thereof under such lease). Capitalized terms used herein
shall have the meaning assigned to such terms in the Participation Agreement
(Federal Express Corporation Trust No. N662FE), dated as of September 1, 1996,
as amended and restated as of October 15, 1996 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee ("Lessee"), PMCC
Leasing Corporation, as Owner Participant ("Owner Participant"), Xxxxxx
Guaranty Trust Company of New York, Bank of America National Trust & Savings
Association, The Chase Manhattan Bank, Commerzbank AG, Atlanta Agency and
NationsBank, N.A. (South), as Original Loan Participants ("Original Loan
Participants"), First Security Bank, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee
under the Trust Agreement referred to therein ("Owner Trustee"), State Street
Bank and Trust Company, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee under the Trust Indenture and Security
Agreement ("Indenture Trustee") and State Street Bank and Trust Company, not
in its individual capacity, except as otherwise stated, but solely as Pass
Through Trustee. With respect to said transaction the parties agree as
follows, anything in the Operative Agreements to the contrary notwithstanding:
1. The references to Event of Default in Section 4.01(a) of the
Lease shall include Payment Default and Bankruptcy Default.
2. Clause (iii) of the first sentence of Section 4.02(a) of the
Lease shall also include a Payment Default.
3. The words "or substantial civil unrest" shall be inserted after
the words "such country shall not then be experiencing war" in Section
7.02(a)(i) of the Lease and "which is not experiencing war" in Section
7.02(a)(ii) of the Lease.
4. Section 10.01(c) of the Lease shall be replaced with and read as
follows:
(c) Payments to the Lessor. The total selling price
realized at a sale pursuant to Section 10.01(b) hereof (the "Gross
Sales Price") shall be retained by the Lessor (or the Indenture
Trustee as long as the Indenture is in force) and, in addition, on or
before the Proposed Termination Date, the Lessee shall pay to the
Lessor (or the Indenture Trustee as long as the Indenture is in
force), by wire transfer of immediately available funds, the sum of:
(i) the excess, if any, of the Termination Value for the
Aircraft computed as of the Proposed Termination Date over the
Gross Sales Price; plus
(ii) the installment of Basic Rent due with respect to
the Aircraft on the Proposed Termination Date to the extent
payable in arrears but not to the extent payable in advance;
plus
(iii) all other amounts then due and payable by the Lessee
(including, without limitation, the aggregate amount of any
Make-Whole Premium) under this Lease and any other Operative
Agreement.
All expenses of the sale shall be borne by the Lessee.
5. The first proviso in Section 16.01(d) of the Lease shall be
replaced with and read as follows:
provided, that in the event such failure is curable and so long
as (but for no longer than 150 days after such 30-day period)
the Lessee shall have promptly undertaken such cure after the
Lessee receives notice thereof which undertaking shall be
diligently and continuously pursued using the Lessee's
reasonable best efforts, and so long as, in the case of the
Lessee's obligation to remove Liens, during such extended cure
period there is no (i) material danger of the sale, forfeiture
or loss of the Lessor's Estate, the Aircraft, the Airframe or
any Engine or any interest therein, (ii) material risk of civil
liabilities or (iii) risk of the assertion of criminal charges
against the Lessor, the Owner Participant or the Indenture
Trustee, such failure shall not constitute an Event of Default;.
6. The definition of "Replacement Engine" in Schedule II to the
Participation Agreement shall read as follows:
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine, and suitable for installation
and use on the Airframe; provided, that an engine of another manufacturer of
equivalent or greater value, utility, remaining useful life and airworthiness,
and suitable for installation and use on the Airframe may constitute a
Replacement Engine if at the time of replacement General Electric is no longer
manufacturing engines certificated for use on the Airframe, the Lessee does not
at the time of replacement own or lease any General Electric engines
certificated for use on the Airframe or, except in connection with the return
of the Aircraft under Article 12 of the Lease, General Electric is no longer
manufacturing engines which reasonably fulfill the Lessee's operational
requirements; and provided further that such engine shall be of the same make,
model and manufacturer as the other engine installed on the Aircraft and shall
be an engine of a type then being utilized by the Lessee on a significant
number of other Airbus A300-600 airframes operated by the Lessee.
7. The Assignment and Assumption Agreement shall be substantially in
the form of Exhibit E-1 to the Participation Agreement, and the Owner
Participant Guaranty shall be substantially in the form of Exhibit E-2 to the
Participation Agreement.
This Agreement is intended to be and shall be deemed an "Operative
Agreement". This Agreement is further intended to amend and modify certain
provisions of the other Operative Agreements as set forth herein, and in the
event of any conflict between the provisions of this Agreement and any other
Operative Agreement, the provisions hereof shall govern.
To the extent that this Agreement constitutes chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), no security interest in this Agreement may be created through
the transfer or possession of any counterpart other than the original
counterpart, which shall be the counterpart containing the receipt executed by
the Indenture Trustee on its signature page.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
This Agreement may be executed in separate counterparts, each of which
when so executed and delivered shall be an original (except that only the
counterpart bearing the receipt executed by the Indenture Trustee shall be the
original for purposes of perfecting a security interest therein as chattel
paper under the Uniform Commercial Code), but all such counterparts shall
together constitute but one and the same instrument.
This Agreement shall inure to the benefit of the addressees hereof
and their respective successors and assigns.
The parties hereto agree that acceptance of this Agreement may be
made by the Indenture Trustee, on behalf of the Holders from time to time of
the Certificates, by execution by the Indenture Trustee of the form of
acceptance provided below, with the same effect as if such Holders had
executed such form of acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer and
Managing Director -
Structured Finance
PMCC LEASING CORPORATION
By: _________________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Owner Trustee
By: _________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement
I is hereby acknowledged on this __ day of October 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
ANCILLARY AGREEMENT I
(FEDERAL EXPRESS CORPORATION TRUST NO. N667FE)
This Ancillary Agreement I ("Agreement") dated August 28, 1996,
as amended and restated this 23rd day of October, 1996 among Federal Express
Corporation, a Delaware corporation, PMCC Leasing Corporation, a Delaware
corporation, First Security Bank, National Association, a national banking
association, in its capacity as Owner Trustee under the Lease, and State Street
Bank and Trust Company, a Massachusetts trust company, as Indenture Trustee.
Reference is made to that certain leveraged lease dated as of
August 1, 1996, as amended and restated as of October 15, 1996 of one (1)
Airbus A300F4-605R Aircraft initially bearing FAA Registration No. N667FE (or
any replacement thereof under such lease). Capitalized terms used herein
shall have the meaning assigned to such terms in the Participation Agreement
(Federal Express Corporation Trust No. N667FE), dated as of August 1, 1996, as
amended and restated as of October 15, 1996 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee ("Lessee"), PMCC Leasing
Corporation, as Owner Participant ("Owner Participant"), Xxxxxx Guaranty Trust
Company of New York, Bank of America National Trust & Savings Association, The
Chase Manhattan Bank, Commerzbank AG, Atlanta Agency and NationsBank, N.A.
(South), as Original Loan Participants ("Original Loan Participants"), First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Owner Trustee under the Trust Agreement
referred to therein ("Owner Trustee"), State Street Bank and Trust Company,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee under the Trust Indenture and Security Agreement ("Indenture
Trustee") and State Street Bank and Trust Company, not in its individual
capacity, except as otherwise stated, but solely as Pass Through Trustee.
With respect to said transaction the parties agree as follows, anything in the
Operative Agreements to the contrary notwithstanding:
1. The references to Event of Default in Section 4.01(a) of
the Lease shall include Payment Default and Bankruptcy Default.
2. Clause (iii) of the first sentence of Section 4.02(a) of
the Lease shall also include a Payment Default.
3. The words "or substantial civil unrest" shall be inserted
after the words "such country shall not then be experiencing war" in Section
7.02(a)(i) of the Lease and "which is not experiencing war" in Section
7.02(a)(ii) of the Lease.
4. Section 10.01(c) of the Lease shall be replaced with and
read as follows:
(c) Payments to the Lessor. The total selling
price realized at a sale pursuant to Section 10.01(b) hereof
(the "Gross Sales Price") shall be retained by the Lessor (or
the Indenture Trustee as long as the Indenture is in force)
and, in addition, on or before the Proposed Termination Date,
the Lessee shall pay to the Lessor (or the Indenture Trustee as
long as the Indenture is in force), by wire transfer of
immediately available funds, the sum of:
(i) the excess, if any, of the Termination Value
for the Aircraft computed as of the Proposed Termination
Date over the Gross Sales Price; plus
(ii) the installment of Basic Rent due with
respect to the Aircraft on the Proposed Termination Date
to the extent payable in arrears but not to the extent
payable in advance; plus
(iii) all other amounts then due and payable by the
Lessee (including, without limitation, the aggregate
amount of any Make-Whole Premium) under this Lease and
any other Operative Agreement.
All expenses of the sale shall be borne by the Lessee.
5. The first proviso in Section 16.01(d) of the Lease shall be
replaced with and read as follows:
provided, that in the event such failure is curable and
so long as (but for no longer than 150 days after such
30-day period) the Lessee shall have promptly undertaken
such cure after the Lessee receives notice thereof which
undertaking shall be diligently and continuously pursued
using the Lessee's reasonable best efforts, and so long
as, in the case of the Lessee's obligation to remove
Liens, during such extended cure period there is no (i)
material danger of the sale, forfeiture or loss of the
Lessor's Estate, the Aircraft, the Airframe or any Engine
or any interest therein, (ii) material risk of civil
liabilities or (iii) risk of the assertion of criminal
charges against the Lessor, the Owner Participant or the
Indenture Trustee, such failure shall not constitute an
Event of Default;.
6. The definition of "Replacement Engine" in Schedule II to the
Participation Agreement shall read as follows:
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine, and suitable for installation
and use on the Airframe; provided, that an engine of another manufacturer of
equivalent or greater value, utility, remaining useful life and airworthiness,
and suitable for installation and use on the Airframe may constitute a
Replacement Engine if at the time of replacement General Electric is no longer
manufacturing engines certificated for use on the Airframe, the Lessee does
not at the time of replacement own or lease any General Electric engines
certificated for use on the Airframe or, except in connection with the return
of the Aircraft under Article 12 of the Lease, General Electric is no longer
manufacturing engines which reasonably fulfill the Lessee's operational
requirements; and provided further that such engine shall be of the same make,
model and manufacturer as the other engine installed on the Aircraft and shall
be an engine of a type then being utilized by the Lessee on a significant
number of other Airbus A300-600 airframes operated by the Lessee.
7. The Assignment and Assumption Agreement shall be
substantially in the form of Exhibit E-1 to the Participation Agreement, and
the Owner Participant Guaranty shall be substantially in the form of Exhibit
E-2 to the Participation Agreement.
This Agreement is intended to be and shall be deemed an
"Operative Agreement". This Agreement is further intended to amend and modify
certain provisions of the other Operative Agreements as set forth herein, and
in the event of any conflict between the provisions of this Agreement and any
other Operative Agreement, the provisions hereof shall govern.
To the extent that this Agreement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Agreement may be
created through the transfer or possession of any counterpart other than the
original counterpart, which shall be the counterpart containing the receipt
executed by the Indenture Trustee on its signature page.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS.
This Agreement may be executed in separate counterparts, each of
which when so executed and delivered shall be an original (except that only the
counterpart bearing the receipt executed by the Indenture Trustee shall be the
original for purposes of perfecting a security interest therein as chattel
paper under the Uniform Commercial Code), but all such counterparts shall
together constitute but one and the same instrument.
This Agreement shall inure to the benefit of the addressees
hereof and their respective successors and assigns.
The parties hereto agree that acceptance of this Agreement may
be made by the Indenture Trustee, on behalf of the Holders from time to time
of the Certificates, by execution by the Indenture Trustee of the form of
acceptance provided below, with the same effect as if such Holders had
executed such form of acceptance.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer and
Managing Director -
Structured Finance
PMCC LEASING CORPORATION
By: _________________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Owner Trustee
By: _________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
Receipt of this original counterpart of the Ancillary Agreement
I is hereby acknowledged on this __ day of October 1996.
Indenture Trustee: STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Indenture Trustee
By: _________________________________
Name:
Title:
