EXHIBIT 10
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First
Amendment") is dated as of the 20th day of April, 2001 among
AIRBORNE, INC. (the "Borrower"), WACHOVIA BANK, N.A., as
Administrative Agent (the "Administrative Agent") and the Lenders
(the "Lenders") party to the Credit Agreement (defined below);
W I T N E S S E T H :
WHEREAS, the Borrower, the Administrative Agent and the
Lenders are parties to that certain Credit Agreement, dated as of
July 27, 2000 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative
Agent and the Lenders have agreed to certain amendments to the
Credit Agreement, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above
premises and other good and valuable consideration, the receipt
and sufficiency of which hereby is acknowledged by the parties
hereto, the Borrower, the Administrative Agent and the Lenders
hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in
the Credit Agreement shall from and after the date hereof refer
to the Credit Agreement as amended hereby.
2. Amendments.
(a) The following new definitions are hereby added to Section
1.01 of the Credit Agreement in alphabetical order:
"Collateral Documents" has the meaning set forth in
Section 5.24(a).
"Dollar Equivalent" means the Dollar equivalent of the
amount of a Letter of Credit denominated in a foreign
currency acceptable to the Foreign LC Issuer, determined by
the Administrative Agent on the basis of its spot rate for
the purchase of the appropriate foreign currency with
Dollars.
"Excluded Aircraft Financings and Sale/Leasebacks"
means the secured financing and sale and leaseback of
aircraft of the Borrower and its Subsidiaries, provided that
(i) no more than 7 aircraft of the Borrower and its
Subsidiaries may be so used as collateral security or sold
and leased back, and (ii) the dollar amount of such
financings and consideration (cash and non-cash) paid for
such sales shall not exceed $160,000,000 in the aggregate.
"Foreign LC Issuer" means each of ABN-Amro Bank N.V.
and Bank of America, N.A.
"Issuers" means (i) the Administrative Agent and the
Foreign LC Issuers as issuers of new Letters of Credit under
clause (ii) of the definition of "Letter of Credit", and
(ii) each issuer of Letters of Credit outstanding on the
date of this Agreement and listed on Schedule 1.01; "Issuer"
means each of them, as the context requires.
"Letter of Credit" means (i) each letter of credit
listed on Schedule 1.01 and (ii) each commercial letter of
credit issued by the Administrative Agent for the account of
the Borrower pursuant to Article X.
"Letter of Credit Fee" has the meaning set forth in
Section 10.08.
"Letter of Credit Notice" has the meaning set forth in
Section 10.04(b).
"Letter of Credit Obligations" means, at any particular
time, the sum of (a) the Reimbursement Obligations at such
time, (b) the aggregate maximum amount available for drawing
under the Letters of Credit at such time and (c) the
aggregate maximum amount available for drawing under Letters
of Credit the issuance of which has been authorized by the
Administrative Agent but which have not yet been issued.
"Letter of Credit Application Agreement" shall mean,
with respect to a Letter of Credit, such form of application
therefor (whether in a single or several documents) as the
Administrative Agent may employ in the ordinary course of
business for its own account, whether or not providing for
collateral security, with such modifications thereto as may
be agreed upon by the Administrative Agent and the Borrower
and are not materially adverse to the interests of the
Lenders; provided, however, that in the event of any
conflict between the terms of any Letter of Credit
Application Agreement and this Agreement, the terms of this
Agreement shall control.
"Net Cash Proceeds" shall mean, in each case as set
forth in a statement in reasonable detail delivered by the
Borrower to the Administrative Agent:
(i) with respect to the disposition of assets (excluding any
Excluded Aircraft Financings and Sale/Leasebacks) by the Borrower
or any Subsidiary, the excess, if any, of (1) the cash proceeds
received in connection with such disposition over (2) the sum of
(A) the principal amount of any Debt (other than the Loans) which
is secured by such asset and which is required to be repaid in
connection with the disposition thereof, plus (B) the reasonable
out-of-pocket expenses incurred by the Borrower or any
Subsidiary, as the case may be, in connection with such
disposition, plus(C) so long as no Event of Default is in
existence, provision for taxes, including income taxes,
attributable to the disposition of such asset;
(ii) with respect to any cash proceeds received by any Borrower
or a Subsidiary in respect of the issuance of any Capital Stock
or Redeemable Preferred Stock or the incurrence of any Debt for
money borrowed (except Debt secured by Purchase Money Liens), all
such cash proceeds, after deducting therefrom all reasonable and
customary costs and expenses incurred by such Borrower or
Subsidiary directly in connection with the issuance of such
Capital Stock or Redeemable Preferred Stock or the incurrence of
such Debt for money borrowed; or
(iii) with respect to any condemnation awards or insurance
proceeds allocable to any assets of the Borrower or any
Subsidiary, means the gross proceeds from any casualty or
condemnation remaining after payment of all expenses (including
attorneys' fees) incurred in the collection of such gross
proceeds.
"Noteholders" means the holders of the 1992 & 1995
Notes.
"1992 & 1995 Notes" means, collectively, the
debentures, notes, instruments and other evidences of Debt
issued pursuant to the Indenture issued by Airborne Freight
Corporation dated on or about December 15, 1992.
"Purchase Money Liens" means Liens permitted under
Section 5.17(b), (c), (d) and (e).
"Reimbursement Obligations" means the reimbursement or
repayment obligations of the Borrower to the relevant Issuer
pursuant to Section 10.05 with respect to Letters of Credit.
(b) The following definitions contained in Section 1.01 of the
Credit Agreement are hereby amended and restated in their
entirety as follows:
"Borrowing" means a borrowing hereunder consisting of
Loans made to the Borrower (i) at the same time by all of
the Lenders, in the case of a Syndicated Borrowing, or (ii)
by Wachovia, in the case of Swing Loans. A Borrowing is a
"Syndicated Borrowing" if such Loans are made pursuant to
Section 2.01(a). A Borrowing is a "Base Rate Borrowing" if
such Loans are Base Rate Loans or a "Euro-Dollar Borrowing"
if such Loans are Euro-Dollar Loans. A Borrowing is a
"Swing Loan Borrowing" if such Loan is made pursuant to
Section 2.01(b).
"Loan" means a Base Rate Loan, Euro-Dollar Loan,
Syndicated Loan, or Swing Loan, and "Loans" means Base Rate
Loans, Euro-Dollar Loans, Syndicated Loans, or Swing Loans,
or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Subsidiary Guaranties, the Collateral Documents, the
Contribution Agreement, any other document evidencing,
relating to or securing the Loans or the Letter of Credit
Obligations, and any other document or instrument delivered
from time to time in connection with this Agreement, the
Notes, the Subsidiary Guaranties, the Collateral Documents,
the Contribution Agreement or the Loans or the Letter of
Credit Obligations, as such documents and instruments may be
amended or supplemented from time to time.
"Notes" means each of the Syndicated Loan Notes, or
Swing Loan Note, or any or all of them, as the context shall
require.
"Required Lenders" means at any time Lenders having at
least 51% of the aggregate amount of the Commitments or, if
the Commitments are no longer in effect, Lenders holding at
least 51% of the aggregate outstanding principal amount of
the sum of the (i) Syndicated Loans, and (ii) the Letter of
Credit Obligations.
"Swing Loan" means a Loan made by Wachovia pursuant to
Section 2.01(b), which must be a Base Rate Loan.
"Swing Loan Note" means the promissory note of the
Borrower, substantially in the form of Exhibit A-3,
evidencing the obligation of the Borrower to repay the Swing
Loans, together with all amendments, consolidations,
modifications, renewals, and supplements thereto.
"Unused Commitment" means at any date, with respect to
any Lender, an amount equal to (x) its Commitment less (y)
the aggregate outstanding principal amount of its Syndicated
Loans and the Swing Loans and the Letter of Credit
Obligations.
(c) Section 2.01 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 2.01. Commitments to Lend Syndicated
Loans; Swing Loans.
(a) Each Lender severally agrees, on the terms and conditions
set forth herein, to make Syndicated Loans to the Borrower from
time to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of Syndicated Loans by
such Lender shall not exceed the amount of its Commitment, and
(ii) the aggregate outstanding principal amount of all Syndicated
Loans, Swing Loans and Letter of Credit Obligations shall not
exceed the aggregate amount of the Commitments.
Each Syndicated Borrowing under this Section shall be
in an aggregate principal amount of (i) as to Base Rate
Loans, $1,000,000 or any larger integral multiple of
$500,000, and (ii) as to Euro-Dollar Loans, $5,000,000 or
any larger integral multiple of $1,000,000 (except that in
either case any such Syndicated Borrowing may be in the
aggregate amount of the Unused Commitments) and shall be
made from the several Lenders ratably in proportion to their
respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.09, prepay Syndicated Loans
and reborrow under this Section at any time before the
Termination Date.
(b) Swing Loans. In addition to the foregoing, Wachovia shall
from time to time, upon the request of the Borrower, if the
applicable conditions precedent in Article III have been
satisfied, make Swing Loans to the Borrower in an aggregate
principal amount at any time outstanding not exceeding
$15,000,000; provided that, immediately after such Swing Loan is
made, the conditions set forth in clauses (i) and (ii) of
Section 2.01(a) shall have been satisfied. Each Swing Loan
Borrowing under this Section 2.01(b) shall be in an aggregate
principal amount of $1,000,000 or any larger multiple of
$500,000. Within the foregoing limits, the Borrower may borrow
under this Section 2.01(b), prepay and reborrow under this
Section 2.01(b) at any time before the Termination Date. Swing
Loans shall not be considered a utilization of the Commitment of
Wachovia or any other Lender hereunder. All Swing Loans shall be
made as Base Rate Loans. At any time, upon the request of
Wachovia, each Lender (other than Wachovia which shall retain its
ratable share) shall, on the third Domestic Business Day after
such request is made, purchase a participating interest in Swing
Loans in an amount equal to its ratable share (based upon its
respective Commitment) of such Swing Loans. On such third
Domestic Business Day, each Lender will immediately transfer to
Wachovia, in immediately available funds, the amount of its
participation. Whenever, at any time after Wachovia has received
from any such Lender its participating interest in a Swing Loan,
the Administrative Agent receives any payment on account thereof,
the Administrative Agent will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time
during which such Lender's participating interest was outstanding
and funded); provided, however, that in the event that such
payment received by the Administrative Agent is required to be
returned, such Lender will return to the Administrative Agent any
portion thereof previously distributed by the Administrative
Agent to it. Each Lender's obligation to purchase such
participating interests shall be absolute and unconditional and
shall not be affected by any circumstance, including, without
limitation: (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender or any other Person may have
against Wachovia requesting such purchase or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the termination of the
Commitments; (iii) any adverse change in the condition (financial
or otherwise) of the Borrower, the Parent or any other Person;
(iv) any breach of this Agreement by the Borrower or any other
Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(d) Section 2.02 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 2.02. Method of Borrowing Loans.
(a) The Borrower shall give the Administrative Agent notice (a
"Notice of Borrowing"), which shall be substantially in the form
of Exhibit E-1, prior to (i) 2:00 P.M. (Atlanta, Georgia time) on
the same Domestic Business Day of each Swing Loan Borrowing, (ii)
12:00 noon (Atlanta, Georgia time) on the same Domestic Business
Day of each Syndicated Loan which is a Base Rate Borrowing, and
(iii) 12:00 noon (Atlanta, Georgia time) at least 3 Euro-Dollar
Business Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-
Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans or Swing Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share of such Syndicated Borrowing
and such Notice of Borrowing, once received by the Administrative
Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on the date
of each Syndicated Borrowing, each Lender shall (except as
provided in paragraph (d) of this Section) make available its
ratable share of such Syndicated Borrowing, in Federal or other
funds immediately available in Atlanta, Georgia, to the
Administrative Agent at its address determined pursuant to
Section 9.01. Unless the Administrative Agent determines that
any applicable condition specified in Article III has not been
satisfied, the Administrative Agent will make the funds so
received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address. Unless the
Administrative Agent receives notice from a Lender, at the
Administrative Agent's address referred to in or specified
pursuant to Section 9.01, no later than 4:00 P.M. (local time at
such address) on the Domestic Business Day before the date of a
Syndicated Borrowing stating that such Lender will not make a
Syndicated Loan in connection with such Syndicated Borrowing, the
Administrative Agent shall be entitled to assume that such Lender
will make a Syndicated Loan in connection with such Syndicated
Borrowing and, in reliance on such assumption, the Administrative
Agent may (but shall not be obligated to) make available such
Lender's ratable share of such Syndicated Borrowing to the
Borrower for the account of such Lender. If the Administrative
Agent makes such Lender's ratable share available to the Borrower
and such Lender does not in fact make its ratable share of such
Syndicated Borrowing available on such date, the Administrative
Agent shall be entitled to recover such Lender's ratable share
from either (but not both) (x) such Lender, together with
interest thereon for each day during the period from the date of
such Syndicated Borrowing until such sum shall be paid in full at
a rate per annum equal to the overnight Federal funds to cover
such amount for each such day during such period, or (y) the
Borrower (and for such purpose shall be entitled, after notice to
the Borrower, to charge such amount to any account of the
Borrower maintained with the Administrative Agent), together with
interest thereon for each day during the period from the date of
such Syndicated Borrowing until such sum shall be paid in full at
a rate per annum equal to the Base Rate or Adjusted LIBO Rate,
whichever is in effect for such Loan, plus the Applicable Margin;
provided that (i) any such payment by the Borrower of such
Lender's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such
Lender and (ii) until such Lender has paid its ratable share of
such Syndicated Borrowing, together with interest pursuant to the
foregoing, it will have no interest in or rights with respect to
such Syndicated Borrowing for any purpose hereunder. If the
Administrative Agent does not exercise its option to advance
funds for the account of such Lender, it shall forthwith notify
the Borrower of such decision. Unless the Administrative Agent
determines that any applicable condition specified in Article III
has not been satisfied, Wachovia will make available to the
Borrower at Wachovia's Lending Office the amount of any such
Borrowing which is a Swing Loan Borrowing.
(d) If any Lender makes a new Syndicated Loan hereunder on a day
on which the Borrower is to repay all or any part of an
outstanding Syndicated Loan from such Lender, such Lender shall
apply the proceeds of its new Syndicated Loan to make such
repayment as a Refunding Loan and only an amount equal to the
difference (if any) between the amount being borrowed and the
amount of such Refunding Loan shall be made available by such
Lender to the Administrative Agent as provided in paragraph (c)
of this Section, or remitted by the Borrower to the
Administrative Agent as provided in Section 2.13, as the case may
be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Fixed Rate Borrowing may be made if there shall
have occurred a Default or an Event of Default, which Default or
Event of Default shall not have been cured or waived, and all
Refunding Loans shall be made as Base Rate Loans (but shall bear
interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Syndicated Borrowing
are to be Base Rate Loans or Euro-Dollar Loans, such Syndicated
Loans shall be made as Base Rate Loans. If the Borrower is
otherwise entitled under this Agreement to repay any Syndicated
Loans maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Borrowing, and the Borrower
fails to repay such Syndicated Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new
Syndicated Borrowing, a new Syndicated Borrowing shall be deemed
to be made on the date such Syndicated Loans mature in an amount
equal to the principal amount of the Syndicated Loans so
maturing, and the Syndicated Loans comprising such new Syndicated
Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein,
there shall not be more than 12 Interest Periods outstanding at
any given time.
(e) Section 2.05(a) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(a) The Syndicated Loans of each Lender shall be evidenced by a
single Syndicated Loan Note payable to the order of such Lender
for the account of its Lending Office in an amount equal to the
original principal amount of such Lender's Commitment. The Swing
Loans shall be evidenced by a single Swing Loan Note payable to
the order of Wachovia in the original principal amount of
$15,000,000.
(f) Section 2.07(a) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(a) "Applicable Margin" means either (i) 1.500% for Base Rate
Loans, or (ii) 2.125% for Euro-Dollar Loans.
(g) Section 2.08(a) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(a) The Borrower shall pay to the Administrative Agent for the
ratable account of each Lender a facility fee (the "Facility
Fee") on the maximum amount of the aggregate Commitments in
effect for any relevant period, irrespective of usage, calculated
at a rate per annum equal to 0.375%. The Facility Fee shall
accrue at all times from and including the Closing Date to but
excluding the Termination Date and shall be payable, in arrears,
on each Quarterly Payment Date and on the Termination Date.
(h) Section 2.12 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 2.12. Mandatory Prepayments.
(a) On each date on which the conditions set forth in clauses
(i) or (ii) of Section 2.01 are not satisfied (including, without
limitation, by reason of the reduction of the Commitments
pursuant to Section 2.09), the Borrower shall repay or prepay
such principal amount of the outstanding Loans, if any (together
with interest accrued thereon and any amount due under Section
8.05(a)), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed
the aggregate amount of the Commitments as then reduced. Each
such payment or prepayment shall be applied ratably to the Loans
of the Lenders outstanding on the date of payment or prepayment
in the following order of priority:(i) first, to Swing Loans;
(ii) second, to Base Rate Loans; and (iii) third, to Euro-Dollar
Loans.
(b) Contemporaneously upon receipt of Net Cash Proceeds, the
Borrower shall pay to the Administrative Agent, for the ratable
benefit of the Lenders, an amount equal to: (i) the sum of (x)
100% of Net Cash Proceeds in excess of $1,000,000 in the
aggregate in any Fiscal Year from the disposition of assets
(other than equipment and current assets) described in clause (i)
of the definition of "Net Cash Proceeds" plus (y) 100% of the Net
Cash Proceeds in excess of $5,000,000 in the aggregate, and
$500,000 for any single disposition, in any Fiscal Year from the
disposition of equipment described in clause (i) of the
definition of "Net Cash Proceeds", to the extent such Net Cash
Proceeds are not used to replace such disposed equipment with new
equipment within 365 days after such disposition; (ii) 100% of
the Net Cash Proceeds from the issuance of Capital Stock,
Redeemable Preferred Stock or Debt (other than the Loans)
described in clause (ii) of the definition of "Net Cash
Proceeds", and (iii) 100% of the Net Cash Proceeds from any
casualty or condemnation described in clause (iii) of the
definition of "Net Cash Proceeds," to the extent either (A) an
Event of Default is in existence, or (B) such Net Cash Proceeds
are not used to repair or replace such damaged or condemned
assets within 365 days after such disposition. Such prepayment
shall be accompanied by a detailed calculation showing all
deductions from gross proceeds in order to arrive at Net Cash
Proceeds, as well as amounts used or reserved for the purchase of
replacement equipment, if applicable. Nothing contained in this
clause (b) shall be deemed to be or construed to be consent by
the Administrative Agent or any Lender to sale of any assets or
issuance of any Capital Stock, Redeemable Preferred Stock or Debt
otherwise prohibited by this Agreement.
(i) Section 2.13(a) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, without any
setoff, counterclaim or any deduction whatsoever, not later than
11:00 A.M. (Atlanta, Georgia time) on the date when due, in
Federal or other funds immediately available in Atlanta,
Georgia, to the Administrative Agent at its address referred to
in Section 9.01. The Administrative Agent will promptly
distribute to Wachovia each such payment received on account of
Swing Loans and to each Lender its ratable share of each such
payment received by the Administrative Agent for the account of
the Lenders.
(j) Section 3.02 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 3.02. Conditions to All Borrowings.
The obligation of each Lender to make a Syndicated Loan
on the occasion of each Borrowing or of Wachovia to make a
Swing Loan, or of the Administrative Agent to issue any
Letter of Credit is subject to the satisfaction of the
following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing.
(b) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true
on and as of the date of such Borrowing (except to the extent any
such representation or warranty is expressly made as of a prior
date); and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a)
shall have been satisfied.
Each Syndicated Borrowing, each Swing Loan Borrowing,
and each Notice of Continuation or Conversion hereunder
shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c) and
(d) of this Section; provided, that if such Borrowing is a
Syndicated Borrowing which consists solely of a Refunding
Loan then, (i) if such Borrowing is a Euro-Dollar Borrowing
or such Notice of Continuation or Conversion is to a Euro-
Dollar Loan, such Borrowing or Notice of Continuation or
Conversion shall be deemed to be such a representation and
warranty by the Borrower only as to the matters set forth in
paragraphs (b) and (d) above, and (ii) if such Borrowing is
a Base Rate borrowing, or such Notice of Continuation or
Conversions is to a Base Rate Loan, such Borrowing or Notice
of Continuation or Conversion shall be deemed to be a
representation and warranty by the Borrower only as to the
matters set forth in paragraph (d) above.
(k) Section 5.05 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 5.05. Consolidations, Mergers and Sales of
Assets.
(a) The Borrower will not, nor will it permit any
Subsidiary to, consolidate or merge with or into any other
Person, provided that (a) the Borrower may merge with
another Person if (i) such Person was organized under the
laws of the United States of America or one of its states,
(ii) the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no
Default shall have occurred and be continuing, and (b)
Subsidiaries of the Borrower may merge with one another.
(b) The Borrower will not, nor will it permit any
Subsidiary to, sell, lease or otherwise transfer any assets
to, any other Person, or discontinue or eliminate any
business line or segment, provided that the foregoing
limitation on the sale, lease or other transfer of assets
and on the discontinuation or elimination of a business line
or segment shall not prohibit (1) the sale of Receivables
pursuant to the Receivables Securitization Program, or (2)
the transfer from AFC to Holding Company or any Material
Subsidiary of the capital stock of any Subsidiary, or (3)
sale and leasebacks described in the definition of "Excluded
Aircraft Financings and Sale/Leasebacks, or (4) so long as
no Event of Default is in existence, the sale, lease or
other transfer of assets not exceeding $5,000,000 in book
value in the aggregate, or (5) upon the prior written
consent of the Required Lenders, which consent shall not be
unreasonably withheld or delayed, so long as no Event of
Default is in existence, the sale, lease or other transfer
of assets owned by Subsidiaries and located at places of
business outside of the United States not exceeding
$10,000,000 in book value in the aggregate.
(l) Section 5.17(m) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(m) Liens incurred in connection with the Excluded
Aircraft Financings and Sale/Leasebacks.
(m) Section 5.19 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 5.19. Fixed Charges Coverage.
At the end of each Fiscal Quarter, the ratio of Income
Available for Fixed Charges to Consolidated Fixed Charges
for the Fiscal Quarter just ended and the immediately
preceding 3 Fiscal Quarters shall at all times be greater
than (i) 2.25 to 1.0 for the Fiscal Quarter ending March 31,
2001, and (ii) 2.75 to 1.0 for each Fiscal Quarter
thereafter.
(n) Section 5.21 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 5.21. Limitations on Additional Debt.
Neither the Borrower nor any Subsidiary shall issue any
Debt other than (i) Debt under this Agreement, (ii) Debt as
a part of the Excluded Aircraft Financings and
Sale/Leasebacks, and (iii) Debt securing Purchase Money
Liens.
(o) Section 5.24 of the Credit Agreement hereby is amended and
restated in its entirety as follows:
SECTION 5.24. Collateral Security; New Material
Subsidiaries.
(a) The Borrower agrees on or before May 31,
2001, to, and shall cause its Subsidiaries to, (a)
execute and deliver in favor of the Administrative
Agent, for the ratable benefit of all the Lenders, and
the Noteholders, securing the payment of the Loans, the
Letter of Credit Obligations and all other amounts
owing to the Administrative Agent and the Lenders under
this Agreement or any of the other Loan Documents, and
the Noteholders under the 1992 & 1995 Notes, security
agreements, mortgages and other collateral documents
(collectively, the "Collateral Documents") whereby the
Borrower and its Subsidiaries grant the Administrative
Agent, for the ratable benefit of all the Lenders and
the Noteholders, a first priority and only security
interest (subject to customary permitted encumbrances)
in and to the Borrower's and its Subsidiaries real and
personal property sufficient, in the Agent's sole
discretion, to fully collateralize the Debt outstanding
under the Loans, the Letter of Credit Obligations and
the 1992 & 1995 Notes, along with UCC financing
statements, landlord waivers, surveys, title insurance,
and other customary items reasonably requested by the
Administrative Agent in connection therewith (the
Borrower agreeing to reimburse the Administrative Agent
for any recording fees, taxes, title premiums, and
other expenses incurred in connection with the
perfection of the Administrative Agent's security
interest and lien (for the ratable benefit of all the
Lenders and the Noteholders) in the foregoing); (b)
deliver a favorable opinion of counsel for the Borrower
and its Subsidiaries, substantially in the form of
Exhibit C to the Credit Agreement, which opinion shall
include, without limitation, opinions as to the
perfection of the security interests and liens created
by such Collateral Documents; and such other items
described in clauses (e) and (f) of Section 3.01; and
(c) take such further actions as the Administrative
Agent shall reasonably request in connection with the
foregoing. Time shall be of the essence with respect to
the provisions of this Section.
(b) The Borrower shall cause all Subsidiaries
which become Material Subsidiaries (whether at the time
of or after creation or acquisition of such
Subsidiaries) to execute and deliver to the
Administrative Agent Subsidiary Guaranties and
Collateral Documents within 10 Business Days of such
Subsidiaries becoming Material Subsidiaries, along with
an opinion of counsel and secretaries' certificates
with respect to such Subsidiary Guaranties and
Collateral Documents in the forms and as described in
clause (a) immediately preceding, and a joinder
agreement satisfactory to the Administrative Agent
whereby such Material Subsidiaries become parties to
the Contribution Agreement as Contributing Parties. If
at any time the Subsidiaries that have complied with
the first sentence of this Section 5.24 fail to have
either (a) assets which constitute at least 85% of the
Consolidated Total Tangible Assets, or (b) contributed
at least 85% of Consolidated Operating Income for the
most recent Fiscal Quarter, then, in the event of such
failure, the Borrower shall cause any existing Non-
Material Subsidiaries to comply with this Section 5.24
to the extent necessary to remedy such failure within
10 Business Days of its occurrence.
(p) Section 9.05(a) of the Credit Agreement hereby is amended
and restated in its entirety as follows:
(a) The Borrower hereby grants to the Administrative Agent and
each Lender (and to Wachovia as to the Swing Loan) a lien for all
indebtedness and obligations owing to them from the Borrower upon
all deposits or deposit accounts, of any kind, or any interest in
any deposits or deposit accounts thereof, now or hereafter
pledged, mortgaged, transferred or assigned to the Administrative
Agent or any such Lender or otherwise in the possession or
control of the Administrative Agent or any such Lender for any
purpose for the account or benefit of the Borrower and including
any balance of any deposit account or of any credit of the
Borrower with the Administrative Agent or any such Lender,
whether now existing or hereafter established hereby authorizing
the Administrative Agent and each Lender at any time or times
with or without prior notice to apply such balances or any part
thereof to such of the indebtedness and obligations owing by the
Borrower to the Lenders and/or the Administrative Agent then past
due and in such amounts as they may elect, and whether or not the
collateral, if any, or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances
and property shall be deemed to be in the possession of the
Administrative Agent or any such Lender as soon as the same may
be put in transit to it by mail or carrier or by other bailee.
(q) A new Article X hereby is added to the amended to the Credit
Agreement as follows:
ARTICLE X
LETTER OF CREDIT FACILITY
SECTION 10.01. Obligation to Issue.
Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties of
the Borrower herein set forth, the Administrative Agent
shall issue for the account of Borrower, one or more Letters
of Credit denominated in Dollars, and the Foreign LC Issuer
shall issue for the account of the Borrower, one or more
Letters of Credit denominated in foreign currencies
acceptable in all respects to the Foreign LC Issuer, in
accordance with this Article X, from time to time during the
period commencing on the Closing Date and ending on the
Domestic Business Day prior to the Termination Date.
SECTION 10.02. Types and Amounts.
Neither the Administrative Agent nor the Foreign LC
Issuer shall have any obligation to issue any Letter of
Credit at any time:
(a) if the aggregate maximum amount then available for drawing
under Letters of Credit, after giving effect to the issuance of
the requested Letter of Credit, shall exceed any limit imposed by
law or regulation upon such Issuer; or
(b) if, after giving effect to the issuance of the requested
Letter of Credit, (i) the aggregate Letter of Credit Obligations
denominated in Dollars would exceed $115,000,000, (ii) the
aggregate Letter of Credit Obligations denominated in foreign
currencies would exceed the Dollar Equivalent of $5,000,000, or
(iii) the conditions set forth in clauses (i) and (ii) of
Section 2.01(a) would not be satisfied; or
(c) which has an expiration date after the Termination Date.
SECTION 10.03. Conditions.
In addition to being subject to the satisfaction of the
conditions contained in Article III, the obligation of the
Administrative Agent and the Foreign LC Issuer to issue any
Letter of Credit is subject to the satisfaction in full of
the following conditions:
(a) the Borrower shall have delivered to the
Issuer at such times and in such manner as the Issuer may
prescribe, a Letter of Credit Application Agreement and such
other documents and materials as may be required pursuant to
the terms thereof all satisfactory in form and substance to
the Issuer and the terms of the proposed Letter of Credit
shall be satisfactory in form and substance to the Issuer;
(b) as of the date of issuance no order, judgment
or decree of any court, arbitrator or Authority shall
purport by its terms to enjoin or restrain the Issuer from
issuing the Letter of Credit and no law, rule or regulation
applicable to the Issuer and no request or directive
(whether or not having the force of law) from any Authority
with jurisdiction over the Issuer shall prohibit or request
that the Issuer refrain from the issuance of letters of
credit generally or the issuance of that Letter of Credit;
and
(c) after the issuance of the requested Letter of
Credit, the conditions set forth in clauses (i) and (ii) of
Section 2.01(a) shall be satisfied.
SECTION 10.04. Issuance of Letters of Credit.
(a) Request for Issuance. At least two Domestic
Business Days before the effective date for any Letter of
Credit, the Borrower shall give the Administrative Agent and
the relevant Issuer a written notice containing the original
signature of an authorized officer or employee of such
Borrower. Such notice shall be irrevocable and shall
specify the original face amount of the Letter of Credit
requested, the effective date (which day shall be a Domestic
Business Day) of issuance of such requested Letter of
Credit, the date on which such requested Letter of Credit is
to expire, the amount of then outstanding Letter of Credit
Obligations, the purpose for which such Letter of Credit is
to be issued, whether such Letter of Credit may be drawn in
single or partial draws, the person for whose benefit the
requested Letter of Credit is to be issued, and, in the case
of a Letter of Credit denominated in a foreign currency,
such foreign currency, subject however, to the acceptance of
such foreign currency by the Foreign LC Issuer.
(b) Issuance; Notice of Issuance. If the
conditions set forth in Section 10.03 are satisfied, the
Issuer shall issue the requested Letter of Credit after
notice thereof, along with a copy of such issued Letter of
Credit, is given to the Administrative Agent. The
Administrative Agent shall give each Lender written or telex
notice in substantially the form of Exhibit O (each, a
"Letter of Credit Notice"), or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Letter
of Credit and shall deliver to each Lender in connection
with such notice a copy of the Letter of Credit issued by
the Issuer.
(c) No Extension or Amendment. No Issuer shall
extend or amend any Letter of Credit if the issuance of a
new Letter of Credit having the same terms as such Letter of
Credit as so amended or extended would be prohibited by
Section 10.02 or Section 10.03.
SECTION 10.05. Reimbursement Obligations; Duties of the
Issuer.
(a) Reimbursement. Notwithstanding any
provisions to the contrary in any Letter of Credit
Application Agreement:
(i) the Borrower shall reimburse the relevant Issuer for
drawings under a Letter of Credit issued by it no later than the
earlier of (A) the time specified in such Letter of Credit
Application Agreement, or (B) 1 Domestic Business Day after the
payment by the Issuer;
(ii) any Reimbursement Obligation with respect to any Letter of
Credit shall bear interest from the date of the relevant drawing
under the pertinent Letter of Credit until the date of payment in
full thereof at a rate per annum equal to (A) prior to the date
that is 3 Domestic Business Days after the date of the related
payment by the Issuer, the Base Rate and (B) thereafter, the
Default Rate; and
(iii) in order to implement the foregoing, upon the
occurrence of a draw under any Letter of Credit, unless the
Issuer is reimbursed in accordance with Subsection (i) above, the
Borrower irrevocably authorizes the Administrative Agent to treat
such nonpayment as a Notice of Borrowing in the amount of such
Reimbursement Obligation and to make Loans to Borrower in such
amount (which amount shall be the Dollar Equivalent amount with
respect to a Letter of Credit denominated in a foreign currency)
regardless of whether the conditions precedent to the making of
Loans hereunder have been met. The Borrower further authorizes
the Administrative Agent to credit the proceeds of such Loan so
as to immediately eliminate the liability of the Borrower for
Reimbursement Obligations under such Letter of Credit.
(b) Duties of the Administrative Agent. Any
action taken or omitted to be taken by the relevant Issuer
in connection with any Letter of Credit, if taken or omitted
in the absence of willful misconduct or gross negligence,
shall not put such Issuer under any resulting liability to
any Lender, or assuming that the Issuer has complied with
the procedures specified in Section 10.04 and such Lender
has not given a notice contemplated by Section 10.06(a) that
continues in full force and effect, relieve that Lender of
its obligations hereunder to the Issuer. In determining
whether to pay under any Letter of Credit, the relevant
Issuer shall have no obligation relative to the Lenders
other than to confirm that any documents required to have
been delivered under such Letter of Credit appear to comply
on their face, with the requirements of such Letter of
Credit.
SECTION 10.06 Participations.
(a) Purchase of Participations. Each Lender
hereby irrevocably and unconditionally purchases and
receives from each Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such
Lender's ratable share of the aggregate Commitments, in each
Letter of Credit outstanding on the date of this Agreement
and issued under the terms of this Agreement hereafter;
provided, that a Letter of Credit shall not be entitled to
the benefits of this Section 10.06 if the relevant Issuer
and the Administrative Agent shall have received written
notice from any Lender on or before the Domestic Business
Day immediately prior to the date of the issuance of such
Letter of Credit that one or more of the conditions
contained in Section 10.03 or Article III is not then
satisfied, and, in the event the Administrative Agent and
the relevant Issuer receives such a notice and determines
that one or more of such conditions contained in
Section 10.03 or Article III is not then satisfied, such
Issuer shall have no further obligation to issue any Letter
of Credit until such notice is withdrawn by that Lender or
until the Required Lenders have effectively waived such
condition in accordance with the provisions of this
Agreement. The parties to this Agreement acknowledge and
agree that all collateral security held by an Issuer or any
other issuer of a Letter of Credit securing any of the
Letter of Credit Obligations shall constitute collateral
security for the ratable benefit of all the Lenders as risk
participants hereunder.
(b) Sharing of Letter of Credit Payments. In the
event that any Issuer makes any payment under any Letter of
Credit for which the Borrower shall not have repaid such
amount to the Issuer pursuant to Section 10.07 or which
cannot be paid by a Loan pursuant to Subsection (iii) of
Section 10.05, the Issuer shall notify the Administrative
Agent and the Administrative Agent shall promptly notify
each Lender of such failure, and each Lender shall promptly
and unconditionally pay to the relevant Issuer such Lender's
ratable share of the Dollar Equivalent amount of such
payment and in same day funds. If the Administrative Agent
so notifies such Lender prior to 10:00 A.M. (Atlanta,
Georgia time) on any Domestic Business Day, such Lender
shall make available to the relevant Issuer its ratable
share of the amount of such payment on such Domestic
Business Day in same day funds. If and to the extent such
Lender shall not have so made its ratable share of the
amount of such payment available to the relevant Issuer,
such Lender agrees to pay to such Issuer forthwith on demand
such amount together with interest thereon, for each day
from the date such payment was first due until the date such
amount is paid to the Issuer at the Base Rate for the first
3 days and thereafter at the Default Rate. The failure of
any Lender to make available to the Issuer its Commitment
Share of any such payment shall neither relieve nor increase
the obligation of any other Lender hereunder to make
available to the relevant Issuer its ratable share of any
payment on the date such payment is to be made.
(c) Sharing of Reimbursement Obligation Payments.
Whenever an Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as
to which the Issuer has received any payments from the
Lenders pursuant to this Section 10.06, it shall promptly
pay to each Lender which has funded its participating
interest therein, in Dollars, an amount equal to such
Lender's Commitment Share thereof. Each such payment shall
be made by the Issuer on the Domestic Business Day on which
the funds are paid to such Person, if received prior to
noon, 12:00 pm. (Atlanta, Georgia time), on such Domestic
Business Day, and otherwise on the next succeeding Domestic
Business Day.
(d) Documentation. Upon the request of any
Lender, the Issuers shall furnish to such Lender copies of
any Letter of Credit, Letter of Credit Application Agreement
and other documentation relating to Letters of Credit issued
pursuant to this Agreement.
(e) Obligations Irrevocable. The obligations of
the Lenders to make payments to the Issuers with respect to
a Letter of Credit shall be irrevocable, not subject to any
qualification or exception whatsoever and shall be made in
accordance with, but not subject to, the terms and
conditions of this Agreement under all circumstances
(assuming that the Issuer has issued such Letter of Credit
in accordance with Section 10.04 and such Lender has not
given a notice contemplated by Section 10.06(a) that
continues in full force and effect), including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuer, any Lender or any
other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any
unrelated transactions;
(iii) any draft, certificate or any other document presented
under the Letter of Credit proves to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v) payment by the Issuer under any Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(vi) payment by the Issuer under any Letter of Credit against
presentation of any draft or certificate that does not comply
with the terms of such Letter of Credit, except payment resulting
from the gross negligence or willful misconduct of the relevant
Issuer; or
(vii) any other circumstances or happenings whatsoever,
whether or not similar to any of the foregoing, except
circumstances or happenings constituting or resulting from the
gross negligence or willful misconduct of the relevant Issuer.
SECTION 10.07 Payment of Reimbursement Obligations.
(a) Payments to Relevant Issuer. The Borrower agrees to pay to
the relevant Issuer the amount of all Reimbursement Obligations,
interest and other amounts payable to the relevant Issuer under
or in connection with any Letter of Credit issued for such
Borrower's account immediately when due, irrespective of:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense
or other right which the Borrower may have at any time
against a beneficiary named in a Letter of Credit or
any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, any Issuer, any Lender or any
other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other
document presented under the Letter of Credit proves to
be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms
of any of the Loan Documents;
(v) payment by the relevant Issuer under any
Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(vi) payment by the relevant Issuer under any
Letter of Credit against presentation of any draft or
certificate that does not comply with the terms of such
Letter of Credit, except payment resulting from the
gross negligence or willful misconduct of the relevant
Issuer; or
(vii) any other circumstances or happenings
whatsoever, whether or not similar to any of the
foregoing, except circumstances or happenings
constituting or resulting from the gross negligence or
willful misconduct of the relevant Issuer.
(b) Recovery or Avoidance of Payments. In
the event any payment by or on behalf of the Borrower
received by an Issuer with respect to a Letter of Credit and
distributed to the Lenders on account of their
participations is thereafter set aside, avoided or recovered
from the Issuer in connection with any receivership,
liquidation or bankruptcy proceeding, each Lender that
received such distribution shall, upon demand by the
Administrative Agent or such Issuer, contribute such
Lender's Commitment Share of the amount set aside, avoided
or recovered together with interest at the rate required to
be paid by the Administrative Agent or such Issuer upon the
amount required to be repaid by it.
SECTION 10.08. Compensation for Letters of Credit and
Reporting Requirements.
(a) Letter of Credit Fees. The Borrower
shall pay to the Administrative Agent with respect to each
Letter of Credit issued hereunder a letter of credit fee
("Letter of Credit Fee") equal to 2.125% per annum of the
face amount of such Letter of Credit, payable on the
Domestic Business Day on which such Letter of Credit is
issued. Letter of Credit Fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but
excluding the last day). The Administrative Agent shall
promptly remit such Letter of Credit Fees, when paid, to the
Lenders in accordance with their ratable shares thereof.
(b) Issuer Charges. The Borrower shall pay
to the relevant Issuer, solely for its own account, the
standard charges assessed by such Issuer in connection with
the issuance, administration, amendment and payment or
cancellation of Letters of Credit issued hereunder, which
charges shall be those typically charged by such Issuer to
its customers generally having credit and other
characteristics similar to the Borrower, as determined in
good faith by such Issuer.
SECTION 10.09. Indemnification; Exoneration.
(a) Indemnification. In addition to amounts
payable as elsewhere provided in this Article X, the
Borrower shall protect, indemnify, pay and save the
Administrative Agent, each Issuer and each Lender harmless
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) which the Administrative Agent,
any Issuer, or any Lender may incur or be subject to as a
consequence of the issuance of any Letter of Credit for the
Borrower's account other than as a result of its gross
negligence or willful misconduct, as determined by a court
of competent jurisdiction.
(b) Assumption of Risk by Borrower. As
between the Borrower, the Administrative Agent, the Issuers,
and the Lenders, the Borrower assumes all risks of the acts
and omissions of, or misuse of the Letters of Credit issued
for such Borrower's account by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in
limitation of the foregoing, the Administrative Agent, the
Issuers and the Lenders shall not be responsible for (i) the
form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection
with the application for and issuance of the Letters of
Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged, (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason,
(iii) failure of the beneficiary of a Letter of Credit to
comply duly with conditions required in order to draw upon
such Letter of Credit, (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher, for errors in interpretation of technical
terms, (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds
thereof, (vii) the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (viii) any consequences arising from
causes beyond the control of the Administrative Agent, the
Issuers and the Lenders.
(c) Exoneration. In furtherance and
extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the
Administrative Agent or any Issuer under or in connection
with the Letters of Credit or any related certificates if
taken or omitted in good faith and with reasonable care,
shall not put the Administrative Agent, any Issuer, or any
Lender under any resulting liability to the Borrower or
relieve the Borrower of any of its obligations hereunder to
any such Person.
SECTION 10.10. Letters of Credit in Foreign Currencies.
(a) At any time the Administrative Agent may,
and, upon the written request of any Lender after receipt of
any Letter of Credit Notice the Administrative Agent will,
calculate the Dollar Equivalent of each Letter of Credit
denominated in a foreign currency, and in the event that, as
a result of such calculation, the Dollar Equivalent of all
Letters of Credit denominated in a foreign currency
outstanding exceeds $5,000,000, then, upon request by the
Administrative Agent, the Borrower shall immediately repay
the Loans in an amount equal to such excess.
(b) If the Borrower is unable for any reason to
effect payment in a foreign currency with respect to any
Letter of Credit denominated in a foreign currency as
required by this Agreement or any Letter of Credit
Application Agreement, the Foreign LC Issuer may, through
the Administrative Agent, require such payment to be made in
Dollars in the Dollar Equivalent amount of such payment. In
any case in which the Borrower shall make such payment in
Dollars, the Borrower agrees to hold the Foreign LC Issuer
and each Lender harmless from any loss incurred by the
Foreign LC Issuer and such Lender arising from any change in
the value of Dollars in relation to such foreign currency
between the date such payment became due and the date of
payment thereof.
(c) If for the purpose of obtaining judgment in
any court or enforcing any such judgment it is necessary to
convert any amount due in any foreign currency into any
other currency, the rate of exchange used shall be the
Administrative Agent's spot rate of exchange for the
purchase of the foreign currency with such other currency at
the close of business on the Euro-Dollar Business Day
preceding the date on which judgment is given or any order
for payment is made. The obligation of the Borrower in
respect of any amount due from it hereunder shall,
notwithstanding any judgment or order for a liquidated sum
or sums in respect of amounts due hereunder or under any
judgment or order in any other currency or otherwise be
discharged only to the extent that on the Euro-Dollar
Business Day following receipt by the Administrative Agent
of any payment in a currency other than the relevant foreign
currency the Administrative Agent is able (in accordance
with normal lending procedures) to purchase the relevant
foreign currency with such other currency. If the amount of
the relevant foreign currency that the Administrative Agent
is able to purchase with such other currency is less than
the amount due in the relevant foreign currency,
notwithstanding any judgment or order, the Borrower shall
indemnify the Foreign LC Issuer and each Lender for the
shortfall.
(r) The parties hereto agree that after the date of this
Amendment, the Borrower may not request any Money Market Loans.
(s) Exhibits A-3 and O attached hereto, and Schedule 1.01
attached hereto are hereby attached to the Credit Agreement as
Exhibit A-3, O and Schedule 1.01, respectively.
3. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and
warranty heretofore made by it in the Credit Agreement and the
other Loan Documents as fully as if made on the date hereof
(except that to the extent such representation or warranty is
expressly made as of a prior date) and with specific reference to
this First Amendment and all other loan documents executed and/or
delivered in connection herewith.
4. Effect of Amendment. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Loan
Documents shall be and remain in full force and effect, and shall
constitute the legal, valid, binding and enforceable obligations
of the Borrower. The amendments contained herein shall be deemed
to have prospective application only, unless otherwise
specifically stated herein.
5. Ratification. The Borrower hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth
in the Credit Agreement and the other Loan Documents effective as
of the date hereof.
6. Counterparts. This First Amendment may be executed in any
number of counterparts via facsimile transmission and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which counterparts, taken together, shall constitute
but one and the same instrument.
7. Section References. Section titles and references used in
this First Amendment shall be without substantive meaning or
content of any kind whatsoever and are not a part of the
agreements among the parties hereto evidenced hereby.
8. No Default. To induce the Administrative Agent and the
Lenders to enter into this First Amendment and to continue to
make advances pursuant to the Credit Agreement, the Borrower
hereby acknowledges and agrees that, as of the date hereof, and
after giving effect to the terms hereof, there exists (i) no
Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Borrower arising
out of or with respect to any of the Loans or other obligations
of the Borrower owed to the Lenders under the Credit Agreement.
9. Further Assurances. The Borrower agrees to take such
further actions as the Administrative Agent shall reasonably
request in connection herewith to evidence the amendments herein
contained.
10. Governing Law. This First Amendment shall be governed by
and construed and interpreted in accordance with, the laws of the
State of Georgia.
11. Conditions Precedent. This First Amendment shall become
effective only upon execution and delivery (i) of this First
Amendment by each of the parties hereto, (ii) of the Consent and
Reaffirmation of Guarantors at the end hereof by each of the
Guarantors, and (iii) payment to the Administrative Agent, for
the ratable benefit of all the Lenders party to this First
Amendment, in immediately available funds a fully earned and non-
refundable amendment fee equal to 0.10% times the aggregate
Commitments.
IN WITNESS WHEREOF, the Borrower, the Administrative Agent
and each of the Lenders has caused this First Amendment to be
duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
AIRBORNE, INC. (SEAL)
By: /s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, SVP & CFO
WACHOVIA BANK, N.A., as Administrative Agent
and as a Lender (SEAL)
By: /s/Xxxxxx Xxx
Title: Senior Vice President
NATIONAL CITY BANK (SEAL)
By: /s/Xxxxxxx X. Xxxxxxxxx
Title: Xxxxxxx X. Xxxxxxxxx
Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
SEATTLE BRANCH (SEAL)
By: /s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Deputy General Manager
BANK OF AMERICA, N.A. (SEAL)
By: /s/R. Xxx Xxxxxxxxx
Title: R. Xxx Xxxxxxxxx
Managing Director
US BANK (SEAL)
By: /s/Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (SEAL)
By: /s/Xxxxxxxxx X. Xxxx
Title: Xxxxxxxxx X. Xxxx
Vice President
ABN-AMRO BANK N.V. (SEAL)
By: /s/Xxxxxx X. Xxxx
Title: Xxxxxx X. Xxxx
Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED (SEAL)
By: /s/Xxxxxxx X. Xxxxxxxx
Title: Xxxxxxx X. Xxxxxxxx
Joint General Manager
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the
foregoing First Amendment to Credit Agreement (the "First
Amendment"), (ii) consents to the execution and delivery of the
First Amendment by the parties thereto and (iii) reaffirms all of
its obligations and covenants under the Guaranty Agreement dated
as of July 27, 2000 executed by it, and agrees that none of such
obligations and covenants shall be affected by the execution and
delivery of the First Amendment. This Consent and Reaffirmation
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one
and the same instrument.
AIRBORNE EXPRESS, INC.
By: /s/Xxxxx X. Xxxxxxx
Title: SVP & CFO (SEAL)
ABX AIR, INC.
By: /s/Xxx Hete
Title: President & COO (SEAL)
SKY COURIER, INC.
By: /s/Xxxxx X. Xxxxxxx
Title: Treasurer (SEAL)
AIRBORNE FTZ, INC.
By: /s/Xxx Hete
Title: Vice President (SEAL)
WILMINGTON AIR PARK, INC.
By: /s/Xxx Hete
Title: Vice President (SEAL)
EXHIBIT A-3
SWING LOAN NOTE
Atlanta, Georgia
April 20, 2001
For value received, AIRBORNE, INC. corporation (the
"Borrower"), promises to pay to the order of WACHOVIA BANK, N.A.,
a national banking association (the "Lender"), for the account of
its Lending Office, the principal sum of FIFTEEN MILLION and
No/100 DOLLARS ($15,000,000), or such lesser amount as shall
equal the unpaid principal amount of each Swing Loan made by the
Lender to the Borrower pursuant to the Credit Agreement referred
to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Swing Loan Note at the rate provided for
Base Rate Loans on the dates provided for in the Credit
Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for
in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of
Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000-0000, or such other address as may be specified from time
to time pursuant to the Credit Agreement.
All Swing Loans made by the Lender, the respective
maturities thereof, and all repayments of the principal thereof
shall be recorded by the Lender and, prior to any transfer
hereof, endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This Swing Loan Note is the Swing Loan Note referred to in
the Credit Agreement dated as of July 27, 2000, among the
Borrower, the Lenders listed on the signature pages thereof and
Wachovia Bank, N.A., as Administrative Agent (as the same may be
amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the
repayment hereof and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan
Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
AIRBORNE, INC. (SEAL)
By: /s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, SVP & CFO
Swing Loan Note (continued)
LOANS AND PAYMENTS OF PRINCIPAL
Date Amount of Amount of Maturity Notation
Loan Principal Date Made By
Repaid
EXHIBIT O
FORM OF LETTER OF CREDIT NOTICE
TO: The Lenders parties to the Credit Agreement, dated as
of July 27, 2000, (as amended, the "Credit Agreement"), among
Airborne, Inc., such Lenders and Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent").
Pursuant to Section 10.04(b) of the Credit Agreement, the
Administrative Agent hereby notifies the Lenders that
_______________________, as Issuer, has issued the following
Letters of Credit pursuant to Article X of the Credit Agreement:
Number Face Date of Beneficiary Purpose
Amount Issuance/Expiration
and
Foreign
Currency
A copy of each of the Letters of Credit listed above has
been attached hereto.
Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meaning in this notice.
Date: ______________, ____.
WACHOVIA BANK, N.A., as
Administrative Agent
By:
Name:
Title:
SCHEDULE 1.01
[LIST OF EXISTING LETTERS OF
CREDIT]
