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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
Annual Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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For the fiscal year ended Commission file number
December 31, 1993 1-6512
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AIRBORNE FREIGHT CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 91-0837469
(State of Incorporation) (I.R.S. Employer Identification No.)
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Airborne Freight Corporation
3101 Western Avenue
P.O. Box 662
Seattle, WA 98111
(Address of principal executive offices)
Registrant's telephone number including area code: 206-285-4600
Securities registered pursuant to Section 12(b) of the Act:
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Name of each Exchange
Title of each class on which Registered
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Common Stock, Par Value New York Stock Exchange
$1.00 per share Pacific Stock Exchange
6 3/4% Convertible Subordinated New York Stock Exchange
Debentures Due August 15, 2001
Rights to Purchase Series A New York Stock Exchange
Cumulative Preferred Stock
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Securities registered pursuant to Section 12(g) of the Act:
NONE
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Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.( )
As of February 28, 1994, 19,472,603 shares (net of 315,150 treasury
shares) of the registrant's Common Stock were outstanding and the aggregate
market value of the voting stock held by non-affiliates of the registrant
(based on the closing price on that date on the New York Stock Exchange) was
approximately $710,562,300.(1)
Documents Incorporated by Reference
Portions of the 1993 Annual Report to Shareholders are incorporated by
reference into Part I and Part II.
Portions of the Proxy Statement for the 1994 Annual Meeting of
Shareholders to be held April 26, 1994 are incorporated by reference into Part
III.
(1) Excludes value of shares of Common Stock held of record by directors
and executive officers at February 28, 1994. Includes shares held by
certain depository organizations. Exclusion of shares held by any
person should not be construed to indicate that such person possesses
the power, direct or indirect, to direct or cause the direction of the
management or policies of the registrant, or that such person is
controlled by or is under common control with the registrant.
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AIRBORNE FREIGHT CORPORATION
1993 FORM 10-K ANNUAL REPORT
Table of Contents
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Page
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Part I
Item 1. Business 1
Item 2. Properties 13
Item 3. Legal Proceedings 13
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 4a. Executive Officers of the Registrant 14
Part II
Item 5. Market for Registrant's Common Equity and Related 16
Stockholder Matters 16
Item 6. Selected Financial Data 16
Item 7. Management's Discussion and Analysis of Financial 16
Condition and Results of Operations 16
Item 8. Financial Statements and Supplementary Data 16
Item 9. Changes in and Disagreements With Accountants on 16
Accounting and Financial Disclosure
Part III
Item 10. Directors and Executive Officers of the Registrant 17
Item 11. Executive Compensation 17
Item 12. Security Ownership of Certain Beneficial Owners 17
and Management
Item 13. Certain Relationships and Related Transactions 17
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports 18
on Form 8-K
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PART I
ITEM 1. BUSINESS
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a) General Development of Business
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Airborne Freight Corporation (herein referred to as "Airborne Express"
or the "Company", which reference shall include its subsidiaries and their
assets and operations, unless the context clearly indicates otherwise) was
incorporated in Delaware on May 10, 1968. The Company is an air express
company and air freight forwarder that expedites shipments of all sizes to
destinations throughout the United States and most foreign countries.
The Company holds a certificate of registration issued by the United
States Patent and Trademark Office for the service mark AIRBORNE EXPRESS. Most
public presentation of the Company carries this name. The purpose of using
this trade name is to more clearly communicate to the market place the primary
nature of the business of the Company.
ABX Air, Inc., the Company's principal wholly-owned subsidiary (herein
referred to as "ABX" or the "Airline"), was incorporated in Delaware on January
22, 1980. ABX provides domestic express cargo service and cargo service to
Canada. The Company is the principal customer of ABX for this service.
b) Financial Information about Industry Segments
---------------------------------------------
None
c) Narrative Description of Business
---------------------------------
Airborne Express provides door-to-door express delivery of small
packages and documents throughout the United States and to and from most
foreign countries. The Company also acts as an international and domestic
freight forwarder for shipments of any size. The Company's strategy is to be
the low cost provider of express services for high volume corporate customers.
Domestic Operations
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The Company's domestic operations primarily involve express
door-to-door delivery of small packages and documents weighing less than 100
pounds. Shipments consist primarily of business documents and other printed
matter, electronic and computer parts, machine parts, health care items, films
and videotapes, and other items for which speed and reliability of delivery are
important.
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The Company's primary service is its overnight express product. This
product, which comprised approximately 68% of the Company's domestic shipments
during 1993, generally provides for before noon delivery on the next business
day to most metropolitan cities in the United States. The Company also
provides Saturday and holiday pickup and delivery service for most cities.
The Company offers a deferred service product, Select Delivery Service
("SDS"), which provides for next afternoon or second day delivery. The SDS
product expands the Company's product offering and introduces new customers to
air express services. SDS service generally provides for shipments weighing
five pounds or less to be delivered on a next afternoon basis with shipments
weighing more than five pounds being delivered on a second day basis. SDS
shipments, which comprised approximately 31% of total domestic shipments during
1993, are generally lower priced than the overnight express product reflecting
the less time sensitive nature of the shipments.
While the Company's domestic airline system is designed primarily to
handle express shipments, any available capacity is also utilized to carry
shipments which the Company would normally move on other carriers in its role
as an air freight forwarder.
Pickup and Delivery
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The Company accomplishes its door-to-door pickup and delivery service
using approximately 9,900 radio-dispatched delivery vans and trucks, of which
approximately 3,600 are owned by the Company. Independent contractors under
contract with the Company provide the balance of the pickup and delivery
services.
The Company's facilities are linked to FOCUS, a proprietary freight
tracking and message computer system which permits monitoring of overall system
performance and allows the Company to ascertain the status of a specific
shipment. FOCUS receives information in several ways including drivers' use of
hand-held scanners which read bar-coded information on shipping documents.
FOCUS provides many major customers direct access to the status of their
shipments 24 hours a day through the use of their own computer systems.
Because convenience is an important factor in attracting business from
less frequent shippers, the Company has an ongoing program to place drop boxes
in convenient locations. The Company has approximately 7,300 boxes in service.
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Sort Facilities
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The Company's main sort center is located in Wilmington, Ohio. As
express delivery volume has increased, the main sort center has been expanded.
The sort center currently has the capacity to handle 830,000 pieces during the
primary 2-1/2 hour nightly sort operation. On average, approximately 600,000
pieces were sorted each weekday night at the sort center during December 1993.
In addition to the sort facilities, the Wilmington location consists of a
Company-owned airpark (including airport facilities); maintenance, storage,
training and refueling facilities; and operations and administrative offices.
The Company also conducts a daylight sort operation at Wilmington.
The day sort services SDS shipments weighing in excess of five pounds that are
consolidated at certain regional hub facilities and either flown or trucked
into or out of Wilmington.
The operation of the Wilmington facility is critical to the Company's
business. The inability to use the Wilmington airport, because of bad weather
or other factors, would have a serious adverse effect on the Company's service.
However, contingency plans, including landing at nearby airports and
transporting packages to and from the sort center by truck, can be and have
been implemented to address temporary inaccessibility of the Wilmington
airport.
In addition to the main sort facility at Wilmington, ten regional hub
facilities have been established primarily to sort shipments originating and
having a destination within approximately a 300 mile radius of a regional hub.
In December 1993, approximately 65% and 13% of total shipment weight
was handled through the night sort and day sort operations at Wilmington,
respectively, with the remaining 22% being handled exclusively by the regional
hubs.
Shipment Routing
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The logistical means of moving a shipment from its origin to
destination are determined by several factors. Shipments are routed
differently depending on shipment product type, weight, geographic distances
between origin and destination, and locations of Company stations relative to
the locations of sort facilities. Shipments generally are moved between
stations and sort facilities on either Company aircraft or contracted trucks.
Certain shipments are transported airport-to-airport on commercial air
carriers.
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Overnight express shipments and SDS shipments weighing five pounds or
less are picked up by local stations and generally consolidated with other
stations' shipments at Company airport facilities. Shipments that are not
serviced through regional hubs are loaded on Company aircraft departing each
weekday evening from various points within the United States and Canada. These
aircraft may stop at other airports to permit additional locations and feeder
aircraft to consolidate their cargo onto the larger aircraft before completing
the flight to the Wilmington hub. The aircraft are scheduled to arrive at
Wilmington between approximately 11:30 p.m. and 3:00 a.m. at which time the
shipments are sorted and reloaded. The aircraft are scheduled to depart before
6:30 a.m. and return to their applicable destinations in time to complete
scheduled next business morning or next afternoon service commitments. The
Wilmington hub also receives shipments via truck from selected stations in the
vicinity of the Wilmington hub for integration with the nightly sort process.
For the daylight sort operation, three aircraft return to Wilmington
from overnight service destinations on Tuesday through Friday. These aircraft,
and trucks from six regional hubs, arrive at Wilmington between 10:00 a.m. and
noon, at which time shipments are sorted and reloaded on the aircraft or trucks
by 3:00 p.m. for departure and return to their respective destinations.
The Company also performs weekend sort operations at Wilmington to
accommodate Saturday pickups and Monday deliveries of both overnight express
and SDS shipments. This sort is supported both by Company aircraft and by
trucks.
Aircraft
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The Company acquires and utilizes used aircraft manufactured in the
late 1960s and early 1970s. Upon acquisition, the aircraft are substantially
modified by the Company. At the end of 1993, the Company's in-service fleet
consisted of a total of 90 aircraft, including 26 DC-8s (consisting of 10
series 61, 6 series 62 and 10 series 63), 53 DC-9s (consisting of 2 series 10,
37 series 30 and 14 series 40), and 11 YS-11 turboprop aircraft. The Company
owns the majority of the aircraft it operates, but has completed sale-leaseback
transactions with respect to six DC-8 and six DC-9 aircraft. In addition,
approximately 50 smaller aircraft are chartered nightly to connect small cities
with Company aircraft that then operate to and from Wilmington.
At year end 1993, the nightly lift capacity of the system was about
2.8 million pounds versus approximately 2.4 million pounds and 2.1 million
pounds at the end of 1992 and 1991, respectively. Over the past several years
the Company's utilization of available lift capacity has exceeded 80%.
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In response to increased public awareness regarding the operation of
older aircraft, the Federal Aviation Administration ("FAA") has mandated
additional maintenance requirements for certain aircraft, including the type
operated by the Company. These maintenance requirements were substantially
completed by December 1993 for the Company's DC-8 aircraft. As of the end of
1993 the Company had completed this required maintenance on 48 DC-9 series
aircraft. This maintenance is required to be completed by September 1994. The
Company believes these maintenance requirements for remaining aircraft can be
accomplished without materially impacting operations or the financial position
of the Company. However, the FAA may, in the future, impose additional
requirements with respect to maintenance procedures and practices for aircraft
and engines of the type operated by the Company or interpret existing rules in
a manner which could have a material adverse effect on the Company's operations
and financial position.
The Company is periodically required to retrofit certain aircraft
equipment and subsystems in accordance with mandated FAA requirements.
Presently, the Company is seeking a waiver from the FAA with regard to the date
by which installation of certain instrumentation on its YS-11 aircraft must be
accomplished. If the FAA denies the Company's request, the Company believes it
can comply with the FAA requirement without disrupting the Company's flight
schedules.
In accordance with federal law and FAA regulations, only subsonic
turbojet aircraft classified as Stage 2 or 3 by the FAA may be operated in the
United States. Generally, Stage 3 aircraft produce less noise than a
comparable Stage 2 aircraft. As of December 31, 1993, 26 of the Company's
turbojet aircraft (16 DC-8 and 10 DC-9 aircraft) are Stage 3 aircraft, the
balance being Stage 2 aircraft.
In 1990, Congress passed the Airport Noise and Capacity Act of 1990
(the "Noise Act") which, among other things, requires turbojet aircraft
weighing in excess of 75,000 pounds and operating in the United States (the
type DC-8 and DC-9 aircraft operated by the Company) to comply with Stage 3
noise emission standards on or before December 31, 1999. The Company's YS-11
turboprop aircraft are not subject to these requirements. The Secretary of
Transportation may grant a waiver from this provision to allow up to 15% of an
air carrier's Stage 2 fleet to be operated until December 31, 2003. In
accordance with the Noise Act, the FAA, acting under delegated authority, has
issued regulations establishing interim compliance deadlines. These rules
require air carriers to reduce the base level of Stage 2 aircraft they operate
25% by December 31, 1994; 50% by December 31, 1996; and 75% by December 31,
1998. Under limited circumstances, the Secretary of Transportation may grant
an operator a waiver from these interim compliance deadlines. As of December
31, 1993 the Company accomplished a reduction of its base level aircraft of
approximately 24% and expects to meet or exceed the compliance percentage at
the first
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interim compliance deadline of December 31, 1994.
In addition, the Noise Act and the implementing FAA Regulations
prohibit a U.S. air carrier from importing into the United States and
thereafter operating Stage 2 aircraft unless the aircraft were under contract
prior to November 5, 1990. The Company believes that most, if not all of the
aircraft which were subject to contracts executed prior to November 5, 1990 and
placed into service after the passage of the Noise Act will be permitted to be
operated as Stage 2 aircraft subject to the interim and final Stage 2 aircraft
phase-out compliance deadlines. In addition to FAA regulation, certain local
airports also regulate noise compliance. See "Business - Regulation".
The Company, in conjunction with several other companies, has
developed, tested and received certification of noise suppression technology
known as hush kits for its DC-9 series aircraft, which meet FAA Stage 3
requirements. Both of the Company's DC-9-10 series aircraft and eight of the
Company's DC-9-30 series aircraft meet Stage 3 requirements. The estimated
capital cost for Stage 3 hush kits is approximately $1.1 million for each DC-9
series aircraft. The Company has installed hush kits designed to satisfy Stage
3 compliance requirements on all of its DC-8-62 and DC-8-63 series aircraft.
In early 1994, firms under contract to the Company obtained FAA certification
for hush kits and other required modifications designed to meet Stage 3 noise
standards for the Company's DC-8-61 aircraft. The estimated capital cost for
these hush kits and related hardware is approximately $4.0 million per
aircraft.
International Operations
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The Company provides international express door-to-door delivery and a
variety of freight services. These services are provided in most foreign
countries on an inbound and outbound basis through a network of Airborne
offices and independent agents. Most international deliveries are accomplished
within 24 to 96 hours of pickup.
The Company's international express service is intended for the
movement of non-dutiable and certain dutiable shipments weighing less than 99
pounds. The Company's international freight service handles heavier weight
shipments on either an airport-to-airport, door-to-airport or door-to-door
basis.
The Company's strategy is to use a variable-cost approach in
delivering and expanding international services to its customers. This
strategy uses existing commercial airline lift capacity in connection with the
Company's domestic network to move shipments to overseas destinations.
Additionally, exclusive service arrangements with independent freight and
express agents have been entered into to accommodate shipments in locations
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not currently served by Company-owned operations. The Company believes there
are no significant service advantages which would justify the operation of its
own aircraft on international routes or significant investment in additional
offshore facilities or ground operations. In order to expand its business at a
reasonable cost, the Company continues to explore possible joint venture
agreements, similar to its arrangement with Mitsui & Co., Ltd. in Japan, which
combine the Company's management expertise, domestic express system and
information systems with local business knowledge and market reputation of
suitable partners.
The Company's domestic stations are staffed and equipped to handle
international shipments to or from almost anywhere in the world. In addition
to its extensive domestic network, the Company operates its own offices in the
Far East, Australia, New Zealand, and the United Kingdom. The Company's
freight and express agents worldwide are connected to FOCUS, Airborne's on-line
communication network. The Company is capable of providing its customers with
immediate access to the status of shipments via FOCUS almost anywhere in the
world.
Customers and Marketing
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The Company's primary domestic strategy focuses on express services
for high volume corporate customers. Most high volume customers have entered
into service agreements providing for specified rates or rate schedules for
express deliveries. As of December 31, 1993, the Company serviced
approximately 356,000 active customer shipping locations.
The Company determines prices for any particular domestic express
customer based on competitive factors, anticipated costs, shipment volume and
weight, and other considerations. The Company believes that it generally
offers prices that are competitive with, or lower than, prices quoted by its
principal competitors for comparable services.
The Company has historically marketed the overnight express service as
its primary domestic product. However, the Company believes its SDS product
represents an attractive opportunity to expand its customer product offering
and generate incremental revenues utilizing its existing network. SDS is a
lower yielding product than the Company's overnight product and could result in
conversion of certain shipments which may have otherwise been handled on an
overnight basis.
Internationally, the Company's marketing strategy is to target the
outbound express and freight shipments of U.S. corporate customers, and to sell
the inbound service of the Company's distribution capabilities in the United
States.
Both in the international and domestic markets, the Company believes
that its customers are most effectively reached by a direct sales force,
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and accordingly, does not currently engage in mass media advertising. Domestic
sales representatives are responsible for selling both domestic and
international express shipments. In addition, the International Division has
its own dedicated direct sales organization for selling international freight
service.
The Company's sales force currently consists of approximately 290
domestic representatives and approximately 80 international specialists. The
Company's sales efforts are supported by the Marketing and International
Divisions, based at the Company headquarters. Senior management is also active
in marketing the Company's services to major accounts.
Value-added services continue to be important factors in attracting
and retaining customers. Accordingly, the Company is automating more of its
operations to make the service easier for customers to use and to provide them
with valuable management information. The Company believes that it is
generally competitive with other express carriers in terms of reliability,
value-added services and convenience.
For many of its high volume customers, the Company offers a metering
device, called LIBRA II, which is installed at the customer's place of
business. With minimum data entry, the metering device weighs the package,
calculates the shipping charges, generates the shipping labels and provides a
daily shipping report. At year end 1993, the system was in use at
approximately 5,500 domestic customer locations and a number of selected
international customer locations. Use of LIBRA II not only benefits the
customer directly, but also lowers the Company's operating costs, since LIBRA
II shipment data is transferred into the Airborne FOCUS shipment tracking
system automatically, thus avoiding duplicate data entry.
"Customer Linkage", an electronic data interchange ("EDI") program
developed for Airborne's highest volume shippers, allows customers, with their
computers, to create shipping documentation at the same time they are entering
orders for their goods. At the end of each day, shipping activities are
transmitted electronically to the Airborne FOCUS system where information is
captured for shipment tracking and billing purposes. Customer Linkage benefits
the customer by eliminating repetitive data entry and paperwork and also lowers
the Company's operating costs by eliminating manual data entry. EDI also
includes electronic invoicing and payment remittance processing. During 1992,
the Company introduced a software program known as Quicklink, which
significantly reduces programming time required by customers to take advantage
of linkage benefits.
The Company offers a number of special logistics programs to customers
through its Advanced Logistics Services Corp. ("ALS") subsidiary. This
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subsidiary, established in 1993, operates the Company's Stock Exchange and Hub
Warehousing and other logistics programs. These programs provide customers the
ability to maintain inventories which can be managed either by Company or
customer personnel. Items inventoried at Wilmington can be delivered utilizing
either the Company's airline system or, if required, commercial airlines on a
next-flight-out basis. ALS' Central Print program allows information to be
sent electronically to customer computers located at Wilmington where Company
personnel monitor printed output and ship the material according to customer
instructions. The Company also offers a Regional Warehousing program where
customer inventories are managed by the Company at any of over 40 locations
around the United States and Canada.
In addition, the Company's Sky Courier business provides
next-plane-out service at premium prices.
The Company has obtained ISO 9000 certification for its Chicago,
Philadelphia and London stations and its Seattle Headquarters. The ISO 9000 is
a quality program developed by the International Standards Organization
("ISO"), based in Geneva, Switzerland. This organization provides a set of
international standards on quality management and quality assurance presently
recognized in 91 countries. The certification is an asset in doing business
worldwide and provides evidence of the Company's commitment to excellence and
quality. The Company expects to certify additional facilities over the next
several years.
Competition
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The market for the Company's services has been and is expected to
remain highly competitive. The principal competitive factors in both domestic
and international markets are price, the ability to provide reliable pickup and
delivery, and value-added services.
Federal Express continues to be the dominant competitor in the
domestic express business, followed by United Parcel Service. Airborne Express
currently ranks third in shipment volume behind these two companies in the
domestic express business. Other domestic express competitors include the U.S.
Postal Service's Express Mail Service and several other transportation
companies offering next morning delivery service. The Company also competes to
some extent with companies offering ground transportation services and with
facsimile and other forms of electronic transmission.
The Company increased rates in March 1993 by approximately 5% on
domestic business that was not under a time-definite contract, resulting in an
overall yield improvement of approximately 2%. This was the first domestic
rate increase in four years. Although still very competitive, the domestic
pricing environment improved during 1993 resulting in relatively stable yields.
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The Company believes it is important to maintain an active capital
expansion program to improve service and increase productivity as its volume of
shipments increases. However, the Company has significantly less capital
resources than its two primary competitors.
In the international markets, in addition to Federal Express and
United Parcel Service, the Company competes with DHL, TNT and other air freight
forwarders or carriers and most commercial airlines.
Employees
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As of December 31, 1993, the Company and its subsidiaries had
approximately 9,500 full-time employees and 6,300 part-time and casual
employees. Approximately 4,100 full-time employees (including the Company's
pilots) and 2,800 part-time and casual employees are employed under union
contracts, primarily with locals of the International Brotherhood of Teamsters
and Warehousemen.
Labor agreements for the Company's ground personnel are for three-year
terms with most agreements expiring in 1994. The Company's pilots are covered
by a contract which is amendable in 1995.
Subsidiaries
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The Company has the following wholly-owned subsidiaries:
1. ABX Air, Inc., a Delaware corporation, owns and operates the
Airline. Its wholly-owned subsidiaries are as follows:
a) Wilmington Air Park, Inc., a Ohio corporation, is the
owner of the Wilmington airport property (Airborne
Air Park).
b) Airborne FTZ, Inc., a Ohio corporation, is the holder
of a foreign trade zone certificate at the Wilmington
airport property.
c) Aviation Fuel, Inc., a Ohio corporation, purchases
and sells aviation and other fuels.
d) Advanced Logistics Services Corp., a Ohio
corporation, provides customized warehousing,
inventory management and shipping services.
e) Sound Suppression, Inc., a Ohio corporation with no
current operating activities.
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2. Awawego Delivery, Inc., a New York corporation, holds trucking
rights in New York and Connecticut.
3. Airborne Forwarding Corporation, a Delaware corporation doing
business as Sky Courier, provides expedited courier service.
4. Airborne Freight Limited, a New Zealand corporation, provides
air express and air freight services.
Regulation
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The Company's operations are subject to various regulations including
regulation by the United States Department of Transportation ("DOT"), the FAA,
the Interstate Commerce Commission, and various state, local and foreign
authorities.
The DOT, under the Federal Aviation Act, grants air carriers the right
to engage in domestic and international air transportation. The DOT issues
certificates to engage in air transportation if the carrier is a U.S. citizen,
as defined by the Act, and possesses the financial and managerial fitness
necessary to hold such certificates. The DOT has the authority to modify,
suspend or revoke such certificates for cause, including failure to comply with
the Federal Aviation Act or the DOT regulations. The Company believes it
possesses all necessary DOT-issued certificates to conduct its operations.
The FAA regulates aircraft safety and flight operations generally,
including equipment, ground facilities, maintenance and communications. The
FAA issues operating certificates to carriers who possess the technical
competence to conduct air carrier operations. In addition, the FAA issues
certificates of airworthiness to each aircraft which meets the requirements for
aircraft design and maintenance. The Company believes it holds all
airworthiness and other FAA certificates required for the conduct of its
business, although the FAA has the power to suspend or revoke such certificates
for cause, including failure to comply with the Federal Aviation Act.
The federal government generally regulates aircraft engine noise at
its source. However, local airport operators may, under certain circumstances,
regulate airport operations based on aircraft noise considerations. Prior to
passage of the Noise Act, certain airports adopted regulations including
restrictions on aircraft operations, such as curfews during late night and
early morning hours, noise budgets or mandatory use of Stage 3 aircraft, many
of which are grandfathered under the Noise Act. Other airports have proposed
and may adopt similar noise restrictions. The Noise Act provides that airports
proposing restrictions on Stage 2 aircraft operations must provide interested
parties a minimum of 180 days advance notice of such regulations and the
opportunity to comment
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thereon. Thereafter, the airport may impose such noise regulations subject to
the requirements of existing federal law. The Noise Act further provides that
airports that fail to provide the required notice and opportunity to comment
will be deemed ineligible for federal airport grant funds or the authority to
impose passenger facility charges. With respect to Stage 3 aircraft
restrictions, the Noise Act provides that no such restrictions may be imposed
unless the airport either obtains the consent of all aircraft operators serving
the airport or obtains FAA approval to impose such restrictions. Noncompliance
with these rules will also result in the loss of federal funding and
eligibility to impose passenger facility charges. The Company believes the
operation of its aircraft either complies with or is exempt from compliance
with currently applicable local airport rules. However, if more stringent
aircraft operating regulations were adopted on a widespread basis, the Company
might be required to expend substantial sums, make schedule changes or take
other actions. See "Business - Domestic Operations - Aircraft."
The Company's aircraft currently meet all know requirements for
emission levels. However, under the Clear Air Act, individual states or the
Federal Environmental Protection Agency (the "EPA") may adopt regulations
requiring the reduction in emissions for one or more localities based on the
measured air quality at such localities. The EPA has proposed regulations for
portions of California calling for emission reductions by the year 2005. There
can be no assurance that if such regulations are adopted in the future or
changes in existing laws or regulations are promulgated that such laws or rules
would not have a material adverse effect on the Company.
Under currently applicable federal aviation law, the Company's airline
subsidiary could cease to be eligible to operate as an all-cargo carrier if
more than 25% of the voting stock of the Company were owned or controlled by
non-U.S. citizens or the Airline was not effectively controlled by U.S.
citizens. Moreover, in order to hold an all-cargo air carrier certificate, the
president and at least two-thirds of the directors and officers of an air
carrier must be U.S. citizens. The Company has entered into a Rights Agreement
designed, in part, to discourage a single foreign person from acquiring 20% or
more, and foreign persons in the aggregate from acquiring 25% or more, of the
Company's outstanding voting stock without the approval of the Board of
Directors. To the best of the Company's knowledge, foreign stockholders do not
control more than 25% of the outstanding voting stock. Two of the Company's
officers are not U.S. citizens.
The Company believes that its current operations are substantially in
compliance with the numerous regulations to which its business is subject;
however, various regulatory authorities have jurisdiction over significant
aspects of the Company's business, and it is possible that new laws or
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regulations or changes in existing laws or regulations or the interpretations
thereof could have a material adverse effect on the Company's operations.
Financial Information Regarding International and Domestic Operations
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Financial information relating to foreign and domestic operations for
each of the three years in the period ended December 31, 1993 is presented in
Note L (Segment Information) of the Notes to Consolidated Financial Statements
appearing in the 1993 Annual Report to Shareholders and is incorporated herein
by reference.
ITEM 2. PROPERTIES
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The Company leases general and administrative office facilities
located in Seattle, Washington.
At year end the Company maintained 232 domestic and 22 foreign
stations, most of which are leased. The majority of the facilities are located
at or near airports.
The Company owns the airport at the Airborne Air Park, in Wilmington,
Ohio. The airport currently consists of a runway, taxi-ways, aprons, buildings
serving as aircraft and equipment maintenance facilities, a sort facility,
storage facilities, a training center, and operations and administrative
offices. The Company has in progress a significant expansion of the airpark
which includes construction of a second runway, taxiways, two roadway tunnels
under the taxiways and several other facilities. This expansion should be
substantially completed during 1995.
Information regarding collateralization of certain property and lease
commitments of the Company is set forth in Notes E and F of the Notes to
Consolidated Financial Statements appearing in the 1993 Annual Report to
Shareholders and is incorporated herein by reference.
The Company believes its existing facilities are adequate to meet
current needs.
ITEM 3. LEGAL PROCEEDINGS
- ---------------------------
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- -------------------------------------------------------------
None
13
<PAGE> 17
ITEM 4a. EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
Positions and Offices Presently
Name Age Held and Business Experience
---- --- ----------------------------
<S> <C> <C>
Robert S. Cline 56 Chairman and Chief Executive Officer
(1984 to date); Vice Chairman and Chief
Financial Officer (1978 to 1984); Executive
Vice President and Chief Financial Officer
(1973 to 1978); Senior Vice President,
Finance (1970 to 1973); Vice President,
Finance (1968 to 1970); Vice President,
Finance, Pacific Air Freight, Inc. (1966
to 1968)
Robert G. Brazier 56 President and Chief Operating Officer
(1978 to date); Executive Vice President
and Chief Operating Officer (1973 to 1978);
Senior Vice President, Operations (1970 to
1973); Vice President, Operations (1968 to
1970); Vice President, Sales and Operations,
Pacific Air Freight, Inc. (1964 to 1968)
Roy C. Liljebeck 56 Chief Financial Officer (1984 to
date); Executive Vice President, Finance
Division (1979 to date); Senior Vice
President (1973 to 1979); Treasurer (1968
to 1988)
Kent W. Freudenberger 53 Executive Vice President, Marketing
Division (1980 to date); Senior Vice
President (1978 to 1980); Vice President
(1973 to 1978)
Raymond T. Van Bruwaene 55 Executive Vice President, Field
Services Division (1980 to date); Senior
Vice President (1978 to 1980); Vice
President (1973 to 1978)
John J. Cella 53 Executive Vice President,
International Division (1985 to date);
Senior Vice President, International
Division (1982 to 1985); Vice President,
International Division (1981 to 1982);
Vice President, Far East (1971 to 1981)
</TABLE>
14
<PAGE> 18
<TABLE>
<S> <C> <C>
Carl D. Donaway 42 President and Chief Executive
Officer, ABX Air, Inc. (1992 to date);
Vice President, Business Analysis (1992);
Vice President, Customer Support (1990 to
1992); Director, Customer Support (1988
to 1990)
</TABLE>
15
<PAGE> 19
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
- ----------------------------------------------------------------
STOCKHOLDERS MATTERS
- --------------------
The response to this Item is contained in the 1993 Annual Report to
Shareholders and the information contained therein is incorporated by
reference.
On February 28, 1993 there were approximately 1,497 shareholders of
record of the Common Stock of the Company based on information provided by the
Company's transfer agent.
ITEM 6. SELECTED FINANCIAL DATA
- ---------------------------------
The response to this Item is contained in the 1993 Annual Report to
Shareholders and the information contained therein is incorporated herein by
reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
- -------------------------------------------------------------------------
RESULTS OF OPERATIONS
- ---------------------
The response to this Item is contained in the 1993 Annual Report to
Shareholders and the information contained therein is incorporated herein by
reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- -----------------------------------------------------
The response to this Item is contained in the 1993 Annual Report to
Shareholders and the information contained therein is incorporated herein by
reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
- -------------------------------------------------------------------------
FINANCIAL DISCLOSURE
- --------------------
None
16
<PAGE> 20
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- -------------------------------------------------------------
The response to this Item is contained in part in the Proxy Statement
for the 1994 Annual Meeting of Shareholders under the captions "Election of
Directors" and "Exchange Act Compliance" and the information contained therein
is incorporated herein by reference.
The executive officers of the Company are elected annually at the
Board of Directors meeting held in conjunction with the annual meeting of
shareholders. There are no family relationships between any directors or
executive officers of the Company. Additional information regarding executive
officers is set forth in Part I, Item 4a.
ITEM 11. EXECUTIVE COMPENSATION
- ---------------------------------
The response to this Item is contained in the Proxy Statement for the
1994 Annual Meeting of Shareholders under the caption "Executive Compensation"
and the information contained therein is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- -------------------------------------------------------------------------
The response to this Item is contained in the Proxy Statement for the
1994 Annual Meeting of Shareholders under the captions "Voting at the Meeting"
and "Stock Ownership of Management" and the information contained therein is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- ---------------------------------------------------------
The response to this Item is contained in the Proxy Statement for the
1994 Annual Meeting of Shareholders under the caption "Board of Directors and
Committees" and the information contained therein is incorporated herein by
reference.
17
<PAGE> 21
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------
(a)1. Financial Statements
--------------------
The following consolidated financial statements of Airborne Freight
Corporation and its subsidiaries as contained in its 1993 Annual Report to
Shareholders are incorporated by reference in Part II, Item 8:
Consolidated Statements of Net Earnings
Consolidated Balance Sheets
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Independent Auditors' Report
<TABLE>
<CAPTION>
(a)2. Financial Statement Schedules Page
- -------------------------------------- ----
<S> <C>
Schedule V - Property and Equipment 26
Schedule VI - Accumulated Depreciation and Amortization
of Property and Equipment 28
Schedule VIII - Valuation and Qualifying Accounts 30
Schedule IX - Short-Term Borrowings 31
Schedule X - Supplementary Income Statement Information 32
</TABLE>
All other schedules are omitted because they are not applicable or are not
required, or because the required information is included in the consolidated
financial statements or notes thereto.
(a)3. Exhibits
- -----------------
A) The following exhibits are filed with this report:
EXHIBIT NO. 3 Articles of Incorporation and By-laws
- ------------------------------------------------------
3(a) The Restated Certificate of Incorporation of the Company,
dated as of August 4, 1987 (incorporated herein by reference
from Exhibit 3(a) to the Company's Form 10-K for the year
18
<PAGE> 22
ended December 31, 1987).
3(b) The By-laws of the Company as amended to February 1, 1988
(incorporated herein by reference from Exhibit 3(b) to the
Company's Form 10-K for the year ended December 31, 1987).
EXHIBIT NO. 4 Instruments Defining the Rights of Security Holders
- --------------------------------------------------------------------
Including Indentures
- --------------------
4(a) Indenture dated as of September 4, 1986, between the Company
and Peoples National Bank of Washington (now U.S. Bank of
Washington), as trustee, relating to $25 million of the
Company's 10% Senior Subordinated Notes due 1996 (incorporated
by reference from Exhibit 4(c) to Amendment No. 1 to the
Company's Registration Statement on Form S-3, No. 33-6043,
filed with the Securities and Exchange Commission on September
3, 1986).
4(b) Note Purchase Agreement dated September 3, 1986 among the
Company and the original purchasers of the Company's 10%
Senior Subordinated Notes due 1996 (incorporated by reference
from Exhibit 4(d) to Amendment No. 1 to the Company's
Registration Statement on Form S-3, No. 33-6043, filed with
the Securities and Exchange Commission on September 3, 1986).
4(c) Indenture dated as of August 15, 1991, between the Company and
Bank of America National Trust and Savings Association, as
Trustee, with respect to the Company's 6-3/4% Convertible
Subordinated Debentures due August 15, 2001 (incorporated
herein by reference from Exhibit 4(i) to Amendment No. 1 to
the Company's Registration Statement on Form S-3 No. 33-42044
filed with the Securities and Exchange Commission on August
15, 1991).
4(d) Indenture dated as of December 3, 1992, between the Company
and Bank of New York, as trustee, relating to the Company's
8-7/8% Notes due 2002 (incorporated herein by reference from
Exhibit 4(a) to Amendment No. 1 to the Company's Registration
Statement on Form S-3, No. 33-54560 filed with the Securities
and Exchange Commission on December 4, 1992).
4(e) Rights Agreement, dated as of November 20, 1986 between the
Company and First Jersey National Bank (predecessor to First
Interstate Bank, Ltd.), as Rights Agent (incorporated by
reference from Exhibit 1 to the Company's Registration
Statement on Form 8-A, dated November 28, 1986).
19
<PAGE> 23
4(f) Certificate of Designation of Series A Participating
Cumulative Preferred Stock Setting Forth the Powers,
Preferences, Rights, Qualification, Limitations and
Restrictions of Such Series of Preferred Stock of the Company
(incorporated by reference from Exhibit 2 to the Company's
Registration Statement on Form 8-A, dated November 28, 1986).
4(g) Form of Right Certificate relating to the Rights Agreement
(see 4(e) above, incorporated by reference from Exhibit 3 to
the Company's Registration Statement on Form 8-A, dated
November 28, 1986).
4(h) Letter dated January 5, 1990, from the Company to First
Interstate Bank, Ltd. ("FIB"), appointing FIB as successor
Rights Agent under the Rights Agreement dated as of November
20, 1986, between the Company and The First Jersey National
Bank (incorporated by reference from Exhibit 4(c) to the
Company's Form 10-K for the year ended December 31, 1989).
4(i) Amendment to Rights Agreement entered into as of January 24,
1990, between the Company and First Interstate Bank, Ltd.
(incorporated herein by reference from Exhibit 4(d) to the
Company's Form 10-K for the year ended December 31, 1989).
4(j) Third Amendment to Rights Agreement entered into as of
November 6, 1991 between the Company and First Interstate
Bank, Ltd. (incorporated herein by reference from Exhibit
4(a) to the Company's Form 10-K for the year ended December
31, 1991).
4(k) 6.9% Cumulative Convertible Preferred Stock Purchase Agreement
dated as of December 5, 1989, among the Company, Mitsui & Co.,
Ltd., Mitsui & Co. (U.S.A.), Inc., and Tonami Transportation
Co., Ltd. (incorporated herein by reference from Exhibit 4(b)
to the Company's Form 10-K for the year ended December 31,
1989).
4(k)(i) Amendments to the above Stock Purchase Agreement irrevocably
waiving all demand registration rights, relinquishing the
right of Mitsui & Co., Ltd. to designate a representative to
Airborne's Board of Directors, and resignation of T. Kokai
from said Board (incorporated herein by reference from
Amendment No. 1 to Schedule 13D of Mitsui & Co., Ltd.
Intermodal Terminal, Inc. (assignee of Mitsui & Co. (USA)
Inc.) and Tonami Transportation Co., Ltd., filed with the
Securities & Exchange Commission on December 21, 1993).
20
<PAGE> 24
4(l) Certificate of Designation of Preferences of Preferred Shares
of Airborne Freight Corporation, as filed on January 26, 1990,
in the Office of the Secretary of the State of Delaware
(incorporated herein by reference from Exhibit 4(a) to the
Company's Form 10-K for the year ended December 31, 1989).
EXHIBIT NO. 10 Material Contracts
- ---------------------------------
Executive Compensation Plans and Agreements
- -------------------------------------------
10(a) 1979 Airborne Freight Corporation Key Employee Stock Option
and Stock Appreciation Rights Plan, as amended through
February 2, 1987 (incorporated by reference from Exhibit 10(d)
to the Company's Form 10-K for the year ended December 31,
1986).
10(b) 1983 Airborne Freight Corporation Key Employee Stock Option
and Stock Appreciation Rights Plan, as amended through
February 2, 1987 (incorporated by reference from Exhibit 10(c)
to the Company's Form 10-K for the year ended December 31,
1986).
10(c) 1989 Airborne Freight Corporation Key Employee Stock Option
and Stock Appreciation Rights Plan (incorporated herein by
reference from Exhibit 10(d) to the Company's Form 10-K for
the year ended December 31, 1989).
10(d) 1994 Airborne Freight Corporation Key Employee Stock Option
and Stock Appreciation Rights Plan (incorporated herein by
reference from the Addendum to the Company's Proxy Statement
for the 1994 Annual Meeting of Shareholders).
10(e) Airborne Freight Corporation Directors Stock Option Plan
(incorporated herein by reference from the Addendum to the
Company's Proxy Statement for the 1991 Annual Meeting of
Shareholders).
10(f) Airborne Express Executive Deferral Plan dated January 1, 1992
(incorporated by reference from Exhibit 10(b) to the Company's
Form 10-K for the year ended December 31, 1991).
21
<PAGE> 25
10(g) Airborne Express Supplemental Executive Retirement Plan dated
January 1, 1992 (incorporated by reference from Exhibit 10(c)
to the Company's Form 10-K for the year ended December 31,
1991).
10(h) Airborne Express 1993 Executive Management Incentive
Compensation Plan.
10(i) Employment Agreement dated December 15, 1983, as amended
November 20, 1986, between the Company and Mr. Robert G.
Brazier, President and Chief Operating Officer (incorporated
by reference from Exhibit 10(a) to the Company's Form 10-K for
the year ended December 31, 1986). Identical agreements exist
between the Company and the other six executive officers.
10(j) Employment Agreement dated November 20, 1986 between the
Company and Mr. Lanny H. Michael, then Vice President,
Treasurer and Controller (incorporated by reference from
Exhibit 10(b) to the Company's Form 10-K for the year ended
December 31, 1986). Identical agreements exist between the
Company and 25 other officers of the Company. In addition,
the Company's principal subsidiary, ABX Air, Inc., has entered
into substantially identical agreements with seven of its
officers.
Other Material Contracts
------------------------
10(k) $240,000,000 Revolving Loan Facility dated as of November 19,
1993 among the Company, as borrower, and Wachovia Bank of
Georgia, N.A., ABN AMRO Bank N.V., United States National Bank
of Oregon, Seattle-First National Bank, CIBC Inc., Continental
Bank N.A., Bank of America National Trust and Savings
Association, The Bank of New York, NBD Bank, N.A., as banks
and Wachovia Bank of Georgia, N.A., as agent.
10(l) Letter dated December 5, 1989, to the Company from Mitsui &
Co., Ltd. ("Mitsui"), relating to Mitsui's commitment to
provide the Company and ABX Air, Inc., a $100 million aircraft
financing facility, as modified by that certain Supplement
thereto entered into as of March 15, 1990 (incorporated herein
by reference from Exhibit 10(b) to the Company's Form 10-K for
the year ended December 31, 1989).
10(m) Shareholders Agreement entered into as of February 7, 1990,
among the Company, Mitsui & Co., Ltd., and Tonami
Transportation Co., Ltd., relating to joint ownership of
Airborne Express Japan, Inc. (incorporated herein by reference
22
<PAGE> 26
from Exhibit 10(c) to the Company's Form 10-K for the year
ended December 31, 1989).
EXHIBIT NO. 11 Statement Re Computation of Per Share Earnings
- ---------------------------------------------------------------
11 Statement re computation of earnings per share
EXHIBIT NO. 12 Statements Re computation of Ratios
- ----------------------------------------------------
12 Statement re computation of ratio of senior long-term debt and
total long-term debt to total capitalization
EXHIBIT NO. 13 Annual Report to Security Holders
- --------------------------------------------------
13 Portions of the 1993 Annual Report to Shareholders of Airborne
Freight Corporation
EXHIBIT NO. 21 Subsidiaries of the Registrant
- -----------------------------------------------
21 The subsidiaries of the Company are listed on page 10 & 11 of
this report on Form 10-K for the year ended December 31, 1993.
EXHIBIT NO. 23 Consents of Experts and Counsel
- ------------------------------------------------
23 Independent Auditors' Consent and Report on Schedules
All other exhibits are omitted because they are not applicable, or
not required, or because the required information is included in the
consolidated financial statements or notes thereto.
(b) Reports on Form 8-K
-------------------
None
23
<PAGE> 27
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
AIRBORNE FREIGHT CORPORATION
By /S/ ROBERT S. CLINE
----------------------------------
Robert S. Cline
Chief Executive Officer
By /S/ ROBERT G. BRAZIER
----------------------------------
Robert G. Brazier
Chief Operating Officer
By /S/ ROY C. LILJEBECK
----------------------------------
Roy C. Liljebeck
Chief Financial Officer
By /S/ LANNY H. MICHAEL
---------------------------------
Lanny H. Michael
Treasurer and Controller
Date: March 28, 1994
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Company and in the capacities and on the date indicated:
24
<PAGE> 28
/S/ ANCIL H. PAYNE /S/ HAROLD M. MESSMER, JR.
- ---------------------------------- ----------------------------------
Ancil H. Payne (Director) Harold M. Messmer, Jr. (Director)
/S/ ROBERT G. BRAZIER /S/ RICHARD M. ROSENBERG
- ---------------------------------- ----------------------------------
Robert G. Brazier (Director) Richard M. Rosenberg (Director)
/S/ ROBERT S. CLINE
- ----------------------------------
Robert S. Cline (Director)
25
<PAGE> 29
AIRBORNE FREIGHT CORPORATION
AND SUBSIDIARIES
SCHEDULE V - PROPERTY AND EQUIPMENT
(In thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E Column F
-------- -------- -------- -------- -------- --------
Balance at Other Changes
beginning Additions Additions Balance at
Classifications of period at cost Retirements (Deductions) end of period
--------------- --------- --------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1993:
Flight Equipment $ 770,766 $ 89,840 $11,432 $ - $ 849,174
Land, Buildings and
Leasehold Improvements 114,738 13,392 273 - 127,857
Package Handling & Ground
Support Equipment 105,262 10,393 6,367 - 109,288
Vehicles and Other
Equipment 136,245 22,713 6,272 - 152,686
---------- -------- ------- ---------- ----------
TOTALS $1,127,011 $136,338 $24,344 $ - $1,239,005
========== ======== ======= ========== ==========
Year Ended December 31, 1992:
Flight Equipment $ 588,517 $188,810 $ 6,561 $ - $ 770,766
Land, Buildings and
Leasehold Improvements 100,234 15,018 514 - 114,738
Package Handling & Ground
Support Equipment 98,109 8,698 1,545 - 105,262
Vehicles and Other
Equipment 125,844 21,090 10,689 - 136,245
</TABLE>
26
<PAGE> 30
<TABLE>
<S> <C> <C> <C> <C> <C>
--------- --------- --------- ---------- ----------
TOTALS $ 912,704 $ 233,616 $ 19,309 $ - $1,127,011
--------- --------- --------- ---------- ----------
Year Ended December 31, 1991:
Flight Equipment $ 378,819 $ 218,143 $ 8,445 $ - $ 588,517
Land, Buildings and
Leasehold Improvements 74,069 27,456 1,291 - 100,234
Package Handling & Ground
Support Equipment 93,842 15,396 11,129 - 98,109
Vehicles and Other
Equipment 109,897 31,520 15,573 - 125,844
--------- --------- --------- ---------- ----------
TOTALS $ 656,627 $ 292,515 $ 36,438 $ - $ 912,704
========= ========= ========= ========== ==========
</TABLE>
27
<PAGE> 31
AIRBORNE FREIGHT CORPORATION
AND SUBSIDIARIES
SCHEDULE VI - ACCUMULATED DEPRECIATION AND AMORTIZATION
OF PROPERTY AND EQUIPMENT
(In thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E Column F
-------- -------- -------- -------- -------- --------
Balance at Other Changes Balance at
beginning Additions Additions end
Classifications of period at cost Retirements (Deductions) of period
--------------- --------- --------- ---------- ---------- ----------
<S> <C> C> <C> <C> <C>
Year Ended December 31, 1993:
Flight Equipment $237,135 $ 75,174 $ 312 $ - $311,997
Land, Buildings and
Leasehold Improvements 26,860 7,767 216 - 34,411
Package Handling & Ground
Support Equipment 45,897 12,932 6,323 - 52,506
Vehicles and Other
Equipment 86,182 25,801 5,855 - 106,128
-------- -------- -------- -------- --------
TOTALS $396,074 $121,674 $ 12,706 $ - $505,042
======== ======== ======== ======== ========
Year Ended December 31, 1992:
Flight Equipment $177,032 $ 61,152 $ 1,049 $ - $237,135
Land, Buildings and
Leasehold Improvements 20,301 7,039 480 - 26,860
Package Handling & Ground
Support Equipment 34,895 12,482 1,480 - 45,897
Vehicles and Other
</TABLE>
28
<PAGE> 32
<TABLE>
<S> <C> <C> <C> <C> <C>
Equipment 67,327 28,593 9,738 - 86,182
-------- -------- -------- -------- --------
TOTALS $299,555 $109,266 $ 12,747 $ - $396,074
======== ======== ======== ======== ========
Year Ended December 31, 1991:
Flight Equipment $130,356 $ 46,676 $ - $ - $177,032
Land, Buildings and
Leasehold Improvements 16,209 5,291 1,199 - 20,301
Package Handling & Ground
Support Equipment 34,571 11,369 11,045 - 34,895
Vehicles and Other
Equipment 55,618 25,782 14,073 - 67,327
-------- -------- -------- -------- --------
TOTALS $236,754 $ 89,118 $ 26,317 $ - $299,555
======== ======== ======== ======== ========
</TABLE>
29
<PAGE> 33
AIRBORNE FREIGHT CORPORATION
AND SUBSIDIARIES
SCHEDULE VIII - VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
----------- -------- -------- -------- --------
Additions
Balance at Charged to Balance at
Beginning Costs and End
Description of Period Expenses Deductions of Period
----------- -------- -------- --------- ---------
<S> <C> <C> <C> <C>
DEDUCTED FROM ASSETS TO WHICH THEY APPLY:
1. Allowance for doubtful accounts -
Year Ended December 31, 1993 $6,801 $11,660 $11,536 $6,925
Year Ended December 31, 1992 $6,854 $ 9,574 $ 9,627 $6,801
Year Ended December 31, 1991 $6,942 $ 9,685 $ 9,773 $6,854
</TABLE>
30
<PAGE> 34
AIRBORNE FREIGHT CORPORATION
AND SUBSIDIARIES
SCHEDULE IX - SHORT-TERM BORROWINGS
(Dollars in thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E Column F
-------- -------- -------- -------- -------- --------
Weighted Maximum Amount Average Amount Weighted
Balance at Average Outstanding Outstanding Avg. Interest
Category of Aggregate End Interest During During Rate During
Short-Term Borrowings of Period Rate the Period the Period the Period
--------------------- ---------- -------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
December 31, 1993
Money Market Lines of Credit $ -- N/A $110,000 $26,781 3.64%
Payable to Banks
December 31, 1992
Money Market Lines of Credit $16,100 3.84% $52,800 $33,207 4.16%
Payable to Banks
December 31, 1991
Money Market Lines of Credit $25,400 5.55% $31,500 $14,488 6.48%
Payable to Banks
</TABLE>
Balances outstanding under the Company's Money Market lines of credit
arrangement generally have maturities ranging from one day to one week.
Average amount outstanding during the period is computed by dividing the total
of daily outstanding principal balances by 365 or 366 days as applicable.
Weighted average interest rate during the period is computed by dividing the
actual short-term interest expense by the average short-term borrowings
outstanding.
31
<PAGE> 35
AIRBORNE FREIGHT CORPORATION
AND SUBSIDIARIES
SCHEDULE X - SUPPLEMENTARY INCOME STATEMENT INFORMATION
(In thousands)
<TABLE>
<CAPTION>
Column A Column B
-------- --------
Item Charged to costs and expenses
-------- -----------------------------
Year Ended December 31
----------------------
1993 1992 1991
---- ---- ----
<S> <C> <C> <C>
Maintenance and Repairs $75,310 $71,261 $59,065
Aviation Excise/Fuel Taxes $17,309 $17,933 $14,698
</TABLE>
Note: Depreciation and amortization of intangible assets, taxes (other than
payroll and income taxes), royalties, and advertising costs are each less than
1% of consolidated revenue in 1993, 1992 and 1991.
32
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
------- ----------- ------
<S> <C> <C>
(a)3. Exhibits
- ---------------
</TABLE>
A) The following exhibits are filed with this report:
EXHIBIT NO. 3 Articles of Incorporation and By-laws
- ----------------------------------------------------
<TABLE>
<S> <C> <C>
3(a) The Restated Certificate of Incorporation of the Company, dated as of --
August 4, 1987 (incorporated herein by reference from Exhibit 3(a) to
the Company's Form 10-K for the year ended December 31, 1987).
3(b) The By-laws of the Company as amended to February 1, 1988 (incorporated --
herein by reference from Exhibit 3(b) to the Company's Form 10-K for
the year ended December 31, 1987.
</TABLE>
EXHIBIT NO. 4 Instruments Defining the Rights of Security Holders Including
- ----------------------------------------------------------------------------
Indentures
- ----------
<TABLE>
<S> <C> <C>
4(a) Indenture dated as of September 4, 1986, between the Company and --
Peoples National Bank of Washington (now U.S. Bank of Washington), as
trustee, relating to $25 million of the Company's 10% Senior
Subordinated Notes due 1996 (incorporated by reference from Exhibit 4(c)
to Amendment No. 1 to the Company's Registration Statement on Form S-3,
No. 33-6043, filed with the Securities and Exchange Commission on
September 3, 1986).
4(b) Note Purchase Agreement dated September 3, 1986 among the Company and --
the original purchasers of the Company's 10% Senior Subordinated Notes
due 1996 (incorporated by reference from Exhibit 4(d) to Amendment
No. 1 to the Company's Registration Statement on Form S-3, No. 33-6043,
filed with the Securities and Exchange Commission on September 3, 1986).
</TABLE>
<PAGE> 37
<TABLE>
<S> <C> <C>
4(c) Indenture dated as of August 15, 1991, between the Company and Bank of --
America National Trust and Savings Association, as Trustee, with respect
to the Company's 6-3/4% Convertible Subordinated Debentures due August
15, 2001 (incorporated herein by reference from Exhibit 4 (i) to
Amendment No. 1 to the Company's Registration Statement on Form S-3
No. 33-42044 filed with the Securities and Exchange Commission on
August 15, 1991).
4(d) Indenture dated as of December 3, 1992, between the Company and Bank of --
New York, as trustee, relating to the Company's 8-7/8% Notes due 2002
(incorporated herein by reference from Exhibit 4(a) to Amendment No. 1
to the Company's Registration Statement on Form S-3, No. 33-54560 filed
with the Securities and Exchange Commission on December 4, 1992).
4(e) Rights Agreement, dated as of November 20, 1986 between the Company and --
First Jersey National Bank (predecessor to First Interstate Bank, Ltd.),
as Rights Agent (incorporated by reference from Exhibit 1 to the
Company's Registration Statement on Form 8-A, dated November 28, 1986).
4(f) Certificate of Designation of Series A Participating Cumulative --
Preferred Stock Setting Forth the Powers, Preferences, Rights,
Qualification, Limitations and Restrictions of Such Series of Preferred
Stock of the Company (incorporated by reference from Exhibit 2 to the
Company's Registration Statement on Form 8-A, dated November 28, 1986).
4(g) Form of Right certificate relating to the Rights Agreement (see 4(e) --
above, incorporated by reference from Exhibit 3 to the Company's
Registration Statement on From 8-A, dated November 28, 1986).
</TABLE>
<PAGE> 38
<TABLE>
<S> <C>
4(h) Letter dated January 5, 1990, from the Company to First Interstate --
Bank, Ltd. ("FIB"), appointing FIB as successor Rights Agent under the
Rights Agreement dated as of November 20, 1986, between the Company and
The First Jersey National Bank (incorporated by reference from Exhibit
4(c) to the Company's Form 10-K for the year ended December 31, 1989).
4(i) Amendment to Rights Agreement entered into as of January 24, 1990, --
between the Company and First Interstate Bank, Ltd. (incorporated herein
by reference from Exhibit 4(d) to the Company's Form 10-K for the year
ended December 31, 1989).
4(j) Third Amendment to Rights Agreement entered into as of November 6, 1991 --
between the Company and First Interstate Bank, Ltd. (incorporated herein
by reference from Exhibit 4(a) to the Company's Form 10-K for the year
ended December 31, 1991).
4(k) 6.9% Cumulative Convertible Preferred Stock Purchase Agreement dated
as of December 5, 1989, among the Company, Mitsui & Co., Ltd., Mitsui &
Co. (U.S.A.), Inc., and Tonami Transportation Co., Ltd. (incorporated
herein by reference from Exhibit 4(b) to the Company's Form 10-K for
the year ended December 31, 1989).
4(k)(i) Amendments to the above Stock Purchase Agreement irrevocably waiving all --
demand registration rights, relinquishing the right of Mitsui & Co., Ltd.
to designate a representative to Airborne's Board of Directors, and
resignation of T. Kokai from said Board (incorporated herein by reference
from Amendment No. 1 to Schedule 13D of Mitsui & Co., Ltd., Intermodal
Terminal, Inc. (assignee of Mitsui & Co. (U.S.A.), Inc.) and Tonami
Transportation Co., Ltd., filed with the Securities & Exchange
Commission on December 21, 1993).
4(l) Certificate of Designation of Preferences of Preferred Shares of Airborne --
Freight Corporation, as filed on January 26, 1990, in the Office of the
Secretary of the State of Delaware (incorporated herein by reference from
Exhibit 4(a) to the Company's Form 10-K for the year ended December 31,
1989).
</TABLE>
<PAGE> 39
EXHIBIT NO. 10 Material Contracts
- ----------------------------------
Executive Compensation Plans and Agreements
- -------------------------------------------
<TABLE>
<S> <C> <C>
10(a) 1979 Airborne Freight Corporation Key Employee Stock Option and Stock --
Appreciation Rights Plan, as amended through February 2, 1987
(incorporated by reference from Exhibit 10(d) to the Company's Form
10-K for the year ended December 31, 1986).
10(b) 1983 Airborne Freight Corporation Key Employee Stock Option and Stock --
Appreciation Rights Plan, as amended through February 2, 1987
(incorporated by reference from Exhibit 10(c) to the Company's
Form 10-K for the year ended December 31, 1986).
10(c) 1989 Airborne Freight Corporation Key Employee Stock Option and Stock --
Appreciation Rights Plan (incorporated herein by reference from Exhibit
10(d) to the Company's Form 10-K for the year ended December 31, 1989).
10(d) 1994 Airborne Freight Corporation Key Employee Stock Option and Stock --
Appreciation Rights Plan (incorporated herein by reference from the
Addendum to the Company's Proxy Statement for the 1994 Annual Meeting
of Shareholders).
10(e) Airborne Freight Corporation Directors Stock Option Plan (incorporated --
herein by reference from the Addendum to the Company's Proxy Statement
for the 1991 Annual Meeting of Shareholders).
10(f) Airborne Express Executive Deferral Plan dated January 1, 1992 --
(incorporated by reference from Exhibit 10(b) to the Company's Form
10-K for the year ended December 31, 1991).
10(g) Airborne Express Supplemental Executive Retirement Plan dated January 1, --
1992 (incorporated by reference from Exhibit 10(c) to the Company's
Form 10-K for the year ended December 31, 1991).
10(h) Airborne Express 1993 Executive Management Incentive Compensation Plan. --
</TABLE>
<PAGE> 40
<TABLE>
<S> <C> <C>
10(i) Employment Agreement dated December 15, 1983, as amended November 20, --
1986, between the Company and Mr. Robert G. Brazier, President and
Chief Operating Officer (incorporated by reference from Exhibit 10(a)
to the Company's Form 10-K for the year ended December 31, 1986).
Identical agreements exist between the Company and the other six
executive officers.
10(j) Employment Agreement dated November 20, 1986 between the Company and --
Mr. Lanny H. Michael, then Vice President, Treasurer and Controller
(incorporated by reference from Exhibit 10(b) to the Company's
Form 10-K for the year ended December 31, 1986). Identical agreements
exist between the Company and 23 other officers of the Company. In
addition, the Company's principal subsidiary, ABX Air, Inc., has
entered into substantially identical agreements with five of its
officers.
Other Material Contracts
------------------------
10(k) $240,000,000 Revolving Loan Facility dated as of November 19, 1993 --
among the Company, as borrower, and Wachovia Bank of Georgia, N.A.,
ABN AMRO Bank N.V., United States National Bank of Oregon,
Seattle-First National Bank, CIBC Inc., Continental Bank N.A.,
Bank of America National Trust and Savings Association, The Bank
of New York, NBD Bank, N.A., as banks and Wachovia Bank of Georgia,
N.A., as agent.
10(l) Letter dated December 5, 1989, to the Company from Mitsui & Co., Ltd. --
("Mitsui"), relating to Mitsui's commitment to provide the Company
and ABX Air, Inc., a $100 million aircraft financing facility, as
modified by that certain Supplement thereto entered into as of
March 15, 1990 (incorporated herein by reference from Exhibit 10(b)
to the Company's Form 10-K for the year ended December 31, 1989).
</TABLE>
<PAGE> 41
<TABLE>
<S> <C> <C>
10(m) Shareholders Agreement entered into as of February 7, 1990, among --
the Company, Mitsui & Co., Ltd., and Tonami Transportation Co., Ltd.,
relating to joint ownership of Airborne Express Japan, Inc.
(incorporated herein by reference from Exhibit 10(c) to the Company's
Form 10-K for the year ended December 31, 1989).
</TABLE>
EXHIBIT NO. 11 Statement Re computation of Per Share Earnings
- --------------------------------------------------------------
<TABLE>
<S> <C> <C>
11 Statement re computation of earnings per share --
</TABLE>
EXHIBIT NO. 12 Statements Re computation of Ratios
- ---------------------------------------------------
<TABLE>
<S> <C> <C>
12 Statement re computation of ratio of senior long-term debt and total --
long-term debt to total capitalization
</TABLE>
EXHIBIT NO. 13 Annual Report to Security Holders
- -------------------------------------------------
<TABLE>
<S> <C> <C>
13 Portions of the 1993 Annual Report to Shareholders of Airborne --
Freight Corporation
</TABLE>
EXHIBIT NO. 21 Subsidiaries of the Registrant
- ----------------------------------------------
<TABLE>
<S> <C> <C>
21 The subsidiaries of the Company are listed on page 10 & 11 of this --
report on Form 10-K for the year ended December 31, 1993.
</TABLE>
EXHIBIT NO. 23 Consents of Experts and Counsel
- -----------------------------------------------
<TABLE>
<S> <C> <C>
23 Independent Auditors' Consent and Report on Schedules --
</TABLE>
All other exhibits are omitted because they are not applicable, or not
required, or because the required information is included in the consolidated
financial statements or notes thereto.
<PAGE> 1
Exhibit 10.H
AIRBORNE EXPRESS
1993
EXECUTIVE INCENTIVE COMPENSATION PLAN
<PAGE> 2
AIRBORNE FREIGHT CORPORATION D/B/A
"AIRBORNE EXPRESS"
EXECUTIVE INCENTIVE COMPENSATION PLAN
Effective January 1, 1993
SUMMARY PLAN DESCRIPTION
1. Purpose
The purpose of this Plan is to achieve Corporate goals by providing
incentive compensation to eligible key executives who through
industry, ability and exceptional service, contribute materially to
the success of Airborne Express.
2. Definitions
When used in the Plan, the following words and phrases shall have
the following meanings:
(a) Beneficiary - The beneficiary or beneficiaries designated to
receive the amount, if any, payable under the Plan upon the
death of a participant.
(b) Board - The Board of Directors of Airborne Freight
Corporation.
(c) Compensation Committee - Members of the Board who are
charged with the responsibility of review and
recommendations to the full Board on matters relating to
salaries of officers and all other forms of executive and
key management compensation and benefits.
(d) Plan - The Executive Incentive Compensation Plan.
(e) Plan Year - Each calendar year for which specific
performance targets are established for the Company.
(f) Eligible Employee or Participant - Any executive employee
who is in service at the end of the Plan year and who has
been designated by the Board as eligible to receive awards
hereunder.
(g) Performance Measure - A specific objective measure to assess
individual or group success in achieving established goals.
The plan consists of two corporate performance measures and
individual MBO sections may consist of up to four additional
performance measures.
(h) Target - The point at which performance equals 100% of the
stated objective and earns the bonus percentage established
for a given position.
2 1993
<PAGE> 3
(i) Attainment - The actual results of individual or group
effort to reach a performance goal, usually stated as a
percentage of target.
(j) Threshold - The point below target at which incentive payout
for each performance measure begins. Some performance
measures only pay incentive if target is achieved.
(k) Maximum - The point above target that represents the maximum
payout level for a particular performance measure.
(l) Total Disability - Complete and permanent inability by
reason of illness or accident to perform the duties of the
occupation at which a Participant was employed by Airborne
Express when such disability commenced.
(m) Retirement - When an employee leaves active service and
qualifies under the company's regular or early retirement
programs.
3. Allocation of Bonus Awards
Each Plan year bonus awards, if any, shall be allocated among eligible
employees, on the basis of their contributions to the successful
management of the total organization or of a subsidiary and in
accordance with such rules as the Board may prescribe.
Upon recommendations of the Compensation Committee, the Board shall
determine the award maximums, the allocation of the award between
individuals and the total organization and individual executive
awards.
In determining the allocation of bonus awards among individual
executives, the Chairman and the President will consider Company
performance and individual performance goals.
The Compensation Committee shall have the right to approve different
performance objectives for each performance period. However,
performance objectives will not be changed during any performance
period except as and to the extent determined by the Board in the
event of changes in accounting practices or extraordinary or
unanticipated circumstances which could have a material effect on
the achievement of the performance objectives.
4. Limitation on Allocation
The total amount allocated as a Bonus Award to an eligible employee
shall not exceed a fixed percentage of the employee's targeted award.
5. Form of Payment of Incentive Compensation
Incentive compensation awards shall be paid entirely in cash except
when otherwise authorized by the Board. Payments will be made as
soon as practicable after audited performance results are known,
which should be on or about March 1. Bonus award checks are
prepared by Payroll and the amounts are subject to tax withholding
and Capital Accumulation Plan (CAP) deductions.
3 1993
<PAGE> 4
If a participant dies before the end of the Plan year an amount
equal to a pro-rated portion thereof as of the date of death shall
be paid in one lump cash sum to the employee's beneficiary.
6. Designation of Beneficiaries
Each participant shall file with the Company a written designation of
one or more persons as the Beneficiary who shall be entitled to
receive the amount, if any, payable under the Plan upon the
employee's death. A participant may, from time to time, revoke or
change his Beneficiary designation without the consent of any prior
Beneficiary by filing a new designation. The last such designation
received shall be controlling, provided, however, that no
designation, or change or revocation thereof, shall be effective
unless received by the Company prior to the Participant's death, and
in no event shall it be effective as of a date prior to such receipt.
7. Absence of Valid Designation
If no such Beneficiary designation is in effect at the time of a
Participant's death, or if no designated beneficiary survives the
participant, or if such designation conflicts with the law, the
Participant's estate shall be deemed to have been designated a
beneficiary and shall receive the payment of the amount, if any,
under the Plan upon the participant's death. If the Compensation
Committee is in doubt as to the right of any person to receive such
amount, the Compensation Committee may direct retention of such
amount, without liability for any interest thereon, until the rights
thereto are determined or the Compensation Committee may pay such
amount to any court of appropriate jurisdiction and such payment
shall be a complete discharge of the liability of the Plan and of
Airborne therefore.
ADMINISTRATION OF THE PLAN
8. Power and Authority
The Compensation Committee shall have full power and authority to
construe, interpret and administer the Plan. All decisions, actions
or interpretations of the Compensation Committee shall be final,
conclusive and binding upon all parties.
9. No Liability of Compensation Committee, Board Members or Officers
No members of the Compensation Committee, Board or Corporate officers
shall be personally liable by reason of any contract or other
instrument executed by them or on their behalf nor for any mistake or
judgment made in good faith, and Airborne shall indemnify and hold
harmless each member of the Board and each other officer, employee
or director of Airborne to whom any duty or power relating to the
administration or interpretation of the Plan may be allocated or
delegated, against any cost or expense (including counsel fees) or
liability (including any sum paid in settlement of a claim with the
approval of the Compensation Committee) arising out of any act or
omission to act in connection with the Plan unless arising out of
such person's own fraud or bad faith.
4 1993
<PAGE> 5
10. Right to Amend, Suspend or Terminate Plan
The Board reserves the right at any time to amend, suspend or
terminate the Plan in whole or in part and for any reasons and
without the consent of any Participant or Beneficiary; provided that
no such amendment shall adversely affect rights to receive any
amount to which Participants or Beneficiaries have become entitled
prior to such amendment. Any amendment, modification, suspension or
termination of any provisions of the Plan may be made retroactively.
GENERAL LIMITATIONS AND PROVISIONS
11. No Rights to Continued Employment or Bonus
Nothing contained in the Plan shall give any employee the right to
be retained in the employment of Airborne or affect the right of
Airborne to dismiss any employee. The adoption of the Plan shall
not constitute a contract between Airborne and any employee. No
eligible employee shall receive any right to be granted an award
hereunder nor shall any such award be considered as compensation
under any employee benefit plan of Airborne except as otherwise
determined by Airborne.
12. No Right, Title, or Interest in Airborne Assets
The Participant shall have no right, title, or interest whatsoever
in or to any investments which Airborne may make to aid in meeting
its obligations under the Plan. Nothing contained in the Plan, and
no action taken pursuant to its provisions, shall create or be
construed to create a fiduciary relationship between Airborne and
any eligible employee or any other person. To the extent that any
person acquires a right to receive payments from Airborne under this
Plan, such right shall be no greater than the right of an unsecured
general creditor of Airborne.
13. Unfunded Plan: Governing Law
The Plan is intended to constitute an incentive compensation
arrangement for a select group of management or highly compensated
personnel and all rights thereunder shall be governed by and
construed in accordance with the laws of the State of Washington.
14. Executive Incentive Compensation Plan
The specific Executive Incentive Compensation Plan (EICP) for Plan
year 1993 is described in the next section (pages 6 -12).
5 1993
<PAGE> 6
AIRBORNE FREIGHT CORPORATION D/B/A
"AIRBORNE EXPRESS"
EXECUTIVE INCENTIVE COMPENSATION PLAN (EICP)
Effective January 1, 1993
Airborne Express has adopted an executive incentive compensation program which
provides opportunities to top corporate executives to receive additional
compensation for their contribution toward achieving the Company's performance
goals as established by the Board.
1. PURPOSE
The purpose of this Plan is to increase the rate of growth of the
Company--in earnings, revenues, human resources, and strategic
position--by stimulating key executives to superior performance,
and by attracting and keeping in the employ of the Company people
of outstanding experience and ability.
2. ADMINISTRATION
(a) The Compensation Committee will have the power to interpret
the Plan and to make all determinations necessary or
desirable for its administration.
(b) The decision of the Compensation Committee on any question
concerning the interpretation or administration of the Plan
will be final and conclusive. Nothing in the Plan will be
deemed to give any officer or employee, or legal
representatives or assigns, any right to participate in the
Plan except to such extent, as the Board may determine
pursuant to the provisions of the Plan.
3. ELIGIBILITY OF EMPLOYEES
(a) Eligibility of employees to participate in the Plan in any
Plan Year will be recommended through organizational
channels and approved by the Board.
(b) Eligible employees will be the Chief Executive Officer and
those executives of the Company who have a major
impact on profits, growth, contribute importantly
to determining the Company's strategic position, or
who directs a major administrative division of the
Company.
Positions eligible for the EICP include:
Chief Executive Officer (CEO)
President and Chief Operating Officer (COO)
Executive Vice Presidents
President, ABX Air, Inc.
(c) With approval of the Board, prior to June 30 of each Plan
Year, additional
6 1993
<PAGE> 7
employees may be included in the Plan, with any award bonus
pro-rated as shall be determined by the Compensation
Committee.
(d) Employees who retire in good standing during the year will
be eligible for a pro-rated bonus for the year in which they
retire provided they are on the active payroll on June 30th
or later of the plan year.
(e) Employees who take a leave of absence will have their awards
calculated based on actual Airborne salary earnings for the
calendar year. Any disability insurance payments will not
be included as earnings in calculating bonus awards.
Employees who are on a leave of absence for more than 90
days and who continue to receive full or partial salary
continuance will have their awards adjusted. Any salary
paid while on a leave of absence period over 90 days will
not be included in the base used to calculate annual bonus
awards.
(f) Bonus payments shall be made on or about March 1st following
the Plan year and after audited performance results.
(g) Bonus checks are prepared by Payroll and the amounts are
subject to tax withholding and Capital Accumulation Plan
(CAP) withholding.
4. COMPANY PERFORMANCE TARGETS
The Company's performance used to determine the payout of bonuses
on two factors -- pre-tax, pre-profit sharing net profit and
percent of sales revenue growth. Performance goals will be set as
follows:
(a) Pre-tax net profit earnings is the major corporate target
and shall be the basis of 75% of the bonus allocation.
(b) An 80% threshold is set on targeted pre-tax earnings.
(c) A 150% maximum is set on targeted pre-tax earnings.
(d) Percent growth in sales revenues is the second major
corporate target and shall be the basis of 25% of the bonus
allocation.
(e) An 80% threshold is set on targeted growth in sales revenue.
(f) The maximum is 150% of targeted growth in sales revenue.
5. QUALIFIERS AND DEFINITIONS ON PERFORMANCE TARGETS
(a) The bonus percentage is applied to the participant's salary
paid in the Plan (calendar) Year.
(b) No bonus will be paid for growth in sales revenue unless the
threshold net profit is achieved.
7 1993
<PAGE> 8
(c) To receive any award under EICP, an executive's individual
performance must be evaluated as at least competent by the
Compensation Committee.
6. BONUS AMOUNTS
Actual bonuses will be determined by applying the following
percentages, or a pro-rated portion thereof, times the participant's
annual salary.
<TABLE>
<CAPTION>
Threshold Maximum
Position (80% of Target) Target (150% of Target)
--------- --------------- ------ ----------------
<S> <C> <C> <C>
CEO & COO 10% 45% 100%
EVP's 10% 35% 75%
</TABLE>
7. ALLOCATIONS
100% of the bonus award is allocated to corporate performance
(as opposed to individual MBO achievement) for all Executive Incentive
Compensation Plan (EICP) eligible positions. The EICP incentive
payment percentages for goal attainment are:
<TABLE>
<CAPTION>
CEO & COO
(100% CORPORATE)
Percent of
Attainment Profit (75%) Revenue (25%) Total
---------- ------------- ------------- -----
<S> <C> <C> <C>
80% 7.5 % 2.5 % 10.0%
100% 33.75% 11.25% 45.0%
150% 75.0 % 25.0 % 100.0%
</TABLE>
<TABLE>
<CAPTION>
EVP'S
(100% CORPORATE)
Percent of
Attainment Profit (75%) Revenue (25%) Total
---------- ------------- ------------- -----
<S> <C> <C> <C>
80% 7.5 % 2.5 % 10.0%
100% 26.25% 8.75% 35.0%
150% 56.25% 18.75% 75.0%
</TABLE>
8. There is an example incentive calculation for the EVP level on
the following page.
8 1993
<PAGE> 9
EICP EXAMPLE
1. TITLE: EXECUTIVE VICE PRESIDENT
2. 100% CORPORATE ALLOCATION
3. SALARY: $200,000
4. Bonus opportunity as percent of salary:
<TABLE>
<CAPTION>
Threshold Target Maximum
--------- ------ -------
<S> <C> <C>
10% 35% 75%
</TABLE>
5. Allocation:
<TABLE>
<CAPTION>
Threshold Target Maximum
--------- --------- -------
<S> <C> <C> <C>
75% - Pre-Tax Net Profit 7.5% 26.25% 56.25%
25% - Growth in Revenue 2.5% 8.75% 18.75%
----------------------------------------------------------------------------------
Total Bonus Opportunity 10.0% 35.0 % 75.0 %
</TABLE>
6. Assumed Facts:
<TABLE>
<S> <C> <C>
* Profit Performance: 87%
* Revenue Performance: 104%
</TABLE>
7. Calculations
A. PROFIT BONUS @ 87% ACTUAL PERFORMANCE
Performance = Bonus Percentage (from table)
87% = 14.06%
Bonus % X Annual Salary = Profit Bonus
14.06% X $200,000 = $28,120
B. REVENUE GROWTH @ 104% ACTUAL PERFORMANCE
Performance = Bonus Percentage (from table)
104% = 9.55%
Bonus % X Annual Salary = Profit Bonus
9.55% X $200,000 = $19,100
C. TOTAL BONUS EARNED
Profit Bonus $28,120
Revenue Bonus $19,100
-------
$47,220
9 1993
<PAGE> 10
BONUS PERCENT LOOKUP TABLE
CORPORATE ATTAINMENT (ONLY) PLAN, CEO & COO
<TABLE>
<CAPTION>
NET PROFIT FACTOR REVENUE GROWTH FACTOR
(75% weight) (25% weight)
--------------------- ---------------------
Percent Percent
Attainment Percent Attainment Percent
(of Goal) of Salary (of Goal) of Salary
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
below 80% 0 below 80% 0
Threshold 80% 7.50% 80% 2.50%
81% 8.81% 81% 2.94%
82% 10.13% 82% 3.37%
83% 11.44% 83% 3.81%
84% 12.75% 84% 4.25%
85% 14.06% 85% 4.69%
86% 15.38% 86% 5.13%
87% 16.69% 87% 5.56%
88% 18.00% 88% 6.00%
89% 19.31% 89% 6.44%
90% 20.63% 90% 6.88%
91% 21.94% 91% 7.31%
92% 23.25% 92% 7.75%
93% 24.56% 93% 8.19%
94% 25.88% 94% 8.63%
95% 27.19% 95% 9.06%
96% 28.50% 96% 9.50%
97% 29.81% 97% 9.94%
98% 31.13% 98% 10.38%
99% 32.44% 99% 10.81%
Target 100% 33.75% 100% 11.25%
102% 35.40% 102% 11.80%
104% 37.05% 104% 12.35%
106% 38.70% 106% 12.90%
108% 40.35% 108% 13.45%
110% 42.00% 110% 14.00%
112% 43.65% 112% 14.55%
114% 45.30% 114% 15.10%
116% 46.95% 116% 15.65%
118% 48.60% 118% 16.20%
120% 50.25% 120% 16.75%
122% 51.90% 122% 17.30%
124% 53.55% 124% 17.85%
126% 52.20% 126% 18.40%
128% 56.85% 128% 18.95%
130% 58.50% 130% 19.50%
132% 60.15% 132% 20.05%
134% 61.60% 134% 20.60%
136% 63.45% 136% 21.15%
138% 65.10% 138% 21.70%
140% 66.75% 140% 22.25%
142% 68.40% 142% 22.80%
144% 70.05% 144% 23.35%
146% 71.70% 146% 23.90%
148% 73.35% 148% 24.45%
Maximum 150% 75.00% 150% 25.00%
</TABLE>
Note: Actual Payouts will be calculated using Formulas where % of attainment
is rounded to the nearest 1% and % of salary is rounded to the
nearest .01%.
10
<PAGE> 11
Bonus Percent Lookup Table
CORPORATE ATTAINMENT (ONLY) PLAN, EXECUTIVE VPS
<TABLE>
<CAPTION>
NET PROFIT FACTOR REVENUE GROWTH FACTOR
(75% weight) (25% weight)
------------------------- -----------------------
Percent Percent
Attnmt Percent Attnmt Percent
(of Goal) of Salary (of Goal) of Salary
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
below 80% 0 below 80% 0
Threshold 80% 7.50% 80% 2.50%
81% 8.44% 81% 2.81%
82% 9.37% 82% 3.13%
83% 10.31% 83% 3.44%
84% 11.25% 84% 3.75%
85% 12.19% 85% 4.06%
86% 13.13% 86% 4.38%
87% 14.06% 87% 4.69%
88% 15.00% 88% 5.00%
89% 15.94% 89% 5.31%
90% 16.88% 90% 5.63%
91% 17.81% 91% 5.94%
92% 18.75% 92% 6.25%
93% 19.69% 93% 6.56%
94% 20.63% 94% 6.88%
95% 21.56% 95% 7.19%
96% 22.50% 96% 7.50%
97% 23.44% 97% 7.81%
98% 24.38% 98% 8.13%
99% 25.31% 99% 8.44%
Target 100% 26.25% 100% 8.75%
102% 27.45% 102% 9.15%
104% 28.65% 104% 9.55%
106% 29.85% 106% 9.95%
108% 31.05% 108% 10.35%
110% 32.25% 110% 10.75%
112% 33.45% 112% 11.15%
114% 34.65% 114% 11.55%
116% 35.85% 116% 11.95%
118% 37.05% 118% 12.35%
120% 38.25% 120% 12.75%
122% 39.45% 122% 13.15%
124% 40.65% 124% 13.55%
126% 41.85% 126% 13.95%
128% 43.05% 128% 14.35%
130% 44.25% 130% 14.75%
132% 45.45% 132% 15.15%
134% 46.65% 134% 15.55%
136% 47.85% 136% 15.95%
138% 49.05% 138% 16.35%
140% 50.25% 140% 16.75%
142% 51.45% 142% 17.15%
144% 52.65% 144% 17.55%
146% 53.85% 146% 17.95%
148% 55.05% 148% 18.35%
Maximum 150% 56.25% 150% 18.75%
</TABLE>
Note: Actual Payouts will be calculated using Formulas where % of
attainment is rounded to nearest 1% and % of salary is rounded to
the nearest .01%.
11
<PAGE> 1
Exhibit 10.K
$240,000,000.00
CREDIT AGREEMENT
dated as of
November 19, 1993
among
AIRBORNE FREIGHT CORPORATION
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
ATMAIN Doc: 29851.9
<PAGE> 2
TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE I
DEFINITIONS
Page
----
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . . . . . . . 15
SECTION 1.03. References . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.04. Use of Defined Terms . . . . . . . . . . . . . . . 15
SECTION 1.05. Terminology . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . 16
SECTION 2.02. Method of Borrowing . . . . . . . . . . . . . . . 16
SECTION 2.03. Money Market Loans . . . . . . . . . . . . . . . 18
SECTION 2.04. Notes . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.05. Maturity of Loans . . . . . . . . . . . . . . . . 22
SECTION 2.06. Interest Rates . . . . . . . . . . . . . . . . . 23
SECTION 2.07. Fees . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.08. Optional Termination or Reduction of Commitments . 25
SECTION 2.09. Termination of Commitments . . . . . . . . . . . . 25
SECTION 2.10. Optional Prepayments . . . . . . . . . . . . . . 25
ATMAIN Doc. 29851.9 (i)
<PAGE> 3
SECTION 2.11. Mandatory Prepayments . . . . . . . . . . . . . . . 26
SECTION 2.12. General Provisions as to Payments . . . . . . . . . 26
SECTION 2.13. Computation of Interest and Fees. . . . . . . . . . 27
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing . . . . . . . . . . . 27
SECTION 3.02. Conditions to All Borrowings. . . . . . . . . . . . 28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power . . . . . . . . . . . 29
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention . . . . . . . . . . . . . . . . 29
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . 29
SECTION 4.04. Financial Information . . . . . . . . . . . . . . . 30
SECTION 4.05. No Litigation . . . . . . . . . . . . . . . . . . . 30
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . . . . . 30
SECTION 4.07. Compliance with Laws; Payment of Taxes. . . . . . . 31
SECTION 4.08. Subsidiaries. . . . . . . . . . . . . . . . . . . . 31
SECTION 4.09. Investment Company Act. . . . . . . . . . . . . . . 31
SECTION 4.10. Public Utility Holding Company Act. . . . . . . . . 31
SECTION 4.11. Ownership of Property; Liens. . . . . . . . . . . . 32
SECTION 4.12. No Default. . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.13. Full Disclosure . . . . . . . . . . . . . . . . . . 32
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<PAGE> 4
SECTION 4.14. Environmental Matters . . . . . . . . . . . 32
SECTION 4.15. Capital Stock . . . . . . . . . . . . . . . 33
SECTION 4.16. Margin Stock . . . . . . . . . . . . . . . . 33
SECTION 4.17. Insolvency . . . . . . . . . . . . . . . . . 33
ARTICLE V
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . 33
SECTION 5.02. Inspection of Property, Books and Records . 35
SECTION 5.03. Ratio of Consolidated Senior Funded Debt
to Consolidated Total Capital . . . . . . 35
SECTION 5.04. Ratio of Consolidated Funded Debt
to Consolidated Total Capital . . . . . . 35
SECTION 5.05. Minimum Consolidated Tangible Net Worth . . 36
SECTION 5.06. Fixed Charges Coverage . . . . . . . . . . . 36
SECTION 5.07. Loans or Advances . . . . . . . . . . . . . 36
SECTION 5.08. Investments . . . . . . . . . . . . . . . . 36
SECTION 5.09. Negative Pledge . . . . . . . . . . . . . . 37
SECTION 5.10. Maintenance of Existence . . . . . . . . . . 37
SECTION 5.11. Dissolution . . . . . . . . . . . . . . . . 37
SECTION 5.12. Consolidations and Mergers . . . . . . . . . 37
Section 5.13. Sales of Assets . . . . . . . . . . . . . . 38
SECTION 5.14. Use of Proceeds . . . . . . . . . . . . . . 38
SECTION 5.15. Compliance with Laws; Payment of Taxes . . . 38
SECTION 5.16. Insurance . . . . . . . . . . . . . . . . . 39
SECTION 5.17. Change in Fiscal Year . . . . . . . . . . . 39
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<PAGE> 5
SECTION 5.18. Maintenance of Property . . . . . . . . . . . . 39
SECTION 5.19. Environmental Notices . . . . . . . . . . . . . 39
SECTION 5.20. Environmental Matters . . . . . . . . . . . . . 39
SECTION 5.21. Environmental Release . . . . . . . . . . . . . 39
SECTION 5.22. More Restrictive Agreements . . . . . . . . . . 40
SECTION 5.23. Debt of Subsidiaries . . . . . . . . . . . . . . 40
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . 40
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . 43
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities . . . . . . 44
SECTION 7.02. Reliance by Agent . . . . . . . . . . . . . . . 44
SECTION 7.03. Defaults . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Rights of Agent as a Bank . . . . . . . . . . . 45
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . 45
SECTION 7.06. CONSEQUENTIAL DAMAGES . . . . . . . . . . . . . 46
SECTION 7.07. Payee of Note Treated as Owner . . . . . . . . 46
SECTION 7.08. Nonreliance on Agent and Other Banks . . . . . . 46
SECTION 7.09. Failure to Act . . . . . . . . . . . . . . . . 47
SECTION 7.10. Resignation or Removal of Agent . . . . . . . . 47
ATMAIN Doc: 29851.9 (iv)
<PAGE> 6
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. . . . . . . . . . . . . . 47
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . 48
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . 48
SECTION 8.04. Base Rate Loans Substituted for
EuroDollar Loans. . . . . . . . . . . . . . . . 50
SECTION 8.05. Compensation. . . . . . . . . . . . . . . . . . . 50
SECTION 8.06. HLT Classification. . . . . . . . . . . . . . . . 51
SECTION 8.07. Replacement of Banks. . . . . . . . . . . . . . . 52
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.03. Expenses; Documentary Taxes . . . . . . . . . . . 53
SECTION 9.04. Indemnification . . . . . . . . . . . . . . . . . 53
SECTION 9.05. Sharing of Setoffs . . . . . . . . . . . . . . . . 53
SECTION 9.06. Amendments and Waivers . . . . . . . . . . . . . . 54
SECTION 9.07. No Margin Stock Collateral . . . . . . . . . . . . 55
SECTION 9.08. Successors and Assigns . . . . . . . . . . . . . . 55
SECTION 9.09. Confidentiality . . . . . . . . . . . . . . . . . 58
SECTION 9.10. Representation by Banks . . . . . . . . . . . . . 58
SECTION 9.11. Obligations Several . . . . . . . . . . . . . . . 58
SECTION 9.12. Georgia Law . . . . . . . . . . . . . . . . . . . 58
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<PAGE> 7
SECTION 9.13. Severability . . . . . . . . . . . . . . . . . . 59
SECTION 9.14. Interest . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.15. Interpretation . . . . . . . . . . . . . . . . . 59
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. . 59
SECTION 9.17. Counterparts . . . . . . . . . . . . . . . . . . 59
EXHIBIT A-I Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Jones, Day,
Reavis & Pogue, Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Guaranty
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
Schedule 1.01 Cumulative Convertible Preferred Stock
Redemption Schedule
Schedule 4.08 Subsidiaries
ATMAIN Doc: 29851.9 (vi)
<PAGE> 8
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 19, 1993 among
AIRBORNE FREIGHT CORPORATION, the BANKS listed on the signature pages hereof
and WACHOVIA BANK OF GEORGIA, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"ABX" means ABX AIR, INC., a Delaware corporation, and its
successors and permitted assigns.
"Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/16th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage. The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the effective date of
any change in the Euro-Dollar Reserve Percentage.
"Agent" means Wachovia Bank of Georgia, N.A., a national
banking association organized under the laws of the United States of America,
in its capacity as agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of August 19, 1993, between the Borrower and the Agent
relating to the structure of the Loans, and certain fees from time to time
payable by the Borrower to the Agent, together with all amendments and
modifications thereto.
"Aggregate Commitments" means the sum of all of the
Commitments.
1 1993
ATMAIN Doc: 29851.9
<PAGE> 9
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" means (i) with respect to Base Rate
Loans, 0%; and (ii) with respect to EuroDollar Loans, (x) if the Borrower's
ratio of Consolidated Senior Funded Debt to Consolidated Total Capital is less
than or equal to 0.35 to 1.0, 0.4375%, (y) if the Borrower's ratio of
Consolidated Senior Funded Debt to Consolidated Total Capital is greater than
0.35 to 1.0 but equal to or less than 0.50 to 1.0, 0.6875%, and (z) if the
Borrower's ratio of Consolidated Senior Funded Debt to Consolidated Total
Capital is greater than 0.50 to 1.0, 0.875%. The determination of the
Applicable Margin from time to time shall be made in accordance with Section
2.07(c).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c), substantially in the
form attached hereto as Exhibit D.
"Attributable Value" shall be defined (i) as to any
particular lease under which the Borrower or a Consolidated Subsidiary is at
the time liable (other than a Capitalized Lease Obligation), and at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by the Borrower or such Consolidated Subsidiary under such
lease during the initial term thereof as determined in accordance with GAAP,
discounted from the last date of such initial term to the date of determination
at a rate per annum equal to the discount rate which would be applicable to a
Capitalized Lease Obligation with like term in accordance with GAAP and (ii) as
to a Capital Lease Obligation under which the Borrower or a Consolidated
Subsidiary is at the time liable and at any date as of which the amount thereof
is to be determined, the capitalized amount thereof that would appear on the
face of a balance sheet of such Person in accordance with GAAP.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof
as having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, and
(ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any
ATMAIN Doc: 29851.9 2
<PAGE> 10
day, changes in the Prime Rate shall be effective on the date of each such
change.
"Base Rate Loan" means a Loan to be made as a Base Rate Loan
pursuant to the applicable Notice of Borrowing, Section 2.02(f), or Article
VIII, as applicable.
"Borrower" means AIRBORNE FREIGHT CORPORATION, a Delaware
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by the Banks pursuant to Article II. 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
"Syndicated Borrowing" if it is made pursuant to Section 2.01. A Borrowing is
a "Money Market Borrowing" if it contains Money Market Loans pursuant to the
procedure outlined in Section 2.03.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"Capitalized Lease Obligation" means all lease obligations
of a Person in respect of a lease which would be capitalized in accordance with
GAAP.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means November 19, 1993.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor Federal tax code.
ATMAIN Doc: 29851.9 3
<PAGE> 11
"Commitment" means, with respect to each Bank, the amount
set forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Commitment Fee" has the meaning ascribed thereto in Section
2.07(a).
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Fixed Charges" for any period means the sum of
(i) Consolidated Interest for such period, and (ii) all payment obligations of
the Borrower and its Consolidated Subsidiaries for such period under all
operating leases and rental agreements.
"Consolidated Funded Debt" shall be defined, without
duplication, as (i) all obligations of the Borrower and its Consolidated
Subsidiaries for borrowed money, (ii) all obligations of the Borrower and its
Consolidated Subsidiaries evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of the Borrower and its Consolidated
Subsidiaries to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (iv) all
Capitalized Lease Obligations of the Borrower and its Consolidated
Subsidiaries, (v) all Debt secured by a Lien on any asset of the Borrower or
any Consolidated Subsidiary whether or not such Debt is otherwise an obligation
of the Borrower and its Consolidated Subsidiaries, (vi) all Debt of others
Guaranteed by the Borrower or any Consolidated Subsidiary which, in aggregate,
exceeds $10,000,000, (vii) all obligations of the Borrower to purchase
securities which arise out of or in connection with the sale of the same or
substantially similar securities and (viii) all Redeemable Preferred Stock
other than the Cumulative Convertible Preferred Stock).
"Consolidated Interest" means, as of any date of
determination, Interest of the Borrower and its Consolidated Subsidiaries.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis.
ATMAIN Doc: 29851.9 4
<PAGE> 12
"Consolidated Net Worth" shall be defined as the
shareholders' equity of the Borrower and its Consolidated Subsidiaries, as set
forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP,
including the unredeemed portion of the Cumulative Convertible Preferred Stock,
but excluding any other Redeemable Preferred Stock of the Borrower or any of
its Consolidated Subsidiaries.
"Consolidated Operating Profits" means, for any period, the
consolidated operating income of the Borrower and its Consolidated Subsidiaries
for such period, as determined in accordance with GAAP.
"Consolidated Senior Funded Debt" shall be defined as all
Consolidated Funded Debt that is not subordinated in right of payment to the
Loans under this Agreement, or, if subordinated in right of payment, has a
maturity date prior to the Termination Date.
"Consolidated Subsidiary" means at any date any Subsidiary
or other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Tangible Net Worth" shall be defined as
Consolidated Net Worth, less the sum set forth or reflected on the most recent
audited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of all assets which would be
treated as intangibles under GAAP, including, without limitation, goodwill
whether representing the excess of cost over book value of assets acquired, or
otherwise), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Consolidated Total Capital" means, at any time, the sum of
(i) Consolidated Net Worth, and (ii) Consolidated Funded Debt.
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or
5
ATMAIN Doc: 29851.9
<PAGE> 13
not incorporated) under common control which, together with the Borrower,
are treated as a single employer under Section 414 of the Code.
"Convertible Subordinated Debentures" means the Borrower's
1991 issued 6.75% convertible subordinated debentures.
"Cumulative Convertible Preferred Stock" means the
Borrower's 1990 issued 6.9% cumulative convertible preferred stock.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other
Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, (viii) all Debt of
others Guaranteed by such Person, and (ix) all obligations of such Person to
purchase securities which arise out of or in connection with the sale of the
same or substantially similar securities.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of the Base Rate plus 2%.
"Depreciation" means for any period the sum of all
depreciation expenses of the Borrower and its Consolidated Subsidiaries for
such period, as determined in accordance with GAAP.
"Dividends" means for any period the sum of all dividends
paid or declared during such period in respect of any Capital Stock and
Redeemable Preferred Stock (other than dividends paid or payable in the form of
additional Capital Stock).
ATMAIN Doc: 29851.9 6
<PAGE> 14
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with
an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations concerning
any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state
and local laws, ordinances, regulations, orders, writs, decrees and common law.
ATMAIN Doc: 29851.9 7
<PAGE> 15
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day
on which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar
Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Facility Fee" has the meaning ascribed thereto in Section
2.07(b).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day on
such transactions, as determined by the Agent.
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<PAGE> 16
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Forwarding" means Airborne Forwarding Corporation, a
Delaware corporation, and its successors and permitted assigns.
"GAAP" means generally accepted accounting principles
applied on a basis consistent with those which, in accordance with Section
1.02, are to be used in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantors" means, individually and collectively, (i) ABX,
(ii) Forwarding and (iii) any other Person delivering a Guaranty to the Agent,
together with each of their respective successors and permitted assigns.
"Guaranty" means, individually and collectively, (i) those
certain Guaranty Agreements, substantially in the form of Exhibit H hereto,
executed and delivered by the Guarantors, jointly and severally, to the Agent,
for the ratable benefit of each of the Banks, together with all amendments and
modifications thereto and (ii) any other guaranty agreement delivered to the
Agent for the purpose of providing a Guarantee of any of the Borrower's or the
Guarantors' obligations under any of the Loan Documents, together with all
amendments and modifications thereto.
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<PAGE> 17
"Hazardous Materials" includes, without limitation, (a)
solid or hazardous waste, as defined in the Resource Conservation and Recovery
Act of 1980, 42 U.S.C. Section 6901 et seq. and its implementing regulations
and amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976,
or in any applicable state or local law or regulation or (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"HLT Classification" has the meaning set forth in Section
8.06.
"Income Available for Fixed Charges" for any period means
the sum of (i) Consolidated Net Income, (ii) taxes on income, (iii)
Consolidated Fixed Charges, and (iv) Depreciation, all determined with respect
to the Borrower and its Consolidated Subsidiaries on a consolidated basis for
such period and in accordance with GAAP.
"Interest" means, as of any date of determination, gross
interest accrued before capitalized interest and interest income, as determined
in accordance with GAAP.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the first, second, third or
sixth month thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below)
which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the
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appropriate subsequent calendar month) shall, subject to paragraph
(c) below, end on the last Euro-Dollar Business Day of the
appropriate subsequent calendar month; and
(c) no Interest Period may be selected which would end
after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to paragraph (b) below)
which would otherwise end on a day which is not a Domestic Business
Day shall be extended to the next succeeding Domestic Business Day;
and
(b) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end on
the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of
a time deposit with such Person, Guarantee or assumption of any obligation of
such Person or otherwise.
"Lending Office" means, as to each Bank, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed
to secure debt, deed of trust, lien, pledge, charge, security interest,
security title, preferential arrangement which has the practical effect of
constituting a security interest or encumbrance, or encumbrance or servitude of
any kind in respect of such asset to secure or assure payment of a Debt or a
Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
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"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a
Syndicated Loan, or a Money Market Loan and "Loans" means Base Rate Loans,
Euro-Dollar Loans, Syndicated Loans, or Money Market Loans.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, any other document evidencing, relating to or securing the Loans, and
any other document or instrument delivered from time to time in connection with
this Agreement, the Notes, or the Loans, as such documents and instruments may
be amended or supplemented from time to time.
"London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Loan offered for a term
comparable to such Interest Period, which rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M., London time, 2 Euro-Dollar Business Days prior to
the first day of such Interest Period, provided that (i) if more than one such
offered rate appears on the Reuters Screen LIBO Page, the "London Interbank
Offered Rate" will be the arithmetic average (rounded upward, if necessary, to
the next higher 1/16th of 1%) of such offered rates; (ii) if no such offered
rates appear on such page, the "London Interbank Offered Rate" for such
Interest Period will be the arithmetic average (rounded upward, if necessary,
to the next higher 1/16th of 1%) of rates quoted by not less than two major
banks in New York City, selected by the Agent, at approximately 10:00 A.M., New
York City time, 2 Euro-Dollar Business Days prior to the first day of such
Interest Period, for deposits in Dollars offered to leading European banks for
a period comparable to such Interest Period in an amount comparable to the
principal amount of such Loan.
"Majority Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 51% of the aggregate outstanding principal
amount of the sum of (i) Syndicated Loans and (ii) Money Market Loans.
"Margin Stock" means "margin stock" as defined in
Regulations G, T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or
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governmental investigation or proceeding), whether singly or in conjunction
with any other event or events, act or acts, condition or conditions,
occurrence or occurrences, whether or not related, a material adverse change
in, or a material adverse effect upon, any of (a) the financial condition,
operations, business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Agent or the Banks under the Loan Documents, or the ability of the Borrower or
the Guarantors to perform their respective obligations under the Loan Documents
to which it is a party, as applicable, or (c) the legality, validity or
enforceability of any Loan Document.
"Mitsui Agreement" means that certain letter agreement dated
as of December 5, 1989 among the Borrower, ABX and Mitsui & Co., Ltd., as
supplemented by Supplement No. 1 thereto dated as of March 15, 1990, and as
further supplemented by Supplement No. 2 thereto dated as of September 12,
1991, and as further amended from time to time with the consent of the Required
Banks.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-2, evidencing the obligation
of the Borrower to repay Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Loans" means Loans made pursuant to the terms
and conditions set forth in Section 2.03 hereof.
"Money Market Quote" has the meaning specified in Section
2.03.
"Money Market Quote Request" has the meaning specified in
Section 2.03.
"Money Market Rate" has the meaning specified in Section
2.03.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a) (3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such
period, as determined in accordance with GAAP.
"Net Proceeds of Capital Stock" means any proceeds received
by the Borrower or a Consolidated Subsidiary (or, in the
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<PAGE> 21
case of the Convertible Subordinated Debentures, net additions to capital of
the Borrower) in respect of the issuance of Capital Stock, including, without
limitation, any such issuance resulting from a conversion of the Convertible
Subordinated Debentures, after deducting therefrom all reasonable and customary
costs and expenses incurred by the Borrower or such Consolidated Subsidiary
directly in connection with the issuance of such Capital Stock.
"Notes" means, individually and collectively, as the context
shall require, each of the Syndicated Loan Notes and Money Market Loan Notes.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning
ascribed thereto in Section 2.07(c).
"Person" means an individual, a corporation, a partnership,
an unincorporated association, a trust or any other
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<PAGE> 22
entity or organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Preferred Stock Dividends" means Dividends in respect of
the Cumulative Convertible Preferred Stock.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings.
The Prime Rate is but one of several interest rate bases used by Wachovia.
Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Quarterly Date" means each March 31, June 30, September
30, and December 31.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior to the
Termination Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation G" means Regulation G of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
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"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time
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<PAGE> 24
to time, together with all official rulings and interpretations issued
thereunder.
"Related Business Acquisition" means any acquisition (either
of stock or assets) of any Person (or division thereof) in the business of
providing shipment transportation or logistics services.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the sum of (i) Syndicated Loans and (ii) Money Market
Loans.
"Stated Maturity Date" means, with respect to any Money
Market Loan, the Stated Maturity Date therefor specified by the Bank in the
applicable Money Market Quote.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar
Loans made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the obligation
of the Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Termination Date" means May 31, 1997, unless such date is
otherwise extended by the Banks pursuant to Section 2.05(c), in their sole and
absolute discretion.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d)
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate
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<PAGE> 25
outstanding principal amount of its Syndicated Loans. The available amount of
the Unused Commitments shall be reduced from time to time (due to Money Market
Borrowings) to the extent set forth in Section 2.01.
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<PAGE> 26
"Wachovia" means Wachovia Bank of Georgia, N.A., a national
banking association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared, in accordance with GAAP, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants or
otherwise required by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks unless with respect to any such change
concurred in by the Borrower's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules,
sections and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in
this Agreement shall have the same defined meanings when used in any of the
other Loan Documents, unless otherwise defined therein or unless the context
shall require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in
this Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the
plural shall include the
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<PAGE> 27
singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
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<PAGE> 28
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank 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,
immediately after each such Syndicated Loan is made, the aggregate principal
amount of Syndicated Loans by such Bank shall not exceed the amount of its
Commitment. Each Syndicated Borrowing under this Section 2.01 shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Syndicated Borrowing may be in the aggregate amount of
the Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Commitments. The Unused Commitments available
for Syndicated Loans under this Section 2.01 shall be automatically and ratably
reduced by the principal amount of all Money Market Loans made by any Bank
pursuant to Section 2.03. Within the foregoing limits, the Borrower may borrow
under this Section 2.01, repay or, to the extent permitted by Section 2.10,
prepay Syndicated Loans and reborrow under this Section 2.01 at any time before
the Termination Date.
SECTION 2.02. Method of Borrowing. (a) The Borrower shall
give the Agent notice (a "Notice of Borrowing"), which shall be substantially
in the form of Exhibit E, on the same day for a Base Rate Borrowing, and at
least 3 Euro-Dollar Business Days' notice prior to each Euro-Dollar Borrowing
(all notices being effective on the day delivered so long as the Agent shall
have received same prior to 12:00 P.M. (noon), Atlanta, Georgia time)
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 Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar 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.
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(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
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<PAGE> 30
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on the
date of each Syndicated Borrowing, each Bank 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 Agent at its address referred to in Section 9.01.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address not later than
4:30 P.M. (Atlanta, Georgia time) on the date of any relevant Syndicated
Borrowing. Unless the Agent receives notice from a Bank, at the Agent's address
referred to in or specified pursuant to Section 9.01, (i) in the case of a Base
Rate Borrowing, no later than 3:00 P.M. (Atlanta, Georgia time) on the same day
as such Base Rate Borrowing and (ii) in the case of any other type of
Syndicated Borrowing, no later than 4:00 P.M. (Atlanta, Georgia time) on the
Domestic Business Day before the date of a Syndicated Borrowing stating that
such Bank will not make a Loan in connection with such Syndicated Borrowing,
the Agent shall be entitled to assume that such Bank will make a Loan in
connection with such Syndicated Borrowing and, in reliance on such assumption,
the Agent may (but shall not be obligated to) make available such Bank's
ratable share of such Syndicated Borrowing to the Borrower for the account of
such Bank. If the Agent makes any such Bank's ratable share of a Borrowing
available to the Borrower, the Agent shall promptly notify (which notice may be
telephonic) the Borrower of the identity of the Bank for whom such funds were
advanced and the amount of such advance. The Agent shall promptly notify
(which notice may be telephonic) the Borrower of the details of any notice
received from any Bank stating that any such Bank does not intend to make its
ratable share of funds available in connection with any relevant Borrowing. If
the Agent makes such Bank's ratable share available to the Borrower and such
Bank does not in fact make its ratable share of such Syndicated Borrowing
available on such date, the Agent shall be entitled to recover such Bank's
ratable share from such Bank or the Borrower (and for such purpose shall be
entitled to charge such amount to any account of the Borrower maintained with
the Agent upon prior notice to the Borrower), 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 rate at which
the Agent determines that it obtained (or could have obtained) overnight
Federal funds to cover such amount for each such day during such period,
provided that any such payment by the Borrower of such Bank's ratable share and
interest thereon shall be without prejudice to any rights that the Borrower may
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have against such Bank. If the Agent does not exercise its option to advance
funds for the account of such Bank, it shall forthwith notify the Borrower of
such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any
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part of an outstanding Syndicated Loan from such Bank, such Bank shall apply
the proceeds of its new Syndicated Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the Agent as
provided in paragraph (c) of this Section, or remitted by the Borrower to the
Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in
this Agreement, including, without limitation Section 2.01 and Section 2.03, no
Euro-Dollar Borrowing or Money Market 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.
(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 Syndicated 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, including, without limitation Section 2.01 and Section 2.03, there
shall not be more than 9 Interest Periods and/or Stated Maturity Dates
applicable to the Loans at any given time.
SECTION 2.03. Money Market Loans. (a) In addition to making
Syndicated Borrowings, the Borrower may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the Borrower. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers
in the manner set. forth in this Section 2.03, provided that:
(i) there may be no more than 9 Interest Periods
and/or Stated Maturity Dates applicable to the Loans at any given
time; and
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(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal amount of all
Syndicated Loans, at any one time outstanding shall not exceed the
aggregate amount of the Commitments of all of the Banks at such time.
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(b) When the Borrower wishes to request offers to make Money
Market Loans, it shall give the Agent (which shall promptly notify the Banks)
notice substantially in the form of Exhibit I hereto (a "Money Market Quote
Request") so as to be received no later than 12:00 P.M. (noon) (Atlanta,
Georgia time) at least 1 Euro-Dollar Business Day prior to the date of the
Money Market Borrowing proposed therein or such other time and date as the
Borrower and the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market
Borrowing, which shall be a Domestic Business Day (the "Quotation
Date");
(ii) the maturity date (or dates) (each a "Stated
Maturity Date") for repayment of each Money Market Loan to be made as
part of such Money Market Borrowing which Stated Maturity Date shall
be that date occurring either 7 days, 14 days, 30 days, or any other
amount of days greater than 30 days but not greater than 185 days
from the date of such Money Market Borrowing); provided, that the
Stated Maturity Date for any Money Market Loan may not extend beyond
the Termination Date (as in effect on the date of such Money Market
Quote Request); and
(iii) the aggregate amount of principal to be
received by the Borrower as a result of such Money Market Borrowing,
which shall be at least $5,000,000 (and in larger integral multiples
of $1,000,000) but shall not cause the limits specified in Section
2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 3
different Stated Maturity Dates in a single Money Market Quote Request;
provided, that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money Market
Borrowing. Except as otherwise provided in the preceding sentence, after the
first Money Market Quote Request has been given hereunder, no Money Market
Quote Request shall be given until at least 3 Domestic Business Days after all
prior Money Market Quote Requests have been fully processed by the Agent, the
Banks and the Borrower pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation to,
submit a response containing an offer to make a Money Market
Loan substantially in the form of Exhibit J hereto (a "Money
Market Quote") in response to any Money Market Quote
Request; provided, that, if the Borrower's request under
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Section 2.03(b) specified more than 1 Stated Maturity Date,
such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such
Stated Maturity Date and each such separate offer shall be
deemed to be a separate Money Market Quote. Each Money
Market Quote must be submitted to the Agent not later than
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10:30 A.M. (Atlanta, Georgia time) on the Quotation Date; provided
that any Money Market Quote submitted by Wachovia may be submitted,
and may only be submitted, if Wachovia notifies the Borrower of the
terms of the offer contained therein not later than 10:15 A.M.
(Atlanta, Georgia time) on the Quotation Date (or 15 minutes prior to
the time that the other Banks must have submitted their respective
Money Market Quotes). Subject to Section 6.01, any Money Market
Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed date of the Money Market Borrowing
and the Stated Maturity Date therefor;
(B) the principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the applicable
Money Market Quote, which principal amounts (x) may be
greater than or less than the Commitment of the quoting
Bank, (y) shall be at least $1,000,000 or a larger integral
multiple of $1,000,000, and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were
requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) offered for each
such Money Market Loan, (such amounts being hereinafter
referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money
Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set
forth in the applicable Money Market Quote Request (other than
setting forth the maximum principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the applicable Interest
Period).
(d) The Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than 11:30 A.M.
(Atlanta, Georgia time)) on the Quotation Date, notify the Borrower of the
terms (i) of any Money Market Quote submitted by a Bank that is in accordance
with Section 2.03(c) and (ii) of any Money Market Quote that amends, modifies
or is
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otherwise inconsistent with a previous Money Market Quote submitted by
such Bank with respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error
in such
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former Money Market Quote. The Agent's notice to the Borrower shall specify
(A) the principal amounts of the Money Market Borrowing for which offers have
been received and (B) the respective principal amounts and Money Market Rates
so offered by each Bank (identifying the Bank that made each Money Market
Quote).
(e) Not later than 12:00 P.M. (noon) (Atlanta, Georgia time)
on the Quotation Date, the Borrower shall notify the Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.03(d) and
the Agent shall promptly notify each affected Bank. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers (for each
Stated Maturity Date) that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set forth in
the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $1,000,000 (and in larger
multiples of $1,000,000) but shall not cause the limits specified in
Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in
ascending order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Agent has advised the Borrower that such offer fails to comply with
Section 2.03(c) (ii) or otherwise fails to comply with the
requirements of this Agreement (including without limitation, Section
2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of
Money Market Loans in respect of which such offers are accepted shall be
allocated by the Borrower among such Banks as nearly as possible in proportion
to the aggregate principal amount of such offers. Determinations by the
Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 1:30 P.M. (Atlanta, Georgia time) on the
Quotation Date, make the appropriate amount
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of such Money Market Loan available to the Agent at its address
referred to in Section 9.01 in immediately available funds. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available
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<PAGE> 40
funds, not later than 4:30 P.M. (Atlanta, Georgia time), in an account of such
Borrower maintained with Wachovia.
SECTION 2.04. Notes. (a) The Syndicated Loans of each Bank
shall be evidenced by a single Syndicated Loan Note payable to the order of
such Bank for the account of its Lending Office in an amount equal to the
original principal amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower
shall be evidenced by a single Money Market Loan Note payable to the order of
such Bank for the account of its Lending Office in an amount equal to the
original principal amount of the Aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Agent shall deliver such Notes to such Bank. Each Bank shall record,
and prior to any transfer of its Notes shall endorse on the schedules forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto, and
such schedules of each such Bank's Notes shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Notes; provided, that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required. In order to verify the Loans outstanding from
time to time, at the request of the Borrower, the Agent shall furnish the
Borrower with its records of transactions under this Agreement, in reasonable
detail.
SECTION 2.05. Maturity of Loans. (a) Each Syndicated Loan
included in any Syndicated Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.
(b) Each Money Market Loan included in any Money Market
Borrowing shall mature, and the principal amount thereof shall be due and
payable upon the Stated Maturity Date therefor.
(c) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on
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May 31, 1997, unless the Termination Date is otherwise extended by the Banks,
in their sole and absolute discretion. Upon the written request of the
Borrower, which request shall be delivered to the Agent at least 90 days prior
to each Extension Date (as such term is hereinafter defined), the Banks shall
have the option (without any obligation whatsoever so to do) of extending
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the Termination Date for additional one-year periods on each of May 31, 1995
and May 31, 1996 (each, an "Extension Date"). In the event that a Bank chooses
not to extend the Termination Date for such an additional one-year period,
notice shall be given by such Bank to the Borrower and the Agent at least 60
days prior to the relevant Extension Date; provided, that the Termination Date
shall not be extended with respect to any of the Banks unless the Required
Banks are willing to extend the Termination Date and (x) the remaining Banks
shall purchase ratable assignments (without any obligation so to do) from such
terminating Bank (in the form of an Assignment and Acceptance) in accordance
with their respective percentage of the remaining Aggregate Commitments;
provided, that, such Banks shall be provided such opportunity (which
opportunity shall allow such Banks at least 15 Domestic Business Days in which
to make a decision) prior to the Borrower finding another bank pursuant to the
immediately succeeding clause (y); and, provided, further, that, should any of
the remaining Banks elect not to purchase such an assignment, then, such other
remaining Banks shall be entitled to purchase an assignment from any
Terminating Bank which includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or Banks, as the case may be,
(y) the Borrower shall find another bank, acceptable to the Agent, willing to
accept an assignment from such terminating Bank (in the form of an Assignment
and Acceptance) or (z) the Borrower shall reduce the Aggregate Commitments in
an amount equal to the Commitment of any such terminating Bank. In furtherance
of the foregoing, if the Termination Date is not extended for an additional one
year period on or before May 31, 1995, then the Borrower may not request that
the Termination Date be extended for an additional one year period on May 31,
1996.
SECTION 2.06. Interest Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate per annum equal to
the Base Rate for such date plus the Applicable Margin. Such interest shall be
payable for each Interest Period on the last day thereof.
(b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than 90 days, at intervals of 90 days
after the first day thereof.
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(c) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Money
Market Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market Quote.
Such interest shall be payable on the Stated Maturity Date thereof, and, if the
Stated
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<PAGE> 44
Maturity Date occurs more than 90 days after the date of the relevant Money
Market Loan, at intervals of 90 days after the first day thereof.
(d) After the occurrence and during the continuance of a
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent
for the ratable account of each Bank a commitment fee (the "Commitment Fee") on
the quarterly average daily aggregate available amount of the Unused
Commitments, as follows: (i) if the Borrower's ratio of Consolidated Senior
Funded Debt to Consolidated Total Capital is less than or equal to 0.35 to 1.0,
0.0625%, (ii) if the Borrower's ratio of Consolidated Senior Funded Debt to
Consolidated Total Capital is greater than 0.35 to 1.0, but equal to or less
than 0.50 to 1.0, 0.0625%, and (iii) if the Borrower's ratio of Consolidated
Senior Funded Debt to Consolidated Total Capital is greater than 0.50 to 1.0,
0.125%. The Commitment 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 Date and on the Termination Date.
(b) The Borrower shall pay to the Agent for the ratable
account of each Bank a facility fee (the "Facility Fee") on the maximum amount
of the Aggregate Commitments in effect for any relevant period, irrespective of
usage, as follows: (i) if the Borrower's ratio of Consolidated Senior Funded
Debt to Consolidated Total Capital is less than or equal to 0.35 to 1.0,
0.125%, (ii) if the Borrower's ratio of Consolidated Senior Funded Debt to
Consolidated Total Capital is greater than 0.35 to 1.0 but equal to or less
than 0.50 to 1.0, 0.1875%, and (iii) if the Borrower's ratio of Consolidated
Senior Funded Debt to Consolidated Total Capital is greater than 0.50 to 1.0,
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 Date and on the Termination Date.
(c) In determining the amounts to be paid by the Borrower
pursuant to Sections 2.06(a), 2.06(b), 2.07(a) and 2.07(b), the Borrower and
the Banks shall refer to the Borrower's most recent financial statements
delivered to the Banks pursuant to Section 5.01(a) (together with the
Compliance Certificate delivered in connection therewith, the "Audited
Statements") and Section 5.01(b) (together with the Compliance Certificate
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delivered in connection therewith, the "Unaudited Statements"); provided, that,
should any relevant Audited Statements or Unaudited Statements be delivered on
a date other than a Performance Pricing Determination Date, any necessary
changes in the Applicable Margin and fees to be paid shall not be effective,
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except to the extent hereinafter provided to the contrary within this Section
2.07(c), until the next succeeding Performance Pricing Determination Date (as
such term is hereinafter defined); provided, further, that, should the Audited
Statements reflect a ratio of Consolidated Senior Funded Debt to Consolidated
Total Capital other than the ratio of Consolidated Senior Funded Debt to
Consolidated Total Capital determined by the most recently delivered Unaudited
Statements, then (i) prospectively, for the period from the date upon which the
Audited Statements were delivered to the next succeeding Performance Pricing
Determination Date, the appropriate pricing determination shall be made by
reference to the Audited Statements, (ii) should the Audited Statements reveal
that the Borrower should have paid interest and fees at a higher rate for the
period from the last Performance Pricing Determination Date to the next
Performance Pricing Determination Date then the Borrower shall immediately pay
to the Banks such amounts as are necessary to cause the Banks to have received
the appropriate return, and (iii) should the Audited Statements reveal that the
Borrower should have paid interest and fees at a lower rate for the period from
the last Performance Pricing Determination Date to the next Performance Pricing
Determination Date, then, so long as no Default shall be in existence, the
Banks shall promptly pay to the Borrower such amounts as are necessary to cause
the Banks to have received the appropriate return. For purposes hereof,
"Performance Pricing Determination Date" shall mean each date that occurs 45
days after the end of each Fiscal Quarter of the Borrower. All determinations
hereunder shall be made by the Agent unless the Required Banks shall object to
any such determination.
(d) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice
to the Agent (which notice the Agent shall promptly forward to the Banks),
terminate at any time, or proportionately reduce the Unused Commitments from
time to time by an aggregate amount of at least $5,000,000, or any larger
multiple of $1,000,000. If the Commitments are terminated in their entirety,
all accrued fees (as provided under Section 2.07) shall be due and payable on
the effective date of such termination.
SECTION 2.09. Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans (together with accrued
interest thereon) then outstanding shall be due and payable on such date.
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SECTION 2.10. Optional Prepayments. (a) The Borrower may,
upon at least 1 Domestic Business Day's notice to the Agent (which notice the
Agent shall promptly forward to the Banks) and
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payment to the Agent, for the ratable benefit of the Banks, of any amounts
required by Section 8.05, prepay any Borrowing (to the extent not precluded by
Section 2.10(b)) in whole or in part at any time, in minimum amounts of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included in
such relevant Borrowing.
(b) The Borrower may not prepay all or any portion of
the principal amount of any Money Market Loan prior to the end of the relevant
Stated Maturity Date applicable to such Loan.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.10, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. On each date on which
the Commitments are reduced pursuant to Section 2.08, the Borrower shall repay
or prepay such principal amount of the outstanding Loans (together with
interest accrued thereon), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed the amount of
the Aggregate Commitments as then reduced.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans
and of fees hereunder, not later than 1:00 P.M. (Atlanta, Georgia time) on the
date when due, without offset, in Federal or other funds immediately available
in Atlanta, Georgia, to the Agent at its address referred to in Section 9.01.
The Agent will promptly distribute to each Bank (and, following the occurrence
and during the continuance of an Event of Default, for application by such Bank
against amounts owing to such Bank by the Borrower in such order as such Bank
shall elect) its ratable share of each such payment received by the Agent for
the account of the Banks; provided, that, should the Agent actually receive any
relevant payment from the Borrower prior to 1:00 P.M. (Atlanta, Georgia time)
on the date when due, the Agent shall initiate the distribution process (by
wire or otherwise) to such Bank of each such Bank's ratable portion of any
payment received by the Agent prior to 5:00 P.M. (Atlanta, Georgia time).
(b) Whenever any payment of principal of, or interest on,
the Base Rate Loans or Money Market Loans shall be due on a
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day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless
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such Euro-Dollar Business Day falls in another calendar month, in which case
the date for payment thereof shall be the next preceding Euro- Dollar Business
Day.
SECTION 2.13. Computation of Interest and Fees. Interest on
Base Rate Loans shall be computed on the basis of a year of 365/366 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day). Interest on the Euro-Dollar Loans and the Money Market
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed, calculated as to each Interest Period or Stated
Maturity Date, as applicable, from and including the first day thereof to but
excluding the last day thereof. Commitment Fees, Facility Fees and any other
fees payable hereunder from time to time 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).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation
of each Bank to make a Syndicated Loan on the occasion of the first Syndicated
Borrowing is subject to the satisfaction of the conditions set forth in Section
3.02 and receipt by the Agent of the following (in sufficient number of
counterparts (except as to the Notes) for delivery of a counterpart to each
Bank and retention of one counterpart by the Agent):
(a) from each of the parties
hereto of either (i) a duly executed counterpart of this Agreement
signed by such party or (ii) a facsimile transmission stating that
such party has duly executed a counterpart of this Agreement and sent
such counterpart to the Agent;
(b) a duly executed (i) Syndicated Loan Note and
(ii) Money Market Loan Note for the account of each Bank
complying with the provisions of Section 2.04;
(c) an opinion letter (together
with any opinions of local counsel relied on therein) of (x) Riddell,
Williams, Bullitt and Walkinshaw, counsel for the Borrower and the
Guarantors, dated as of the Closing Date, substantially in the form
of Exhibit B-1, and (y) Klein & Bagileo, special counsel for the
Borrower and the Guarantors, dated as of the Closing Date,
substantially in the form of Exhibit B-2, and covering such
additional
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matters relating to the transactions contemplated hereby as the
Agent or any Bank may reasonably request;
(d) an opinion of Jones, Day,
Reavis & Pogue, special counsel for the Agent, dated as of the
Closing Date,
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substantially in the form of Exhibit C and covering such additional
matters relating to the transactions contemplated hereby as the Agent
may reasonably request;
(e) a certificate (the "Closing
Certificate") substantially in the form of Exhibit G), dated as of
the Closing Date, signed by a principal financial officer of the
Borrower, to the effect that (i) no Default has occurred and is
continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower contained in Article
IV are true on and as of the date of the first Borrowing hereunder;
(f) a duly executed Guaranty by
each of the Guarantors, substantially in the form of Exhibit H;
(g) all documents which the Agent
or any Bank may reasonably request relating to the existence of the
Borrower and the Guarantors, the corporate authority for and the
validity of this Agreement, the Notes, and the other Loan Documents
and any other matters relevant hereto, or thereto, all in form and
substance reasonably satisfactory to the Agent, including, without
limitation, a certificate of incumbency of each of the Borrower and
the Guarantors, signed by the Secretary or an Assistant Secretary of
the Borrower and the Guarantors, certifying as to the names, true
signatures and incumbency of the officer or officers, respectively,
of the Borrower and the Guarantors authorized to execute and deliver
the Loan Documents, and certified copies of the following items, for
the Borrower and each of the Guarantors, respectively: (i)
Certificate/Articles of Incorporation, (ii) Bylaws, (iii) a
certificate of the Secretary of State of the state of incorporation
of each as to the good standing of each as a corporation in that
state, and (iv) the action taken by the Board of Directors
authorizing the execution, delivery and performance of this
Agreement, the Notes, and the other Loan Documents to which the
Borrower or any of the Guarantors is a party;
(h) a Notice of Borrowing.
SECTION 3.02. Conditions to All Borrowings. The obligation
of each Bank to make a Syndicated Loan on the occasion of each Syndicated
Borrowing is subject to the satisfaction of the following conditions:
(a) receipt by the Agent of a
Notice of Borrowing;
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(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
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Agreement shall be true on and as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing,
the aggregate outstanding principal amount of the Syndicated Loans of
each Bank will not exceed the amount of its Commitment.
Each Borrowing (both Syndicated and Money Market) 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower
is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, is duly qualified to
transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where the failure to be so qualified
or to possess such licenses, authorizations, consents or approvals could not
reasonably be expected to have or cause a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization: No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower
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enforceable in accordance with its terms, and the Notes and the other Loan
Documents, when executed and delivered in accordance with this Agreement,
will constitute valid and binding obligations of the Borrower enforceable in
accordance with their respective terms, provided that the enforceability hereof
and
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thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
31, 1992 and the related consolidated statements of net earnings, shareholders'
equity and cash flows for the Fiscal Year then ended, reported on by Deloitte &
Touche, copies of which have been delivered to each of the Banks, and the
unaudited consolidated balance sheet of the Borrower for the interim period
ended September 30, 1993 and the related consolidated statements of net
earnings and cash flows for the interim period then ended, copies of which have
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since December 31, 1992 there has been no event,
act, condition or occurrence having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could reasonably
be expected to have or cause a Material Adverse Effect or which in any manner
draws into question the validity of, or could impair the ability of the
Borrower to perform its obligations under, this Agreement, the Notes or any of
the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and
each member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability
(excluding, any premiums paid to the PBGC in the ordinary course of business)
to the PBGC or a Plan under Title IV of ERISA which has not been paid.
(b) Neither the Borrower nor any member of the Controlled
Group has failed to pay when due any withdrawal liability with respect to any
Multiemployer Plan under Title IV of ERISA, and no such liability is expected
to be incurred in an amount exceeding $5,000,000 in any Fiscal Year. As of the
Closing Date, the aggregate present value of unfunded contingent withdrawal
liability under Title IV of ERISA attributable to the
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Borrower and its Subsidiary and any other member of the Controlled
Group does not exceed $15,000,000. The aggregate present value of such
unfunded contingent withdrawal liability shall be calculated by adding the
present values of any unfunded
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contingent withdrawal liability existing with respect to each such
Multiemployer Plan, determined as of the most recent valuation of such
Multiemployer Plan which is reasonably available to the Borrower and its
Subsidiaries.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrower and its Subsidiaries are in compliance with all applicable laws,
regulations and similar requirements of governmental authorities, except where
such compliance is being contested in good faith through appropriate
proceedings or where non-compliance could not reasonably be expected to have or
cause a Material Adverse Effect. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Subsidiary have been paid, except where such
assessments are being contested in good faith through appropriate proceedings
or where non-compliance could not reasonably be expected to have or cause a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate. United States income
tax returns of the Borrower and its Subsidiaries have been examined and closed
through the Fiscal Year ended December 31, 1988.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to possess such licenses, authorizations, consents or approvals could
not reasonably be expected to have or cause a Material Adverse Effect. The
Borrower has no Subsidiaries which constitute either 10.0% or more of the
Borrower's (x) Consolidated Total Assets or (y) Consolidated Operating Profits,
except for those Subsidiaries listed on Schedule 4.08, which accurately sets
forth each such Subsidiary's complete name and jurisdiction of incorporation
(provided, however, the Subsidiaries listed on Schedule 4.08 do not necessarily
constitute 10.0% or more of either Consolidated Total Assets or Consolidated
Operating Profits).
SECTION 4.09. Investment Company Act. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
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SECTION 4.10. Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "holding company" or
of a ""subsidiary company"
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of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property: Liens. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is
subject to any Lien except as permitted in Section 5.09.
SECTION 4.12. No Default. Neither the Borrower nor any of
its Consolidated Subsidiaries is in default under or with respect to any
agreement, instrument or undertaking to which it is a party or by which it or
any of its property is bound which could have or cause a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all
facts which could reasonably be expected to have or cause a Material Adverse
Effect.
SECTION 4.14. Environmental Matters. (a) Neither the
Borrower nor any Subsidiary is subject to any Environmental Liability which
could have or cause a Material Adverse Effect and neither the Borrower nor any
Subsidiary has been designated as a potentially responsible party under CERCLA
or under any state statute similar to CERCLA. To the best of the Borrower's
knowledge, none of the Properties has been identified on any current or
proposed (i) National Priorities List under 40 C.F.R. Section 300, (ii)
CERCLIS list or (iii) any list arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the
Properties, or, to the best of the knowledge of the Borrower, at or from any
adjacent site or facility, except for Hazardous Materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed, or otherwise handled, shipped, or transported in the ordinary course
of business in material compliance with all applicable Environmental
Requirements.
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(c) The Borrower and each of its Subsidiaries is in material
compliance with all Environmental Requirements in connection with the operation
of the Properties and the Borrower's and each of its Subsidiary's respective
businesses.
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SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of
the issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent
with, the provisions of Regulation X.
SECTION 4.17. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans under
this Agreement, the Borrower will not be "insolvent," within the meaning of
such term as used in O.C.G.A. Section 18-2-22 or as defined in Section 101 of
Title 11 of the United States Code or Section 2 of the Uniform Fraudulent
Transfer Act, or any other applicable state law pertaining to fraudulent
transfers, as each may be amended from time to time, or be unable to pay its
debts generally as such debts become due, or have an unreasonably small capital
to engage in any business or transaction, whether current or contemplated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid:
SECTION 5.01. Information. The Borrower will deliver to the
Agent:
(a) within 90 days after the end
of each Fiscal Year, an audited consolidated balance sheet of the
Borrower
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and its Consolidated Subsidiaries as of the end of such
Fiscal Year and the related audited consolidated statements of net
earnings, shareholders' equity and cash flows for such Fiscal Year
then ended, setting forth in each case in comparative form the figures
for the previous Fiscal Year,
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reported on by Deloitte & Touche or other independent public
accountants of nationally recognized standing:
(b) within 45 days after the end
of each Fiscal Quarter of each Fiscal Year, a (i) consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such Fiscal Quarter and the related statements of net
earnings and cash flows for such Fiscal Quarter and for that portion
of the Fiscal Year ended with such Fiscal Quarter, setting forth in
each case in comparative form the figures for the corresponding
Fiscal Quarter and the corresponding portion of the previous Fiscal
Year, and (ii) certification by the chief financial officer or the
chief accounting officer of the Borrower that the financial
statements referred to in clause (i) of this paragraph fairly present
the consolidated financial position of the Borrower in conformity
with GAAP (subject to normal year end adjustments);
(c) simultaneously with the delivery of each
set of financial statements referred to in paragraphs (a) and
(b) above, a certificate, substantially in the form of Exhibit F
(a "Compliance Certificate"), of the chief financial officer
or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements
of Sections 5.03 through 5.06, inclusive, 5.09, and 5.23 on the
date of such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each
set of annual financial statements referred to in paragraph (a)
above, a statement of the firm of independent public accountants
which reported on such statements as to an absence of knowledge
of non-compliance with any of Sections 5.03 through 5.06,
inclusive;
(e) within 5 Domestic Business Days after
the Borrower becomes aware of the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the
action, if any, which the Borrower is taking or proposes to
take with respect thereto;
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(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial
statements, reports and proxy statements so mailed;
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(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission and which are available to the
public by virtue of such filing;
(h) if and when any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect
to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to administer
any Plan, a copy of such notice; and
(i) from time to time such additional information
(including, without limitation, information relating to Plans)
regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The
Borrower will (i) keep, and cause each Subsidiary to keep, books of record and
account which, when consolidated, conform with GAAP; and (ii) on reasonable
notice to the Borrower, permit, and cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of a
Default and at the Borrower's expense after the occurrence of a Default to
visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable
times and as often as may reasonably be desired.
SECTION 5.03. Ratio of Consolidated Senior Funded Debt to
Consolidated Total Capital. The ratio of Consolidated Senior Funded Debt to
Consolidated Total Capital will not at any time exceed 0.55 to 1.0.
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SECTION 5.04. Ratio of Consolidated Funded Debt to
Consolidated Total Capital. The ratio of Consolidated Funded Debt to
Consolidated Total Capital will not at any time exceed 0.65 to 1.00.
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SECTION 5.05. Minimum Consolidated Tangible Net Worth.
Subsequent to December 31, 1993, Consolidated Tangible Net Worth will at no
time be less than $275,000,000 plus (i) the sum of (x) 33.33% of the cumulative
Consolidated Net Income (net of any Preferred Stock Dividends required to be
paid after the Closing Date) of the Borrower and its Consolidated Subsidiaries
during any period after December 31, 1993 (taken as one accounting period),
calculated as at the end of each Fiscal Year but excluding from such
calculations of Consolidated Net Income for purposes of this clause (x), any
Fiscal Year in which the Consolidated Net Income of the Borrower and its
Consolidated Subsidiaries is negative, and (y) 66.66% of the cumulative Net
Proceeds of Capital Stock received during any period after December 31, 1993,
calculated as of the end of each Fiscal Year, minus (ii) the sum of the
redemption payments made by the Borrower in respect of the Cumulative
Convertible Preferred Stock (provided, that, such redemption payments may not
exceed during any Fiscal Year those amounts set forth on Schedule 1.01).
SECTION 5.06. Fixed Charges Coverage. At the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending December 31, 1993,
the ratio of Income Available for Fixed Charges for the immediately preceding 4
Fiscal Quarters then ended to Consolidated Fixed Charges for the immediately
preceding 4 Fiscal Quarters then ended, shall not have been less than 2.0 to
1.0.
SECTION 5.07. Loans or Advances. Neither the Borrower nor
any of its Subsidiaries shall make loans or advances to any Person except: (i)
loans or advances to employees not exceeding $1,000,000 in the aggregate
principal amount outstanding at any time, in each case made in the ordinary
course of business and consistent with practices existing on the Closing Date;
(ii) deposits required by government agencies or public utilities; (iii) loans
or advances to the Guarantors, or from the Guarantors to the Borrower; and (iv)
loans or advances to any other Persons which do not in the aggregate exceed
$15,000,000 at any time; provided, that after giving effect to the making of
any loans, advances or deposits permitted by this Section, the Borrower will be
in full compliance with all the provisions of this Agreement; and further
provided, that, all loans permitted by clause (iv) of this Section 5.07 shall
at all times be evidenced by a legally enforceable promissory note made by the
recipient of any such relevant loan payable to the applicable Borrower or
Subsidiary in the amount of any such relevant loan.
SECTION 5.08. Investments. Neither the Borrower nor any of
its Subsidiaries shall make Investments in any Person
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except as permitted by Section 5.07 and except (A) Investments in (i)
direct obligations of the United States Government maturing within one year,
(ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent, (iii) commercial paper rated Al or the equivalent
thereof by Standard & Poor's Corporation or P1 or the equivalent thereof by
Moody's
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Investors Service, Inc. and in either case maturing within 6 months after the
date of acquisition and/or (iv) tender bonds the payment of the principal of
and interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at least
AA or the equivalent thereof by Standard & Poor's Corporation and Aa or the
equivalent thereof by Moody's Investors Service, Inc.; and (B) Related Business
Acquisitions, subject to Section 5.14.
SECTION 5.09. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens other than those set
forth in subsections (b), (c) and (d) below, securing Debt in an
aggregate amount not greater than 7.5% of Consolidated Total Assets;
(b) any Lien on Margin Stock;
(c) any Lien securing Debt of a term of less than 1
year incurred as a result of the Borrower taking early delivery of
aircraft which it is contractually committed to purchase, which
aircraft will subsequently be placed into service by the Borrower;
and
(d) any Lien securing Debt incurred pursuant to the
Mitsui Agreement which, together with the sale and leaseback
transactions permitted by Section 5.13 hereinbelow, does not exceed
$100,000,000 in the aggregate at any time.
SECTION 5.10. Maintenance of Existence. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
SECTION 5.11. Dissolution. Neither the Borrower nor any of
its Subsidiaries shall suffer or permit dissolution or liquidation either in
whole or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except through corporate reorganization to the extent permitted by
Section 5.12.
SECTION 5.12. Consolidations and Mergers. 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 or any Subsidiary may merge
with another Person if (i) the surviving or the resulting corporation (x) is
the Borrower
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(or a Wholly-Owned Subsidiary in the context of a merger which does not
involve the Borrower), (y) is a corporation incorporated within the United
States of America, and (z) has substantially all of its assets and does
business primarily in the United States of America and (ii) immediately after
giving
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effect to such merger, no Default shall have occurred and be continuing, and
(b) Subsidiaries of the Borrower may merge with one another.
Section 5.13. Sales of Assets. The Borrower will not, nor
will it permit any Subsidiary to, sell, lease or otherwise transfer all or any
substantial part of its assets to any other Person, provided, that, (a) the
Borrower and its Consolidated Subsidiaries may sell (x) up to $50,000,000 of
Consolidated Total Assets during the time period from the Closing Date to and
including December 31, 1994, and (y) additional increments of Consolidated
Total Assets of up to $30,000,000 in each successive Fiscal Year subsequent to
the Fiscal Year ended December 31, 1994, plus any unused portion of permitted
sales from any preceding Fiscal Year, and (b) the Borrower and its Consolidated
Subsidiaries may enter into sale and leaseback transactions pursuant to the
Mitsui Agreement to the extent that (x) 80% of the aggregate Attributable Value
of the leases entered into pursuant to such transactions plus (y) the amount of
Debt incurred pursuant to Section 5.09 (d) hereinabove does not exceed
$100,000,000 in the aggregate outstanding at any time.
SECTION 5.14. Use of Proceeds. The proceeds of the Loans
shall be used for general corporate purposes; provided, no portion of the
proceeds of the Loans will be used by the Borrower or any Subsidiary (i) in
connection with, whether directly or indirectly, any hostile tender offer for,
or other hostile acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, (ii) directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, or (iii) for any purpose in violation of any
applicable law or regulation.
SECTION 5.15. Compliance with Laws; Payment of Taxes.
(a) The Borrower will, and will cause each of its Subsidiaries and each member
of the Controlled Group to, comply with applicable laws (including but not
limited to ERISA), regulations and similar requirements of governmental
authorities (including but not limited to PBGC), except where the necessity of
such compliance is being contested in good faith through appropriate
proceedings or where the failure to so comply could not reasonably be expected
to have or cause a Material Adverse Effect. The Borrower will, and will cause
each of its Subsidiaries to, pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a Lien against the property of the Borrower or
any Subsidiary, except liabilities being contested in good faith and against
which the Borrower will set up reserves in accordance with GAAP.
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(b) The Borrower shall not permit the aggregate complete or
partial withdrawal liability under Title IV of ERISA with respect to
Multiemployer Plans incurred by the Borrower and members of the Controlled
Group to exceed $5,000,000 at any time.
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For purposes of this Section 5.15(b), the amount of withdrawal liability of the
Borrower and members of the Controlled Group at any date shall be the aggregate
present value of the amount claimed to have been incurred less any portion
thereof which the Borrower and members of the Controlled Group have paid or as
to which the Borrower reasonably believes, after appropriate consideration of
possible adjustments arising under Sections 4219 and 4221 of ERISA, it and
members of the Controlled Group will have no liability, provided that the
Borrower shall obtain prompt written advice from independent actuarial
consultants supporting such determination.
SECTION 5.16. Insurance. The Borrower will maintain, and
will cause each of its Subsidiaries to maintain (either in the name of the
Borrower or in such Subsidiary's own name), with financially sound and
reputable insurance companies, insurance on all its property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies of established repute engaged in the same or
similar business.
SECTION 5.17. Change in Fiscal Year. The Borrower will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.18. Maintenance of Property. The Borrower shall,
and shall cause each Subsidiary to, maintain all of its properties and assets
in good condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.19. Environmental Notices. The Borrower shall
furnish to the Agent prompt written notice of all Environmental Liabilities,
pending, threatened or anticipated Environmental Proceedings, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
SECTION 5.20. Environmental Matters. The Borrower and its
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at,
or otherwise handle, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed,
managed, or otherwise handled in the ordinary course of business in compliance
with all applicable Environmental Requirements.
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SECTION 5.21. Environmental Release. The Borrower agrees
that upon the occurrence of an Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to take
appropriate remedial action to
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eliminate, such Environmental Release, whether or not ordered or otherwise
directed to do so by any Environmental Authority.
SECTION 5.22. More Restrictive Agreements. Should the
Borrower or any Subsidiary, while this Agreement is in effect or any Note
remains unpaid, issue any Consolidated Senior Funded Debt for money borrowed in
an amount exceeding $25,000,000 in aggregate amount to any lender or group of
lenders acting in concert with one another, pursuant to a loan agreement,
credit agreement, note purchase agreement, indenture or other similar
instrument, which instrument includes covenants, warranties, representations,
or defaults or events of default (or any other type of restriction which would
have the practical effect of any of the foregoing, including, without
limitation, any "put" or mandatory prepayment of such debt) other than those
set forth herein or in any of the other Loan Documents, the Borrower shall
promptly so notify the Agent and, if the Agent, in the discretion of the Agent,
shall so request by written notice to the Borrower, the Borrower, the Agent and
the Required Banks (in their sole discretion and based on their respective
independent credit judgment, and subject to Section 9.06) shall promptly amend
this Agreement to incorporate some or all of such provisions, into this
Agreement and, to the extent necessary and reasonably desirable to the Agent
and the Required Banks (in their sole discretion and based on their respective
independent credit judgment, and subject to Section 9.06), into any of the
other Loan Documents, all at the election of the Agent.
SECTION 5.23. Debt of Subsidiaries. The Borrower shall not
permit any Subsidiary which is not a Guarantor to incur any Debt except for (i)
Debt owing to the Borrower (to the extent permitted by Section 5.07), (ii) Debt
existing on the Closing Date in an aggregate amount not exceeding $13,200,000
in respect of the Airport Facilities Refunding Revenue Bonds, Series 1991
(Wilmington Air Park, Inc. Project), and (iii) other Debt which shall not
exceed $15,000,000 in aggregate principal amount outstanding at any time.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay
when due any principal of any Loan or shall fail to pay any interest
on
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any Loan within 5 Domestic Business Days after such interest shall
become due, or shall fail to pay any fee or other amount payable
hereunder within 5 Domestic Business Days after such fee or other
amount becomes due; or
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(b) the Borrower shall fail to observe or perform
any covenant contained in (i) Section 5.01 within 5 Domestic Business
Days after the earlier to occur of (x) written notice thereof has
been given to the Borrower by the Agent at the request of any Bank or
(y) the Borrower otherwise becomes aware of any such failure, or (ii)
5.02 (ii), 5.03 to 5.14, inclusive, Sections 5.17, 5.22 or 5.23; or
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained or incorporated by reference in
this Agreement (other than those covered by paragraph (a) or (b)
above) and such failure shall not have been cured within 30 days
after the earlier to occur of (i) written notice thereof has been
given to the Borrower by the Agent at the request of any Bank or (ii)
the Borrower otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement or in
any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or
(e) any event or condition shall occur which results
in the acceleration of the maturity of or the termination of any
commitment for) Debt of the Borrower or any Subsidiary outstanding in
an aggregate amount equal to or exceeding $5,000,000 (including,
without limitation, any required mandatory prepayment or "put" of
such Debt to the Borrower or any Subsidiary) or enables (or, with the
giving of notice or lapse of time or both, would enable) the holders
of such Debt (or commitment) or any Person acting on such holders'
behalf to accelerate the maturity thereof (or terminate any such
commitment) (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary);
provided, that, no Default shall arise under this clause (e) merely
due to the expiration of a commitment at a regularly scheduled time
or the consensual termination of a commitment by the Borrower (or, if
applicable, any Subsidiary) and any relevant lender; or
(f) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
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trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall
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fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
(h) the Borrower or any member of the Controlled
Group shall fail to pay when due any material amount which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans shall be
filed under Title IV of ERISA by the Borrower, any member of the
Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted
by a fiduciary of any such Plan or Plans to enforce Section 515 or
4219(c) (5) of ERISA and such proceeding shall not have been
dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or
(i) one or more judgments or orders for the payment
of money in an aggregate amount in excess of $5,000,000 shall be
rendered against the Borrower and/or any Subsidiary and such judgment
or order shall continue unsatisfied and unstayed for a period of 30
days; or
(j) a federal tax lien shall be filed against the
Borrower or any Subsidiary under Section 6323 of the Code or a lien
of the PBGC shall be filed against the Borrower or any Subsidiary
under Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing; or
(k) (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within
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the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 49% or more
of the outstanding shares of the voting stock of the Borrower; or
(ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were
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not either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A), or (C) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A) and individuals described in clause (B); or
(l) the occurrence of any event, act, occurrence, or
condition which the Required Banks reasonably determine to constitute
a Material Adverse Effect; or
(m) (i) any default by any of the Guarantors under any of
the Loan Documents shall exist after the satisfaction of any
applicable grace, notice or cure periods, if any, (ii) any Loan
Documents (including without limitation, the Guaranty) shall cease to
be enforceable, (iii) any Guarantor or the Borrower shall assert that
any Loan Document (including, without limitation, the Guaranty) shall
cease to be enforceable, or (iv) a "Default" or "Event of Default"
shall occur under any other Loan Documents.
then, and in every such event, (i) the Agent shall, if requested by the
Required Banks, by notice to the Borrower terminate the Commitments and they
shall thereupon terminate, (ii) any Bank may terminate its obligation to fund a
Money Market Loan in connection with any relevant Money Market Quote, and (iii)
the Agent shall, if requested by the Required Banks, by notice to the Borrower
declare the Notes (together with accrued interest thereon) to be, and the Notes
shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower, together with interest at the Default Rate accruing on the
principal amount thereof from and after the date of such Event of Default,
provided that if any Event of Default specified in paragraph (f) or (g) above
occurs with respect to the Borrower, without any notice to the Borrower or any
other act by the Agent or the Banks, the Commitments shall thereupon terminate
and the Notes (together with accrued interest thereon) shall become immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, together with interest
thereon at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default. Notwithstanding the foregoing, the
Agent shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
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SECTION 6.02. Notice of Default. The Agent shall give
notice to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not
be responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by
any Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for
herein or therein or for any failure by the Borrower to perform any of its
obligations hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under any other
Loan Document except to the extent requested by the Required Banks, and then
only on terms and conditions satisfactory to the Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder
(including, without limitation, pursuant to Section 5.22) or under any other
Loan Document or any other document or instrument referred to or provided for
herein or therein or in connection herewith or therewith, except for its own
gross negligence or wilful misconduct. The Agent may employ agents and
attorneys-in- fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The provisions of this Article VII are solely for the benefit
of the Agent and the Banks, and the Borrower shall not have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and under the other Loan Documents,
the Agent shall act solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for the Borrower. The duties of the Agent shall be
ministerial and administrative in nature, and the Agent shall not have by
reason of this Agreement or any other Loan Document a fiduciary relationship in
respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be
entitled to rely upon any certification, notice or other
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communication (including any thereof by telephone, telefax, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel,
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independent accountants or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with
instructions signed by the Required Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to
have knowledge of the occurrence of a Default or an Event of Default (other
than the nonpayment of principal of or interest on the Loans) unless the Agent
has received notice from a Bank or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
an Event of Default, the Agent shall give prompt notice thereof to the Banks.
The Agent shall give each Bank prompt notice of each nonpayment of principal of
or interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent as a Bank. With respect to
the Loans made by it, Wachovia in its capacity as a Bank hereunder shall have
the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not acting as the Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include Wachovia in its
individual capacity. The Agent may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrower (and any of its affiliates)
as if it were not acting as the Agent, and the Agent may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees
to indemnify the Agent, to the extent the Agent shall not have been reimbursed
by the Borrower, ratably in accordance with
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its Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way
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relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided, however that no Bank shall be liable for any of the foregoing to the
extent they arise from the gross negligence or wilful misconduct of the Agent.
If any indemnity furnished to the Agent for any purpose shall, in the opinion
of the Agent, be insufficient or become impaired, the Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT
OF THIS CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the provisions of Section 9.08(c) have
been satisfied. Any requests, authority or consent of any Person who at the
time of making such request or giving such authority or consent is the holder
of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of that Note or of any Note or Notes issued in exchange
therefor or replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices,
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reports and other documents and information expressly required to be furnished
to the Banks by the Agent hereunder or under the other Loan Documents, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other
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information concerning the affairs, financial condition or business of the
Borrower or any other Person (or any of their affiliates) which may come into
the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
including, without limitation, pursuant to Section 5.22) and thereunder unless
it shall receive further assurances to its satisfaction by the Banks of their
indemnification obligations under Section 7.05 against any and all liability
and expense which may be incurred by the Agent by reason of taking, continuing
to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to
the appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower and the Agent may be removed at any time with or without cause by the
Required Banks. Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Agent's notice of resignation or
the Required Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent. Any successor Agent shall
be a bank which has a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
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(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate, as reasonably determined by
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the Agent, will not adequately and fairly reflect the cost to such
Banks of funding Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. After any Bank has provided notice to
the Borrower in connection with this Section 8.01, unless the Borrower notifies
the Agent on or before the date of any such relevant Euro-Dollar Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof
(any such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any Bank (or its
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank (but no other Bank unless such other Bank
shall have notified the Agent of similar circumstances) to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Agent pursuant to
this Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall reasonably determine that it may not lawfully continue to maintain and
fund any of its outstanding Euro-Dollar Loans to maturity and shall so specify
in such notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each Euro-Dollar Loan of such Bank, together
with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If
after the date hereof, a Change of Law or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any Authority:
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(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Loans, Notes, or
its obligation to make Loans, or shall change the basis of taxation
of payments to any Bank (or its Lending Office) of the principal of
or interest on its Loans or any other amounts due under this
Agreement in respect of its Loans or its obligation to make Loans
(except for changes in the rate of tax on the overall net income of
such Bank or its Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage) against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Lending
Office); or
(iii) shall impose on any Bank (or its Lending Office) or
on the United States market or the London interbank market any other
condition affecting its Loans, Notes, or its obligation to make
Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount reasonably
determined by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) or
any Person controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any Authority, has
or would have the effect of reducing the rate of return on such Bank's or such
controlling Person's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such controlling Person could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's or such controlling Person's policies with respect to capital
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adequacy) by an amount reasonably determined by such Bank or such controlling
Person to be material, then from time to time, within 15 days after demand by
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such Bank or such controlling Person, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank or such controlling
Person for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and setting forth in reasonable
detail the additional amount or amounts to be paid to it hereunder shall
constitute rebuttable presumptive evidence of the amounts to be paid in the
absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 (i) shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee and (ii) shall
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in all
cases interest and principal on such Loans shall be payable
contemporaneously with the related Euro-Dollar Loans of the other
Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
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SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
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(a) any payment or prepayment (pursuant to Section 8.02
or otherwise) of a Euro-Dollar Loan on a date other than the last day of an
Interest Period for such Euro-Dollar Loan; or
(b) any failure by the Borrower to prepay a Euro-Dollar
Loan on the date for such prepayment specified in the relevant notice of
prepayment hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro- Dollar Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02; such compensation to include, without limitation, an amount equal
to the excess, if any, of (x) the amount of interest which would have accrued
on the amount so paid or prepaid or not prepaid or borrowed for the period from
the date of such payment, prepayment or failure to prepay or borrow to the last
day of the then current Interest Period for such Euro-Dollar Loan (or, in the
case of a failure to prepay or borrow, the Interest Period for such Euro-Dollar
Loan which would have commenced on the date of such failure to prepay or
borrow) at the applicable rate of interest for such Euro-Dollar Loan provided
for herein over (y) the amount of interest (as reasonably determined by such
Bank) such Bank would have paid on deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market.
SECTION 8.06. HLT Classification. If, after the date
hereof, the Agent determines that, or the Agent is advised by any Bank that
such Bank (or if the Agent is so advised by any such Authority) has received
notice from any Authority (including, without limitation, the Securities and
Exchange Commission) having jurisdiction over such Bank that, Loans hereunder
are classified as a "highly leveraged transaction" (an "HLT Classification"),
the Agent shall promptly give notice of such HLT Classification to the Borrower
and the other Banks. The Agent, the Banks and the Borrower shall commence
negotiations in good faith to agree on the extent to which fees, interest rates
and/or margins hereunder should be increased, and/or any other terms and
conditions set forth in this Agreement should be modified, so as to reflect
such HLT Classification. If the Borrower, the Agent, and the Majority Banks
agree on the amount of such increase or increases and on the terms of any such
modification, this Agreement and the other Loan Documents may be amended to
give effect to such increase or increases, or modification, as provided in
Section 9.06. If the Borrower, the Agent, and the Majority Banks fail to so
agree within 90 days after notice is given by the Agent as provided above, then
the Agent shall, if requested by the Majority Banks, by notice to the Borrower
terminate the Commitments and they shall
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thereupon terminate and the Borrower shall repay each outstanding Loan at
the end of the Interest Period, or with respect to Money Market Loans,
Stated Maturity Date, applicable thereto. The Banks acknowledge that
an HLT Classification is not a Default.
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SECTION 8.07. Replacement of Banks. If any Bank (a "Notice
Bank") makes demand for amounts owed under Section 8.03 (other than due to any
change in the Eurodollar Reserve Percentage), or gives notice under Section
8.02 that it can no longer participate in funding Eurodollar Loans, then in
each case the Borrower shall have the right, if no Default shall be in
existence, and subject to the terms and conditions set forth in Section
9.08(c), to designate an assignee (a "Replacement Bank") to purchase the Notice
Bank's share of outstanding Syndicated Loans, Money Market Loans and any and
all other obligations then owing to any such Notice Bank, and to assume the
Notice Bank's obligations to the Borrower under this Agreement; provided, that,
any Replacement Bank must be reasonably acceptable to the Agent and the
Required Banks (and, in any event, may not be an affiliate of the Borrower).
Subject to the foregoing, the Notice Bank agrees to assign without recourse to
the Replacement Bank its share of outstanding Syndicated Loans and Money Market
Loans and its Commitment, and to delegate to the Replacement Bank its
obligations to the Borrower under this Agreement and its future obligations to
the Agent under this Agreement. Upon such sale and delegation by the Notice
Bank and the purchase and assumption by the Replacement Bank, and compliance
with the provisions of Section 9.08(c), the Notice Bank shall cease to be a
"Bank" hereunder and the Replacement Bank shall become a "Bank" under this
Agreement; provided, however, that any Notice Bank shall continue to be
entitled to the indemnification provisions contained elsewhere herein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telecopier or similar writing) and shall be given to such party at its address
or telecopier number set forth on the signature pages hereof or such other
address or telecopier number as such party may hereafter specify for the
purpose by notice to each other party. Each such notice, request or other
communication shall be effective (i) if given by telecopier, when such telecopy
is transmitted to the telecopier number specified in this Section and the
appropriate confirmation is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article II or Article VIII shall not be effective until received.
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SECTION 9.02. No Waivers. No failure or delay by the Agent
or any Bank in exercising any right, power or privilege hereunder or under any
Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise
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thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower
shall pay (i) all reasonable legal fees and other out-of-pocket expenses of
Jones, Day, Reavis & Pogue, special legal counsel to the Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Agent and the Banks,
including fees and disbursements of counsel (including, but not limited to,
allocated costs of legal services performed by lawyers who are employees of a
Bank), in connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing this Agreement and the other Loan Documents. The Borrower shall
indemnify the Agent and each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement or the other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify
the Agent, the Banks and each affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims or damages to which any of them may
become subject, insofar as such losses, liabilities, claims or damages arise
out of or result from any actual or proposed use by the Borrower of the
proceeds of any extension of credit by any Bank hereunder or breach by the
Borrower of this Agreement or any other Loan Document or from any
investigation, litigation (including, without limitation, any actions taken by
the Agent or any of the Banks to enforce this Agreement or any of the other
Loan Documents) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent and each Bank, and each affiliate thereof
and their respective directors, officers, employees and agents, upon demand for
any expenses (including, without limitation, legal fees, including, but not
limited to, allocated costs of legal services performed by lawyers who are
employees of a Bank)) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or wilful misconduct of the
Person to be indemnified.
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SECTION 9.05. Sharing of Setoffs. The Borrower hereby
expressly grants to each Bank a right of setoff, and each Bank agrees that if
it shall, by exercising any such right of setoff or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest
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owing with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided, that, no such amendment or waiver
shall, unless signed by all Banks, (i) change the Commitment of any Bank or
subject any Bank to any additional obligation, (ii) change the principal of or
rate of interest on any Loan or any fees hereunder, (iii) change the date fixed
for any payment of principal of or interest on any Loan or any fees hereunder,
(iv) change the amount of principal, interest or fees due on any date fixed for
the payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner
of
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application of any payments made under this Agreement or the Notes, or (vii)
release any Guarantee given to support payment of the Loans; provided, further,
that this Agreement and any of the other Loan Documents may be amended to give
effect (x) to any increased fees, interest rates and/or margins, and/or
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any modification of the other terms and conditions set forth in this Agreement
or in any of the other Loan Documents, agreed upon pursuant to Section 8.06 or
(y) to reduce or rescind any such increases, or to rescind any such
modification, previously agreed upon pursuant to Section 8.06, if such
amendment is in writing and is signed by the Borrower, the Agent, and the
Majority Banks.
(b) The Borrower will not solicit, request or negotiate for
or with respect to any proposed waiver or amendment of any of the provisions of
this Agreement unless each Bank shall be informed thereof by the Borrower or
the Agent and shall be afforded an opportunity of considering the same and
shall be supplied by the Borrower with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of this
Agreement shall be delivered by the Borrower to the Agent for each Bank
forthwith following the date on which the same shall have been executed and
delivered by the requisite percentage of Banks. The Borrower will not,
directly or indirectly, pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, to any Bank (in
its capacity as such) as consideration for or as an inducement to the entering
into by such Bank of any waiver or amendment of any of the terms and provisions
of this Agreement unless such remuneration is concurrently paid, on the same
terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons
(each a "Participant") participating interests in any Loan owing to such Bank,
any Note held by such Bank, any Commitment hereunder or any other interest of
such Bank hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations under this
Agreement shall remain unchanged, such Bank shall remain solely responsible for
the performance thereof, such Bank shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower and
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the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
In no event shall a Bank that sells a participation be obligated to the
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Participant to take or refrain from taking any action hereunder except that
such Bank may agree that it will not (except as provided below), without the
consent of the Participant, agree to (i) the change of any date fixed for the
payment of principal of or interest on the related loan or loans, (ii) the
change of the amount of any principal, interest or fees due on any date fixed
for the payment thereof with respect to the related loan or loans, or (iii) any
change in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) fee is payable hereunder from the
rate at which the Participant is entitled to receive interest or commitment fee
(as the case may be) in respect of such participation; provided that such Bank
may agree (x) to any increase in the fees, interest rates and/or margins,
and/or to any modification of the terms and conditions set forth in this
Agreement, agreed upon pursuant to Section 8.06 hereof or (y) to the reduction
or rescission of any such increases, or the rescission of any such
modification, previously agreed upon pursuant to Section 8.06. Each Bank
selling a participating interest having a term in excess of 1 year in any Loan,
Note, Commitment or other interest under this Agreement shall, within 10
Domestic Business Days of such sale, provide the Borrower and the Agent with
written notification stating that such sale has occurred and identifying the
Participant and the interest purchased by such Participant. The Borrower
agrees that each Participant shall be entitled to the benefits of Article VIII
with respect to its participation in Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or, in the case of its
Syndicated Loans and Commitments, a proportionate part of all of its Syndicated
Loans and Commitments, of its rights and obligations under this Agreement, the
Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed by
such Assignee, such transferor Bank and the Agent (and, in the case of an
Assignee that is not, prior to such assignment, a Bank, or an affiliate of such
transferor Bank, by the Borrower); provided that (i) no interest may be sold by
a Bank pursuant to this paragraph (c) unless the Assignee shall agree to assume
ratably equivalent portions of the transferor Bank's Commitment, (ii) the
amount of the Commitment of the assigning Bank subject to such assignment
(determined as of the effective date of the assignment) shall be equal to
$5,000,000 (or any larger multiple of $5,000,000), (iii) no interest may be
sold by a Bank pursuant to this paragraph (c) to any Assignee that is not then,
prior to such assignment, a Bank or an affiliate of such transferor Bank
without the consent of the Borrower and the Agent, which consent shall not be
unreasonably withheld, and (iv) a Bank may not have
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more than 2 Assignees that are not then Banks at any one time. Upon
(A) execution of the Assignment and Acceptance by such transferor Bank, such
Assignee, the Agent and (if applicable) the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower
ATMAIN Doc: 29851.9 102
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and the Agent, (C) payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, and (D) payment of a processing and recordation fee of $5,000 to the
Agent, such Assignee shall for all purposes be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank under this Agreement to
the same extent as if it were an original party hereto with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by the Borrower, the Banks or the Agent shall be
required. Upon the consummation of any transfer to an Assignee pursuant to
this paragraph (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is (or Notes are)
issued to such Assignee.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and, with the Borrower's consent (which shall
not be unreasonably withheld), any prospective Transferee any and all financial
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Loans made
by the Borrower to the assigning and/or pledging Bank in accordance with the
terms of this Agreement shall satisfy the Borrower's obligations hereunder in
respect of such assigned Loans to the extent of such payment. No such
assignment shall release the assigning and/or pledging Bank from its
obligations hereunder.
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(g) In performing its responsibilities hereunder, the
Agent shall keep records of all assignments and Borrowings under this
Agreement, and, upon reasonable notice to the Agent, shall
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allow the Borrower and the Banks access to any such information (at such
requesting party's expense).
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
its best efforts to keep any information delivered or made available by the
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank (or an
affiliate of such other Bank), (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory
agency or authority having jurisdiction over such Bank, (iv) which has been
publicly disclosed, (v) to the extent reasonably required in connection with
any litigation to which the Agent, any Bank or their respective affiliates may
be a party, (vi) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (vii) to such Bank's legal counsel,
independent auditors, and other professional advisors, and (viii) to any actual
or proposed Participant, Assignee or other Transferee of all or part of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section 9.09.
SECTION 9.10. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
Loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business;
provided, however that, subject to Section 9.08, the disposition of the Notes
and other Loan Documents held by that Bank shall at all times be within its
exclusive control.
SECTION 9.11. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the
obligations or commitment of any other Bank hereunder, provided, the failure of
one Bank to fund under this Agreement shall not relieve any other Bank from its
obligation to fund. Nothing contained in this Agreement and no action taken by
the Banks pursuant hereto shall be deemed to constitute the Banks to be a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Bank shall be a separate and
independent debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement or any other Loan Document and it shall
not be necessary for any other Bank to be joined as an additional party in any
proceeding for such purpose.
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SECTION 9.12. Georgia Law. This Agreement and each Note
shall be construed in accordance with and governed by the law of the State of
Georgia.
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SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Bank by the Borrower or inadvertently received by any
Bank, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the
Borrower not pay and the Banks not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by the
Borrower under applicable law.
SECTION 9.15. Interpretation. No provision of this
Agreement or any of the other Loan Documents shall be construed against or
interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
The Borrower (a) and each of the Banks and the Agent irrevocably waives any and
all right to trial by jury in any legal proceeding arising out of this
Agreement, any of the other Loan Documents, or any of the transactions
contemplated hereby or thereby, (b) submits to the nonexclusive personal
jurisdiction in the State of Georgia, the courts thereof and the United States
District Courts sitting therein, for the enforcement of this Agreement, the
Notes and the other Loan Documents, (c) waives any and all personal rights
under the law of any jurisdiction to object on any basis including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State
of Georgia for the purpose of litigation to enforce this Agreement, the Notes
or the other Loan Documents, and (d) agrees that service of process may be made
upon it in the manner prescribed in Section 9.01 for the giving of notice to
the Borrower. Nothing herein contained, however, shall prevent the Agent from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction.
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SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
AIRBORNE FREIGHT CORPORATION (SEAL)
By:________________________________________
Title: Senior Vice President, Treasurer
Airborne Freight Corporation
3101 Western Avenue
Seattle, Washington 98121
Attention: Mr. Lanny H. Michael
Telecopier number: (206) 281-4438
Confirmation number: (206) 285-4600
COMMITMENTS WACHOVIA BANK OF GEORGIA, N.A.,
as the Agent and as a Bank (SEAL)
$40,000,000.00 By:________________________________________
Title:
Lending Office
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: U.S. Corporate Group
Telecopier number: (404) 332-6898
Confirmation number: (404) 332-6738
ABN AMRO BANK N.V. (SEAL)
$30,000,000.00 By:_______________________________________
Title:
Attest:___________________________________
Title:
Lending Office
Seattle Branch
One Union Square
Seattle, Washington 98101
Attention: Mr. Paul R. Calderon
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Telecopier number: (206) 682-5641
Confirmation number: (206) 587-0358
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<PAGE> 118
UNITED STATES NATIONAL
BANK OF OREGON (SEAL)
$30,000,000.00
By:_______________________________________
Title:
Lending Office
555 S.W. Oak
Portland, Oregon 97204
Attention: Note Department
Telecopier number: (503) 275-6558
Confirmation number: (503) 275-4600
with a copy to:
1414 Fourth Avenue, 14th Floor
Seattle, Washington 98101
Attention: Mr. Matthew S. Thoreson
Telecopier number: (206) 587-5259
Confirmation number: (206) 587-5238
SEATTLE - FIRST NATIONAL BANK (SEAL)
$30,000,000.00 By:_______________________________________
Title:
Lending Office
NW National Division Team II
701 Fifth Avenue, CSC - 12
Seattle, Washington 98104
Attention: Mr. Kevin Berry
Telecopier number: (206) 358-3113
Confirmation number: (206) 358-3036
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CIBC INC. (SEAL)
$25,000,000.00 By:______________________________________
Title:
Attest:__________________________________
Title:____________________________
Lending Office
Two Paces West 2727
Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attention: Ms. Anita Williams
Credit Operations
Telecopier number: (404) 319-4950
Confirmation number: (404) 319-4999
with a copy to:
300 South Grand Avenue
Suite 2700
Los Angeles, California 90071
Attention: Mr. David Quon
Telecopier number: (213) 617-1696
Confirmation number: (213) 617-6409
CONTINENTAL BANK N.A. (SEAL)
$25,000,000.00 By:______________________________________
Title:
Lending Office
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: Mr. Kevin Lawler
Telecopier number: (312) 765-2080
Confirmation number: (312) 828-6771
with a copy to:
231 S. LaSalle Street - 0821
Chicago, Illinois 60697
Attention: Ms. Elizabeth M. Nolan
Telecopier number: (312) 765-2080
Confirmation number: (312) 828-1292
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<PAGE> 121
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (SEAL)
$20,000,000.00 By:______________________________________
Title:
Lending Office
1850 Gateway Boulevard
Concord, California 94520
Attention: Ms. Josie Nahoe
Telecopier number: (510) 675-7531
Confirmation number: (510) 675-7156
with a copy to:
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Mr. Tim Hintz
Telecopier number: (213) 228-2756
Confirmation number: (213) 228-2810
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THE BANK OF NEW YORK (SEAL)
$20,000,000.00 By:_______________________________________
Title: Senior Vice President
Lending Office
One Wall Street, 22nd Floor
New York, New York 10286
Attention: Corporate Banking Administration
Telecopier number: (212) 635-6399
Confirmation number: (212) 635-6737
with a copy to:
10990 Wilshire Boulevard
Suite 1700
Los Angeles, California 90024
Attention: Ms. Yinka Bamgbose
Telecopier number: (310) 996-8667
Confirmation number: (310) 996-8650
NBD BANK, N.A. (SEAL)
$20,000,000.00 By:_______________________________________
Title:
Lending Office
611 Woodward Avenue
Detroit, Michigan 48226
Attention: National Banking Division
Telecopier number: (313) 225-2649
Confirmation number: (313) 225-1282
__________________
TOTAL COMMITMENTS:
$240,000,000.00
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<PAGE> 123
EXHIBIT A-1
SYNDICATED LOAN NOTE
As of November 19, 1993
For value received, AIRBORNE FREIGHT CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of
________________________________________________________________, a
______________ (the "Bank"), for the account of its Lending Office, the
principal sum of _____________________________ and No/1OO Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan made by the Bank 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 Note on the dates and at the rate or rates provided
for in the Credit Agreement referred to below. 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 of Georgia, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303-1757, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank 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 Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Syndicated Loan Notes referred to in
the Credit Agreement dated as of November 19, 1993 among the Borrower, the
Banks listed on the signature pages thereof and Wachovia Bank of Georgia, N.A.,
as 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.
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<PAGE> 125
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
AIRBORNE FREIGHT CORPORATION (SEAL)
By:_____________________________________
Title:
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<PAGE> 126
Syndicated Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
- ---- ----------- ------ --------- -------- --------
</TABLE>
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<PAGE> 128
EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of November 19, 1993
For value received, AIRBORNE FREIGHT CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of
__________________________________________________________, a ____
_____________ (the "Bank"), for the account of its Lending Office, the
principal sum of TWO HUNDRED FORTY MILLION and No/1OO Dollars
($240,000,000.00), or such lesser amount as shall equal the unpaid principal
amount of each Money Market Loan made by the Bank 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 Note on the dates and at the rate or rates
provided for in the Credit Agreement referred to below. 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 of Georgia, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303-1757, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank 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 Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Money Market Loan Notes referred to
in the Credit Agreement dated as of November 19, 1993 among the Borrower, the
Banks listed on the signature pages thereof and Wachovia Bank of Georgia, N.A.,
as 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.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
AIRBORNE FREIGHT CORPORATION (SEAL)
By:_________________________________
Title:
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<PAGE> 131
Money Market Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
- ---- -------- ------ --------- -------- ---------
</TABLE>
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<PAGE> 133
EXHIBIT B-1
OPINION OF
COUNSEL FOR THE BORROWER AND THE GUARANTORS
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Group
Dear Sirs:
We have acted as counsel for (i) Airborne Freight Corporation (the
"Borrower") in connection with the Credit Agreement (the "Credit Agreement")
dated as of November 19, 1993, among the Borrower, the banks listed on the
signature pages thereof and Wachovia Bank of Georgia, N.A., as Agent and (ii)
ABX Air, Inc., a Delaware corporation, and Airborne Forwarding Corporation, a
Delaware corporation (collectively, the "Guarantors") in connection with the
Guaranty Agreements (collectively, the "Guaranty"), dated as of November 19,
1993, made by the Guarantors in favor of the Agent for the ratable benefit of
the Banks. This opinion is delivered to you pursuant to Section 3.01(c) of the
Credit Agreement. Capitalized terms contained herein but not defined herein
shall have the meanings attributed thereto in the Credit Agreement.
We have examined such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion. For purposes of this opinion, we have assumed the
genuineness of all signatures, the authenticity of all documents provided to us
as originals, the conformity to authentic original documents of all documents
provided to us as certified, conformed or photostatic copies, and the
completeness and accuracy of all certificates obtained from public officials.
As to questions of fact material to the following opinions, when all of the
facts were not
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independently established, we have relied upon oral and written
representations of officers and representatives of the Borrower and/or the
Guarantors, without any independent investigation or confirmation; provided,
that in connection with any such reliance,
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we have no reason to believe that such representations are untrue. We have
also assumed that the Credit Agreement has been duly authorized, executed and
delivered by each Bank and by the Agent, and that the Credit Agreement
constitutes the valid and binding obligation of each Bank and of the Agent.
As used in this opinion, the phrase "actual knowledge" or "our actual
knowledge" means such knowledge as we have obtained from (a) our review of (i)
the Credit Agreement, (ii) the Guaranty, and (iii) the Certificates of
Incorporation, Bylaws, and minutes of meetings and consent resolutions of the
Board of Directors of the Borrower and the Guarantors; (b) inquiry of officers
of the Borrower and of the Guarantors, and written certificates furnished to us
by such officers, but without further investigation or verification on our
part; and (c) inquiry of lawyers presently in our office whom we have
determined are likely, in the ordinary course of their duties, to have
knowledge of the matters set forth in the applicable portion or portions of
this opinion, but without further investigation or verification on our part.
"Actual knowledge" does not include constructive or inquiry knowledge other
than the knowledge acquired as a result of the inquiries described in (b) and
(c) of the preceding sentence.
Opinion
Based upon the foregoing and subject to the assumptions and
qualifications set out herein, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware and has all corporate powers
required to carry on its business as now conducted.
2. Each of the Guarantors is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware and has all
corporate powers required to carry on its business as now conducted.
3. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Notes and the other Loan Documents to which it is a party
(i) are within the Borrower's corporate powers, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or in respect of,
or filing with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, the certificate of incorporation or
bylaws of the Borrower, or any provision of applicable law or regulation or, to
our actual knowledge, any
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agreement, judgment, injunction, order, decree or other instrument, which
is binding upon the Borrower, and (v) to our actual knowledge, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
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4. The execution, delivery and performance by each of the
Guarantors of the Guaranty and each of the other Loan Documents to which it is
a party (i) are within its corporate powers, (ii) have been duly authorized by
all necessary corporate actions, (iii) require no action by or in respect of,
or filing with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, its certificate of incorporation or
bylaws or any provision of applicable law or regulation or, to our actual
knowledge, any agreement, judgment, injunction, order, decree or other
instrument, which is binding upon it, and (v) to our actual knowledge, do not
result in the creation or imposition of any Lien on any of its assets.
5. The Credit Agreement constitutes a valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, and the Notes constitute valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms.
6. The Guaranty constitutes a valid and binding agreement of
each of the Guarantors, enforceable against each of the Guarantors in
accordance with its terms.
7. To our actual knowledge, there is no action, suit or
proceeding pending or threatened against or affecting the Borrower, the
Guarantors, or any of their respective Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole, or which in any manner questions the validity or enforceability of the
Credit Agreement, the Guaranty or any Note.
8. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
9. Neither the Borrower nor any of its Subsidiaries is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
10. The governing law clause (Section 9.12 of the Credit
Agreement) which states that the Credit Agreement and each Note shall be
construed in accordance with and governed by the laws of the State of Georgia,
will be respected by Washington State courts and federal courts sitting in the
State of Washington and
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applying Washington law except to the extent that (a) Georgia is found to have
no substantial relationship to the parties or the transaction and there is no
other reasonable basis for the parties' choice, or (b) any provision of Georgia
law applicable to the Credit Agreement
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or the Note is found to be contrary to a fundamental policy of a state which
has a materially greater interest than Georgia in the determination of the
particular issue and which, under the rule of Section 188 of Restatement
(Second) of Conflict of Laws ("Restatement"), would be the state of the
applicable law in the absence of an effective choice of law by the parties, or
(c) any term of the Credit Agreement or any Note or any provision of Georgia
law applicable to the Credit Agreement violates an important public policy of
the State of Washington. According to Section 187 of the Restatement, the
state where one of the parties is domiciled or has its principal place of
business has a substantial relationship to the parties and the transaction.
Washington courts have cited the Restatement with approval, although there is
no Washington decision where the parties chose the law of a state which was
only the domicile of one of the parties. In reported Washington decisions, the
state of the chosen law had multiple connections to the parties and the
transaction.
There is no Washington statute or court decision of which we are
aware that would cause us to believe that any term of the Credit Agreement
violates an important public policy of the State of Washington except those
terms discussed in Paragraph (c) of Qualifications with respect to which we
express no opinion as to enforceability.
11. With respect to the Interstate Commerce Act of 19, as
amended, the execution, delivery and performance by the Borrower of the Credit
Agreement and by the Guarantors of the Guaranty require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene or constitute a default under any provision of the Interstate
Commerce Act or regulation promulgated thereunder, and nothing in the
Interstate Commerce Act would render the Credit Agreement unenforceable against
the Borrower or the Guaranty unenforceable against the Guarantors.
Qualifications and Limitations
The opinions rendered herein are subject to and qualified in all
respects by the following qualifications and limitations:
a. Our opinion as to the enforceability of the Credit Agreement, any
Note, the Guaranty and other Loan Documents is limited by (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, voidable
preference, moratorium or similar laws applicable to creditors' rights or
remedies or to the collection of debtors' obligations generally, (ii) general
principles of equity and public policy including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a
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proceeding in equity or at law), and (iii) principles governing the
availability of specific performance, injunctive relief, or any other equitable
remedy, which generally provide that the award of such remedies is
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in the discretion of the court to which application for such relief is made.
b. No opinion is expressed with respect to the enforceability
of the Guaranty insofar as future circumstances or actions may give rise to
defenses under applicable principles of suretyship or other legal or equitable
principles affecting the relationship between a guarantor and the beneficiary
of a guaranty.
c. We express no opinion as to the enforceability under
Washington law of (i) provisions related to the waiver of rights, remedies and
defenses, including without limitation, waiver of the right to a jury trial,
(ii) provisions that permit the Banks and/or Agent to collect a late charge,
increased rate of interest after default or maturity, or a prepayment premium,
to the extent they bear no reasonable relationship to the damages suffered or
may constitute a penalty or forfeiture, (iii) any reservation of the right to
pursue inconsistent or cumulative remedies, (iv) limitations on the liability
of the Banks and/or Agent, or provisions for indemnification of the Banks
and/or Agent, for its own negligence or misconduct, (v) provisions for
attorneys' fees other than to prevailing parties, (vi) provisions pertaining to
jurisdiction or venue, (vii) provisions permitting modification of a document
only in writing, (viii) provisions purporting to appoint Agent or any Bank as
attorney in fact for Borrower, and (ix) severability clauses. Certain other
covenants, rights, remedies and waivers contained in the Loan Documents may be
limited or rendered ineffective by applicable Washington laws or judicial
decisions. Notwithstanding the foregoing, and subject to the assumptions and
other qualifications and limitations in this opinion, we are of the opinion
that such unenforceability will not render the Credit Agreement, the Guaranty,
or the Notes invalid as a whole or preclude the judicial enforcement of the
obligation of the Borrower to repay the principal, together with interest
thereon, as provided in the Notes (to the extent not deemed a penalty).
d. The enforceability of the Loan Documents is limited by
Washington decisions which permit the admission of extrinsic evidence, both
oral and written, to ascertain the intent of the parties to documents,
regardless of the presence or absence of ambiguity in any of such agreements or
instruments and regardless of a statement by the party in the documents that
such agreements or instruments constitute an integrated expression of their
agreement (Berg v. Hudesman, 115 Wn.2d 657 (1990)).
e. We note that each of the Credit Agreement and Guaranty
provides that it is to be governed by, and construed and interpreted in
accordance with, the laws of the State of Georgia.
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For purposes of this opinion, and except as otherwise provided in paragraph f.
below, you have authorized us to assume that each of the Credit Agreement,
Guaranty, and Notes and all related documents and instruments provide for the
application of, and will be governed by and construed in accordance with,
Washington law
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(without regard to Washington law regarding choice of law or conflict of law).
f. In all respects, the opinions expressed herein are based on
the laws and facts existing on the date hereof, and no opinion is expressed
with respect to the effect of any subsequent change in such law or facts. Our
opinion is limited to the effects, on the persons and transactions herein
described, of (i) the laws of the State of Washington, (ii) as to the opinions
expressed in paragraphs 1, 2, 3 and 4 above concerning corporate status,
standing, power and authorization, the corporate laws of the State of Delaware,
and (iii) except as provided in paragraph g. below, the federal laws of the
United States, all as presently in force. We express no opinion as to the
applicability or effect of the laws of any other jurisdiction.
g. We express no opinion regarding matters of federal or state
aviation or transportation law, except the opinion in Paragraph 11 above.
h. The foregoing opinions, to the extent they relate to the
organization, existence, good standing and qualification of Borrower and
Guarantors are based solely upon our review of the certificates of
incorporation and good standing certificates of Borrower and Guarantors, copies
of which have been provided to you.
This opinion is delivered to you in connection with the transaction
referenced above and may be relied upon only by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and Jones, Day, Reavis & Pogue
(in connection with the delivery of their opinion to the Agent) and by no other
person or entity without our prior written consent.
Very truly yours,
Riddell, Williams, Bullitt &
Walkinshaw
By:__________________________
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EXHIBIT B-2
OPINION OF KLEIN & BAGILEO
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.
as Agent
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Attn: U.S. Corporate Group
Dear Sirs:
We have acted as regulatory counsel to ABX Air, Inc., a Subsidiary of
the Airborne Freight Corporation (the "Borrower") in connection with the Credit
Agreement (the "Credit Agreement") dated as of November 19, 1993, among the
Borrower, the banks listed on the signature pages thereof and Wachovia Bank of
Georgia, N.A., as Agent. You have requested an opinion regarding certain
regulatory matters. This opinion is delivered to you pursuant to Section
3.01(c) of the Credit Agreement. Capitalized terms contained herein but not
defined herein, shall have the meanings attributed thereto in the Credit
Agreement.
In connection with the preparation of this opinion, we have reviewed
and relied upon the Certificate of Joseph C. Hete, Senior Vice President,
Administration/Treasurer of ABX Air, Inc. dated as of the date of this letter,
a copy which is attached hereto, and we have inquired of the office of the
Federal Aviation Administration ("FAA") in Detroit, Michigan. It is noted that
under FAA regulations, notice would be given to ABX Air, Inc. of any alleged
violation, deficiency or failure to conform with such licenses, certificates
and authorizations as are necessary to conduct its business together with
requests for corrective action.
Further, we have assumed that neither the Credit Agreement nor any
Loan Documents grant or create a security interest in any equipment of the type
capable of and required to be recorded as a conveyance or instrument pursuant
to Section 503 of the Federal Aviation Act of 1958, as amended (the "Federal
Aviation Act").
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Based upon the foregoing, it is our opinion that as of the date hereof:
1. ABX Air, Inc. has such licenses, certificates and
authorizations from the Department of Transportation ("DOT") and FAA as are
necessary to conduct air cargo operations as now conducted by it; and
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2. To the best of our knowledge, ABX Air, Inc. is in compliance
in all material respects with the provisions of such licenses, certificates and
authorizations.
3. With respect to the Federal Aviation Act and other federal law
relating to the regulation of air transportation and air carriers (but not
including matters arising under the Internal Revenue Code) ("Federal Aviation
Law"), the execution, delivery and performance by the Borrower and ABX Air,
Inc. and Airborne Forwarding Corporation, of the Credit Agreement, the Notes
and other Loan Documents require no action by or in respect of, or filing with,
any governmental body, agency, or official and do not contravene, or constitute
a default under any provision of the Federal Aviation Law or regulation
promulgated thereunder and that nothing in the Federal Aviation Law would
render the Credit Agreement, the Notes or any of the other Loan Documents
unenforceable against the Borrower, ABX Air, Inc. or Airborne Forwarding
Corporation.
With respect to paragraph number 3. hereof, we have assumed that all
of the Banks executing the Credit Agreement are citizens of the United States
as the term is defined in Section 101(16) of the Federal Aviation Act.
No opinion is expressed with regard to ABX Air, Inc.'s authority to
conduct ground transportation services and otherwise this opinion is limited
solely to matters of federal aviation law. This opinion is delivered to you in
connection with the transaction referenced above and may be relied upon only by
you, any Assignee, Participant or other Transferee under the Credit Agreement,
and Riddell, Williams, Bullitt & Walkinshaw and Jones, Day, Reavis & Pogue (in
connection with the delivery of their respective opinions to the Agent) and by
no other person or entity without our prior written consent.
Very truly yours,
KLEIN & BAGILEO
By:____________________________
Robert P. Silverberg
cc: David C. Anderson, Esq.
Vernon Williams, Esq.
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Certificate of Mr. Joseph C. Hete
[TO BE ATTACHED]
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EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Group
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of November 19, 1993, among Airborne Freight
Corporation, a Delaware corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks") and Wachovia Bank of Georgia, N.A., as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee of the Corporate and Banking Law Section of the State Bar of
Georgia which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, we are of the opinion that the Credit Agreement
constitutes a valid and
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binding agreement of the Borrower and each Note constitutes valid and binding
obligations of the Borrower, in each case enforceable in accordance with its
terms except as: (i) the enforceability thereof
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may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and (iii) the
enforceability of certain of the remedial, waiver and other provisions of the
Credit Agreement and the Notes may be further limited by the laws of the State
of Georgia; provided, however, such additional laws do not, in our opinion,
substantially interfere with the practical realization of the benefits
expressed in the Credit Agreement and the Notes, except for the economic
consequences of any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction except the State of Georgia. We
express no opinion as to the effect of the compliance or non-compliance of the
Agent or any of the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the legal or
regulatory status or the nature of the business of the Agent or any of the
Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
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EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ________ ___, 19__
Reference is made to the Credit Agreement dated as of November
19, 1993 (together with all amendments and modifications thereto, the "Credit
Agreement") among AIRBORNE FREIGHT CORPORATION, a Delaware corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement) and Wachovia Bank
of Georgia, N.A., as Agent (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
__________________________________ (the "Assignor") and ____
______________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor, a ______ interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a _____ interest (which on the Effective
Date hereof is $______________) in the Assignor's Commitment and a ____
interest (which on the Effective Date hereof is $______________) in the
Syndicated Loans [and Money Market Loans] owing to the Assignor and a ___
interest in the Notes held by the Assignor (which on the Effective Date hereof
is $_________________
2. The Assignor (i) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder, that such interest is free and clear
of any adverse claim and that as of the date hereof its Commitment (without
giving effect to assignments thereof which have not yet become effective) is
$_______________ and the aggregate outstanding principal amount of the
Syndicated Loans [and Money Market Loans] owing to it (without giving effect to
assignments thereof which have not yet become effective) is $_______ ________
(ii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto; and (iii)
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attaches the Notes referred to in paragraph 1. above and requests that the
Agent exchange such Notes for new Notes as follows: a Syndicated Loan Note
dated _____________, ____ in the principal amount of $_______
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_________ payable to the order of the Assignee [and a Money Market Loan Note
dated ____________, ____ in the principal amount of $____________ payable to
the order of the Assignee]]. Should the Assignor retain an interest in the
Loans or the Commitments, replacement Notes of the type described in the
immediately preceding sentence shall be provided to the Assignor in the
principal amount equal to that portion of the Commitments and/or Loans retained
by the Assignor.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.04(a) thereof (or any more recent financial statements
of the Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (ii)
agrees that it will, independently and without reliance upon the Agent, the
Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) confirms that
it is a bank or financial institution; (iv) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank;
(vi) specifies as its Lending Office (and address for notices) the office set
forth beneath its name on the signature pages hereof, (vii) represents and
warrants that the execution, delivery and performance of this Assignment and
Acceptance are within its corporate powers and have been duly authorized by all
necessary corporate action[, and (viii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such taxes at a rate reduced by an
applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance
shall be _________, 19__ (the "Effective Date"). Following the execution of
this Assignment and Acceptance, it will be delivered to the Agent for execution
and acceptance by the Agent and, if applicable, to the Borrower for execution
by the Borrower.
5. Upon such execution and acceptance by the Agent and, if
applicable, execution by the Borrower, from and after the Effective Date, (i)
the Assignee shall be a party to the Credit Agreement and, to the extent rights
and obligations have been
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transferred to it by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
its rights and obligations have been transferred to the Assignee by this
Assignment and Acceptance, relinquish its rights
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(other than under Sections 8.03, 9.03 and 9.04 of the Credit Agreement) and be
released from its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent and, if applicable,
execution by the Borrower, from and after the Effective Date, the Agent shall
make all payments in respect of the interest assigned hereby to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
for periods prior to such acceptance by the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:_________________________________
Title:
[NAME OF ASSIGNEE]
By:_________________________________
Title:
Lending Office:
[Address]
WACHOVIA BANK OF GEORGIA, N.A.,
As Agent
By:_________________________________
Title:
AIRBORNE FREIGHT CORPORATION
By:_________________________________
Title:
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EXHIBIT E
NOTICE OF BORROWING
_______________________ 199__
Wachovia Bank of Georgia, N.A., as Agent
191 Peachtree Street, N.W.
Atlanta, Georgia 30303-1757
Attention: U.S. Corporate Group
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of November 19, 1993 by and
among Airborne Freight Corporation, the Banks from time to
time parties thereto, and Wachovia Bank of Georgia, N.A., as
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a Syndicated Borrowing in the aggregate
principal amount of $__________ to be made on __________, 199__, and for
interest to accrue thereon at the rate established by the Credit Agreement for
[Base Rate Loans] [Euro-Dollar Loans]. The duration of the Interest Period
with respect thereto shall be [30 days] [1 month] [2 months] [3 months] [6
months].
The Borrower hereby represents and warrants that on the date the
Borrowing requested hereunder is made (both before and after giving effect to
the making of such and after giving effect to the application, directly or
indirectly, of the proceeds thereof):
(a) no Default has occurred and is continuing; and
(b) the representations and warranties of the Borrower
contained in Article IV of the Credit Agreement are true on and as of
the date hereof except for changes permitted by the Credit Agreement
and except to the extent that such
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representations and warranties relate solely to an earlier date.
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The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer or other authorized employee this
_____ day of ___________, 199___
AIRBORNE FREIGHT CORPORATION
By:_________________________________
Title:
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EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of November
19, 1993 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") among AIRBORNE FREIGHT CORPORATION, the Banks from time to
time parties thereto, and Wachovia Bank of Georgia, N.A., as Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
__________ the duly authorized _________________ of AIRBORNE FREIGHT
CORPORATION hereby (i) certifies to the Agent and the Banks that the
information contained in the Compliance Check List attached hereto is true,
accurate and complete as of ___________ 199, and that no Defaults or Events of
Default exist and (ii) restates and reaffirms that the representations and
warranties contained in Article IV of the Credit Agreement are true on and as
of the date hereof as though restated on and as of this date.
By:____________________________
Title:
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COMPLIANCE CHECK LIST
(Airborne Freight Corporation)
______________ 199__
1. Ratio of Consolidated Senior Funded Debt to Consolidated Total Capital
(Section 5.03)
(a) Consolidated Senior Funded Debt $__________
(b) Consolidated Net Worth $__________
(c) sum of Consolidated Funded Debt plus (b) $__________
Actual Ratio of (a) to (c) __________
Maximum Ratio 0.55 to 1.0
2. Ratio of Consolidated Funded Debt to Consolidated Total Capital
(Section 5.04)
(a) Consolidated Funded Debt $__________
(b) Consolidated Net Worth $__________
(c) sum of (a) plus (b) $__________
Actual Ratio of (a) to (c) __________
Maximum Ratio 0.65 to 1.0
3. Minimum Consolidated Tangible Net Worth (Section 5.05)
(a) $275,000,000
(b) 33.33% of cumulative positive Consolidated
Net Income for immediately preceding Fiscal
Years ending after the Closing Date (net of
any Preferred Stock Dividends) $__________
(c) 66.66% of the cumulative Net Proceeds
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of Capital Stock $__________
(d) Sum of redemption payments made in respect
of Cumulative Convertible Preferred Stock $__________
COMPLIANCE CHECK LIST
(Airborne Freight Corporation)
______________, 199__
Required Minimum Consolidated Tangible Net Worth
(the sum of (a) plus (b) plus(c) minus (d)) $__________
Consolidated Tangible Net Worth
Schedule - 1 $__________
4. Fixed Charges Coverage (Section 5.06)
(a) Income Available for Fixed Charges
Schedule - 2 $__________
(b) Consolidated Fixed Charges
Schedule - 3 $__________
Ratio of (a) to (b) _________
Requirement > 2.0 to 1.0
5. Negative Pledge (Section 5.09)
(a) Consolidated Total Assets $__________
(b) Amount of Debt Secured by Liens (other than
those referred to in clauses (b), (c) and (d)
of Section 5.09) $__________
Limitation (product of (a) multiplied by 0.075) $__________
6. Debt of Subsidiaries (Section 5.23)
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The Subsidiaries have no Debt except for Debt permitted by Section
5.23(i) and 5.23 (ii), and the following (not to exceed $15,000,000)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
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COMPLIANCE CHECK LIST
(Airborne Freight Corporation)
______________, 199__
Schedule - 1
Consolidated Tangible Net Worth
Stockholders' Equity $__________
Less:
Intangibles $__________
Consolidated Tangible Net Worth $
==========
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COMPLIANCE CHECK LIST
(Airborne Freight Corporation)
______________, 199__
Schedule - 2
Income Available For Fixed Charges
___ quarter 199_ $__________
Consolidated Net Income $__________
Taxes on income $__________
Interest expense $__________
Operating lease and rental payments $__________
Depreciation $__________
Subtotal $__________
___ quarter 199_ $__________
Consolidated Net Income $__________
Taxes on income $__________
Interest expense $__________
Operating lease and rental payments $__________
Depreciation $__________
Subtotal $__________
___ quarter 199_ $__________
Consolidated Net Income $__________
Taxes on income $__________
Interest expense $__________
Operating lease and rental payments $__________
Depreciation $__________
Subtotal $__________
___ quarter 199_ $__________
Consolidated Net Income $__________
Taxes on income $__________
Interest expense $__________
Operating lease and rental payments $__________
Depreciation $__________
Subtotal $__________
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Income Available for Fixed Charges $
==========
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COMPLIANCE CHECK LIST
(Airborne Freight Corporation)
______________, 199__
Schedule - 3
Consolidated Fixed Charges
Consolidated operating lease and rental expenses for:
___ quarter 199_- $__________
___ quarter 199_- $__________
___ quarter 199_- $__________
___ quarter 199_- $__________
Subtotal $__________
Consolidated Interest for:
___ quarter 199_- $__________
___ quarter 199_- $__________
___ quarter 199_- $__________
___ quarter 199_- $__________
Subtotal $__________
Total Consolidated Fixed Charges $__________
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EXHIBIT G
AIRBORNE FREIGHT CORPORATION
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of _____________, 1993, among AIRBORNE FREIGHT CORPORATION, the Banks
listed therein, and Wachovia Bank of Georgia, N.A., as Agent. Capitalized
terms used herein have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,________________
the duly authorized ___________________ of AIRBORNE FREIGHT CORPORATION, hereby
certifies to the Agent and the Banks that (i) no Default has occurred and is
continuing as of the date hereof, and (ii) the representations and warranties
contained in Article IV of the Credit Agreement are true on and as of the date
hereof.
Certified as of this ____ day of _____________, 1993.
By:____________________________
Printed Name:________________
Title:_______________________
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EXHIBIT H
FORM OF GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 19th day of
November, 1993, by ____________, a Delaware corporation (the "Guarantor") in
favor of the Agent, for the ratable benefit of the Banks, under the Credit
Agreement referred to below;
W I T N E S S E T H
WHEREAS, AIRBORNE FREIGHT CORPORATION, a Delaware corporation
(the "Principal") and WACHOVIA BANK OF GEORGIA, N.A., as Agent (the "Agent"),
and certain other Banks from time to time party thereto have entered into a
certain Credit Agreement dated as of November 19, 1993, (as same may be amended
or modified from time to time, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for extensions of credit to be made by the
Banks to the Principal;
WHEREAS, it is a condition precedent to the Agent and the
Banks executing the Credit Agreement that the Guarantor execute and deliver
this Guaranty whereby the Guarantor shall guarantee the payment when due,
subject to Section 10 hereof, of all principal, interest and other amounts that
shall be at any time payable by the Principal under the Credit Agreement, the
Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support
that the Principal has provided, and such financial and other support as the
Principal may in the future provide, to Guarantor, and in order to induce the
Banks and the Agent to enter into the Credit Agreement, the Guarantor is
willing to guarantee the obligations of the principal under the Credit
Agreement, the Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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SECTION 1. Definitions. Terms defined in the Credit
Agreement and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
SECTION 2. Representations and Warranties. The Guarantor
represents and warrants (which representations and warranties shall be deemed
to have been renewed by the Guarantor upon each Borrowing under the Credit
Agreement) that:
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(a) it (i) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation; (ii) has all requisite corporate power, and has all material
governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed to be
conducted; and (iii) is qualified to do business in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure so to qualify would have a material adverse effect on its
condition (financial or otherwise), assets, nature of assets, liabilities
(including, without limitation, tax, ERISA and environmental liabilities) or
prospects.
(b) it has all necessary corporate power and authority to
execute, deliver and perform its obligations under this Guaranty; the
execution, delivery and performance by the Guarantor of this Guaranty have been
duly authorized by all necessary corporate action; and this Guaranty has been
duly and validly executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or moratorium or other similar laws relating to the enforcement of creditors'
rights generally and by general equitable principles.
(c) neither the execution and delivery by it of this
Guaranty nor compliance with the terms and provisions hereof by the Guarantor
will conflict with or result in a breach of, or require any consent under, its
certificate of incorporation or by-laws or any applicable law or regulation, or
any order, writ, injunction or decree of any court or governmental authority or
agency, or any material agreement or instrument to which it is a party or by
which it is bound or to which it is subject, or constitute a default under any
such agreement or instrument, or result in the creation or imposition of any
Lien upon any of its revenues or assets pursuant to the terms of any such
agreement or instrument.
(d) it is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(e) after giving effect to the execution and delivery of
the Loan Documents to which it is a party and the incurring of its obligations
hereunder, it will not be "insolvent," within the meaning of such term as used
in O.C.G.A. Section 18-2-22 or as defined in Section 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts
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generally as such debts become due, or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
(f) it is not a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding
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<PAGE> 172
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 3. Covenants. The Guarantor covenants that, so long
as any Bank has any Commitment outstanding under the Credit Agreement or any
amount payable under the Credit Agreement or any Note shall remain unpaid, that
the Guarantor will (i) fully comply with those covenants set forth in the
Credit Agreement in Section 5.02, Sections 5.07 through 5.16, inclusive, and
Sections 5.18 through 5.23, inclusive.
SECTION 4. The Guaranty. Subject to Section 10 hereof, the
Guarantor hereby unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal
of and interest on each Note issued by the Principal pursuant to the Credit
Agreement, and the full and punctual payment of all other amounts payable by
the Principal under the Credit Agreement and the other Loan Documents,
including, without limitation, all expenses and attorney's fees (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Principal to pay punctually any such
amount, the Guarantor agrees that it shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in the Credit Agreement,
the relevant Note or the relevant Loan Document, as the case may be.
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Principal under
the Credit Agreement, any Note, or any other Loan Document, by
operation of law or otherwise or any obligation of any other guarantor
of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement
to the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Principal under
the Credit Agreement, any Note, any Loan Document, or any obligations
of any other guarantor of any of the Guaranteed Obligations;
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(iv) any change in the corporate existence, structure
or ownership of the Principal or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Principal, or any other
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guarantor of any of the Guaranteed Obligations, or its assets or any
resulting release or discharge of any obligation of the Principal, or
any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other
rights which the Guarantor may have at any time against the Principal,
any other guarantor of any of the Guaranteed Obligations, the Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to
or against the Principal, or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit
Agreement, any other Loan Document, or any other Guaranty, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Principal, or any other guarantor of the Guaranteed
Obligations, of the principal of or interest on any Note or any other
amount payable by the Principal under the Credit Agreement, the Notes,
or any other Loan Document; or
(vii) any other act or omission to act or delay of
any kind by the Principal, any other guarantor of the Guaranteed
Obligations, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the
Guarantor's obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantor's obligations hereunder shall remain
in full force and effect until all Guaranteed Obligations shall have been paid
in full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any
Note or any other amount payable by the Principal under the Credit Agreement or
any other Loan Document is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Principal or
otherwise, the Guarantor's obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
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SECTION 7. Waiver of Notice by the Guarantor. The Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
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<PAGE> 176
Principal, any other guarantor of the Guaranteed Obligations, or any other
Person.
SECTION 8. Other Waivers by the Guarantor. The Guarantor
hereby expressly waives, renounces, and agrees not to assert, any right, claim
or cause of action, including, without limitation, a claim for reimbursement,
subrogation, indemnification or otherwise, against the Principal arising out of
or by reason of this Guaranty or the obligations of the Guarantor hereunder,
including, without limitation, the payment or securing or purchasing of any of
the Guaranteed Obligations by the Guarantor. The waiver, renunciation and
agreement contained in the immediately preceding sentence is for the benefit of
the Agent and the Banks and also for the benefit of the Principal who may
assert the benefits thereof as a third-party beneficiary, and the Guarantor may
be released from such waiver, renunciation and agreement only by the execution
and delivery, by the Agent, the Required Banks and the Principal, of an
instrument expressly releasing the Guarantor therefrom.
SECTION 9. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Principal under the Credit Agreement,
any Note or any other Loan Document is stayed upon the insolvency, bankruptcy
or reorganization of the Principal, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other
Loan Document shall nonetheless be payable by the Guarantor hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
SECTION 10. Limitation on Guarantor's Obligations. (a) It is
the intention of the Guarantor and the Banks that the Guarantor's obligations
hereunder shall be in, but not in excess of, as of any date, the greater of the
following (such greater amount determined hereunder being the Guarantor's
"Maximum Liability"): (i) the aggregate amount of all monies received by the
Guarantor from the Principal from and after the date hereof (whether by loan,
capital infusion or other means), or (ii) the maximum amount (such amount being
the Guarantor's "Alternative Limitation") that would be permitted by Title 11
of the United States Code or Section 2 of the Uniform Fraudulent Transfer Act,
or any other applicable state law pertaining to fraudulent transfers, as each
may be amended from time to time, or any applicable state law (collectively,
the "Bankruptcy Code"), whether or not any party to this Guaranty is or becomes
a "debtor" under the Bankruptcy Code. To that end, but as to the Alternative
Limitation of the Guarantor, only to the extent such obligations would be
subject to avoidance under the Bankruptcy
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Code if the Guarantor is not deemed to have received valuable consideration,
fair value or reasonably equivalent value for its obligations hereunder, the
Guarantor's entire obligations hereunder shall be reduced by that minimum
amount which, after giving effect thereto, would not render the Guarantor
insolvent, or leave the Guarantor with an unreasonably small capital to
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<PAGE> 178
conduct its business, or cause the Guarantor to have incurred debts (or
intended to have incurred debts) beyond its ability to pay such debts as they
mature, at the time such obligations are deemed to have been incurred under the
Bankruptcy Code. As used herein, the terms "insolvent" and "unreasonably small
capital shall likewise be determined in accordance with the Bankruptcy Code.
This Section 10(a) with respect to the Alternative Limitation of the Guarantor
is intended solely to preserve the rights of the Agent hereunder to the maximum
extent permitted by the Bankruptcy Code, and neither the Guarantor nor any
other person or entity shall have any right or claim under this Section 10(a)
with respect to the Alternative Limitation, except to the extent necessary so
that the obligations of the Guarantor hereunder shall not be rendered voidable
under the Bankruptcy Code. Further, to the extent that such obligations
constitute distributions to shareholders within the meaning of RCW 23B.06.400,
to the extent that same may now or hereafter be deemed applicable to the
Guarantor, or "dividends" within the meaning of Sections 170 and 173 of the
Delaware General Corporation Law, the obligations of the Guarantor hereunder
shall be limited to those amounts which such Guarantor could lawfully declare
and pay as dividends or distributions to shareholders under such statutes.
(b) The Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the Maximum Liability of the Guarantor, and
may exceed the aggregate Maximum Liability of all other guarantors under the
Guaranties (the "Other Guarantors"), without impairing this Guaranty or
affecting the rights and remedies of the Agent hereunder. Nothing in this
Section 10(b) shall be construed to increase the Guarantor's obligations
hereunder beyond its Maximum Liability.
(c) In the event any Other Guarantor (a "Paying Other Guarantor")
shall make any payment or payments under any other Guaranty or shall suffer any
loss as a result of any realization upon any collateral granted by it to secure
its obligations under any Other Guaranty, each Other Guarantor (each a
"Non-Paying Other Guarantor") shall contribute to such Paying Other Guarantor
an amount equal to such Non-Paying Other Guarantor's "Pro Rata Share" of such
payment or payments made, or losses suffered, by such Paying Other Guarantor.
For the purposes hereof, each Non-Paying Other Guarantor's "Pro Rata Share"
with respect to any such payment or loss by a Paying Other Guarantor shall be
determined as of the date on which such payment or loss was made by reference
to the ratio of (i) such Non-Paying Other Guarantor's Maximum Liability as of
such date (without giving effect to any right to receive, or obligation to
make, any
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contribution hereunder) to (ii) the aggregate Maximum Liability of
all Other Guarantors under the other Guaranties (including the Maximum
Liability of such Paying Other Guarantor) as of such date (without giving
effect to any right to receive, or obligation to make, any contribution
hereunder or under any other Guaranty). Nothing in this Section 10(c) shall
affect any Other
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Guarantor's several liability for the entire amount of the Guaranteed
Obligations (up to such Other Guarantor's Maximum Liability). The Guarantor
covenants and agrees that its right to receive any contribution under any other
Guaranty from a Non-Paying Other Guarantor shall be subordinate and junior in
right of payment to all the Guaranteed Obligations. The provisions of this
Section 10(c) are for the benefit of both the Agent, the Guarantor and the
Other Guarantors and may be enforced by any one, or more, or all of them in
accordance with the terms hereof.
SECTION 11. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient
at its address or telecopier number set forth on the signature pages hereof or
such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Agent in accordance with the provisions of
Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 72 hours after such communication is deposited in the mails with first
class postage prepaid, in each case given or addressed as aforesaid.
SECTION 12. No Waivers. No failure or delay by the Agent or
any Banks in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes, and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns. This Guaranty is for the
benefit of the Agent and the Banks and their respective successors and assigns
and in the event of an assignment of any amounts payable under the Credit
Agreement, the Notes, or the other Loan Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantor without the
prior written consent of the Agent and the Banks, and shall be binding upon the
Guarantor and its successors and permitted assigns.
SECTION 14. Changes in Writing. Neither this Guaranty nor
any provision hereof may be changed, waived, discharged or
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terminated orally, but only in writing signed by the Guarantor and the
Agent with the consent of the Required Banks.
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SECTION 15. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE
AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE
COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE GUARANTOR AND THE AGENT HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 16. Taxes, etc. All payments required to be made by the
Guarantor hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political or taxing authority thereof,
provided, however, that if the Guarantor is required by law to make such
deduction or withholding the Guarantor shall forthwith pay to the Agent or any
Bank, as applicable, such additional amount as results in the net amount
received by the Agent or any Bank, as applicable, equaling the full amount
which would have been received by the Agent or any Bank, as applicable, had no
such deduction or withholding been made.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed, under seal, by its authorized officer as of the date first
above written.
[NAME OF GUARANTOR TO BE INSERTED]
(SEAL)
By:____________________________________
Title:
____________________________________
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____________________________________
____________________________________
Attention:__________________________
Telecopier number:__________________
Confirmation number:________________
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EXHIBIT I
MONEY MARKET QUOTE REQUEST
Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: U.S. Corporate Group
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with
Section 2.03 of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of November 19, 1993, among AIRBORNE FREIGHT
CORPORATION, the Banks from time to time parties thereto, and WACHOVIA BANK OF
GEORGIA, N.A., as Agent. Terms defined in the Credit Agreement are used herein
as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
__________ 19____ (the "Quotation Date").(1)
2. The aggregate amount of the Money Market Borrowing shall be
$____________(2)
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be _____ days.(3)
____________________
(1) The date must be a Domestic Business Day.
(2) The amount of the Money Market Borrowing is subject to
Section 2.03(a) and (b).
(3) The Stated Maturity Dates are subject to Section 2.03 (b)
(ii). The Borrower may request that up to 3 different Stated
Maturity Dates be applicable to any Money Market Borrowing,
provided, that ii) each such Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request and (ii)
the Borrower shall specify the amounts of such Money Market
Borrowing to be subject to each such different Stated
Maturity Date.
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This Money Market Quote Request is provided by the Borrower as of the
____ day of _________, 199__, and is subject to all of the terms and conditions
pertaining thereto in the Credit Agreement.
AIRBORNE FREIGHT CORPORATION
By:_________________________
Title:
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EXHIBIT J
MONEY MARKET QUOTE
Wachovia Bank of Georgia, N.A.
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: U.S. Corporate Group
Re: Money Market Quote to AIRBORNE FREIGHT CORPORATION (the "Borrower")
This Money Market Quote is given in accordance with Section
2.03(c) (ii) of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of November 19, 1993, among AIRBORNE FREIGHT
CORPORATION, the Banks from time to time parties thereto and WACHOVIA BANK OF
GEORGIA, N.A., as Agent. Terms defined in the Credit Agreement are used herein
as defined therein.
In response to the Borrower's invitation dated __________,
19__, we hereby make the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Borrowing:(1)*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts for the following Stated Maturity Dates and
at the following rates:
<TABLE>
<CAPTION>
Stated
Principal Maturity
Amount(2) Date(3) Rate Per Annum(4)
--------- -------- -----------------
<S> <C> <C>
</TABLE>
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__________________
* All numbered footnotes appear on the last page of this Exhibit J.
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We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate(s) us to make the Money Market Loan(s)
for which any offer(s) [is] [are] accepted, in whole or in part (subject to the
last sentence of Section 2.03(c) (i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
By:
Dated: Authorized Officer
_______________________________
_______________________________
(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Stated Maturity Date may not exceed
the principal amount requested. Money Market Quotes must be made for
at least 51,000,000 or a larger multiple of 51,000,000.
(3) The Stated Maturity Dates are subject to Section 2.03(b)(ii).
(4) Subject to Section 2.03(c)(ii)(C).
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Schedule 1.01
Airborne Freight Corporation
Cumulative Convertible Preferred Stock
Redemption Schedule
<TABLE>
<CAPTION> Total Amount
Start End # of Value Subject to
Date Date Shares Per Share Redemption
- -------- -------- ------ --------- ------------
<S> <C> <C> <C> <C>
10/16/94 12/15/94 80,000 $25 $2,000,000
10/16/95 12/15/95 80,000 $25 $2,000,000
10/16/96 12/15/96 80,000 $25 $2,000,000
10/16/97 12/15/97 80,000 $25 $2,000,000
10/16/98 12/15/98 80,000 $25 $2,000,000
10/16/99 12/15/99 80,000 $25 $2,000,000
10/16/00 12/15/00 80,000 $25 $2,000,000
10/16/01 12/15/01 80,000 $25 $2,000,000
10/16/02 12/15/02 80,000 $25 $2,000,000
10/16/03 12/15/03 80,000 $25 $2,000,000
------- -----------
800,000 $20,000,000
======= ===========
</TABLE>
Final Redemption Date if Cumulative Convertible Preferred Shares not converted
to Common Stock:
<TABLE>
<S> <C> <C> <C>
12/05/04 1,600,000 $25 $40,000,000
</TABLE>
ATMAIN Doc: 29851.9 182
<PAGE> 190
Schedule 4.08
Subsidiaries
<TABLE>
<CAPTION>
Name Jurisdiction of Incorporation
- ---- -----------------------------
<S> <C>
ABX Air, Inc. Delaware
Airborne Forwarding Corporation Delaware
</TABLE>
ATMAIN Doc: 29851.9 183
<PAGE> 1
EXHIBIT 11
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1993 1992 1991
------- ------- -------
(In thousands except per share data)
<S> <C> <C> <C>
PRIMARY:
Net Earnings $36,357 $ 2,397 $27,239
======= ======= =======
Average Common Shares Outstanding 19,255 19,139 18,938
Effect of Dilutive Stock Options 341 284 533
------- ------- -------
Total Average Shares Outstanding 19,596 19,423 19,471
======= ======= =======
Primary Earnings Per Share $ 1.86 $ .12 $ 1.40
======= ======= =======
FULLY DILUTED:
Net Earnings $36,357 $ 2,397 $27,239
Redeemable Preferred Stock Dividends 2,760 -- --
------- ------- -------
Adjusted Net Earnings $39,117 $ 2,397 $27,239
======= ======= =======
Average Common Shares Outstanding 19,255 19,139 18,938
Effect of Dilutive Stock Options 552 304 505
Effect of Conversion of Redeemable
Preferred Stock Dividends 1,710 -- --
------- ------- -------
Total Average Shares Outstanding 21,517 19,443 19,443
======= ======= =======
Fully Diluted Earnings Per Share $ 1.82 $ .12 $ 1.40
======= ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 12
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
RATIO OF SENIOR LONG-TERM DEBT AND TOTAL LONG-TERM
DEBT TO TOTAL CAPITALIZATION
<TABLE>
<CAPTION>
December 31, 1993
(Dollars in thousands)
<S> <C>
SENIOR LONG-TERM DEBT:
Revolving Credit Agreement $105,000
Money Market Lines of Credit --
Notes Payable 34,000
Senior Notes 100000
Refunding Revenue Bonds 13,200
Notes Payable to Vendors 12,468
Capital Lease Obligations and Other Debts 6,862
--------
271,530
Less Current Portion 2,280
--------
Senior Long-Term Debt $269,250
========
TOTAL LONG-TERM DEBT:
Senior Long-Term Debt $269,250
Senior Subordinated Notes, net of current portion 7,150
Convertible Subordinated Debentures 115,000
--------
Total Long-Term Debt $391,400
========
TOTAL CAPITALIZATION:
Long-Term Debt $391,400
Deferred Income Taxes 28,262
Redeemable Preferred Stock 40,000
Shareholders Equity, Net 318,824
--------
Total Capitalization $778,486
========
RATIO OF SENIOR LONG-TERM DEBT TO TOTAL CAPITALIZATION 34.6%
========
RATIO OF TOTAL LONG-TERM DEBT TO TOTAL CAPITALIZATION 50.3%
========
</TABLE>
<PAGE> 1
EXHIBIT 13
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
COMMON STOCK & DIVIDEND INFORMATION
The Company's common stock is traded on the New York Stock Exchange and the
Pacific Stock Exchange under the symbol ABF. The following is a summary of the
cash dividends paid and the quarterly trading price ranges of Airborne common
stock on the New York Stock Exchange for 1993 and 1992:
<TABLE>
<CAPTION>
Quarter High Low Dividend
------- ------- ------- --------
<S> <C> <C> <C>
1993:
Fourth $35.250 $24.125 $.075
Third 25.625 19.125 .075
Second 26.500 20.875 .075
First 23.875 18.125 .075
1992:
Fourth $20.375 $15.875 $.075
Third 16.875 12.500 .075
Second 25.125 13.875 .075
First 29.750 23.375 .075
</TABLE>
<PAGE> 2
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- --------
(In thousands except per share data)
<S> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Revenues
Domestic $1,484,787 $1,259,792 $1,144,791 $ 982,268 $752,217
International 235,194 224,524 222,256 199,622 197,679
---------- ---------- ---------- ---------- --------
Total 1,719,981 1,484,316 1,367,047 1,181,890 949,896
Operating Expenses 1,636,861 1,456,450 1,307,790 1,117,594 903,966
---------- ---------- ---------- ---------- --------
Earnings From Operations 83,120 27,866 59,257 64,296 45,930
Interest, Net 24,093 18,779 10,842 8,857 13,927
---------- ---------- ---------- ---------- --------
Earnings Before Income Taxes 59,027 9,087 48,415 55,439 32,003
Income Taxes 23,738 3,930 18,416 21,862 12,920
---------- ---------- ---------- ---------- --------
Net Earnings Before Changes in Accounting 35,289 5,157 29,999 33,577 19,083
Cumulative Effect of Changes in Accounting 3,828 -- -- -- --
---------- ---------- ---------- ---------- ----------
Net Earnings 39,117 5,157 29,999 33,577 19,083
Preferred Stock Dividends 2,760 2,760 2,760 2,548 --
---------- ---------- ---------- ---------- --------
Net Earnings Available to Common Shareholders $ 36,357 $ 2,397 $ 27,239 $ 31,029 $ 19,083
========== ========== ========== ========== ========
Net Earnings Per Common Share
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Primary $ 1.66* $ .12 $ 1.40 $ 1.76 $ 1.33
========== ========== ========== ========== ========
Fully Diluted $ 1.64* $ .12 $ 1.40 $ 1.76 $ 1.24
========== ========== ========== ========== ========
Dividends Per Common Share $ .30 $ .30 $ .30 $ .30 $ .30
========== ========== ========== ========== ========
Average Primary Shares Outstanding 19,596 19,423 19,471 17,626 14,307
========== ========== ========== ========== ========
FINANCIAL STRUCTURE:
Working Capital $ 60,564 $ 50,276 $ 26,618 $ 31,215 $ 26,703
Property and Equipment 733,963 730,937 613,149 419,873 306,429
Total Assets 1,006,909 964,739 823,647 613,534 470,605
Long-Term Debt 269,250 303,335 153,279 106,303 122,830
Subordinated Debt 122,150 125,720 129,290 17,860 21,430
Redeemable Preferred Stock 40,000 40,000 40,000 40,000 --
Shareholders' Equity 318,824 285,639 287,344 263,417 168,126
NUMBER OF SHIPMENTS:
Domestic 160,568 130,186 106,219 85,910 64,134
International 3,545 3,302 2,777 2,310 1,964
---------- ---------- ---------- ---------- ----------
Total 164,113 133,488 108,996 88,220 66,098
========== ========== ========== ========== ==========
</TABLE>
- -----------------------
* Exclusive of the cumulative effect of adopting accounting standards for
income taxes and postretirement benefits.
Primary and fully diluted earnings per share inclusive of the changes were
$1.86 and $1.82, respectively.
<PAGE> 4
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS
OF OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS:
The Company's operating performance in 1993 resulted in significantly
higher operating income compared to 1992 and record net earnings. This
improvement was the result of strong domestic shipment and revenue growth,
lower per shipment operating costs, and a relatively stable pricing
environment.
Net earnings available to common shareholders in 1993 before changes in
accounting were $32.5 million, or $1.66 per primary share, compared to $2.4
million, or $.12 per share in 1992. Net earnings after the changes in
accounting were $36.4 million, or $1.86 per common share, $1.82 per share on a
fully diluted basis.
In the first quarter of 1993 the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes" and SFAS
No. 106, "Employers Accounting for Postretirement Benefits Other than
Pensions". The first of these accounting changes requires the Company's
deferred tax assets and liabilities be adjusted to reflect current enacted
rates rather than the statutory rates that were effective when the liabilities
were established. This change resulted in an increase to earnings of $5.5
million. The other accounting change requires that expected postretirement
health care benefit costs be accrued over the applicable employee service
period. This change resulted in a charge to earnings, net of taxes, of $1.7
million. These two changes on a combined basis increased net earnings in the
first quarter and for the year of 1993 by $3.8 million, or $.20 per share.
The following table is an overview of the Company's shipments, revenue
and weight trends for the last three years:
<TABLE>
<CAPTION>
1993 1992 1991
-------- -------- --------
<S> <C> <C> <C>
Number of Shipments (in thousands):
Domestic
Overnight
Letters 32,620 29,653 27,272
0-2 lbs. 41,390 37,103 33,013
3-99 lbs. 35,853 29,959 27,678
-------- -------- --------
Total 109,863 96,715 87,963
Select Delivery Service
0-2 lbs. 31,640 21,552 10,945
3-99 lbs. 18,715 11,584 6,990
-------- -------- --------
Total 50,355 33,136 17,935
100 lbs. and over 350 335 321
-------- -------- --------
Total Domestic 160,568 130,186 106,219
-------- -------- --------
International
Express 3,139 2,886 2,390
All Other 406 416 387
-------- -------- --------
Total International 3,545 3,302 2,777
-------- -------- --------
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
Total Shipments 164,113 133,488 108,996
======== ======== ========
Average Pounds Per Shipment:
Domestic 4.8 4.8 5.0
International 47.1 46.7 55.4
Average Revenue Per Pound:
Domestic $ 1.94 $ 2.04 $ 2.17
International $ 1.41 $ 1.46 $ 1.44
Average Revenue Per Shipment:
Domestic $ 9.25 $ 9.68 $10.78
International $66.35 $68.00 $80.03
</TABLE>
Total revenues increased 16% in 1993 compared to 9% in 1992 and 16% in
1991. Shipment volume grew to 164 million in 1993 increasing 23%, compared to
a 22.5% increase in 1992 and 23.5% in 1991.
Domestic revenue increased 18% in 1993 on shipment growth of 23% compared
to revenue growth of 10% and 17% and shipment growth of 23% and 24% in 1992 and
1991, respectively. Domestic shipment growth has been aided by improved growth
in overnight express shipments, up almost 14% in 1993 compared to 10% in 1992
and 12% in 1991. The growth in domestic shipments also continued to be aided
by growth in the Company's lower yielding deferred service product, Select
Delivery Service (SDS), which accounted for more than 31% of the total domestic
shipments in 1993 compared to 25% in 1992 and 17% in 1991. The Company
increased rates in March 1993 by approximately 5% on domestic business that was
not under a time-definite contract, resulting in an overall yield improvement
of approximately 2%. This was the first domestic rate increase in four years.
Although still very competitive, the domestic pricing environment has improved
during 1993 resulting in relatively stable yields. The decline in revenue per
shipment slowed significantly in 1993, with the ratio decreasing only 4% in
1993, compared to 10% in 1992 and 6% in 1991.
International revenue increased 5% in 1993 on shipment growth of 7%
compared to revenue growth of 1% and 11% and shipment growth of 19% and 20% in
1992 and 1991, respectively. The growth rate of international shipments
continued to be negatively impacted by weak offshore economic conditions.
International growth for the year was positively impacted by strong fourth
quarter volume, primarily the result of significant additional volume from a
major customer, which resulted in revenues increasing 24% and shipments 10%
compared to the fourth quarter of 1992.
OPERATING EXPENSES are affected by shipment volume, productivity
improvements, costs incurred to increase capacity and expand service, fuel
price volatility and discretionary items such as the level of marketing
expenditures. Operating expenses as a percentage of revenues were 95.2% in
1993 compared to 98.1% in 1992 and 95.7% in 1991. The overall improved
operating margin achieved in 1993 was positively impacted by the 6.1% operating
margin achieved in the last half of the year. Measuring cost performance on a
per shipment handled basis, total operating expenses per shipment declined 8.6%
to $9.97 in 1993 compared to $10.91 in 1992 and $12.00 in 1991. A strong focus
on cost control, productivity improvements and quality improvement programs are
primarily responsible for this favorable trend. The Company achieved a 12.1%
improvement in productivity, as measured by shipments handled per paid employee
hour, compared to 9.7% improvement in 1992 and 7.6% in 1991.
Transportation purchased decreased as a percentage of revenues to 31.6% in
1993 compared to 32.7% in 1992 and 32.9% in 1991. This expense category
consists primarily of commercial airline costs and farmed-out trucking and
pick-up and delivery costs. International airline costs, for lift purchased
directly from other carriers, continued to decline as a percentage of total
revenues in 1993. This expense category did increase
<PAGE> 6
as a percentage of revenues in the fourth quarter of 1993 compared to 1992 as a
result of the increase in international airline costs required to handle the
increased volume in the quarter.
Station and ground expense as a percentage of revenues was 30.6% in 1993
compared to 31.1% in 1992 and 29.8% in 1991. Productivity gains in pick-up and
delivery, customer service and hub operations have been instrumental in
partially offsetting the effect of increased costs incurred to accommodate the
growth in shipments and expand service while maintaining service integrity.
Shipment volume handled through ten regional sort facilities currently
approximates 35% of total domestic shipment weight handled and has resulted in
incrementally lower transportation and handling costs.
Flight operations and maintenance expense declined as a percentage of
revenues to 14.1% in 1993 compared to 14.9% in 1992 and 13.6% in 1991. This
decline is primarily a result of lower aircraft maintenance costs per flight
hour and lower average fuel costs than in 1992. Aviation fuel consumption
increased 12% to 107.6 million gallons in 1993. The increase in fuel
consumption is a result of additional Company operated aircraft placed in
service during the past year. Average aviation fuel prices for 1993
approximated $.65 per gallon, $.04 per gallon lower than 1992, and $.09 per
gallon lower than 1991.
General and administrative expense as a percentage of revenues was 8.1% in
1993 compared to 8.1% in 1992 and 8.8% in 1991. Sales and marketing decreased
to 2.9% of revenues in 1993 compared to 3.2% in 1992 and 3.3% in 1991.
Productivity gains and controls on discretionary spending in these two expense
categories have been instrumental in offsetting the effect of increased costs
incurred to accommodate shipment growth and expand service as well as
inflationary cost increases. General and administrative expense includes
profit sharing expense which increased to $5.7 million in 1993, due to the
significant increase in profitability in 1993, compared to $.7 million in 1992.
Depreciation and amortization expense declined as a percentage of revenues
to 7.8% in 1993 compared to 8.1% in 1992 while 1991 was 7.2%. The total amount
of depreciation and amortization has continued to increase over the last three
years as a result of capital expenditures incurred primarily to expand the
airline operations.
INTEREST EXPENSE increased in 1993 due to the higher level of average
outstanding borrowings. The average interest rates for 1993 were also modestly
higher than 1992, primarily a result of the Senior Notes financing completed in
December 1992. Interest capitalized in 1993, which was primarily related to
the acquisition and modification of aircraft, was lower in 1993 than the prior
two years due to fewer aircraft in modification during the year.
INCOME TAXES for 1993 resulted in an effective tax rate of 40.2% compared
to 43.2% in 1992 and 38.0% in 1991. The increase in the effective tax rate for
1992 was primarily due to the increase in the effective tax rate for state and
local taxes when applied to the lower level of earnings in 1992. The effective
tax rate in 1993 was impacted by the Omnibus Budget Reconciliation Act of 1993
(the Act). The Act contains changes to corporate tax laws, including an
increase in the corporate tax rate on income to 35% from the previous 34% rate,
and a further limitation on the deduction of certain business expenses,
retroactive to January 1, 1993.
Looking ahead, certain trends experienced in 1993 position the Company for
an improved year in 1994. These include an improved business climate, a stable
pricing environment, and a continuing reduction in operating expenses per
shipment.
However, severe winter weather in the Midwest and Northeast and the
earthquake in the Los Angeles area brought some disruption in the early part of
the first quarter of 1994 to the favorable trends realized in 1993. Both
events disrupted the flow of business and required an estimated $2 to $3
million in extra expenses. In addition, shipment volume may have been reduced
from what might have otherwise been experienced if these
<PAGE> 7
disruptions had not occurred. However, the Company does not believe the amount
of any reduced revenue is determinable, as many customers who also were
impacted by these same disruptions may have transacted their shipments at a
later date. The Company believes these disruptions will not have a significant
impact on operating results for the full year of 1994.
FINANCIAL CONDITION:
CAPITAL EXPENDITURES and financing associated with those expenditures have
been the primary factors affecting the financial condition of the Company over
the last three years. The Company took measures to reduce capital expenditures
in 1993, including carefully evaluating aircraft use and facilities expansion.
As a result, actual capital expenditures were significantly lower than the
prior two years, and also were lower than projected at the beginning of 1993.
Total capital expenditures, net of dispositions, were $139 million in 1993
compared to $252 million in 1992 and $246 million in 1991. A significant
portion of these expenditures has been related to the acquisition and
modification of aircraft and related flight equipment.
The Company acquired 6 DC-9 and a DC-8 aircraft in 1993 and 10 aircraft
were placed into service during the year. At the end of 1993 the Company had
90 aircraft in service, consisting of 26 DC-8's, 53 DC-9's and 11 YS-11's. In
addition, there were 2 aircraft in modification status and 6 aircraft that had
not been modified. Other capital expenditures in 1993 included vehicles for
expansion and replacement, facilities and package handling equipment related to
servicing the increased shipment volume, airport runway expansion, leasehold
improvements for new or expanded facilities and for computer equipment.
Capital expenditures will continue to be a significant factor affecting
financial condition in 1994. The Company anticipates 1994 capital expenditures
of approximately $190 million, with a significant portion of the investment
going for the acquisition of 4 aircraft, the modification of aircraft to be
placed in service, the retrofitting of aircraft with Stage III hush kits, and
the continued expansion of the airport facility.
A total of 8 aircraft are expected to be placed in service in 1994. Not
all of these aircraft will be added to the scheduled fleet during the year.
Some of these aircraft will be assigned as fleet backup, and as replacement
aircraft for those rotated out of service for normal maintenance, for Stage III
hush kit retrofitting, and to perform FAA service bulletin maintenance. The
Company anticipates reducing the number of aircraft not modified for revenue
service to a single DC-9 by the end of 1994.
LIQUIDITY AND CAPITAL RESOURCES: Liquidity for financing capital
expenditures in 1993 came primarily from internally generated cash provided
from operations which approximated $174 million in 1993 compared to $122
million in 1992 and $134 million in 1991. In addition, any need for liquidity
during the year was provided by the revolving bank line of credit.
The revolving bank credit line has traditionally been used as a major
source of liquidity for periods of time between other financing transactions
that provide liquidity. The Company renegotiated its revolving bank credit
agreement effective November 19, 1993, increasing the total commitment from
$225 million to $240 million, subject to a maximum level of Company
indebtedness permitted by certain convenants in the agreement and other loan
agreements. The new agreement provides pricing flexibility that should
decrease the effective cost of borrowing. The agreement is effective through
May 31, 1997, with the option to extend to May 31, 1999. At December 31, 1993,
a total of $105 million was owing under the revolving bank credit agreement.
The Company also has available $20 million under uncommitted money market
lines of credit with several banks, used in conjunction with the revolving
credit agreement to facilitate settlement and accommodate short-term borrowing
fluctuations.
<PAGE> 8
The Company has an aircraft financing facility with Mitsui & Co., providing
for a total commitment of $100 million to be used for the financing of up to
80% of the value of aircraft acquired and modified by the Company. The
commitment is for a five-year period expiring in March 1995. No utilization of
this facility has occurred.
In February 1994, the Company canceled a shelf registration for $100
million of debt securities which was due to expire in December 1994. This
represented the remaining unused portion of $200 million of debt securities
registered with the Securities and Exchange Commission in December of 1992.
The Company's ratio of senior long-term debt to total capitalization was
34.6% and the ratio of total long-term debt to total capitalization was 50.3%
at December 31, 1993, compared to 39.3% and 55.5%, respectively, at December
31, 1992. Anticipated cash flow from 1994 operations should provide the
majority of the liquidity for projected 1994 capital expenditures of $190
million. Accordingly, these ratios are not expected to change significantly
from the 1993 year end level.
In management's opinion, the available capacity under the bank credit
agreements and aircraft financing agreement coupled with anticipated internally
generated cash flow from 1994 operations should provide adequate flexibility
for financing future growth.
INFLATION:
Except for fuel costs, the rate of inflation has been relatively constant
over the past several years, and so has the impact of inflation on the
Company's results of operations and financial condition. The effects of
inflation have been considered in management's discussion where considered
pertinent.
<PAGE> 9
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF NET EARNINGS
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
---------------------- ---------- ---------- ----------
(In thousands except per share data)
<S> <C> <C> <C>
REVENUES:
Domestic $1,484,787 $1,259,792 $1,144,791
International 235,194 224,524 222,256
---------- ---------- ----------
1,719,981 1,484,316 1,367,047
OPERATING EXPENSES:
Transportation purchased 543,594 485,484 449,811
Station and ground operations 526,661 461,813 406,998
Flight operations and maintenance 242,120 221,197 186,007
General and administrative 139,955 119,989 120,812
Sales and marketing 50,591 47,335 45,131
Depreciation and amortization 133,940 120,632 99,031
---------- ---------- ----------
1,636,861 1,456,450 1,307,790
---------- ---------- ----------
EARNINGS FROM OPERATIONS 83,120 27,866 59,257
INTEREST, NET 24,093 18,779 10,842
---------- ---------- ----------
EARNINGS BEFORE INCOME TAXES 59,027 9,087 48,415
INCOME TAXES 23,738 3,930 18,416
---------- ---------- ----------
NET EARNINGS BEFORE CHANGES IN ACCOUNTING 35,289 5,157 29,999
CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING:
Income taxes 5,506 -- --
Postretirement health care benefits (1,678) -- --
---------- ---------- ----------
NET EARNINGS 39,117 5,157 29,999
PREFERRED STOCK DIVIDENDS 2,760 2,760 2,760
---------- ---------- ----------
NET EARNINGS AVAILABLE TO COMMON SHAREHOLDERS $ 36,357 $ 2,397 $ 27,239
========== ========== ==========
NET EARNINGS PER COMMON SHARE:
Primary -
Before changes in accounting $ 1.66 $ .12 $ 1.40
Cumulative effect of changes in accounting .20 -- --
---------- ---------- ----------
Primary earnings per common share $ 1.86 $ .12 $ 1.40
========== ========== ==========
Fully Diluted -
Before changes in accounting $ 1.64 $ .12 $ 1.40
Cumulative effect of changes in accounting .18 -- --
---------- ---------- ----------
Fully diluted earnings per common share $ 1.82 $ .12 $ 1.40
========== ========== ==========
</TABLE>
<PAGE> 10
<TABLE>
<S> <C> <C> <C>
DIVIDENDS PER COMMON SHARE $ .30 $ .30 $ .30
========== ========== ==========
</TABLE>
See notes to consolidated financial statements.
<PAGE> 11
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31 1993 1992
- ----------- ---------- ----------
(In thousands)
<S> <C> <C>
ASSETS
------
CURRENT ASSETS:
Cash $ 7,134 $ 10,179
Trade accounts receivable, less
allowance of $6,925,000 and
$6,801,000 190,787 163,452
Spare parts and fuel inventory 27,224 26,925
Deferred income tax assets 15,206 --
Prepaid expenses 18,815 18,034
---------- ----------
TOTAL CURRENT ASSETS 259,166 218,590
PROPERTY AND EQUIPMENT, NET 733,963 730,937
EQUIPMENT DEPOSITS and OTHER ASSETS 13,780 15,212
---------- ----------
TOTAL ASSETS $1,006,909 $ 964,739
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES:
Accounts payable $ 95,684 $ 84,253
Salaries, wages and related taxes 37,885 31,029
Accrued expenses 55,545 43,136
Income taxes payable 3,638 4,289
Current portion of debt 5,850 5,607
---------- ----------
TOTAL CURRENT LIABILITIES 198,602 168,314
LONG-TERM DEBT 269,250 303,335
SUBORDINATED DEBT 122,150 125,720
DEFERRED INCOME TAX LIABILITIES 28,262 17,914
OTHER LIABILITIES 29,821 23,817
REDEEMABLE PREFERRED STOCK 40,000 40,000
SHAREHOLDERS' EQUITY:
Preferred Stock, without par value -
Authorized 5,200,000 shares, no
shares issued
Common stock, par value $1 per share -
Authorized 60,000,000 shares
Issued 19,688,731 and 19,514,850 19,689 19,515
Additional paid-in capital 149,156 146,731
Retained earnings 150,950 120,373
---------- ----------
319,795 286,619
Treasury stock, 315,150 and 318,150
shares, at cost (971) (980)
---------- ----------
318,824 285,639
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,006,909 $ 964,739
========== ==========
</TABLE>
See notes to consolidated financial statements.
<PAGE> 12
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
---------------------- ------- ------- -------
(In thousands)
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net Earnings $ 39,117 $ 5,157 $ 29,999
Adjustments to reconcile net earnings to net cash provided by
operating activities:
Cumulative effect of changes in accounting (3,828) -- --
Depreciation and amortization 122,533 110,206 90,586
Provision for aircraft engine overhauls 11,407 10,426 8,445
Deferred income taxes 1,513 (9,930) (3,256)
Other 3,461 5,949 8,125
-------- -------- --------
CASH PROVIDED BY OPERATIONS 174,203 121,808 133,899
Change in:
Receivables (27,335) (16,158) (11,880)
Inventories and prepaid expenses (1,080) (5,635) (7,594)
Accounts payable 15,266 16 (3,177)
Accrued expenses, salaries and taxes payable 18,614 5,167 19,229
-------- -------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 179,668 105,198 130,477
INVESTING ACTIVITIES:
Additions to property and equipment (139,319) (252,733) (248,165)
Disposition of property and equipment 231 1,068 1,674
Expenditures for engine overhauls (3,665) (1,933) (4,970)
Other (2,261) 206 1,094
-------- -------- --------
NET CASH USED IN INVESTING ACTIVITIES (145,014) (253,392) (250,367)
FINANCING ACTIVITIES:
Proceeds (payments) on bank notes, net (26,100) 30,700 17,900
Proceeds from debt issuance -- 132,786 126,479
Principal payments on debt (5,667) (6,273) (19,190)
Proceeds from common stock issuance 2,608 1,641 2,370
Dividends paid (8,540) (8,503) (8,442)
-------- -------- --------
NET CASH PROVIDED (USED) BY FINANCING ACTIVITIES (37,699) 150,351 119,117
-------- -------- --------
NET INCREASE (DECREASE) IN CASH (3,045) 2,157 (773)
CASH AT BEGINNING OF YEAR 10,179 8,022 8,795
-------- -------- --------
CASH AT END OF YEAR $ 7,134 $ 10,179 $ 8,022
======== ======== ========
</TABLE>
See notes to consolidated financial statements.
<PAGE> 13
AIRBORNE FREIGHT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Years Ended December 31, 1993
NOTE A - SUMMARY OF SIGNIFICANT ACCOUNT POLICIES:
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. Intercompany balances and transactions are
eliminated in consolidation.
CASH
The Company has a cash management system under which a cash overdraft
exists for uncleared checks in the Company's primary disbursement accounts.
The cash amount in the accompanying financial statements represents balances in
other accounts prior to being transferred to the primary disbursement accounts.
Uncleared checks of $24,728,000 and $23,201,000 are included in accounts
payable at December 31, 1993 and 1992, respectively.
SPARE PARTS AND FUEL INVENTORY
Spare parts are stated at average cost and fuel inventory is stated at
cost on first-in, first-out basis.
PROPERTY AND EQUIPMENT
Property and equipment, including rotable aircraft parts, are stated at
cost. The cost and accumulated depreciation of property and equipment disposed
of are removed from the accounts and any gain or loss reflected in earnings
from operations.
For financial reporting purposes, depreciation of property and equipment is
provided on a straight line basis over the assets useful life or lease term as
follows:
<TABLE>
<CAPTION>
<S> <C>
Flight equipment 7 to 10 years
Buildings and leasehold improvements 5 to 25 years
Package handling and ground support equipment 3 to 8 year
Vehicles and other equipment 3 to 8 year
</TABLE>
Flight equipment carry residual values ranging from 10% to 15% of asset
cost. All other property and equipment have no assigned residual values.
Major engine overhauls for DC-9 aircraft are accrued in advance of the next
scheduled overhaul based upon engine usage. Provision for engine overhauls is
included in depreciation expense. Major engine overhauls as well as ordinary
engine maintenance and repairs for DC-8 aircraft are performed by a third-party
service provider under a contract expiring in 2004. Service costs under the
contract are based upon an hourly rate for engine usage and are charged to
expense in the period utilization occurs. Major engine overhauls for YS-11
aircraft are capitalized when incurred and charged to operations over their
estimated service life. Expenditures for ordinary maintenance and repairs are
charged to expense as incurred.
CAPITALIZED INTEREST
Interest incurred during the construction period of certain facilities and
on aircraft purchase and modification costs are capitalized as an additional
cost of the asset until the date the asset is placed in service.
<PAGE> 14
Capitalized interest was $2,094,000, $2,466,000 and $4,476,000 for 1993, 1992
and 1991, respectively.
INCOME TAXES
The Company adopted the provisions of Statement of Financial Accounting
Standards (SFAS) No. 109, "Accounting for Income Taxes," as of January 1, 1993.
Under the asset and liability method prescribed by SFAS No. 109, deferred
income taxes are provided for temporary differences between the financial
reporting and tax basis of assets and liabilities. Deferred taxes are measured
using provisions of currently enacted tax laws. Tax credits are accounted for
as a reduction of income taxes in the year in which the credit originates.
EARNINGS PER SHARE
Primary earnings per common share are based upon the weighted average
number of common shares outstanding during the period plus dilutive common
equivalent shares applicable to the assumed exercise of outstanding stock
options. The weighted average number of shares outstanding were 19,596,000,
19,423,000 and 19,471,000 for the years ended December 31, 1993, 1992 and 1991,
respectively. Fully diluted earnings per share includes the potential dilution
for stock options and conversion of the 6.9% redeemable cumulative convertible
preferred stock based upon net earnings adjusted for the elimination of
preferred stock dividends. Applicable average shares outstanding and net
earnings as adjusted for the year ended December 31, 1993, were 21,517,000
shares and $39,117,000, respectively. Fully diluted earnings per share for
1992 and 1991 are the same as primary earnings per share.
REVENUE RECOGNITION
Domestic revenues and most domestic operating expenses are recognized when
shipments are picked up from the customer. International revenues and direct
air carrier expenses are recognized in the period when shipments are tendered
to a carrier for transport to a foreign destination. Domestic and
international delivery costs are recognized in the period incurred. The net
revenue resulting from existing recognition policies does not materially differ
from that which would be recognized on a delivery date basis.
NOTE B - PROPERTY AND EQUIPMENT:
Property and equipment consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31 1993 1992
- ----------- ---------- ----------
<S> <C> <C>
Flight equipment $ 849,174 $ 770,766
Land, buildings and leasehold improvements 127,857 114,738
Package handling and ground support equipment 109,288 105,262
Vehicles and other equipment 152,686 136,245
---------- ----------
1,239,005 1,127,011
Accumulated depreciation and amortization (505,042) (396,074)
---------- ----------
$ 733,963 $ 830,937
========== ==========
</TABLE>
NOTE C - ACCRUED EXPENSES:
<PAGE> 15
Accrued expenses consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31 1993 1992
- ----------- ------- -------
<S> <C> <C>
Insurance $14,684 $16,876
Aircraft leases 13,258 11,917
Retirement plans 10,716 1,604
Property and other taxes 8,059 5,309
Interest 4,032 4,160
Other 4,796 3,270
------- -------
$55,545 $43,136
======= =======
</TABLE>
NOTE D - INCOME TAXES:
The Company adopted the provisions of Statement of Financial Accounting
Standards No. 109 "Accounting for Income Taxes", as of January 1, 1993. The
standard changes the method of accounting for income taxes from the deferred
method to the asset and liability method. The result of this accounting
change, recorded cumulatively in the first quarter of 1993, was to increase net
earnings for the year ended December 31, 1993, by $5,506,000 or $.28 per
primary common share. Other than additional deferred taxes provided in
connection with enacted tax legislation, the change did not have a material
effect on income tax expense recorded in 1993.
The Company's Federal income tax expense and liabilities increased as a
result of the Omnibus Budget Reconciliation Act of 1993, which was enacted on
August 10, 1993. Income tax expense for the year ended December 31, 1993,
reflects $738,000 of additional taxes related to the tax legislation, which
adjusted the deferred tax assets and liabilities as of January 1, 1993.
In early 1993, the Internal Revenue Service (IRS) concluded their field
examination regarding the computation of the Company's aviation excise tax
liability. The IRS and the Company reached a settlement agreement relating to
the computation of the Company's aviation excise tax liability for all years
prior to 1992. The agreement also provides a basis for computing excise tax
obligations for future periods. The effect of this settlement did not have a
material effect on the financial position or results of operations of the
Company.
Deferred income tax assets and liabilities consist of the following (in
thousands):
<TABLE>
<CAPTION>
December 31 1992
- ----------- --------
<S> <C>
Insurance $ 5,648
Employee benefits 5,336
Bad debts, sales reserves and other 4,222
Current deferred income tax assets 15,206
--------
Depreciation and amortization 53,492
--------
Alternative Minimum Tax credit (19,647)
</TABLE>
<PAGE> 16
<TABLE>
<Capition>
December 31
-----------
<S> <C>
Aircraft engine overhaul accrual (7,169)
Capitalized interest 4,784
Insurance (5,135)
Pension and other 1,937
--------
Noncurrent net deferred income tax liabilities 28,262
--------
Net deferred income tax liabilities $ 13,056
========
</TABLE>
Income taxes consist of the following (in thousands):
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
- ---------------------- ---- ---- ----
<S> <C> <C> <C>
Current:
Federal $19,671 $12,602 $18,031
State 2,500 1,103 3,455
Foreign 54 155 186
------- ------- -------
22,225 13,860 21,672
Deferred:
Alternative Minimum Tax credit (4,846) (10,246) (3,594)
Bad debts and sales reserves 19 (2,393) 223
Aircraft engine overhaul accrual (2,760) (3,070) (868)
Insurance (104) (1,871) (2,703)
Employee benefits (407) (797) (1,793)
Depreciation and amortization 8,165 8,196 3,507
Capitalized interest 554 712 1,344
Other 154 (461) 628
Federal tax increase 738 -- --
------- ------- -------
1,513 (9,930) (3,256)
------- ------- -------
$23,738 $ 3,930 $18,416
======= ======= =======
</TABLE>
The following table summarizes the major differences between the actual
income tax provision and taxes computed at the Federal statutory rate
(in thousands):
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
- ---------------------- ---- ---- ----
<S> <C> <C> <C>
Taxes computed at statutory rate of 35%, (34% for 1992 and 1991) $20,659 $3,090 $16,461
State and foreign income taxes, net of Federal benefit 1,703 777 2,352
Tax effect of nondeductible expense 502 461 415
Tax credits and other 136 (398) (812)
Effect of Federal tax increase 738 -- --
------- ------ -------
$23,738 $3,930 $18,416
======= ====== =======
</TABLE>
<PAGE> 17
NOTE E - LONG-TERM AND SUBORDINATED DEBT:
Long-term debt and subordinated debt consist of the following:
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992
- ---------------------- -------- ---------
(In thousands)
<S> <C> <C>
LONG-TERM DEBT:
Revolving credit notes payable to banks, effective rate of 3.5% on December 31, 1993 $105,000 $115,000
Money market lines of credit -- 16,100
Notes payable, variable rate, 3.9% on December 31, 1993, due April 1994, secured by 34,000 34,000
flight equipment
Senior notes, 8.875%, due December 2002 100,000 100,000
Refunding revenue bonds, effective rate of 3.2% on December 31, 1993, due June 2011 13,200 13,200
Notes payable to vendors 12,468 17,835
Capital lease obligations and other 6,862 9,237
-------- --------
271,530 305,372
Less current portion 2,280 2,037
-------- --------
$269,250 $303,335
======== ========
SUBORDINATED DEBT:
Convertible subordinated debentures, 6.75%, due August 2001 $115,000 $115,000
Senior subordinated notes, 10%, sinking fund payments of $3,570,000 due in annual 10,720 14,290
installments through June 1995, and $3,580,000 on June 1996
-------- --------
125,720 129,290
Less current portion 3,570 3,570
-------- --------
$122,150 $125,720
======== ========
</TABLE>
The Company renegotiated its revolving bank credit agreement effective
November 1993 increasing the total commitment from $225,000,000 to
$240,000,000. Interest rates for borrowings are generally determined by
maturities selected and prevailing market conditions. The revolving credit
agreement is for an initial period expiring May 31, 1997, with options to
extend the maturity to May 31, 1999. The Company was in compliance with
covenants of the current and previous revolving credit agreements during 1993,
1992 and 1991, including net worth restrictions which limit the payment of
dividends ($77,700,000 of retained earnings was not restricted at December 31,
1993).
The Company has available $20,000,000 of financing under uncommitted money
market lines of credit with several banks. These facilities bear interest at
rates that vary with the banks' cost of funds and are typically less than the
prevailing bank prime rate. These credit lines are used in conjunction with
the revolving credit agreement to facilitate settlement and accommodate
short-term borrowing fluctuations.
<PAGE> 18
Notes payable to vendors consist of short-term, non interest bearing
financing provided through purchase agreements with vendors for the acquisition
of aircraft.
The Company has classified the borrowings outstanding under the money
market lines of credit, notes payable to vendors and the note payable due April
1994 as long-term. These amounts will be refinanced under the revolving credit
agreement.
The Company's tax-exempt airport facilities refunding bonds carry no
sinking fund requirements and bear interest at weekly adjustable rates. The
average interest rate on these borrowings was 2.4% during 1993. Payment of
principal and interest is secured by an irrevocable bank letter of credit that
is collateralized by a mortgage on certain airport properties which have a net
carrying value of $40,862,000 at December 31, 1993.
The Company's 6.75% convertible subordinated debentures require no sinking
fund payments prior to maturity. The debentures may be redeemed at the option
of the Company beginning August 1994 at a redemption price of 104.9% declining
ratably on an annual basis to par at maturity. The debentures are convertible
into the Company's common stock at a conversion price of $35.50 per share,
subject to adjustment in certain events. The Company has reserved 3,239,437
shares of common stock for such conversion.
The Company has an aircraft financing facility with Mitsui & Co., Ltd.,
providing for a total commitment of $100,000,000 to be used for the financing
of up to 80% of the value of aircraft acquired by the Company. Interest rates
will be determined at the time of each borrowing based on a market based index
rate. The commitment expires in March 1995 and no portion of the commitment
had been utilized at December 31, 1993. At December 31, 1993, the Company was
in compliance with financial covenants required had the Company requested
financing under the facility at that date.
At December 31, 1993, the present value of future minimum lease payments
for capital lease obligations was $3,740,000 net of $550,000 representing
interest payable. Property and equipment includes $8,034,000 for capital
leases, and accumulated depreciation and amortization includes $4,861,000
applicable thereto.
The scheduled annual principal payments on long-term senior and subordinated
debt and capital lease obligations for the next five years, assuming no
extension of the revolving credit notes, are as follows (in thousands):
<TABLE>
<S> <C>
1994 $ 5,850
1995 6,109
1996 5,568
1997 151,514
1998 9
</TABLE>
The following table summarizes the fair value information regarding the
Company's principal long-term debt arrangements as of December 31, 1993 (in
thousands):
<TABLE>
<CAPTION>
Carrying Fair
Amount Value
-------- --------
<S> <C> <C>
</TABLE>
<PAGE> 19
<TABLE>
<S> <C> <C>
Senior notes $100,000 $107,690
Convertible subordinated debentures 115,000 128,168
</TABLE>
Fair value for the senior notes and convertible subordinated debentures is
based on quoted market prices for the same issues. The carrying value of the
Company's remaining long-term financial debt instruments approximate fair value
primarily because of the frequency of the repricing of the instrument.
NOTE F - COMMITMENTS:
OPERATING LEASES
The Company is obligated under various long-term operating lease agreements
for certain equipment and for a substantial portion of its facilities. These
leases expire at various dates through 2011. Rental expense for 1993, 1992 and
1991 was $81,138,000, $76,414,000 and $73,301,000, respectively.
Rental commitments under long-term operating leases at December 31, 1993 total
$427,748,000 and are payable as follows (in thousands):
<TABLE>
<CAPTION>
Facilities Equipment
---------- ---------
<S> <C> <C>
1994 $ 42,332 $ 23,161
1995 41,067 22,952
1996 36,010 22,600
1997 33,232 19,539
1998 31,075 16,818
1999 and beyond 118,918 20,044
</TABLE>
PURCHASE COMMITMENTS
Under various agreements the Company is committed to purchase nine aircraft
consisting of four DC-8, and five DC-9 aircraft to be acquired at various dates
through 1997. At December 31, 1993, deposits of $450,000 had been made toward
these purchases. Additional deposits and payments for these aircraft
acquisitions will approximate $21,000,000, $17,500,000, $15,700,000 and
$4,800,000, in 1994 through 1997, respectively.
NOTE G - POSTRETIREMENT PLANS:
PENSIONS
The Company has trusteed retirement plans for all employees not covered by
multi-employer plans to which the Company contributes under terms of various
collective bargaining agreements. The Company retirement plans consist of
profit sharing and capital accumulation plans and minimum monthly retirement
income plans.
The capital accumulation plans are funded by both voluntary employee salary
deferrals of up to 16% of annual compensation and by employer matching
contributions of 35% of employee salary deferrals up to 6% of annual
compensation. The total Company matching contribution expense was $2,926,000,
$2,242,000 and $1,628,000 for 1993, 1992 and 1991, respectively.
Contributions to the profit sharing plan are made at the discretion of the
Board of Directors. However, a basic formula has been followed for
contributions of 7% of earnings before taxes up to a specific profit level
<PAGE> 20
plus 14% of earnings in excess of that level. The Company's profit sharing
expense was $5,672,000, $684,000 and $3,645,000 for 1993, 1992 and 1991,
respectively. The profit sharing plan holds 456,617 of the Company's common
stock at December 31, 1993, representing 2.4% of outstanding shares.
The profit sharing plan is expected to be the primary retirement benefit.
However, the minimum monthly retirement income plan guarantees a minimum level
of monthly pension income for those not accruing sufficient balances in the
profit sharing plan.
Net minimum monthly plan pension expense included the following components
(in thousands):
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
- ---------------------- ------ ------ ------
<S> <C> <C> <C>
Service cost benefits earned during the period $2,934 $2,203 $1,692
Interest cost on projected benefit obligation 1,525 1,395 1,169
Actual return on plan assets (865) (559) (358)
Net amortization and deferral 595 464 312
------ ------ ------
Net pension expense $4,189 $3,503 $2,815
====== ====== ======
</TABLE>
The following is a summary of the minimum monthly plan funded status (in
thousands):
<TABLE>
<CAPTION>
December 31 1993 1992
- ----------- ------- -------
<S> <C> <C>
Projected benefit obligation for service rendered to date $27,612 $20,866
Plan assets at fair market value primarily marketable securities 8,930 7,206
------- -------
Projected benefit obligation in excess of plan assets 18,682 13,660
Unrecognized prior service cost (1,788) (2,061)
Unrecognized net losses from past experience different from that assumed (4,520) (2,152)
Unrecognized net transition obligation (207) (236)
------- -------
Pension liability included in consolidated balance sheets $12,167 $ 9,211
------- -------
Actuarial present value of accumulated benefit obligation, including
vested benefits of $9,421,000 and $4,984,000, respectively $ 9,838 $ 5,264
======= =======
</TABLE>
Assumptions used in determining pension obligations were as follows:
<PAGE> 21
<TABLE>
<CAPTION>
1993 1992 1991
---- ---- ----
<S> <C> <C> <C>
Discount rate 7% 8% 8%
Rate of compensation increase 6% 6% 6%
Long-term rate of return on assets 8% 8% 8%
</TABLE>
The Company adopted a non-qualified, unfunded supplemental retirement plan
for certain key executives in 1992. This plan provides defined retirement
benefits which supplement those provided by the Company's other retirement
plans. Pension expense for this plan was $550,000 and $638,000 in 1993 and
1992, respectively. The projected benefit obligation accrued in the
consolidated balance sheet as of December 31, 1993 was $1,177,000 including
$70,000 of accumulated benefit obligation.
The Company also contributes to several multi-employer defined benefit
pension plans covering substantially all employees under collective bargaining
agreements. Total expense of these plans was $16,676,000, $14,358,000 and
$11,287,000 for 1993, 1992 and 1991, respectively.
HEALTH CARE BENEFITS
The Company adopted Statement of Financial Accounting Standards No. 106,
"Employers Accounting for Postretirement Benefits Other than Pensions", as of
January 1, 1993, using the immediate recognition transition option. The
standard requires that expected post retirement health care benefit costs be
accrued over the applicable employee service period. Prior to 1993,
postretirement benefit costs were recognized when paid and were not material to
total health care costs. The effect of immediate recognition of the transition
obligation of $2,543,000 was a decrease in net earnings in the first quarter of
1993 of $1,678,000 or $.08 per primary share, net of a deferred tax benefit of
$865,000.
The Company provides postretirement health care benefits for employees and
qualifying dependents who have met certain eligibility requirements and who are
not covered by other plans to which the Company contributes, such as
collectively bargained plans. The Company's plan is currently unfunded.
The accumulated postretirement benefit obligation was $3,654,000 at
December 31, 1993 of which $3,192,000 has been accrued in Other Liabilities on
the Consolidated Balance Sheet. Postretirement benefit expense was $649,000
for 1993.
The Company also contributes to multi-employer defined benefit welfare
plans covering substantially all employees under collective bargaining
agreements. Portions of the these contributions, which cannot be
disaggregated, relate to postretirement benefits for plan participants. Total
expense of these plans was $19,741,000 for 1993.
The assumed health care cost trend rate used in measuring benefit costs was
14% for 1993, decreasing each successive year to a 7% annual growth rate in
1998, and thereafter. A one-percentage-point increase or decrease in the
assumed health care cost trend rate for each year would not have a material
effect on the accumulated postretirement benefit obligation or benefit cost as
of or for the year ended December 31, 1993. The assumed discount rate used in
determining the accumulated postretirement benefit obligation was 7% at
December 31, 1993. The assumed discount rate used to determine the transition
obligation recognized effective January 1, 1993, was 8%.
NOTE H - PREFERRED STOCK:
The Company has outstanding 800,000 shares of 6.9% redeemable cumulative
convertible preferred stock, at par value of $50 per share. The shares are
convertible into the Company's common stock at a conversion price of $23.393
per share, subject to certain antidilutive provisions. The Company has
reserved 1,709,914 shares of common stock for such conversion. Shares which
are not converted to common stock may be redeemed, in whole or in part, at the
option of the Company, beginning December 1994, at a redemption price of
103.45% and declining ratably on an
<PAGE> 22
annual basis to par on December 1999. In December 2004, the Company is
required to redeem all outstanding shares at par value plus accrued dividends.
From December 1994 through December 2004, the holders have the option of
requiring the Company to redeem at par value 40,000 shares annually and 400,000
shares cumulatively.
The non-voting preferred shares are senior to common shares both as to
accumulated dividends and liquidation preferences. Dividends are payable
quarterly.
Fair value of the preferred stock is estimated at $60,000,000 assuming the
stock was converted, at the option of the holder, to the Company's common
shares. Estimated fair value is computed utilizing the December 31, 1993
closing market price of the Company's common stock of $35.125 per share.
NOTE I - SUPPLEMENTAL CASH FLOW INFORMATION:
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
---------------------- ------- ------- -------
(In thousands)
<S> <C> <C> <C>
Cash paid during the year for:
Interest (net of capitalized interest) $27,121 $18,620 $ 8,960
Income taxes 21,781 13,910 22,451
</TABLE>
Non-cash investing and financing activities include capital lease, note payable
and certain other vendor obligations of $13,846,000, $23,402,000 and
$40,592,000 which were entered into 1993, 1992 and 1991, respectively.
NOTE J - SHAREHOLDERS' EQUITY:
Changes in shareholders' equity consists of the following (in thousands):
<TABLE>
<CAPTION>
Additional
Common Paid-In Retained Treasury
Stock Capital Earnings Stock
------ ---------- -------- --------
<S> <C> <C> <C> <C>
BALANCE at JANUARY 1, 1991 $19,142 $143,093 $102,162 $ (980)
Net earnings available to common shareholders 27,239
Common stock dividends paid (5,682)
Exercise of stock options 199 2,171
------- -------- -------- -------
BALANCE at DECEMBER 31, 1991 19,341 145,264 123,719 (980)
Net earnings available to common shareholders 2,397
Common stock dividends paid (5,743)
Exercise of stock options 174 1,467
------- -------- -------- -------
BALANCE at DECEMBER 31 1992 19,515 146,731 120,373 (980)
Net earnings available to common shareholders 36,357
Common stock dividends paid (5,780)
Exercise of stock options 174 2,425 9
------- -------- -------- -------
</TABLE>
<PAGE> 23
<TABLE>
<S> <C> <C> <C> <C>
BALANCE at DECEMBER 31, 1993 $19,689 $149,156 $150,950 $ (971)
======= ======== ======== =======
</TABLE>
NOTE K - STOCK OPTIONS:
Under shareholder approved option plans, officers, directors and key
employees may be granted options to purchase the Company's common stock at the
fair market value on date of grant. Options granted become exercisable over a
period of six months to three years following the date of grant and expire ten
years from the date of grant. A summary of the Company's employee stock option
plans are as follows:
<TABLE>
<CAPTION>
Shares Option Price
Granted Per Share
------- ------------
<S> <C> <C>
Outstanding at December 31, 1990 1,186,394 $ 4.56-$18.50
Granted 210,575 $22.13
Exercised (225,748) $ 4.56-$12.75
Canceled (17,180) $ 6.63-$22.13
--------- -------------
Outstanding at December 31, 1991 1,154,041 $ 4.56-$22.13
Granted 162,295 $28.50
Exercised (214,890) $ 4.56-$18.50
Canceled (16,090) $12.75-$28.50
--------- -------------
Outstanding at December 31, 1992 1,085,356 $ 4.56-$28.50
Granted 202,955 $22.50
Exercised (189,725) $ 6.63-$28.50
Canceled (28,325) $ 6.63-$28.50
--------- -------------
Outstanding at December 31, 1993 1,070,261 $ 6.63-$28.50
========= =============
Exercisable at December 31, 1993 645,550 $ 6.63-$28.50
========= =============
Available for grants in future periods 141,765
=========
</TABLE>
NOTE L - SEGMENT INFORMATION:
Substantially all of the Company's revenues are derived from domestic and
international transportation and/or forwarding of air freight and express
shipments. Domestic is defined as any shipment with an origin and destination
within the United States, Puerto Rico or Canada. A substantial portion of
international revenue originates in the United States ($181,491,000 in 1993,
$179,135,000 in 1992, and $180,190,000 in 1991).
The determination of operating income of domestic and international
operations requires that certain costs incurred in the United States be
allocated to international operations.
<TABLE>
<CAPTION>
Year Ended December 31 1993 1992 1991
---------------------- ---- ---- ----
(In thousands)
<S> <C> <C> <C>
</TABLE>
<PAGE> 24
<TABLE>
<S> <C> <C> <C>
Revenues:
Domestic $1,484,787 $1,259,792 $1,144,791
International 235,194 224,524 222,256
---------- ---------- ----------
$1,719,981 $1,484,316 $1,367,047
========== ========== ==========
Earnings from Operations:
Domestic $ 76,441 $ 21,156 $ 53,283
International 6,679 6,710 5,974
Interest, net (24,093) (18,779) (10,842)
---------- ---------- ----------
Earnings Before Income Taxes $ 59,027 $ 9,087 $ 48,415
========== ========== ==========
Identifiable Assets:
Domestic $ 969,764 $ 928,592 $ 786,203
International 37,145 36,147 37,444
---------- ---------- ----------
$1,006,909 $ 964,739 $ 823,647
========== ========== ==========
</TABLE>
NOTE M - QUARTERLY RESULTS (Unaudited):
The following is a summary of unaudited quarterly results of operations (in
thousands except per share data):
<TABLE>
<CAPTION>
1st 2nd 3rd 4th
1993 Quarter Quarter Quarter Quarter
---- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues $398,766 $419,881 $434,223 $467,111
Earnings From Operations 11,936 16,294 26,142 28,748
Net Earnings Before Changes in Accounting 3,626 6,282 11,066 14,315
Net Earnings Available to Common Shareholders 6,773 5,594 10,371 13,619
Net Earnings Per Common Share Before Changes In
Accounting
Primary $.15 $.29 $.53 $.69
Fully Diluted .15 .29 .52 .66
1992
----
Revenues $359,917 $359,864 $371,648 $392,887
Earnings From Operations 6,153 (687) 8,721 13,679
Net Earnings Available to Common Shareholders 380 (4,185) 1,370 4,832
Net Earnings Per Common Share
Primary $.02 $(.22) $.07 $.25
Fully Diluted .02 (.22) .07 .25
</TABLE>
<PAGE> 25
INDEPENDENT AUDITORS' REPORT
Board of Directors
Airborne Freight Corporation
Seattle, Washington
We have audited the accompanying consolidated balance sheets of Airborne
Freight Corporation and subsidiaries as of December 31, 1993 and 1992, and the
related consolidated statements of net earnings and cash flows for each of the
three years in the period ended December 31, 1993. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of the Company as of December 31,
1993 and 1992, and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 1993, in conformity
with generally accepted accounting principles.
As discussed in Notes D and G to the financial statements, the Company
adopted Statement of Financial Accounting Standards No. 109, "Accounting for
Income Taxes" and No. 106, "Employers' Accounting for Postretirement Benefits
Other Than Pensions", as of January 1, 1993.
/s/ Deloitte & Touche
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DELOITTE & TOUCHE
February 11, 1994
Seattle, Washington
<PAGE> 1
Exhibit 23
INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULES
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Board of Directors
Airborne Freight Corporation
Seattle, Washington
We consent to the incorporation by reference in Registration Statement Nos.
33-3713, 2-67161, 33-39720, and 33-51651 on Form S-8 of our report dated
February 11, 1994, on the consolidated financial statements of Airborne Freight
Corporation and subsidiaries appearing on page 20 of the Company's 1993 Annual
Report to Shareholders and incorporated by reference in this Annual Report on
Form 10-K for the year ended December 31, 1993. We also consent to the
incorporation of the following report on schedules in such Registration
Statement.
In the course of our audit of the consolidated financial statements referred to
in our report, we also audited the schedules listed in the accompanying Index
at Item 14(a)2. These schedules are the responsibility of the Company's
management. Our responsibility is to express an opinion based on our audit.
In our opinion, these schedules present fairly, in all material respects, when
read in conjunction with the related consolidated financial statements, the
information therein set forth.
/s/ DELOITTE & TOUCHE
DELOITTE & TOUCHE
Seattle, Washington
March 25, 1994
