<PAGE> 1
SECURITIES AND EXCHANGE COMMMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities and Exchange Act of 1934
For the Quarter Ended June 30, 1995
Commission file number O-4714
United Parcel Service of America, Inc.
(Exact name of registrant specified in its charter)
Delaware 95-1732075
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Glenlake Parkway, NE
Atlanta, Georgia 30328
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (404)828-6000
Not Applicable
Former name, address and fiscal year, if changed since last
report
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 and Exchange Act of 1934 during the preceding 12
months, and (2) has been subject to such filing requirements for
the past 90 days.
YES X NO________
Common Stock, par value $.10 per share
(Title of Class)
580,000,000 shares
Outstanding as of August 14, 1995 <PAGE>
<PAGE> 2
PART I. FINANCIAL INFORMATION
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
June 30, 1995 (unaudited) and December 31, 1994
(000's omitted except share amounts)
ASSETS 1995 1994
---------- ----------
CURRENT ASSETS:
Cash and short-term investments $ 239,682 $ 261,038
Accounts receivable 1,674,784 1,592,494
Prepaid employee benefit costs 351,523 439,430
Materials, supplies and prepaid expenses 524,054 381,179
Common stock held for stock plans 653,996 349,338
---------- ----------
TOTAL CURRENT ASSETS 3,444,039 3,023,479
PROPERTY, PLANT AND EQUIPMENT - at cost, net of
accumulated depreciation of $5,690,255 in
1995 and $5,325,159 in 1994 8,116,617 7,767,742
OTHER ASSETS 527,543 391,183
---------- ----------
$12,088,199 $11,182,404
========== ==========
LIABILITIES AND SHAREOWNERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,074,045 $ 1,082,056
Accrued wages and withholdings 1,048,859 1,080,554
Dividends payable - 170,037
Deferred income taxes 150,852 136,260
Other current liabilities 505,847 433,578
---------- ----------
TOTAL CURRENT LIABILITIES 2,779,603 2,902,485
---------- ----------
LONG-TERM DEBT, net of current maturities
of $1,371 in 1995 and $1,675 in 1994 1,548,337 1,127,405
---------- ----------
ACCUMULATED POSTRETIREMENT BENEFIT
OBLIGATION, NET 641,173 588,860
---------- ----------
DEFERRED TAXES, CREDITS AND OTHER LIABILITIES 1,984,662 1,916,405
---------- ----------
SHAREOWNERS' EQUITY:
Preferred stock, no par value,
Authorized 200,000,000 shares, none issued - -
Common stock, par value $.10 per share,
Authorized 900,000,000 shares, issued
580,000,000 58,000 58,000
Additional paid-in capital 303,921 295,441
Retained earnings 4,696,940 4,276,784
Cumulative foreign currency adjustments 75,563 17,024
---------- ----------
5,134,424 4,647,249
---------- ----------
$12,088,199 $11,182,404
========== ==========
See notes to consolidated financial statements. <PAGE>
<PAGE> 3
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
Three Months and Six Months Ended June 30, 1995 and 1994
(000's omitted except per share amounts)
(unaudited)
Three Months Ended Six Months Ended
1995 1994 1995 1994
--------- --------- ---------- ---------
Revenue $5,157,732 $4,827,570 $10,259,639 $9,353,857
--------- --------- ---------- ---------
Operating Expenses:
Wages and employee benefits 3,015,407 2,853,789 6,045,603 5,672,192
Other 1,611,434 1,509,030 3,178,823 2,975,430
--------- --------- ---------- ---------
4,626,841 4,362,819 9,224,426 8,647,622
--------- --------- ---------- ---------
Operating Profit 530,891 464,751 1,035,213 706,235
--------- --------- ---------- ---------
Other income and (expense):
Interest income 5,522 2,777 9,519 5,624
Interest expense (17,984) (7,281) (38,021) (21,154)
Miscellaneous, net (13,039) (2,958) (17,453) 51,653
--------- --------- ---------- ---------
(25,501) (7,462) (45,955) 36,123
--------- --------- ---------- ---------
Income before income taxes 505,390 457,289 989,258 742,358
Income taxes 194,166 186,404 388,050 307,343
--------- --------- ---------- ---------
Net income $ 311,224 $ 270,885 $ 601,208 $ 435,015
========= ========= ========== =========
Net income per share $ 0.54 $ 0.47 $ 1.04 $ 0.75
========= ========= ========== =========
See notes to consolidated financial statements. <PAGE>
<PAGE> 4
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREOWNERS' EQUITY
Six Months Ended June 30, 1995
(000's omitted)
(unaudited)
Cumulative
Additional Foreign Total
Common Stock Paid-In Retained Currency Shareowners'
Shares Amount Capital Earnings Adjustments Equity
------- ------ ------- --------- ------ ---------
Balance, January 1,
1995 580,000 $58,000 $295,441 $4,276,784 $17,024 $4,647,249
Net income - - - 601,208 - 601,208
Gain on issuance
of common stock
held for stock
plans - - 17,766 - - 17,766
Exercise of stock
options - - (9,286) - - (9,286)
Dividends
($.32 per share) - - - (181,052) - (181,052)
Foreign currency
adjustments - - - - 58,539 58,539
------- ------ ------- --------- ------ ---------
Balance, June 30,
1995 580,000 $58,000 $303,921 $4,696,940 $75,563 $5,134,424
======= ====== ======= ========= ====== =========
See notes to consolidated financial statements. <PAGE>
<PAGE> 5
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
Six Months Ended June 30, 1995 and 1994
(000's ommitted)
(unaudited)
1995 1994
-------- --------
Cash flows from operating activities:
Net income $ 601,208 $ 435,015
Adjustments to reconcile net income to net
cash provided from operating activities:
Depreciation and amortization 419,519 383,565
Postretirement benefits 52,313 48,822
Deferred taxes, credits, and other 76,272 (31,128)
Changes in assets and liabilities:
Accounts receivable (82,290) (256,739)
Prepaid employee benefit costs 87,907 (50,727)
Materials, supplies and prepaid
expenses (168,214) (35,732)
Common stock held for stock plans (304,658) (314,272)
Accounts payable (8,011) 211,323
Accrued wages and withholdings (31,695) 97,533
Dividends payable (170,037) (141,281)
Other current liabilities 72,573 (51,088)
-------- --------
Net cash provided from operating
activities 544,887 295,291
-------- --------
Cash flows from investing activities:
Capital expenditures (731,425) (671,017)
Proceeds from disposal of property, plant
and equipment 31,642 32,123
Other asset receipts and payments (134,445) 13,746
-------- --------
Net cash (used in) investing activities (834,228) (625,148)
-------- --------
Cash flows from financing activities:
Proceeds from borrowings 530,317 300,485
Repayment of borrowings (110,368) (24,672)
Dividends (181,052) (140,556)
Other transactions 8,480 9,107
-------- --------
Net cash provided from financing activities 247,377 144,364
-------- --------
Effect of exchange rate changes on cash 20,608 19,848
-------- --------
Net (decrease) in cash and
short-term investments (21,356) (165,645)
Cash and short-term investments:
Beginning of period 261,038 280,960
-------- --------
End of period $ 239,682 $ 115,315
======== ========
Cash paid during the period for:
Interest (net of amount capitalized) $ 31,294 $ 27,636
======== ========
Income taxes $ 287,154 $ 306,355
======== ========
See notes to consolidated financial statements. <PAGE>
<PAGE> 6
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months and Six Months Ended June 30, 1995 and 1994
(unaudited)
1. For interim consolidated financial statement purposes, UPS computes
its tax provision on the basis of its estimated annual effective income
tax rate, and provides for accruals under its Managers Incentive Plan,
Thrift Plan and Retirement Plan based on one quarter of the estimated
annual expense for each three month period.
Net income per share is based on 580,000,000 shares in both 1995
and 1994, including common stock held for stock plans.
2. In the opinion of management, the accompanying interim, unaudited,
consolidated financial statements contain all adjustments (consisting of
normal recurring accruals) necessary to present fairly the financial
position as of June 30, 1995, the results of operations for the three
months and six months ended June 30, 1995 and 1994, and cash flows for
the six months ended June 30, 1995 and 1994.
3. During the second quarter of 1995, the Company received a Notice of
Deficiency from the United States Internal Revenue Service (IRS)
asserting that it is liable for additional tax for the 1983 and 1984 tax
years. The Notice of Deficiency is based in large part on the theory
that UPS is liable for tax on income of Overseas Partners Ltd. ( OPL ),
a Bermuda company, which has reinsured excess value package insurance
purchased by UPS's customers from unrelated insurers. The deficiency
sought by the IRS relating to package insurance is based on a number of
inconsistent theories and ranges from $8 million to $35 million of tax,
plus penalties and interest for 1984.
Agents for the IRS have also asserted in reports that UPS is liable
for additional tax for the 1985 through 1987 tax years. The additional
tax sought by the agents relating to package insurance for this period
range from $89 million to $148 million, plus penalties and interest, and
are based on the same theories included in the above described Notice of
Deficiency.
In addition, the IRS and its agents have raised a number of other
issues relating to the timing of deductions; the characterization of
expenses as capital rather than ordinary; and UPS's entitlement to the
Investment Tax Credit in the 1983 through 1987 tax years. These issues
total $32 million in tax for the 1983 and 1984 tax years and $95 million
in tax for the 1985 through 1987 tax year. Penalties and interest are
in addition to these amounts. The majority of these adjustments would
reverse in future years. <PAGE>
<PAGE> 7
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months and Six Months Ended June 30, 1995 and 1994
(unaudited)
The Company will file a petition in Tax Court in August, 1995, in
opposition to the Notice of Deficiency. After consultation with tax
legal experts, management believes there is no merit to any material
issues raised by the IRS and that the eventual resolution of these
matters will not have a material impact on the Company. The IRS may take
positions similar to those in the reports described above for periods
after 1987.
4. Miscellaneous, net in the consolidated statement of income for the
six months ended June 30, 1994, includes a gain of approximately $46
million which resulted from the sale of a long-term investment property
in January 1994.
5. As part of UPS's overall effort to lower operating expense, the
Company has implemented a program of voluntary early retirement and
severance packages for certain, primarily management, employees.
Voluntary elections to participate in the program must be made during
the period June 15 to August 15, 1995. Employees are allowed a one
week recision period after making their election. All electing
employees must terminate employment no later than August 31, 1995.
The total charge to 1995 operations for this program will not be
known until the third quarter. It is anticipated to be in the range of
$250 to $300 million, however, this estimate could vary significantly
depending on the actual number and mix of employees who accept the
offer. Total charges incurred through June 30, 1995 were $19 million. <PAGE>
<PAGE> 8
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended June 30, 1995 and 1994
Revenue increased by $330 million, or 6.8% for the three months
ended June 30, 1995 over the three months ended June 30, 1994. For the
second quarter of 1995, domestic revenue totaled $4.462 billion, an
increase of $165 million over the second quarter of 1994, and
international revenue totaled $696 million, an increase of $165 million.
Domestic revenue increased as a result of higher volume which was
up 0.8% and a continuing shift toward higher yielding packages.
The increase in international revenue was primarily attributable to
higher volume, which was up 13.4% and the effect of stronger foreign
currencies. In addition, the majority of the increased volume related
to higher yielding export packages.
Operating expenses increased by $264 million, or 6.1%, resulting in
an improvement in the operating ratio from 90.4 during 1994 to 89.7
during 1995. The improvement in the operating ratio is primarily a
function of cost control efforts during 1995.
Operating profit for the period increased by $66 million, or 14.2%,
as a result of the higher revenue and the lower operating ratio.
Income before income taxes ("pre-tax income") increased $48
million, or 10.5%. Domestic pre-tax income amounted to $559 million, an
increase of $10 million, or 1.9% over the corresponding quarter of the
previous year. The increase was a result of higher operating profits.
The international pre-tax loss decreased by $38 million, or 41.4%, to
$54 million for the quarter.
The international pre-tax loss attributable to the foreign domestic
operations decreased by $27 million, or 39.3%, primarily as a result of
higher volume and improved operating margins. The pre-tax loss
associated with export operations decreased by $11 million, or 47.2%,
and also resulted primarily from higher volume and improved operating
margins. Export volume increased by 41.8% and 18.5% for international
and U.S. origin, export shipments, respectively. UPS expects that the
cost of operating its international business will continue to exceed
revenue in the near future.
Net income increased by $40 million, or 14.9%, over the
corresponding quarter of the prior year. The increase resulted
primarily from improved operating profit. <PAGE>
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Six Months Ended June 30, 1995 and 1994
Revenue increased by $906 million, or 9.7% for the six months ended
June 30, 1995 over the six months ended June 30, 1994. For the first
six months of 1995, domestic revenue totaled $8.901 billion, an increase
of $587 million over the first six months of 1994, and international
revenue totaled $1.359 billion, an increase of $319 million.
Domestic revenue increased as a result of higher volume which was
up 3.2%, first quarter rate increases and a continuing shift toward
higher yielding packages. The volume increase was mainly a result of
lower volume during the first quarter of 1994, which was affected by a
one day strike in February 1994 and periodic, severe weather conditions
which disrupted both air and ground operations. On February 4, 1995,
published rates for domestic ground services for commercial and
residential deliveries were increased by 3.9%. Additionally, the
published rates for Next Day Air and 2nd Day Air packages each increased
by 3.9%, and the published rates for Next Day Air and 2nd Day Air
letters increased by 4.7% and 4.3%, respectively.
The increase in international revenue was primarily attributable to
higher volume, which was up 14.3%, and the effect of stronger foreign
currencies. In addition, the majority of the increased volume related
to higher yielding export packages.
Operating expenses increased by $577 million, or 6.7%, resulting in
an improvement in the operating ratio from 92.4 during 1994 to 89.9
during 1995. The improvement in the operating ratio is a function of
both cost control efforts during the first six months of 1995 and
adverse factors affecting results for the first quarter of 1994, as
discussed above. These factors not only affected first quarter 1994
volume, but increased first quarter 1994 operating costs as well.
Operating profit for the period increased by $329 million, or
46.6%, as a result of the higher revenue and the lower operating ratio.
Income before income taxes ("pre-tax income") increased $247
million, or 33.3%. Domestic pre-tax income amounted to $1.09 billion,
an increase of $179 million, or 19.7% over the corresponding period of
the previous year. The increase was a result of higher operating
profits. In 1994, domestic pre-tax income included a non-recurring $46
million gain from the sale of an investment property, as discussed in
Note 4 to the accompanying, unaudited financial statements. The
international pre-tax loss decreased by $68 million, or 40.3%, to $100
million for the first six months of 1995.
The international pre-tax loss attributable to the foreign domestic
operations decreased by $39 million, or 33.8%. The pre-tax loss
associated with export operations decreased by $29 million, or 54.3%.
Both decreases were a result of the same reasons discussed under the
second quarter. Export volume increased by 46.7% and 19.5% for
international and U.S. origin, export shipments, respectively. As noted
in the second quarter discussion, UPS expects that the cost of operating
its international business will continue to exceed revenue in the near
future. <PAGE>
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Net income increased by $166 million, or 38.2% over the
corresponding period of the prior year. This increase resulted
primarily from improved operating profit.
The results of operations for the three months and six months ended
June 30, 1995 are not necessarily indicative of the results to be
expected for the full year.
Liquidity and Capital Resources
As of June 30, 1995, UPS had borrowings outstanding of $683 million
under its commercial paper program. Management anticipates that UPS
will have a continuing need for the near future to draw on its
commercial paper program to meet its working capital requirements.
During the first quarter of 1995, the amount which UPS can borrow under
this program was increased to $1 billion from $500 million. During the
second quarter of 1995, UPS entered into agreements with a consortium of
banks to renew its two revolving credit facilities, increasing the
amount of each facility to $1.25 billion from $500 mmillion, with one
expiring June 12, 1996, and the other June 12, 2000. Management
believes that these funds, combined with the Company's internally
generated resources will provide adequate sources of liquidity and
capital resources to meet its expected future short-term and long-term
needs for the operation of its business, including anticipated capital
expenditures and purchase commitments.
As part of UPS's overall effort to lower operating expense, the
Company has implemented a program of voluntary early retirement and
severance packages for certain, primarily management, employees.
Voluntary elections to participate in the program must be made during
the period June 15 to August 15, 1995. Employees are allowed a one
week recision period after making their election. All electing
employees must terminate employment no later than August 31, 1995.
The total charge to 1995 operations for this program will not be
known until the third quarter. It is anticipated to be in the range of
$250 to $300 million, however, this estimate could vary significantly
depending on the actual number and mix of employees who accept the offer.
Total charges incurred through June 30, 1995 were $19 million.
During the second quarter of 1995, the Company received a Notice of
Deficiency from the United States Internal Revenue Service (IRS)
asserting that it is liable for additional tax for the 1983 and 1984 tax
years. Agents for the IRS have also asserted in reports that UPS is
liable for additional tax for the 1985 through 1987 tax years.
Reference is made here to Note 3 to the accompanying unaudited
consolidated financial statements for more information. <PAGE>
<PAGE> 11
PART II
Item 1 - Legal Proceedings
In the second quarter of 1995, UPS received a Notice of
Deficiency from the United States Internal Revenue Service asserting
that it is liable for additional tax for the 1983 and 1984 tax years.
UPS will file a petition in Tax Court in August, 1995, in opposition to
the Notice of Deficiency. Information regarding the Notice of
Deficiency is incorporated herein by reference from Note 3 to the
Consolidated Financial Statements filed herewith.
Item 4 - Submission of Matters to a Vote of Security Holders
The annual meeting of shareowners of the Registrant was held on
May 11, 1995.
Proxies for the meeting were solicited pursuant to Regulation
14A under the Securities Exchange Act of 1934, there was no solicitation
in opposition to management's nominees as listed in Item No. 1 in the
proxy statement, and all of such nominees were elected.
The results of the voting by the shareowners for directors is
presented below.
Percent of
Director Number of Votes Total Voting
John W. Alden For 337,190,102 95.8%
Withheld 14,968,227 4.2%
William H. Brown, III For 339,532,551 96.4%
Withheld 12,625,778 3.6%
Carl Kaysen For 337,162,029 95.7%
Withheld 14,996,300 4.3%
John J. Kelley For 340,602,877 96.7%
Withheld 11,555,452 3.3%
James P. Kelly For 340,844,585 96.8%
Withheld 11,313,744 3.2%
Gary E. MacDougal For 338,815,775 96.2%
Withheld 13,342,554 3.8%
Joseph R. Moderow For 340,901,482 96.8%
Withheld 11,256,847 3.2%
Kent C. Nelson For 339,022,430 96.3%
Withheld 13,135,899 3.7%
Victor A. Pelson For 338,959,448 96.3%
Withheld 13,198,881 3.7%
John W. Rogers For 340,298,524 96.7%
Withheld 11,859,805 3.3%
Charles L. Schaffer For 340,482,463 96.7%
Withheld 11,675,866 3.3%
Robert M. Teeter For 339,465,487 96.4%
Withheld 12,692,842 3.6%
Calvin E. Tyler Jr. For 340,694,659 96.7%
Withheld 11,463,670 3.3% <PAGE>
<PAGE> 12
PART II
Two proposals (designated Item Nos. 2 and 3) were submitted by
the Board of Directors. The proposals and the results of the voting by
the stockholders are presented below.
Percent of
Number of Votes Total Voting
2. To approve the UPS 1991 For 332,934,516 94.5%
Stock Option Plan, as amended Against 13,238,017 3.8%
and restated Abstain 5,985,796 1.7%
3. To confirm the appointment For 346,392,370 98.4%
of Deloitte & Touche LLP, Against 3,236,741 0.9%
independent auditors, as auditors Abstain 2,529,218 0.7%
of UPS and its subsidiaries for
the year ending December 31, 1995
Item 6 - Exhibits and reports on Form 8-K
a) Exhibits:
10) Material contracts
a) Credit Agreement (364-Day Facility) dated June 12, 1995
among United Parcel Service of America, Inc., the initial
lenders named therein, NationsBank of Georgia, N.A., as
Agent and Citibank, N.A., as Agent.
b) Credit Agreement (Five-Year Facility) dated June 12, 1995
among United Parcel Service of America, Inc., the initial
lenders named therein, NationsBank of Georgia, N.A., as
Agent and Citibank, N.A., as Agent.
b) Reports on Form 8-K: no reports on Form 8-K were filed during
the quarter. <PAGE>
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
UNITED PARCEL SERVICE OF AMERICA, INC.
(Registrant)
By: /S/ Robert J. Clanin
Robert J. Clanin
Senior Vice President,
Treasurer and
Chief Financial Officer
Date: August 14, 1995<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUN-30-1995
<CASH> 239,682
<SECURITIES> 0
<RECEIVABLES> 1,674,784
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 3,444,039
<PP&E> 13,805,872
<DEPRECIATION> 5,690,255
<TOTAL-ASSETS> 12,088,199
<CURRENT-LIABILITIES> 2,779,603
<BONDS> 1,548,337
<COMMON> 58,000
0
0
<OTHER-SE> 5,076,424
<TOTAL-LIABILITY-AND-EQUITY> 12,088,199
<SALES> 10,259,639
<TOTAL-REVENUES> 10,259,639
<CGS> 0
<TOTAL-COSTS> 9,224,426
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 38,021
<INCOME-PRETAX> 989,258
<INCOME-TAX> 388,050
<INCOME-CONTINUING> 601,208
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 601,208
<EPS-PRIMARY> 1.04
<EPS-DILUTED> 1.04
</TABLE>
EXECUTION COPY
U.S. $1,250,000,000
CREDIT AGREEMENT
(364-Day Facility)
Dated as of June 12, 1995
Among
UNITED PARCEL SERVICE OF AMERICA, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
as Co-Arrangers
and
NATIONSBANK OF GEORGIA, N.A.
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE>
T A B L E O F C O N T E N T S
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . 16
SECTION 1.03. Accounting Terms. . . . . . . . . . . . . 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances . . . . . . 16
SECTION 2.02. Making the Revolving Credit Advances. . . 17
SECTION 2.03. The Competitive Bid Advances. . . . . . . 18
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . 22
SECTION 2.05. Termination or Reduction of the Commitments 22
SECTION 2.06. Repayment of Revolving Credit Advances . 22
SECTION 2.07. Interest on Revolving Credit Advances. . 22
SECTION 2.08. Interest Rate Determination . . . . . . . 23
SECTION 2.09. Optional Conversion of Revolving Credit Advances 24
SECTION 2.10. Optional Prepayments of Advances. . . . . 24
SECTION 2.11. Increased Costs . . . . . . . . . . . . . 25
SECTION 2.12. Illegality. . . . . . . . . . . . . . . . 25
SECTION 2.13. Payments and Computations . . . . . . . . 26
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . 27
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . 29
SECTION 2.16. Extensions of Termination Date and Final Maturity Date 29
SECTION 2.17. Substitution of Lender. . . . . . . . . . 31
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03 . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing and to Extension of the Final Maturity Date 32
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.04. Determinations Under Section 3.01 . . . . 34
SECTION 3.05. Labor Dispute . . . . . . . . . . . . . . 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower 34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . . . . . . . . . . 37
SECTION 5.02. Negative Covenants. . . . . . . . . . . . 41
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . 45
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. . . . . . . . . 47
SECTION 7.02. The Agents' Reliance, Etc.. . . . . . . . 48
SECTION 7.03. Citibank, NationsBank and Their Affiliates 49
SECTION 7.04. Lender Credit Decision. . . . . . . . . . 49
SECTION 7.05. Indemnification . . . . . . . . . . . . . 49
SECTION 7.06. Successor Agents. . . . . . . . . . . . . 49
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.. . . . . . . . . . . . . 50
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . 50
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . 51
SECTION 8.04. Costs and Expenses. . . . . . . . . . . . 51
SECTION 8.05. Right of Setoff . . . . . . . . . . . . . 52
SECTION 8.06. Binding Effect. . . . . . . . . . . . . . 52
SECTION 8.07. Assignments, Designations and Participations 53
SECTION 8.08. Confidentiality . . . . . . . . . . . . . 58
SECTION 8.09. Governing Law . . . . . . . . . . . . . . 58
SECTION 8.10. Execution in Counterparts . . . . . . . . 58
SECTION 8.11. Jurisdiction, Etc.. . . . . . . . . . . . 59
<PAGE>
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit
Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid
Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Guaranty
Exhibit F - Form of Indemnity Agreement
Exhibit G - Form of Opinion of Counsel for the Borrower
Exhibit H - Debenture Indenture<PAGE>
CREDIT AGREEMENT
(364-Day Facility)
Dated as of June 12, 1995
UNITED PARCEL SERVICE OF AMERICA, INC., a Delaware
corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders (the "Initial Lenders") listed on the
signature pages hereof, CITIBANK, N.A. ("Citibank"), as administrative
agent (the "Administrative Agent") for the Lenders (as hereinafter
defined), NATIONSBANK OF GEORGIA, N.A. ("NationsBank"), as documentation
agent (the "Documentation Agent") for the Lenders, and CITICORP
SECURITIES, INC. ("Citicorp Securities") and NATIONSBANC CAPITAL
MARKETS, INC. ("NCMI"), as co-arrangers (the "Co-Arrangers") under the
Loan Documents (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms
of the terms defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at
Citibank with its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Brigitte Milian.
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance, as the context may require.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under
common control with such Person; provided, however, that Overseas
Partners shall not be deemed to be an Affiliate of the Borrower.
"Agent" means the Administrative Agent or the Documentation
Agent, as the context may require.
"Applicable Fee Percentage" means, as of any date, a
percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below:
Public Debt Rating Applicable Fee
S&P/Moody's Percentage
Level 1
AA- / Aa3 or above 0.070%
Level 2
Lower than Level 1 0.090%
but at least
A- / A3
Level 3
Lower than Level 2 0.125%
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance and, in the case of a Competitive
Bid Advance, the office of such Lender notified by such Lender to
the Administrative Agent and the Borrower as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means (a) as of any date up to the
Termination Date, 0.00% per annum for Base Rate Advances and 0.11%
per annum for Eurodollar Rate Advances and (b) as of any date from
and after the Termination Date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as
set forth below:
Public Debt Rating Applicable Margin Applicable Margin
S&P/Moody's for for
Base Rate Eurodollar Rate
Advances Advances
Level 1
AA- / Aa3 or above 0.00% 0.08%
Level 2
Lower than Level 1 0.00% 0.16%
but at least
A- / A3
Level 3
Lower than Level 2 0.00% 0.20%
provided, however, that if as of any date of determination the
aggregate principal amount of Advances outstanding exceeds 33% of
the aggregate Commitments, the Applicable Margin for such date
shall be the percentage per annum determined in accordance with
clause (a) or (b) above plus 0.05%.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form of
Exhibit C hereto.
"Attributable Debt" has the meaning specified in the
Debenture Indenture.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16
of 1%) of (i) 1/2 of 1% per annum plus (ii) the rate
obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the
United States for three-month certificates of deposit of
major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days)
being determined weekly on each Monday (or, if such day is
not a Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank,
by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among
other liabilities) three-month Dollar nonpersonal time
deposits in the United States, plus (iii) the average during
such three-week period of the annual assessment rates
estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar
deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Beneficial Ownership" means beneficial ownership as
determined in accordance with Rule 13d-3 of the Securities and
Exchange Commission under the Exchange Act, as in effect on the
date hereof.
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Borrower's Account" means the account of the Borrower
designated in writing by the Borrower to the Administrative Agent
from time to time.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing, as the context may require.
"Business Day" means a day of the year (other than a
Saturday or a Sunday) on which banks are not required or
authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Capital Lease Obligations" of any Person means all
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP.
"Change of Control" means the occurrence of any of the
following:
(a) any Person or two or more Persons acting in
concert other than a Permitted Person shall have acquired
Beneficial Ownership, directly or indirectly, through a
purchase, merger or other transaction or series of
transactions or otherwise, of (i) 10% or more of the shares
of common stock of the Borrower or (ii) Voting Stock of the
Borrower to which 10% or more of the total Voting Power of
the Borrower is attributable; or
(b) Permitted Persons shall not have Beneficial
Ownership of (i) 75% or more of the shares of common stock
of the Borrower or (ii) Voting Stock of the Borrower to
which 75% or more of the total Voting Power of the Borrower
is attributable.
"Citibank" has the meaning specified in the recital of
parties to this Agreement.
"Citicorp Securities" has the meaning specified in the
recital of parties to this Agreement.
"Co-Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to
the Borrower as part of a Competitive Bid Borrowing resulting from
the auction bidding procedure described in Section 2.03 and refers
to a Fixed Rate Advance or a LIBO Rate Advance, as the context may
require.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders
whose offer to make one or more Competitive Bid Advances as part
of such borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from a Competitive Bid Advance
made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the
Borrower furnishes to an Agent or any Lender in a writing
designated as confidential, but does not include any such
information that is or becomes generally available to the public
or that is or becomes available to an Agent or such Lender from a
source other than the Borrower (unless such Agent or such Lender
knows that such information is not generally available to the
public).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Net Tangible Assets" has the meaning specified
in the Debenture Indenture.
"Consolidated Net Worth" means the shareholders' equity of
the Borrower and its Subsidiaries, computed in accordance with
GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or
2.09.
"Debenture Indenture" means the Indenture, dated as of
December 1, 1989, between the Borrower and Chemical Bank pursuant
to which the 8-3/8% Debentures Due April 1, 2020 were issued, as
in effect on the date of this Agreement (without giving effect to
any amendment, supplement or other modification thereto, any
repayment or covenant defeasance thereunder or any termination
thereof), a copy of which is attached as Exhibit H hereto.
"Debt" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, or with respect to
deposits with or advances of any kind to such Person, (b) all
obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon
which interest charges are customarily paid, (d) all obligations
of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such
Person, (e) all obligations of such Person issued or assumed as
the deferred purchase price of property or services, (f) all Debt
of others secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any
Lien on property or assets owned or acquired by such Person (other
than Non-Recourse Debt), (g) all Guarantees by such Person of Debt
of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements; provided,
however, that at any given time the term "obligations" as used in
this clause (i) shall only include the net amounts due and payable
at such time under any such agreements or arrangements and (j) all
obligations of such Person as an account party in respect of
letters of credit and bankers' acceptances. The Debt of any
Person shall include the Debt of any partnership in which such
Person is a general partner.
"Declining Lender" has the meaning specified in Section
2.16(a).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course
of its business and that issues (or the parent of which issues)
commercial paper rated at least "Prime-1" (or the then equivalent
grade) by Moody's or "A-1" (or the then equivalent grade) by S&P
that, in either case, (i) is organized under the laws of the
United States or any state thereof or the District of Columbia,
(ii) shall have become a party to this Agreement pursuant to
Section 8.07(d), (e) and (f) and (iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement
entered into by a Lender (other than a Designated Bidder) and a
Designated Bidder, and accepted by the Administrative Agent, in
substantially the form of Exhibit D hereto.
"Documentation Agent" has the meaning specified in the
recital of parties to this Agreement.
"Dollars" and the sign "$" mean lawful currency of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of
a Lender that is otherwise an Eligible Assignee; (iii) a
commercial bank organized under the laws of the United States, or
any state thereof, and having total assets in excess of
$1,000,000,000, calculated in accordance with the accounting
principles prescribed by the regulatory authority applicable to
such bank in its jurisdiction of organization; (iv) a commercial
bank organized under the laws of any other country that is a
member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000,
calculated in accordance with the accounting principles prescribed
by the regulatory authority applicable to such bank in its
jurisdiction of organization, so long as such bank is acting
through a branch or agency located in the country in which it is
organized or another country that is described in this clause
(iv); (v) the central bank of any country that is a member of the
OECD; (vi) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or
other entity) organized under the laws of the United States, or
any state thereof, that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of
its business and having total assets in excess of $1,000,000,000,
calculated in accordance with the accounting principles prescribed
by the regulatory authority applicable to such entity in its
jurisdiction of organization; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) that is a member of a group of which the
Borrower is a member and which is treated as a single employer
under Section 414 of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office),
or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving
Credit Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in
Dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions
of Section 2.08(e).
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate Advances
comprising part of the same Borrowing, the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances or LIBO
Rate Advances is determined) having a term equal to such Interest
Period.
"Event of Default" has the meaning specified in Section
6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Existing Credit Facilities" means the credit facilities
provided pursuant to (a) the 364-day Credit Agreement dated as of
June 14, 1993, as amended, supplemented or otherwise modified from
time to time, among the Borrower, the banks named therein,
Citibank, as administrative agent, Citibank, as agent, and
NationsBank, as co-agent, and (b) the three-year Credit Agreement
dated as of June 14, 1993, as amended, supplemented or otherwise
modified from time to time, among the Borrower, the banks named
therein, Citibank, as administrative agent, Citibank, as agent,
and NationsBank, as co-agent.
"Extending Lender" has the meaning specified in Section
2.16(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Final Maturity Date" means (a) the Termination Date or (b)
if extended pursuant to Section 2.16(b), the date requested by the
Borrower pursuant to Section 2.16(b), but in no event shall such
date be later than the third anniversary of the then scheduled
Termination Date.
"Financial Officer" of any corporation means the chief
financial officer, principal accounting officer, treasurer,
assistant treasurer or controller of such corporation.
"Fiscal Year" means, with respect to any Person, the period
commencing on January 1 and ending on December 31 of any calendar
year.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any federal, state, local or
foreign court or governmental agency, authority, instrumentality
or regulatory body.
"Guarantee" of or by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person,
direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or
to advance or supply funds for the purchase of) any security for
the payment of such Debt, (b) to purchase property, securities or
services for the purpose of assuring the owner of such debt of the
payment of such Debt or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such
Debt; provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit, in either case in
the ordinary course of business.
"Guarantor" means each of UPSCO, UPSNY and UPSO.
"Guaranty" has the meaning specified in Section 3.01(e)(ii).
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other
similar agreements.
"Incurrence" has the meaning specified in Section 5.02(a).
"Indemnified Matters" has the meaning specified in Section
8.04(b).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Indemnity Agreement" has the meaning specified in Section
3.01(e)(iii).
"Information Memorandum" means the information memorandum
dated April 1995 used by the Agents and the Co-Arrangers in
connection with the syndication of the Commitments.
"Initial Lender" has the meaning specified in the recital of
parties to this Agreement.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each
LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or LIBO Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be (a) in the case of Eurodollar Rate
Advances, one, two, three or six months, as the Borrower may, upon
notice received by the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select and (b) in the case of
LIBO Rate Advances, a minimum of seven days; provided, however,
that:
(i) the Borrower may not select any Interest Period
that ends after the Final Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of (A) any Interest
Period in respect of Eurodollar Rate Advances or (B) any
Interest Period in respect of LIBO Rate Advances the
durations of which are one, two, three or six months, occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that
shall become a party hereto pursuant to Section 8.07(a), (b) and
(c) and, except when used in reference to a Revolving Credit
Advance, a Revolving Credit Borrowing, a Revolving Credit Note, a
Commitment or a related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars are
offered to the principal office of each of the Reference Banks in
London, England by prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the
amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving
Credit Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on the
basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to
the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, including, without limitation, the lien
or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real
property and, in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
"Loan Documents" means this Agreement, the Notes, the
Guaranty and the Indemnity Agreement.
"Loan Parties" means, collectively, the Borrower and each of
the Guarantors.
"Margin Stock" means all "margin stock" within the meaning
of Regulations G and U.
"Material Adverse Change" means any material adverse change
in the business, assets, operations, prospects or condition
(financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole. For purposes hereof, it is understood and
agreed that the occurrence of a labor dispute shall not in and of
itself constitute a Material Adverse Change.
"Material Adverse Effect" means (a) a material adverse
effect on the business, assets, operations, prospects or condition
(financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, (b) material impairment of the ability of the
Borrower or any Material Subsidiary to perform any of its
obligations under any Loan Document to which it is or is to be a
party or (c) material impairment of the rights of or benefits
available to the Lenders under any of the Loan Documents. For
purposes hereof, it is understood and agreed that the occurrence
of a labor dispute shall not in and of itself constitute a
Material Adverse Effect.
"Material Subsidiary" means any Subsidiary of the Borrower
having (a) 5% of the Consolidated Net Tangible Assets or (b) 5% of
the total revenues appearing on the most recently prepared
Consolidated income statements of the Borrower and its
Subsidiaries as of the end of the immediately preceding fiscal
quarter of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which the Borrower or any of
its ERISA Affiliates (other than one considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the
Internal Revenue Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"NationsBank" has the meaning specified in the recital of
parties to this Agreement.
"Non-Recourse Debt" means, with respect to any Person, Debt
for which such Person neither (a) provides credit support nor (b)
is directly or indirectly liable.
"Note" means a Revolving Credit Note or a Competitive Bid
Note, as the context may require.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"OECD" means the Organization for Economic Cooperation and
Development and any successor.
"Overseas Partners" means Overseas Partners Ltd., a Bermuda
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation and
any successor.
"Permitted Person" means the UPS Managers Stock Trust, the
UPS Stock Trust, the Annie E. Casey Foundation, any retiree or
present or former employee of the Borrower or any of its
Subsidiaries or their respective present or former spouse,
relatives (by consanguinity or law), estate or heirs (or their
respective spouse's estate or heirs) or any other Person that has
Beneficial Ownership of the common stock of the Borrower on the
date of this Agreement, or any Person that is created for the
benefit of any of the foregoing after the date of this Agreement.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means any pension plan subject to the provisions of
Title IV of ERISA or Section 412 of the Internal Revenue Code that
is maintained for employees of the Borrower or any ERISA
Affiliate.
"Principal Property" has the meaning specified in the
Debenture Indenture.
"Public Debt Rating" means, as of any date, the higher
rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured debt issued by the Borrower. For
purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin
shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating,
the Applicable Margin will be set in accordance with Level 3 under
the definition of "Applicable Margin"; (c) if the ratings
established by S&P and Moody's shall fall within different levels,
the Applicable Margin shall be based upon the higher rating;
provided, however, that if the lower of such ratings is more than
one level below the level of the higher of such ratings, then the
Applicable Margin shall be based upon the level immediately above
the level of the lower of such ratings; (d) if any rating
established by S&P or Moody's shall be changed, such change shall
be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by
S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be; provided,
however, that if prior thereto the Borrower has selected, and the
Required Lenders have approved, a rating agency to replace S&P or
Moody's, as the case may be, such selection shall be deemed to be
S&P or Moody's, as the case may be, for all purposes hereof.
"Reference Banks" means Citibank, NationsBank, The Fuji
Bank, Limited and Royal Bank of Canada, or if any such Lender
assigns all of its Commitment, the Advances owing to it and the
Note or Notes held by it pursuant to Section 8.07(a), such other
Lender as may be designated by the Required Lenders and approved
by the Borrower (such approval not to be unreasonably withheld).
"Register" has the meaning specified in Section 8.07(g).
"Regulation A", "Regulation D", "Regulation G", "Regulation
T", "Regulation U" or "Regulation X" means Regulation A,
Regulation D, Regulation G, Regulation T, Regulation U or
Regulation X, respectively, of the Board of Governors of the
Federal Reserve System, in each case as in effect from time to
time, and all official rulings and interpretations thereunder or
thereof, respectively.
"Replacement Lender" has the meaning specified in Section
2.16(a).
"Reportable Event" means any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Internal Revenue
Code).
"Required Lenders" means at any time Lenders owed at least
51% of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount
is then outstanding, Lenders having at least 51% of the
Commitments.
"Restricted Subsidiary" has the meaning specified in the
Debenture Indenture.
"Revolving Credit Advance" means an advance by a Lender to
the Borrower as part of a Revolving Credit Borrowing and refers to
a Base Rate Advance or a Eurodollar Rate Advance (each of which
shall be a "Type" of Revolving Credit Advance), as the context
may require.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by
each of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Revolving Credit
Advances made by such Lender.
"Sale and Leaseback Transaction" has the meaning specified
in the Debenture Indenture.
"Secured Indebtedness" has the meaning specified in the
Debenture Indenture.
"S&P" means Standard & Poor's Rating Group, a division of
McGraw-Hill, Inc.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust or
estate of which (or in which) more than 50% of (a) the Voting
Power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership or joint
venture or (c) the beneficial interest in such trust or estate is
at the time owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries; provided, however, that Overseas
Partners shall not be deemed to be a Subsidiary of the Borrower.
"Termination Date" means the earlier of (a) June 10, 1996
or, if extended pursuant to Section 2.16(a), the date that is 364
days after the Termination Date then in effect, and (b) the date
of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Type" has the meaning specified in the definition of
"Revolving Credit Advance".
"UPSCO" means United Parcel Service Co., a Delaware
corporation and a wholly owned Subsidiary of the Borrower.
"UPSNY" means United Parcel Service, Inc., a New York
corporation and a wholly owned Subsidiary of the Borrower.
"UPSO" means United Parcel Service, Inc., an Ohio
corporation and a wholly owned Subsidiary of the Borrower.
"Voting Power" means, with respect to any Voting Stock of
any Person at any time, the number of votes entitled to vote
generally in the election of directors of such Person that are
attributable to such Voting Stock at such time divided by the
number of votes entitled to vote generally in the election of
directors of such Person that are attributable to all shares of
capital stock of such Person (including such Voting Stock) at such
time.
"Voting Stock" means capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c), as
such amount may be reduced pursuant to Section 2.05 (such Lender's
"Commitment"), provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective
Commitments (such deemed use of the aggregate amount of the Commitments
being a "Competitive Bid Reduction"). Each Revolving Credit Borrowing
shall be in an aggregate amount of $25,000,000 or an integral multiple
of $1,000,000 in excess thereof (or, if less, an amount equal to the
remaining aggregate amount of unused Commitments or equal to the amount
by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by the Borrower exceeds the aggregate amount of Competitive
Bid Advances offered to be made by the Lenders and accepted by the
Borrower in respect of such Competitive Bid Borrowing, if such
Competitive Bid Borrowing is made on the same date as such Revolving
Credit Borrowing) and shall consist of Revolving Credit Advances of the
same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.10 and, unless the Borrower has delivered a request pursuant
to the provisions of Section 2.16(b), reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a)
Each Revolving Credit Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or on
the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing")
shall be by telephone, telecopier or telex, confirmed promptly in
writing, in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii)
Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit
Advance. Each Lender shall, before 11:00 A.M. (New York City time) on
the date of such Revolving Credit Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower in same day funds at the
Borrower's Account.
(b) Anything in subsection (a) of this Section 2.02 to the
contrary notwithstanding, the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate amount of
such Revolving Credit Borrowing is less than $25,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure by the Borrower to fulfill on
or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Credit Advance to be made
by such Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Revolving Credit Borrowing
that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Revolving Credit Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Revolving
Credit Borrowing in accordance with subsection (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at (i)
in the case of the Borrower, the interest rate applicable at the time to
Revolving Credit Advances comprising such Revolving Credit Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Revolving Credit Advance
as part of such Revolving Credit Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to
make its Revolving Credit Advance on the date of such Revolving Credit
Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made by such
other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that the Borrower may make Competitive Bid
Borrowings under this Section 2.03 from time to time on any Business Day
during the period from the date hereof until the date occurring prior to
the then scheduled Termination Date in the manner set forth below;
provided that, following the making of each Competitive Bid Advance, the
aggregate amount of the Advances then outstanding shall not exceed the
aggregate amount of the Commitments of the Lenders (computed without
regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Administrative Agent,
by telecopier or telex, confirmed promptly in writing, a notice of
a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein (A) the date of such proposed Competitive Bid
Borrowing, (B) the aggregate amount of such proposed Competitive
Bid Borrowing, (C) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, the Interest Period for such
LIBO Rate Advances, (D) the maturity date for repayment of each
Competitive Bid Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date
occurring seven days after the date of such Competitive Bid
Borrowing or later than the Termination Date and, in the case of
any LIBO Rate Advance to be made as part of such Competitive Bid
Borrowing, shall be the last day of the interest period for such
LIBO Rate Advance), (E) the interest payment date or dates
relating thereto, and (F) any other terms to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York
City time) (1) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall specify
in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per
annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (2) at
least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall instead specify
in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on the LIBO
Rate (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). The Administrative
Agent shall in turn promptly notify each Lender of each request
for a Competitive Bid Borrowing received by it from the Borrower
by sending such Lender a copy of the related Notice of Competitive
Bid Borrowing.
(ii) Each Lender may, if in its sole discretion it elects
to do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest (including default rates
not to exceed 1% per annum above the rate per annum required to be
paid on such Competitive Bid Advance) specified by such Lender in
its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00
A.M. (New York City time) on the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
of the minimum amount and maximum amount of each Competitive Bid
Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to
the proviso to the first sentence of this Section 2.03(a), exceed
such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect
to such Competitive Bid Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the
Borrower of such offer before 9:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall
not be obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing; provided that
the failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Bid Advance as part
of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New
York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting
of Fixed Rate Advances and before 11:30 A.M. (New York City time)
three Business Days before the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, either:
(A) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any
Lender or Lenders pursuant to subsection (a)(ii) of this
Section 2.03, in its sole discretion, by giving notice to
the Administrative Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent
on behalf of such Lender for such Competitive Bid Advance
pursuant to subsection (a)(ii) of this Section 2.03) to be
made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to subsection (a)(ii) of this Section 2.03 by
giving the Administrative Agent notice to that effect. The
Borrower shall accept the offers made by any Lender or
Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such
Lenders; provided, however, that if the Borrower has a
reasonable basis to believe that acceptance of the offer of
any such Lender has a reasonable likelihood of subjecting
the Borrower to additional costs pursuant to the provisions
of Section 2.11, 2.12 or 2.14, the Borrower may reject the
offer of such Lender and accept the offer of the Lender
offering the next lowest rate of interest. Subject to the
next preceding sentence, if two or more Lenders have offered
the same interest rate, the amount to be borrowed at such
interest rate will be allocated among such Lenders in
proportion to the amount that each such Lender offered at
such interest rate.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to subsection
(a)(iii)(A) of this Section 2.03, the Administrative Agent shall
give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to subsection (a)(iii)(B) of
this Section 2.03, the Administrative Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in
subsection (a)(ii) of this Section 2.03, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any
offer or offers made by such Lender pursuant to subsection (a)(ii)
of this Section 2.03 have been accepted by the Borrower, (B) each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt,
that the Administrative Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before
12:00 NOON (New York City time) on the date of such Competitive
Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the next preceding
sentence or at such later date when such Lender shall have
received notice from the Administrative Agent pursuant to clause
(C) of the next preceding sentence, make available for the account
of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III
and after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
Borrower in same day funds at the Borrower's Account. Promptly
after each Competitive Bid Borrowing the Administrative Agent will
notify each Lender of the amount of the Competitive Bid Borrowing,
the consequent Competitive Bid Reduction and the dates upon which
such Competitive Bid Reduction commenced and will terminate.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $25,000,000 or an integral multiple of
$1,000,000 in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower shall be in compliance
with the limitation set forth in the proviso to the first sentence
of subsection (a) of this Section 2.03.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay pursuant to subsection (d) of this Section 2.03,
and, unless the Borrower has delivered a request pursuant to the
provisions of Section 2.16(b), reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent
for the account of each Lender that has made a Competitive Bid Advance,
on the maturity date of each Competitive Bid Advance (such maturity date
being that specified by the Borrower for repayment of such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) of this Section 2.03 and provided in the
Competitive Bid Note evidencing such Competitive Bid Advance), the then
unpaid principal amount of such Competitive Bid Advance. The Borrower
may prepay any principal amount of any Competitive Bid Advance, subject
to the provisions of Sections 2.10 and 8.04(c).
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such
Competitive Bid Advance is repaid in full, at the rate of interest for
such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) of this Section 2.03, payable on the
interest payment date or dates specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid
Borrowing delivered pursuant to subsection (a)(i) of this Section 2.03,
as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of
Default, the Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a
Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal to the default rate specified by the
appropriate Lender in respect of such Competitive Bid Advance. Upon
repayment in full of each Competitive Bid Advance in accordance with the
provisions of subsection (d) of this Section 2.03 and the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance, the Lender
holding such Competitive Bid Note shall cancel such Note and return such
Note to the Borrower.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive
Bid Borrowing shall be evidenced by a separate Competitive Bid Note of
the Borrower payable to the order of the Lender making such Competitive
Bid Advance. Upon repayment in full of each Competitive Bid Advance in
accordance with the provisions of subsection (d) of this Section 2.03
and the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance, the Lender holding such Competitive Bid Note shall cancel
such Note and return such Note to the Borrower.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower
agrees to pay to the Administrative Agent for the account of each Lender
(other than the Designated Bidders) a facility fee on the aggregate
amount of such Lender's Commitment (i) from the Effective Date in the
case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date then in effect at a
rate per annum equal to 0.04% or (ii) if the Borrower has extended the
Final Maturity Date pursuant to Section 2.16(b), from the Termination
Date then in effect until such Final Maturity Date at a rate per annum
equal to the Applicable Fee Percentage in effect from time to time, in
each case payable in arrears quarterly on the last day of each March,
June, September and December, commencing June 30, 1995, and on the
Termination Date or such Final Maturity Date.
(b) Agents' Fees. The Borrower shall pay to each Agent
for its own account such fees as may from time to time be agreed between
the Borrower and such Agent.
SECTION 2.05. Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least four Business Days'
notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof and provided further that the aggregate amount of the
Commitments of the Lenders shall not be reduced to an amount that is
less than the aggregate principal amount of the Competitive Bid Advances
then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account
of the Lenders on the Final Maturity Date the aggregate principal amount
of the Revolving Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid
principal amount of each Revolving Credit Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (A) the Base Rate in effect from
time to time plus (B) the Applicable Margin in effect from time to
time, payable in arrears quarterly on the last day of each March,
June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Revolving Credit Advance plus
(B) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on
(i) the unpaid principal amount of each Revolving Credit Advance owing
to each Lender, payable in arrears on the dates referred to in
subsection (a)(i) or (a)(ii) of this Section 2.07, at a rate per annum
equal at all times to 1% per annum above the rate per annum required to
be paid on such Revolving Credit Advance pursuant to subsection (a)(i)
or (a)(ii) of this Section 2.07 and (ii) the amount of any interest, fee
or other amount payable hereunder that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 1% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to
subsection (a)(i) of this Section 2.07.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate and each
LIBO Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks, subject to the provisions of
subsection (e) of this Section 2.08. The Administrative Agent shall
give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of
Section 2.07(a)(i) or 2.07(a)(ii), and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest rate
under Section 2.07(a)(ii).
(b) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in
Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into
Base Rate Advances.
(c) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Revolving Credit
Borrowing shall be reduced, by payment or prepayment or otherwise, to
less than $25,000,000, such Advances shall automatically Convert into
Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance and (ii) the obligations of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar
Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligations of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances, or to Convert Revolving Credit
Advances into Eurodollar Rate Advances, shall be suspended until
the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to
the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Conversion
and subject to the provisions of Sections 2.08, 2.12 and 8.04(c),
Convert all Revolving Credit Advances of one Type comprising the same
Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (a) the date of such
Conversion, (b) the Revolving Credit Advances to be Converted, and (c)
if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Optional Prepayments of Advances. The
Borrower may, upon at least three Business Days' notice in the case of
Eurodollar Rate Advances or LIBO Rate Advances and one Business Day's
notice in the case of Base Rate Advances or Fixed Rate Advances to the
Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of such Advances
comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (a) each partial
prepayment shall be in an aggregate principal amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (b) in the
event of any such prepayment of a Eurodollar Rate Advance or LIBO Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost as
measured from the date hereof to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances, then the Borrower shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent),
promptly pay to the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Administrative Agent by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender (other than the Designated Bidders)
determines that compliance with any law or regulation or any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender
or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall promptly pay to the
Administrative Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to
the extent that such Lender reasonably determines such increase in
capital to be allocable to the existence of such Lender's commitment to
lend hereunder. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation by any governmental authority
charged with such interpretation makes it unlawful, or any central bank
or other Governmental Authority asserts that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or to
fund or maintain Eurodollar Rate Advances or LIBO Rate Advances
hereunder, (a) each Eurodollar Rate Advance or LIBO Rate Advance, as the
case may be, will automatically, upon such demand, Convert into a Base
Rate Advance or an Advance that bears interest at the rate set forth in
Section 2.07(a)(i), as the case may be, and (b) the obligation of the
Lenders to make Eurodollar Rate Advances or LIBO Rate Advances, or to
Convert Revolving Credit Advances into Eurodollar Rate Advances, shall
be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than
1:00 P.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest,
facility fees or utilization fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section
8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves.
(b) The Borrower hereby authorizes the Administrative
Agent, if and to the extent payment owed to any Lender is not made when
due hereunder or under the Note held by such Lender, to charge from time
to time against any or all of the Borrower's accounts with the
Administrative Agent any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based
on the Eurodollar Rate or the Federal Funds Rate and of facility fees
shall be made by the Administrative Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
payment of interest or facility fees, as the case may be; provided,
however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances or LIBO Rate Advances to be made
in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Administrative Agent, at
the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.13, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender and each Agent, taxes imposed on its net income,
and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender or such Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes
imposed on its net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes") .
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or
any Agent (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such
Lender or such Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or such
Agent or any of its Affiliates (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days
from the date such Lender, such Agent or such Affiliate (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect
of any payment hereunder or under the Notes, the Borrower will furnish
to the Administrative Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the
date of the Assignment and Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide each of the
Administrative Agent and the Borrower with Internal Revenue Service form
1001 or 4224, or (in the case of a Lender that has certified in writing
to the Administrative Agent that it is not a "bank" as defined in
Section 881(c)(3)(A) of the Internal Revenue Code) Form W-8 (and, if
such Non-U.S. Lender delivers a Form W-8, a certificate representing
that such Non-U.S. Lender is not a "bank" for purposes of Section 881(c)
of the Internal Revenue Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code)),as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest
or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the
United States. Each such Lender shall provide the Administrative Agent
and the Borrower with a new form 1001, 4224 or W-8, as appropriate, if
and at such time as the previously provided form becomes invalid. If
the form provided by a Lender at the time such Lender first becomes a
party to this Agreement or at any other time indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from "Taxes" as defined in Section
2.14(a).
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in
subsection (e) of this Section 2.14 (other than if such failure is due
to a change in law occurring subsequent to the date on which a form
originally was required to be provided, or if such form otherwise is not
required under the first sentence of subsection (e) of this Section
2.14), such Lender shall not be entitled to indemnification under
subsection (a) or (c) of this Section 2.14 with respect to Taxes imposed
by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as
the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Notwithstanding any contrary provisions of this
Agreement, in the event that a Lender that originally provided such form
as may be required under subsection (e) of this Section 2.14 thereafter
ceases to qualify for complete exemption from United States withholding
tax, such Lender, with the prior written consent of the Borrower, which
consent shall not be unreasonably withheld, may assign its interest
under this Agreement to any assignee and such assignee shall be entitled
to the same benefits under this Section 2.14 as the assignor provided
that the rate of United States withholding tax applicable to such
assignee shall not exceed the rate then applicable to the assignor.
(h) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 2.14 shall survive the payment in
full of principal and interest hereunder and under the Notes.
(i) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Eurodollar Lending
Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of setoff, or otherwise) on account of the
Revolving Credit Advances owing to it (other than pursuant to Section
2.11, 2.14 or 8.04(c)) in excess of its ratable share of payments on
account of the Revolving Credit Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall
be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the
right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.16. Extensions of Termination Date and Final
Maturity Date. (a) No earlier than 60 days and no later than 45 days
prior to the Termination Date in effect at any time, the Borrower may,
by written notice to the Administrative Agent, request that such
Termination Date be extended for a period of 364 days. Such request
shall be irrevocable and binding upon the Borrower. The Administrative
Agent shall promptly notify each Lender of such request. If a Lender
agrees, in its individual and sole discretion, to so extend its
Commitment (an "Extending Lender"), it shall deliver to the
Administrative Agent a written notice of its agreement to do so no
earlier than 30 days and no later than 20 days prior to such Termination
Date and the Administrative Agent shall notify the Borrower of such
Extending Lender's agreement to extend its Commitment no later than 15
days prior to such Termination Date. The Commitment of any Lender that
fails to accept or respond to the Borrower's request for extension of
the Termination Date (a "Declining Lender") shall be terminated on the
Termination Date originally in effect (without regard to any extension
by other Lenders) and on such Termination Date the Borrower shall pay in
full the principal amount of all Advances owing to such Declining
Lender, together with accrued interest thereon to the date of such
payment of principal and all other amounts payable to such Declining
Lender under this Agreement. The Extending Lenders, or any of them, may
offer to increase their respective Commitments by an aggregate amount up
to the aggregate amount of the Declining Lenders' Commitments and any
such Extending Lender shall deliver to the Administrative Agent a notice
of its offer to so increase its Commitment no later than 15 days prior
to such Termination Date. To the extent of any shortfall in the
aggregate amount of extended Commitments, the Borrower shall have the
right to require any Declining Lender to assign in full its rights and
obligations under this Agreement to an Eligible Assignee designated by
the Borrower and acceptable to the Administrative Agent, such acceptance
not to be unreasonably withheld, that agrees to accept all of such
rights and obligations (a "Replacement Lender"), provided that (i) such
increase and/or such assignment is otherwise in compliance with Section
8.07, (ii) such Declining Lender receives payment in full of the
principal amount of all Advances owing to such Declining Lender,
together with accrued interest thereon to the date of such payment of
principal and all other amounts payable to such Declining Lender under
this Agreement and (iii) any such increase shall be effective on the
Termination Date in effect at the time the Borrower requests such
extension and any such assignment shall be effective on the date
specified by the Borrower and agreed to by the Replacement Lender and
the Administrative Agent. If Extending Lenders and Replacement Lenders
provide Commitments in an aggregate amount at least equal to 51% of the
aggregate amount of the Commitments outstanding 30 days prior to the
Termination Date in effect at the time the Borrower requests such
extension, the Termination Date shall be extended by 364 days for such
Extending Lenders, subject, however, to the provisions of subsection (b)
of this Section 2.16.
(b) On the Termination Date in effect at any time, the
Borrower may, by written notice to the Administrative Agent, request
that the Final Maturity Date be a date occurring up to the third
anniversary of the then scheduled Termination Date. Such request shall
be irrevocable and binding upon the Borrower. The Administrative Agent
shall promptly notify each Lender of such request. Subject to the
satisfaction of the applicable conditions set forth in Section 3.02 as
of such Termination Date, the Final Maturity Date shall be, effective as
of such Termination Date, such date as the Borrower shall request
pursuant to this subsection (b) of this Section 2.16. In the event that
the Borrower shall request that the Final Maturity Date be a date
occurring up to the third anniversary of the then scheduled Termination
Date, and the Final Maturity Date shall be so extended as provided in
this subsection (b) of this Section 2.16, the right of the Borrower to
request an extension of the Termination Date pursuant to subsection (a)
of this Section 2.16 shall automatically terminate and any extension of
the Termination Date in effect at the time such request is made which
would otherwise occur as provided in subsection (a) of this Section 2.16
shall automatically be cancelled. The Administrative Agent shall
promptly notify each Lender of any such extension of the Final Maturity
Date and any such cancellation of an extension of the Termination Date.
SECTION 2.17. Substitution of Lender. If the obligation of
any Lender to make Eurodollar Rate Advances has been suspended pursuant
to Section 2.12 or any Lender has demanded compensation or the Borrower
is otherwise required to pay additional amounts under Section 2.11, 2.13
or 2.14, the Borrower shall have the right to seek a substitute lender
or lenders who qualify as Eligible Assignees to assume, in accordance
with the provisions of Section 8.07, the Commitment of such Lender and
to purchase the Revolving Credit Advances made by such Lender (without
recourse to or warranty by such Lender).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall
become effective on and as of the first date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) The Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(b) The Borrower shall have paid all fees and other
amounts due and payable.
(c) The Borrower shall have repaid all outstanding
advances and shall have paid all other amounts payable under each
of the Existing Credit Facilities and the commitments under each
such Existing Credit Facility shall have been terminated.
(d) On the Effective Date, the following statements shall
be true and the Administrative Agent shall have received for the
account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date;
and
(ii) no event has occurred and is continuing that
constitutes a Default.
(e) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such day, in
form and substance satisfactory to the Administrative Agent and
(except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) A guaranty, in substantially the form of Exhibit
E hereto (as amended, supplemented or otherwise modified
from time to time, the "Guaranty"), duly executed by each of
the Guarantors.
(iii) An indemnity, subrogation and contribution
agreement, in substantially the form of Exhibit F hereto (as
amended, supplemented or otherwise modified from time to
time, the "Indemnity Agreement"), duly executed by the
Borrower and each of the Guarantors.
(iv) Certified copies of the resolutions of the board
of directors of the Borrower approving this Agreement, the
Notes and the Indemnity Agreement, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Notes
and the Indemnity Agreement.
(v) Certified copies of the resolutions of the board
of directors of each of the Guarantors approving the
Guaranty and the Indemnity Agreement, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to the Guaranty and the
Indemnity Agreement.
(vi) A certificate of the Secretary or an Assistant
Secretary of each of the Guarantors certifying the names and
true signatures of the officers of such Guarantor authorized
to sign the Guaranty and the Indemnity Agreement and the
other documents to be delivered hereunder.
(vii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement, the Notes and the Indemnity Agreement
and the other documents to be delivered hereunder.
(viii) A favorable opinion of Mayer, Brown &
Platt, counsel for the Borrower, substantially in the form
of Exhibit G hereto.
(ix) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing and to Extension of the Final Maturity Date. The obligation
of each Lender to make a Revolving Credit Advance on the occasion of
each Revolving Credit Borrowing and the extension of the Final Maturity
Date pursuant to Section 2.16(b) shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of
such Revolving Credit Borrowing or, in the case of the Extension of the
Final Maturity Date, on the Termination Date then in effect the
following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing and the acceptance by
the Borrower of the proceeds of such Revolving Credit Borrowing and the
giving of the applicable notice of extension of the Final Maturity Date,
as the case may be, shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing or such extension such
statements are true):
(a) the representations and warranties contained in
Section 4.01 (except the representations set forth in subsection
(f) thereof and in subsection (h) thereof) are correct on and as
of the date of such Revolving Credit Borrowing or such extension,
before and after giving effect to such Revolving Credit Borrowing
and to the application of the proceeds therefrom or to such
extension, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or from the
application of the proceeds therefrom or from such extension, that
constitutes a Default (except for breach of the representations
contained in subsection (f) and in subsection (h) of
Section 4.01).
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive
Bid Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is
subject to the conditions precedent that (a) the Administrative Agent
shall have received the written confirmatory Notice of Competitive Bid
Borrowing with respect thereto, (b) on or before the date of such
Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing,
the Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid
Advance in accordance with Section 2.03, and (c) on the date of such
Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the Borrower of the proceeds of such Competitive
Bid Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in subsection
(f) thereof and in subsection (h) thereof) are correct on and as
of the date of such Competitive Bid Borrowing, before and after
giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date; and
(ii) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the application
of the proceeds therefrom, that constitutes a Default (except for
breach of the representations contained in subsection (f) and in
subsection (h) of Section 4.01).
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in
Section 3.01, each Lender shall be deemed to have consented to, approved
or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders unless an officer of the Administrative
Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the proposed
Effective Date, as notified by the Borrower to the Lenders, specifying
its objection thereto. The Administrative Agent shall promptly notify
the Borrower and the other Lenders of the occurrence of any such
objection. The Administrative Agent shall promptly notify the Borrower
and the Lenders of the Effective Date.
SECTION 3.05. Labor Dispute. Notwithstanding any condition
precedent to the contrary contained herein, a labor dispute of any sort
involving employees of the Borrower or its Subsidiaries shall not
prevent the Borrower from borrowing hereunder unless as a result thereof
a Default exists under Section 6.01(a) or (e).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) Each of the Loan Parties and the Subsidiaries of the
Borrower (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the requisite power and authority to own
its property and assets and to carry on its business as now
conducted, (iii) is qualified to do business in every jurisdiction
where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect, (iv) in
the case of each of the Loan Parties, has the corporate power and
authority to execute, deliver and perform its obligations under
each Loan Document to which it is or is to be a party and each
other agreement or instrument contemplated thereby to which it is
or is to be a party and (v) in the case of the Borrower, has the
corporate power and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the
Loan Parties of each Loan Document to which it is or is to be a
party and the consummation of the transactions contemplated
thereby are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action and, if
required, Stockholder action, and do not (i) contravene the
charter or other constitutive documents or by-laws of such Loan
Party or any Subsidiary of the Borrower, (ii) violate any law or
order of any Governmental Authority or any provision of any
indenture, agreement or other instrument to which any Loan Party
or any Subsidiary of the Borrower is a party or by which any of
them or any of their property is or may be bound or affected,
(iii) conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (iv) result in the
creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by any Loan
Party or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority is required
for the due execution, delivery and performance by any Loan Party
of this Agreement, the Notes or any other Loan Document to which
it is or is to be a party, or for the consummation of the
transactions contemplated hereby and thereby, except for such
authorizations, approvals, actions, notices or filings that have
been made or obtained and are in full force and effect.
(d) This Agreement has been, and each of the Notes and
each other Loan Document when delivered hereunder will have been,
duly executed and delivered by each of the Loan Parties party
thereto. This Agreement is, and each of the Notes and each other
Loan Document when delivered hereunder will be, the legal, valid
and binding obligation of each of the Loan Parties party thereto
enforceable against such Loan Party in accordance with their
respective terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights generally).
(e) (i) The Consolidated balance sheet of the Borrower
and its Subsidiaries as at December 31, 1994, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the Fiscal Year then ended, all audited
and certified by Deloitte & Touche LLP, independent public
accountants, and (ii) the Consolidated balance sheets of each of
the Guarantors and its Subsidiaries as at December 31, 1994, and
the related Consolidated statements of income and cash flows of
each of the Guarantors and its Subsidiaries, in the form submitted
by such Guarantor to (A) in the case of UPSNY and UPSO, the
Interstate Commerce Commission and (B) in the case of UPSCO, the
Department of Transportation, in each case copies of which have
been furnished to each Lender, fairly present the Consolidated
financial condition of the Borrower and its Subsidiaries and of
each of the Guarantors and its Subsidiaries as at such dates and
the Consolidated results of the operations of the Borrower and its
Subsidiaries and of each of the Guarantors and its Subsidiaries
for the periods ended on such dates, all in accordance with GAAP
consistently applied. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the
Borrower and its Subsidiaries on a Consolidated basis and of each
of the Guarantors and its Subsidiaries on a Consolidated basis,
respectively, as of the dates thereof.
(f) There has been no Material Adverse Change since
December 31, 1994.
(g) Each of the Borrower and its Material Subsidiaries has
good and marketable title to, or valid leasehold interests in, all
their material properties and assets, except for such properties
as are no longer used or useful in the conduct of their businesses
or as have been disposed of in the ordinary course of business and
except for minor defects in title that do not interfere with the
ability of the Borrower or any of its Material Subsidiaries to
conduct its businesses as currently conducted. All such
properties and assets are free and clear of Liens, other than
Liens expressly permitted by Section 5.02(b).
(h) Except as set forth in the financial statements
referred to in subsection (e) of this Section 4.01, there is no
pending or, to the knowledge of the Borrower, threatened action,
suit, investigation, litigation or proceeding affecting the
Borrower or any of its Material Subsidiaries or any business,
property or rights of the Borrower or any Material Subsidiary (i)
as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect or (ii) that purports to affect the legality,
validity or enforceability of this Agreement, any Note or any
other Loan Document or the consummation of the transactions
contemplated hereby or thereby. Neither the Borrower nor any of
its Subsidiaries is in violation of any law, rule or regulation,
or in default with respect to any judgement, writ, injunction or
decree of any Governmental Authority, where such violation or
default could result in a Material Adverse Effect.
(i) Neither the Borrower nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any corporate
restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect. Neither the Borrower nor any
of its Subsidiaries is in default in any manner under any
provision of any indenture or other agreement or instrument
evidencing Debt, or any other material agreement or instrument to
which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could result in a
Material Adverse Effect.
(j) Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock. No part of the proceeds of any Advance
will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, (i) to purchase or carry
Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose or (ii) for any purpose which
entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board of Governors of the
Federal Reserve System, including Regulation G, T, U or X thereof.
(k) Neither the Borrower nor any of its Subsidiaries is
(i) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended
or (ii) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935,
as amended.
(1) The Borrower will use the proceeds of the Advances
only for lawful general corporate purposes.
(m) Each of the Borrower and its Subsidiaries has filed or
caused to be filed all federal, state and local tax returns
required to have been filed by it and has paid or caused to be
paid all taxes shown to be due and payable on such returns or on
any assessments received by it, except taxes that are otherwise
permitted in accordance with the provisions of Section 5.01(b).
(n) No information, report, financial statement, exhibit
or schedule prepared or furnished by or on behalf of the Borrower
to the Administrative Agent, the Documentation Agent, any Co-Arranger or
any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto
contained, contains or will contain any material misstatement of
fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not
misleading.
(o) Each of the Borrower and its Subsidiaries is in
compliance in all material respects with the applicable provisions
of ERISA and the regulations and published interpretations
thereunder that are applicable to the Borrower and its
Subsidiaries. As of the date hereof, no Reportable Event has
occurred as to which the Borrower or any of its Subsidiaries was
required to file a report with the PBGC, and no material unfunded
vested liabilities exist under any Plan.
(p) Each of the Borrower and its Subsidiaries is in
substantial compliance with all applicable federal, state and
local environmental laws, regulations and ordinances governing its
business, properties or assets with respect to discharges into the
ground and surface water, emissions into the ambient air and
generation, storage, transportation and disposal of waste
materials or process by-products, except such noncompliances as
are not likely to have a Material Adverse Effect. All licenses,
permits or registrations required for the business of the Borrower
and its Subsidiaries under any federal, state or local
environmental laws, regulations or ordinances have been secured,
and the Borrower and each Subsidiary are in substantial compliance
therewith, except such licenses, permits or registrations the
failure to secure or to comply therewith are not likely to have a
Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will, and will cause each of its Material
Subsidiaries to, unless the Required Lenders shall otherwise consent in
writing:
(a) Compliance with Laws, Etc. Comply with all applicable
laws, rules, regulations and orders of any Governmental Authority,
whether now in effect or hereafter enacted, such compliance to
include, without limitation, compliance with ERISA and applicable
environmental laws, except for such noncompliance as would not
result in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge promptly
when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default,
as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such
payment and discharge shall not be required with respect to any
such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by
appropriate proceedings or where the failure to pay such tax,
assessment, charge, levy or claim would not (i) result in a
Material Adverse Effect or (ii) result in the imposition of any
lien securing a material amount in favor of any party entitling
such party to priority of payment over the Lenders, and the
Borrower or such Subsidiary shall, to the extent required by
generally accepted accounting principles applied on a consistent
basis, have set aside on its books adequate reserves with respect
thereto.
(c) Maintenance of Insurance. (i) Keep its insurable
properties adequately insured at all times by financially sound
and reputable insurers, (ii) maintain such other insurance, to
such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with
companies in the same or similar businesses, including public
liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with
the use of any properties owned, occupied or controlled by the
Borrower or any of its Subsidiaries, in such amount as the
Borrower or such Subsidiary shall reasonably deem necessary and
(iii) maintain such other insurance as may be required by law or
as may be reasonably requested by the Lenders for purposes of
assuring compliance with this Section 5.01(c) (it being understood
that the Borrower may self-insure against certain risks to the
extent customary with companies similarly situated and in the same
or similar lines of business).
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause its Subsidiaries to preserve and maintain,
its corporate existence; obtain, preserve, renew, extend and keep
in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and
tradename material to the conduct of its business (unless the
failure to so preserve or renew would not result in a Material
Adverse Effect); and maintain and operate, and cause its
Subsidiaries to maintain and operate, its businesses in materially
the same manner in which they are currently conducted and
operated; provided, however, that the Borrower and its
Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(d).
(e) Visitation Rights. At any reasonable time and from
time to time, upon ten Business Days' prior notice, permit the
Administrative Agent or any Lender (other than a Designated
Bidder) or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries (i) with any of their
officers and (ii) with their independent certified public
accountants, in the presence of one or more officers of the
Borrower if so requested by the Borrower (it being understood that
information obtained by the Lenders pursuant to this Section
5.01(e) shall be kept confidential except to the extent that any
such information becomes public or is required to be disclosed by
law or requested to be disclosed by any Governmental Authority).
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each
such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve
all of its properties material to the conduct of its business in
good repair, working order and condition, ordinary wear and tear
excepted, and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried
on in connection therewith may be properly conducted at all times.
(h) Reporting Requirements. In the case of the Borrower,
furnish to each Agent and each Lender (other than a Designated
Bidder):
(i) within 120 days after the end of each Fiscal
Year of the Borrower, (A) Consolidated balance sheets of the
Borrower showing the financial condition of the Borrower as
of the close of such Fiscal Year and the related statements
of Consolidated income and statements of Consolidated cash
flow as of and for such Fiscal Year, all such Consolidated
financial statements of the Borrower to be reported on by
Deloitte & Touche or other independent accountants
acceptable to the Required Lenders, and to be in form
reasonably acceptable to the Required Lenders and (B)
Consolidated balance sheets of each Guarantor showing the
financial condition of such Guarantor as of the close of
such Fiscal Year and the related statements of Consolidated
income and statements of Consolidated cash flow as of and
for such Fiscal Year, all such Consolidated financial
statements of such Guarantor to be in form reasonably
acceptable to the Required Lenders and to be either (1) in
the form submitted by such Guarantor to (I) in the case of
UPSNY and UPSO, the Interstate Commerce Commission and (II)
in the case of UPSCO, the Department of Transportation or
(2) unaudited and certified by a Financial Officer of such
Guarantor as presenting fairly the financial position of
such Guarantor on a Consolidated basis and as having been
prepared in accordance with GAAP;
(ii) within 60 days after the end of the first three
fiscal quarters of each Fiscal Year, unaudited Consolidated
balance sheets and statements of Consolidated income and
statements of Consolidated cash flow showing the financial
condition and results of operations of the Borrower as of
the end of each such quarter and, with respect to statements
of Consolidated cash flow, for the then-elapsed portion of
the Fiscal Year, certified by a Financial Officer of the
Borrower as presenting fairly the financial position and
results of operations of the Borrower on a Consolidated
basis and as having been prepared in accordance with GAAP,
in each case subject to normal year-end audit adjustments;
(iii) promptly after the same become publicly
available, copies of (A) such annual, periodic and other
reports, and such proxy statements and other information as
shall be filed by the Borrower or any Material Subsidiary
with the Securities and Exchange Commission pursuant to the
requirements of the Exchange Act and (B) such registration
statements filed by the Borrower or any Material Subsidiary
pursuant to the requirements of Securities Act of 1933, as
amended, other than any such registration statements filed
on Form S-8 or any comparable form;
(iv) concurrently with subsections (h)(i) and (h)(ii)
of this Section 5.01, a certificate of a Financial Officer
of the Borrower stating compliance, as of the dates of the
financial statements being furnished at such time, with the
covenant set forth in Section 5.02(a);
(v) concurrently with subsections (h)(i) and (h)(ii)
of this Section 5.01, a certificate of the Person referred
to therein (which certificate furnished by the independent
accountants referred to in subsection (h)(i) of this Section
5.01 may be limited to accounting matters and disclaim
responsibility for legal interpretations) certifying that to
the best of his, her or its knowledge no Default or Event of
Default has occurred and, in the case of a certificate of a
Financial Officer of the Borrower, if such a Default or
Event of Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed
to be taken with respect thereto;
(vi) prompt written notice of any Default, specifying
the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto;
(vii) prompt written notice of the filing or
commencement of, or any threat or notice of intention of any
Person to file or commence, any action, suit, arbitration
proceeding or other proceeding, whether at law or in equity
or by or before any Governmental Authority, against the
Borrower or any Subsidiary thereof that, if adversely
determined, could result in a Material Adverse Effect;
(viii) prompt written notice of any development
in the business or affairs of the Borrower or any of its
Subsidiaries that has resulted in or which is likely, in the
reasonable judgment of the Borrower, to result in a Material
Adverse Effect (it being understood that material provided
to any Agent or Lender pursuant to this subsection (h)(viii)
of this Section 5.01 shall be kept confidential except to
the extent that any such material becomes public or is
required to be disclosed by law or requested to be disclosed
by any Governmental Authority having jurisdiction over such
Agent or Lender);
(ix) prompt written notice of the issuance by any
Governmental Authority of any injunction, order, decision or
other restraint prohibiting, or having the effect of
prohibiting, the making of the Advances or the initiation of
any litigation or similar proceedings seeking any such
injunction, order or other restraint;
(x) prompt written notice of any Change of Control;
(xi) prompt written notice of any change in the
identity of the Principal Properties from those set forth on
the schedule to be delivered pursuant to Section 5.01(j)
after the date such schedule is delivered to the
Administrative Agent and each Lender; and
(xii) prompt written notice of any change in the
identity of the Restricted Subsidiaries from those set forth
on the schedule to be delivered pursuant to Section 5.01(j)
after the date such schedule is delivered to the
Administrative Agent and each Lender.
(i) Compliance with ERISA. Comply in all material
respects with the applicable provisions of ERISA and furnish to
the Administrative Agent, the Documentation Agent and each Lender
(other than a Designated Bidder) (i) as soon as possible, and in
any event within 30 days after any Financial Officer of the
Borrower knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event
with respect to the same or another Plan could reasonably be
expected to result in liability of the Borrower or any Subsidiary
to the PBGC in an aggregate amount exceeding $1,000,000, a
statement of a Financial Officer setting forth details as to such
Reportable Event and the action proposed to be taken with respect
thereto, together with a copy of the notice, if any, of such
Reportable Event given to the PBGC and (ii) promptly after receipt
thereof, a copy of any notice the Borrower or any Subsidiary may
receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans or to appoint a trustee to administer
any Plan or Plans.
(j) Principal Properties; Restricted Subsidiaries.
Promptly deliver to the Administrative Agent and each Lender
(other than a Designated Bidder) on the date on which the
Borrower's Public Debt Rating is lower than S&P AA- or Moody's
AA3, a schedule setting forth each Principal Property and each
Restricted Subsidiary as of such date.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will not, and will not permit any of its Subsidiaries to,
without the written consent of the Required Lenders:
(a) Secured Indebtedness. In the case of the Borrower and
each of its Restricted Subsidiaries, create, assume, incur or
guarantee, or permit any Restricted Subsidiary to create, assume,
incur or guarantee (each such creation, assumption, incurrence or
guarantee being an "Incurrence"), any Secured Indebtedness without
making provision whereby all amounts outstanding under this
Agreement and each other Loan Document shall be secured equally
and ratably with (or prior to) such Secured Indebtedness (together
with, if the Borrower shall so determine, any other Debt of the
Borrower or such Restricted Subsidiary then existing or thereafter
created that is not subordinate to such amounts outstanding under
this Agreement and the other Loan Documents) so long as such
Secured Indebtedness shall be outstanding, unless such Secured
Indebtedness, when added to (i) the aggregate amount of all
Secured Indebtedness then outstanding (not including in this
computation (A) any Secured Indebtedness if all amounts
outstanding under this Agreement and each other Loan Document are
secured equally and ratably with (or prior to) such Secured
Indebtedness and (B) any Secured Indebtedness that is concurrently
being retired) and (ii) the aggregate amount of all Attributable
Debt then outstanding pursuant to Sale and Leaseback Transactions
entered into by the Borrower after December 1, 1989, or entered
into by any Restricted Subsidiary after December 1, 1989, or, if
later, the date on which such Subsidiary became a Restricted
Subsidiary (not including in this computation any Attributable
Debt that is currently being retired) would not exceed 10% of
Consolidated Net Tangible Assets at the time of such Incurrence.
(b) Liens, Etc. In the case of the Borrower and each of
the Restricted Subsidiaries, create, incur, assume or permit to
exist any Lien on any property or assets (including stock or other
securities of any Person, including any Subsidiary) now owned or
hereafter acquired, or assign or convey any rights to or security
interests in any future revenue, except:
(i) Liens on property or assets of the Borrower and
its Subsidiaries existing on the date hereof and (A)
disclosed in the financial statements referred to in Section
4.01(e) or (B) securing Debt in an aggregate principal
amount not in excess of $50,000,000; provided that such
Liens shall secure only those obligations which they secure
on the date hereof;
(ii) any Lien existing on any property or asset prior
to the acquisition thereof by the Borrower or any
Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition and
(B) such Lien does not apply to any other property or assets
of the Borrower or any Subsidiary;
(iii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business and securing obligations
that are not due or which are otherwise allowed in
accordance with the provisions of Section 5.01(b);
(iv) pledges and deposits made in the ordinary course
of business in compliance with workmen's compensation,
unemployment insurance and other social security laws or
regulations;
(v) deposits to secure the performance of bids,
trade contracts (other than for Debt), leases (other than
Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(vi) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business
that, in the aggregate, are not substantial in amount and do
not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(vii) Liens upon any property acquired, constructed or
improved by the Borrower or any Subsidiary that are created
or incurred contemporaneously with acquisition, construction
or improvement to secure or provide for the payment of any
part of the purchase price of such property or the cost of
such construction or improvement (but no other amounts);
provided that any such Lien shall not apply to any other
property of the Borrower or any Subsidiary;
(viii) Liens securing the payment of taxes,
assessments and governmental charges or levies, either (A)
not delinquent or (B) permitted in accordance with Section
5.01(b);
(ix) Liens on the property or assets of any
Subsidiary in favor of the Borrower or another Subsidiary;
(x) extensions, renewals and replacements of Liens
referred to in subsections (b)(i) through (b)(ix) of this
Section 5.02; provided that any such extension, renewal or
replacement Lien shall be limited to the property or assets
covered by the Lien extended, renewed or replaced and that
the obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the
amount of the obligations secured by the Lien extended,
renewed or replaced;
(xi) Liens in connection with Debt permitted to be
incurred pursuant to subsections (a) and (c) of this Section
5.02;
(xii) Liens in connection with Debt incurred in the
ordinary course of business in connection with workmen's
compensation, unemployment insurance and other social
security laws or regulations;
(xiii) any attachment or judgment Lien not in
excess of $50,000,000 unless (A) enforcement proceedings
shall have been commenced by any creditor upon such
attachment or judgment or (B) there shall be any period of
45 consecutive days during which a stay of enforcement of
such attachment or judgment, by reason of a pending appeal
or otherwise, shall not be in effect;
(xiv) other Liens securing Debt in an aggregate
principal amount not to exceed 1% of Consolidated Net Worth
at any time outstanding;
(xv) Liens arising in connection with rights of
setoff that commercial banks and other financial
institutions obtain against monies, securities or other
properties of the Borrower and its Restricted Subsidiaries
in possession of or on deposit with such banks or financial
institutions, whether in general or special deposit accounts
or held for safekeeping, transmission, collection or
otherwise; and
(xvi) Liens on aircraft, airframes or aircraft
engines, aeronautic equipment or computers and electronic
data processing equipment.
(c) Sale and Lease-Back Transactions. In the case of the
Borrower and its Restricted Subsidiaries, enter into any Sale and
Leaseback Transaction unless at such time it would be permitted to
enter into such Sale and Leaseback Transaction pursuant to Section
1006 of the Debenture Indenture.
(d) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to,
any Person, or permit another Person to merge into it, or acquire
all or substantially all of the assets of any other Person, except
that (i) any Subsidiary of the Borrower may merge into the
Borrower or any other Subsidiary of the Borrower, (ii) the
Borrower or any Subsidiary of the Borrower may merge or
consolidate with or into any other Person so long as the Borrower
or such Subsidiary is the surviving corporation, and (iii) the
Borrower and any of its Subsidiaries may acquire all or
substantially all of the assets of another Person; provided that
any Subsidiary that is not a Guarantor may not acquire all or
substantially all of the assets of a Guarantor unless such
Subsidiary duly executes a guaranty in favor of the Lenders in
substantially the form of Exhibit E hereto; and provided further,
in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would
result therefrom.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of
any Advance when the same becomes due and payable or (ii) any
interest on any Advance or any other amount payable under this
Agreement or any Note when the same becomes due and payable and
such failure to pay such interest or such other amount shall
remain unremedied for five days; or
(b) any representation or warranty made or deemed made by
any Loan Party (or any of its officers) in or in connection with
any Loan Document or any Borrowing under this Agreement, or any
representation, warranty, statement or information contained in
any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document,
shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) the Borrower or any of its Subsidiaries shall fail to
perform or observe (i) any term, covenant or agreement contained
in subsection (a), (d), (e), (f), (g) or (h) (other than
subsections (h)(i) through (h)(v)) of Section 5.01 or Section 5.02
or (ii) any other term, covenant or agreement contained in any
Loan Document on its part to be performed or observed if such
failure to perform such other term, covenant or agreement shall
remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower or such Subsidiary, as the case
may be, by the Administrative Agent; or
(d) the Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal amount of at least $100,000,000 in the
aggregate (but excluding Debt evidenced by the Notes) of the
Borrower or such Subsidiary (as the case may be), when the same
becomes due and payable (whether at maturity, by acceleration or
otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
event or condition is to accelerate (with or without notice or
lapse of time or both), or to permit the acceleration (with or
without notice or lapse of time or both) of, the maturity of such
Debt; or
(e) the Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower or
any of its Material Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its
property) shall occur; or the Borrower or any of its Material
Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) any final judgment or order for the payment of money
in excess of $50,000,000 in the aggregate shall be rendered
against the Borrower or any of its Subsidiaries or any combination
thereof and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 45 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) any Change of Control shall have occurred; or
(h) a Reportable Event or Reportable Events, or a failure
to make a required installment or other payment (within the
meaning of Section 412(n)(1) of the Internal Revenue Code), shall
have occurred with respect to any Plan or Plans that reasonably
could be expected to result in liability of the Borrower or any
Subsidiary to the PBGC or to a Plan in an aggregate amount
exceeding $25,000,000 and, within 30 days after the reporting of
any such Reportable Event or Reportable Events to the
Administrative Agent, the Administrative Agent shall have notified
the Borrower, in writing that (i) the Required Lenders have made a
determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there
are reasonable grounds (A) for the termination of such Plan or
Plans by the PBGC or (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan
or Plans and (ii) as a result thereof, an Event of Default exists
hereunder; or the PBGC shall have instituted proceedings to
terminate any Plan or Plans with vested unfunded liabilities
aggregating in excess of $25,000,000; or a trustee shall be
appointed by a United States District Court to administer any such
Plan or Plans and the Borrower is being requested to make a
payment with respect to vested unfunded liabilities aggregating in
excess of $25,000,000; or
(i) (i) any senior debt securities of the Borrower shall
become rated BBB- (or the equivalent thereof) or lower by S&P or
Baa3 (or the equivalent thereof) or lower by Moody's and such
ratings shall remain in effect for a period of 90 days (it being
understood that if either S&P or Moody's (but not both such rating
agencies) shall cease to rate the senior debt securities of the
Borrower, then the occurrence of the event described in this
subsection (i)(i) shall be determined solely by reference to the
rating assigned to the senior debt securities of the Borrower by
the rating agency continuing to rate such securities) or (ii) the
senior debt securities of the Borrower shall cease to be rated by
both S&P and Moody's; or
(j) this Agreement, the Guaranty or any other Loan
Document shall for any reason cease to be, or shall be asserted by
the Borrower, any Guarantor or any other Subsidiary of the
Borrower not to be, a legal, valid and binding obligation of any
party thereto (other than the Administrative Agent or any Lender),
enforceable in accordance with its terms, except as otherwise
permitted by Section 5.02(d);
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the obligation of each Lender to make Advances to
be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the Notes, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the event
of an actual or deemed entry of an order for relief with respect to the
Borrower or any of its Subsidiaries under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances shall automatically
be terminated and (B) the Notes, all such interest and all such amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes (a) the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto, and (b) the Documentation Agent to take such action
as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Documentation Agent by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection
of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to
personal liability or that is contrary to this Agreement or applicable
law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower or any of its
Subsidiaries pursuant to the terms of this Agreement.
SECTION 7.02. The Agents' Reliance, Etc. Neither the
Administrative Agent or the Documentation Agent nor any of its
respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent and the Documentation Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii)
may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants
or experts; (iii) make no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or any of its
Subsidiaries or to inspect the property (including the books and
records) of the Borrower or any of its Subsidiaries; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi)
shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, NationsBank and Their Affiliates.
With respect to its Commitment, the Advances made by it and the Note
issued to it, each of Citibank and NationsBank shall have the same
rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent or the
Documentation Agent, respectively; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of Citibank
and NationsBank in its individual capacity. Citibank, NationsBank and
their Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities
of the Borrower or any such Subsidiary, all as if Citibank, NationsBank
and their Affiliates were not the Administrative Agent or the
Documentation Agent, respectively, and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender 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 this
Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify each of the Administrative Agent,
the Documentation Agent and their respective Affiliates (to the extent
not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding or if
any Revolving Credit Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent, the Documentation Agent or
such Affiliate in any way relating to or arising out of this Agreement
or any action taken or omitted by the Administrative Agent or the
Documentation Agent under this Agreement, provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's, the
Documentation Agent's or such Affiliate's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender (other
than the Designated Bidders) agrees to reimburse the Administrative
Agent, the Documentation Agent and their respective Affiliates promptly
upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees and disbursements) incurred by the
Administrative Agent, the Documentation Agent or such Affiliate in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights
or responsibilities under, this Agreement, to the extent that the
Administrative Agent, the Documentation Agent or such Affiliate is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agents. The Administrative Agent
or the Documentation Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent or Documentation Agent, as the
case may be, with the approval of the Borrower, such approval not to be
unreasonably withheld. If no successor Administrative Agent or
Documentation Agent, as the case may be, shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's or Documentation
Agent's giving of notice of resignation or the Required Lenders' removal
of the retiring Administrative Agent or Documentation Agent, then the
retiring Administrative Agent or Documentation Agent may, on behalf of
the Lenders, with the approval of the Borrower, such approval not to be
unreasonably withheld, appoint a successor Administrative Agent or
Documentation Agent, as the case may be, which shall be a commercial
bank organized under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative
Agent or Documentation Agent hereunder by a successor Administrative
Agent or Documentation Agent, as the case may be, such successor
Administrative Agent or Documentation Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent or Documentation Agent,
and the retiring Administrative Agent or Documentation Agent shall be
discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's or Documentation Agent's resignation
or removal hereunder as Administrative Agent or Documentation Agent, the
provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent or Documentation Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Revolving Credit Notes, nor
consent to any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders (other than the
Designated Bidders), do any of the following: (a) waive any of the
conditions specified in Section 3.01, 3.02 or 3.03, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving
Credit Notes or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Notes, or the
number of Lenders, that shall be required for the Lenders or any of them
to take any action hereunder, (f) except as permitted in accordance with
Section 5.02(d), release any Guarantor under the Guaranty or (g) amend
this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent
or the Documentation Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Administrative
Agent or Documentation Agent, as the case may be, under this Agreement
or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at
55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, Attention: Financial
Resources Department (telecopier number (404) 828-6562); if to any
Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; if to the Administrative Agent, to it c/o
Citicorp N.A., Inc., 400 Perimeter Center Terrace, Suite 600, Atlanta,
Georgia 30346, Attention: Bruce Simmons (telecopier number (404) 668-8137); and
if to the Documentation Agent, at its address at 600
Peachtree Street, N.E., 21st Floor, Atlanta, Georgia 30308-2213,
Attention: James S. Scully (telecopier number (404) 607-6467); or, as to
the Borrower or the Administrative Agent, at such other address as shall
be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited
in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III
or VII shall not be effective until received by the Administrative
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender, the Administrative Agent or the Documentation Agent to
exercise, and no delay in exercising, any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay on demand all costs and expenses of the Administrative Agent and
Citicorp Securities in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement,
the Notes, each other Loan Document and the other documents to be
delivered hereunder, including, without limitation, (i) all due
diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant,
and audit expenses and (ii) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities
under this Agreement. The Borrower further agrees to pay on demand all
costs and expenses of the Administrative Agent, the Documentation Agent
and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement,
the Notes, each other Loan Document and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Administrative Agent, the Documentation
Agent and each Lender in connection with the enforcement of rights under
this Section 8.04(a).
(b) The Borrower agrees to defend, protect, indemnify and
hold harmless the Administrative Agent, the Documentation Agent, each
Co-Arranger, each Lender, each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party")
from and against any and all liabilities, obligations, losses (other
than loss of profits), damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature
whatsoever (excluding any taxes and including, without limitation, the
reasonable fees and disbursements of counsel for such Indemnified Party
in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnified Party shall be designated a
party thereto), imposed on, incurred by, or asserted against such
Indemnified Party in any manner relating to or arising out of this
Agreement, the Notes, the other Loan Documents, any of the transactions
contemplated hereby or thereby, the Commitments, the use of proceeds, or
any act, event or transaction related or attendant thereto
(collectively, the "Indemnified Matters"); provided, however, the
Borrower shall have no obligation to an Indemnified Party hereunder with
respect to Indemnified Matters directly caused by or directly resulting
from the willful misconduct or gross negligence of such Indemnified
Party, as determined by a court of competent jurisdiction.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.08(c) or (d), 2.10 or 2.12, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason,
or by an Eligible Assignee to a Lender other than on the last day of the
Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of
a demand by the Borrower pursuant to Section 8.07(a), the Borrower
shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account
of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to
authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but
excluding any accounts designated as collateral accounts securing other
Debt) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Borrower after any such setoff
and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each
Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights
of setoff) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in
Sections 3.01 and 3.03) when it shall have been executed by the
Borrower, the Administrative Agent and the Documentation Agent and when
the Administrative Agent shall have been notified by each Initial Lender
that such Initial Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent,
the Documentation Agent and each Lender and their respective successors
and assigns, except that the Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may, with the consent
of the Borrower, such consent not to be unreasonably withheld or
delayed, and shall, so long as no Default has occurred and is continuing
and if demanded by the Borrower (pursuant to the provisions of Section
2.17) upon at least five Business Days' notice to such Lender and the
Administrative Agent, assign to one or more Persons all or a portion of
its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it or Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by
the Borrower pursuant to this Section 8.07(a) shall be arranged by
the Borrower, shall be to an Eligible Assignee acceptable to the
Administrative Agent (which acceptance shall not be unreasonably
withheld) and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or
more Eligible Assignees in an aggregate amount at least equal to
the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date
of payment of such principal amount and all other amounts payable
to such Lender under this Agreement, and
(vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, (A) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and (B) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows:
(i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection
with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto;
(ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under this
Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of
this Agreement and each other Loan Document, together with copies
of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon the Administrative Agent, the Documentation Agent, such
assigning Lender or any other Lender 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 this Agreement or any other Loan Document;
(v) such assignee confirms that it is an Eligible
Assignee;
(vi) such assignee appoints and authorizes (A) the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and each other Loan Document as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
thereto and (B) the Documentation Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement and each other Loan Document as are delegated
to the Documentation Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably
incidental thereto; and
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the
terms of this Agreement and each other Loan Document are required
to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is
an Eligible Assignee, together with any Revolving Credit Note or Notes
subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto and has been consented to by the Borrower, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof
to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Revolving
Credit Note a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder.
Such new Revolving Credit Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Revolving Credit Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than
five such designations, (ii) each such Lender making one or more of such
designations shall retain the right to make Competitive Bid Advances as
a Lender pursuant to Section 2.03, (iii) each such designation shall be
to a Designated Bidder and (iv) the parties to each such designation
shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, a Designation Agreement. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Competitive Bid
Advances as a Lender pursuant to Section 2.03 and the obligations
related thereto.
(e) By executing and delivering a Designation Agreement,
the Lender making the designation thereunder and its designee thereunder
confirm and agree with each other and the other parties hereto as
follows:
(i) such Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document or any other instrument
or document furnished pursuant hereto or thereto;
(ii) such Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan
Party of any of its obligations under this Agreement or any other
Loan Document or any other instrument or document furnished
pursuant hereto or thereto;
(iii) such designee confirms that it has received a copy of
this Agreement and each other Loan Document, together with copies
of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Designation Agreement;
(iv) such designee will, independently and without reliance
upon the Administrative Agent, the Documentation Agent, such
designating Lender or any other Lender 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 this Agreement or any other Loan Document;
(v) such designee confirms that it is a Designated Bidder;
(vi) such designee appoints and authorizes (A) the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and each other Loan Document as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
thereto and (B) the Documentation Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement and each other Loan Document as are delegated
to the Documentation Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably
incidental thereto; and
(vii) such designee agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of this Agreement and each other Loan Document are required
to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed
by a designating Lender and a designee representing that it is a
Designated Bidder, the Administrative Agent shall, if such Designation
Agreement has been completed and is substantially in the form of Exhibit
D hereto, (i) accept such Designation Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and
each Designation Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and, with respect to Lenders (other than Designated Bidders), the
Commitment of, and principal amount of the Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error,
and the Borrower, the Administrative Agent, the Documentation Agent and
the Lenders shall treat only the Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement and
each other Loan Document. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice. The Administrative Agent
shall be considered to act as the agent of the Borrower in connection
with its duties in respect of the Register.
(h) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or
a portion of its Commitment, the Advances owing to it and the Note or
Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to
the Borrower hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent, the Documentation Agent and the
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents and (v) no participant under
any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement, any Note or any other Loan
Document, or any consent to any departure by the Borrower therefrom,
except to the extent that such amendment, waiver or consent would reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee,
designee or participant or proposed assignee, designee or participant,
any information relating to any Loan Party furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee, designee or participant or proposed assignee,
designee or participant shall agree to preserve the confidentiality of
any Confidential Information relating to any Loan Party received by it
from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A.
SECTION 8.08. Confidentiality. None of the Administrative
Agent, the Documentation Agent, or any Lender shall disclose any
Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Administrative Agent's, the
Documentation Agent's, or such Lender's Affiliates and their officers,
directors, employees, agents, advisors, auditors and accountants and to
actual or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or
judicial process, (c) to any rating agency when required by it, provided
that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating
to the Borrower received by it from such Lender and (d) as requested or
required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which<PAGE>
when so executed shall be deemed
to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other
Loan Document to which it is a party, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Agreement or any other
Loan Document to which it is a party in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document to which it is a
party in any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
UNITED PARCEL SERVICE OF
AMERICA, INC., as Borrower
By
Title:
CITIBANK, N.A., as
Administrative Agent
By
Title:
NATIONSBANK OF GEORGIA, N.A.,
as Documentation Agent
By
Title:
CITICORP SECURITIES, INC., as
Co-Arranger
By
Title:
NATIONSBANC CAPITAL MARKETS,
INC., as Co-Arranger
By
Title:
Commitment Initial Lenders
$112,500,000 CITIBANK, N.A.
By
Title:
$100,000,000 NATIONSBANK OF GEORGIA,
N.A.
By
Title:
$ 87,500,000 CHEMICAL BANK
By
Title:
$ 87,500,000 CREDIT SUISSE
By
Title:
By
Title:
$ 87,500,000 PNC BANK, NATIONAL
ASSOCIATION
By
Title:
$ 87,500,000 ROYAL BANK OF CANADA
By
Title:
$ 87,500,000 BANK OF AMERICA ILLINOIS
By
Title:
$ 75,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE
By
Title:
$ 75,000,000 WACHOVIA BANK OF GEORGIA,
N.A.
By
Title:
$ 75,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
Title:
$ 62,500,000 BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By
Title:
By
Title:
$ 62,500,000 THE FUJI BANK, LIMITED
By
Title:
$ 50,000,000 FIRST UNION NATIONAL BANK
OF GEORGIA, N.A.
By
Title:
$ 50,000,000 TRUST COMPANY BANK
By
Title:
By
Title:
$ 50,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By
Title:
$ 50,000,000 THE SANWA BANK, LIMITED
By
Title:
$ 25,000,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By
Title:
$25,000,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
Title:
$1,250,000,000 TOTAL OF THE COMMITMENTS<PAGE>
SCHEDULE I TO THE
CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender: BANK OF AMERICA ILLINOIS
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
555 S. Flower Street, 11th Floor 555 S. Flower Street, 11th Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Timothy C. Hintz, Attn: Timothy C. Hintz,
V.P., Credit Products V.P., Credit Products
LA II #5618 LA II #5618
Phone: (213) 228-2810 Phone: (213) 228-2810
Fax: (213) 228-2756 Fax: (213) 228-2756
Operations: Operations:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Josie Nahoe, Attn: Josie Nahoe,
Account Administration, #5693 Account Aministration, #5693
Phone: (510) 675-7156 Phone: (510) 675-7156
Fax: (510) 675-7531/32 Fax: (510) 675-7531/32
Competitive Bid Matters: Competitive Bid Matters:
555 California Street, 10th Floor 555 California Street, 10th Floor
San Francisco, CA 94104 San Francisco, CA 94104
Attn: Carolyn Alberts Attn: Carolyn Alberts
Phone: (415) 622-2020 Phone: (415) 622-2020
Fax: (415) 622-2235 Fax: (415) 622-2235
<PAGE>
Name of Initial Lender: BANQUE NATIONALE DE PARIS, NEW YORK BRANCH
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Nuala Marley Attn: Nuala Marley
Phone: (212) 415-5726 Phone: (212) 415-5726
Fax: (212) 415-9695 Fax: (212) 415-9695
Operations: Operations:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Charmaine Robinson Attn: Charmaine Robinson
Phone: (212) 415-9785 Phone: (212) 415-9785
Fax: (212) 415-9695 Fax: (212) 415-9695
Competitive Bid Matters: Competitive Bid Matters:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Charmaine Robinson Attn: Charmaine Robinson
Phone: (212) 415-9785 Phone: (212) 415-9785
Fax: (212) 415-9695 Fax: (212) 415-9695
<PAGE>
Name of Initial Lender: THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Ian M. Fowler Attn: Ian M. Fowler
Phone: (314) 466-7061 Phone: (314) 466-7061
Fax: (314) 466-6499 Fax: (314) 466-6499
Operations: Operations:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Wanda Bailey Attn: Wanda Bailey
Phone: (314) 466-6757 Phone: (314) 466-6757
Fax: (314) 466-6499 Fax: (314) 466-6499
Competitive Bid Matters: Competitive Bid Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Ian M. Fowler Attn: Ian M. Fowler
Phone: (314) 466-7061 Phone: (314) 466-7061
Fax: (314) 466-6499 Fax: (314) 466-6499
<PAGE>
Name of Initial Lender: CANADIAN IMPERIAL BANK OF COMMERCE
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Two Paces West Two Paces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (404) 319-4907 Phone: (404) 319-4907
Fax: (404) 319-4954 Fax: (404) 319-4954
Operations: Operations:
Two Paces West Two Pces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Pluria Howell Attn: Pluria Howell
Phone: (404) 319-4814 Phone: (404) 319-4814
Fax: (404) 319-4950/1 Fax: (404) 319-4950/1
Competitive Bid Matters: Competitive Bid Matters:
Two Paces West Two Paces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (404) 319-4907 Phone: (404) 319-4907
Fax: (404) 319-4954 Fax: (404) 319-4954
Other Administrative Matters:
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attn: Miriam McCart
Phone: (404) 319-4842
Fax: (404) 319-4950/1
<PAGE>
Name of Initial Lender: CHEMICAL BANK
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Julie S. Long Attn: Julie S. Long
Phone: (212) 270-1053 Phone: (212) 270-1053
Fax: (212) 972-9854 Fax: (212) 972-9854
Operations: Operations:
270 Park Avenue 270 Park Avenue
8th Floor 8th Floor
New York, NY 10017 New York, NY 10017
Attn: Carmen Fulton Attn: Carmen Fulton
Phone: (212) 270-6745 Phone: (212) 270-6745
Fax: (212) 270-8317 Fax: (212) 270-8317
Competitive Bid Matters: Competitive Bid Matters:
270 Park Avenue 270 Park Avenue
8th Floor 8th Floor
New York, NY 10017 New York, NY 10017
Attn: Russel Gmuca Attn: Russel Gmuca
Phone: (212) 834-3462 Phone: (212) 834-3462
Fax: (212) 834-6521 Fax: (212) 834-6521
<PAGE>
Name of Initial Lender: CITIBANK, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
400 Perimter Center Terrace 400Perimeter Center Terrace
Suite 600 Suite 600
Atlanta, GA 30346 Atlanta, GA 30346
Attn: Bruce Simmons Attn: Bruce Simmons
Phone: (404) 668-8108 Phone: (404) 668-8108
Fax: (404) 668-8137 Fax: (404) 668-8137
Operations: Operations:
1 Court Square, 7th Floor 1 Court Square, 7th Floor
Long Island City, NY 11120 Long Island City, NY 11120
Attn: Brigitte Milian, Loan Administrator Attn: Brigitte Milian, Loan
Administrator
Phone: (718) 248-4478 Phone: (718) 248-4478
Fax: (718) 248-4844 Fax: (718) 248-4844
Competitive Bid Matters: Competitive Bid Matters:
1 Court Square, 7th Floor 1 Court Square, 7th Floor
Long Island City, NY 11120 Long Island City, NY 11120
Attn: Brigitte Milian, Loan Administrator Attn: Brigitte Milian, Loan
Administrator
Phone: (718) 248-4478 Phone: (718) 248-4478
Fax: (718) 248-4844 Fax: (718) 248-4844
<PAGE>
Name of Initial Lender: CREDIT SUISSE
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
12 East 49th Street 12 East 49th Street
New York, New York 10017 New York, New York 10017
Attn: Hazel Leslie Attn: Hazel Leslie
Phone: (212) 238-5218 Phone: (212) 238-5218
Fax: (212) 238-5246 Fax: (212) 238-5246
Operations: Operations:
191 Peachtree Street, NE 191 Peachtree Street, NE
Suite 3500 Suite 3500
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Pamela Myers Attn: Pamela Myers
Phone: (404) 577-6100 Phone: (404) 577-6100
Fax: (404) 577-9029 Fax: (404) 577-9029
Competitive Bid Matters: Competitive Bid Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Suite 3500 Suite 3500
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Pamela Myers Attn: Pamela Myers
Phone: (404) 577-6100 Phone: (404) 577-6100
Fax: (404) 577-9029 Fax: (404) 577-9029
<PAGE>
Name of Initial Lender: DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Susan A. Hodge Attn: Susan A. Hodge
V.P., Corporate Banking V.P., Corporate Banking
Phone: (212) 574-0246 Phone: (212) 574-0246
Fax: (212) 898-0524 Fax: (212) 898-0524
Operations: Operations:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Lora Lam Attn: Lora Lam
Phone: (212) 574-0288 Phone: (212) 574-0288
Fax: (212) 574-0130 Fax: (212) 574-0130
Competitive Bid Matters: Competitive Bid Matters:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Susan A. Hodge Attn: Susan A. Hodge
Phone: (212) 574-0288 Phone: (212) 574-0288
Fax: (212) 574-0130 Fax: (212) 574-0130
with a copy to: with a copy to:
Attn: Lora Lam Attn: Lora Lam
V.P., Corporate Banking V.P., Corporate Banking
Phone: (212) 574-0246 Phone: (212) 574-0246
Fax: (212) 898-0524 Fax: (212) 898-0524
<PAGE>
Name of Initial Lender: FIRST UNION NATIONAL BANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: R. Michael Dunlap Attn: R. Michael Dunlap
Phone: (404) 225-4055 Phone: (404) 225-4055
Fax: (404) 225-4255 Fax: (404) 225-4255
Operations: Operations:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Gwen Evans Attn: Gwen Evans
Phone: (404) 225-4013 Phone: (404) 225-4013
Fax: (404) 225-4255 Fax: (404) 225-4255
Competitive Bid Matters: Competitive Bid Matters:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Gwen Evans Attn: Gwen Evans
Phone: (404) 225-4013 Phone: (404) 225-4013
Fax: (404) 225-4255 Fax: (404) 225-4255
<PAGE>
Name of Initial Lender: THE FUJI BANK, LIMITED
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Marquis One Tower, Suite 2100 Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E. 245 Peachtree Center Ave., N.E.
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Brett P. Johnson Attn: Brett P. Johnson
Phone: (404) 653-2100 Phone: (404) 653-2100
Fax: (404) 653-2119 Fax: (404) 653-2119
Operations: Operations:
Marquis One Tower, Suite 2100 Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E. 245 Peachtree Center Ave., N.E.
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Connie Fowls Attn: Connie Fowls
Phone: (404) 653-2100 Phone: (404) 653-2100
Fax: (404) 653-2119 Fax: (404) 653-2119
Competitive Bid Matters: Competitive Bid Matters:
<PAGE>
Name of Initial Lender: NATIONSBANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
Operations: Operations:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
Competitive Bid Matters: Competitive Bid Matters:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
<PAGE>
Name of Initial Lender: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Perry G. Pelos Attn: Perry G. Pelos
Phone: (612) 667-8609 Phone: (612) 667-8609
Fax: (612) 667-4145 Fax: (612) 667-4145
Operations: Operations:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145
Competitive Bid Matters: Competitive Bid Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145
<PAGE>
Name of Initial Lender: PNC BANK, NATIONAL ASSOCIATION
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15265 Pittsburgh, PA 15265
Attn: Robert J. Mitchell, V.P. Attn: Robert J. Mitchell, V.P.
Phone: (412) 762-6547 Phone: (412) 762-6547
Fax: (412) 762-6484 Fax: (412) 762-6484
Operations: Operations:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15625 Pittsburgh, PA 15625
Attn: Terry Mayton Attn: Terry Mayton
Phone: (412) 762-2593 Phone: (412) 762-2593
Fax: (412) 762-6484 Fax: (412) 762-6484
Competitive Bid Matters: Competitive Bid Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15625 Pittsburgh, PA 15625
Attn: Terry Mayton Attn: Terry Mayton
Phone: (412) 762-2593 Phone: (412) 762-2593
Fax: (412) 762-6484 Fax: (412) 762-6484
<PAGE>
Name of Initial Lende: ROYAL BANK OF CANADA
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: D.G. Calancie Attn: D.G. Calancie
Phone: (212) 428-6445 Phone: (212) 428-6445
Fax: (212) 428-6459 Fax: (212) 428-6459
Operations: Operations:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Jewel Haines Attn: Jewel Haines
Phone: (212) 428-6321 Phone: (212) 428-6321
Fax: (212) 428-2372 Fax: (212) 428-2372
Competitive Bid Matters: Competitive Bid Matters:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: D.G. Calancie Attn: D.G. Calancie
Phone: (212) 428-6445 Phone: (212) 428-6445
Fax: (212) 428-6459 Fax: (212) 428-6459
<PAGE>
Name of Initial Lender: THE SANWA BANK, LIMITED
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: John E. Hansen Attn: John E. Hansen
Phone: (404) 586-6889 Phone: (404) 586-6889
Fax: (404) 589-1629 Fax: (404) 589-1629
Operations: Operations:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Kristie Hartramph Attn: Kristie Hartramph
or or
Attn: Angela LeClair Attn: Angela LeClair
Phone: (404) 586-6893 Phone: (404) 586-6893
Phone: (404) 586-6884 Phone: (404) 586-6884
Fax: (404) 589-1629 Fax: (404) 589-1629
Competitive Bid Matters: Competitive Bid Matters:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Kristie Hartramph Attn: Kristie Hartramph
or or
Attn: Angela LeClair Attn: Angela LeClair
Phone: (404) 586-6893 Phone: (404) 586-6893
Phone: (404) 586-6884 Phone: (404) 586-6884
Fax: (404) 589-1629
Fax: (404) 589-1629
<PAGE>
Name of Initial Lender: THE SUMITOMO BANK, LIMITED NEW YORK BRANCH
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Yas Miyoshi Attn: Yas Miyoshi
Phone: (212) 224-4120 Phone: (212) 224-4120
Fax: (212) 593-9522 Fax: (212) 593-9522
Operations: Operations:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Christine Bonifacic, USCD Attn: Christine Bonifacic, USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
Competitive Bid Matters: Competitive Bid Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Christine Bonifacic, USCD Attn: Christine Bonifacic, USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
<PAGE>
Name of Initial Lender: TRUST BANK COMPANY
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: J. Christopher Deisley Attn: J. Christopher Deisley
Phone: (404) 588-8684 Phone: (404) 588-8684
Fax: (404) 588-8833 Fax: (404) 588-8833
Operations: Operations:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Laura G. Harrison Attn: Laura G. Harrison
Phone: (404) 588-7939 Phone: (404) 588-7939
Fax: (404) 742-3610 Fax: (404) 742-3610
Competitive Bid Matters: Competitive Bid Matters:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Laura G. Harrison Attn: Laura G. Harrison
Phone: (404) 588-7939 Phone: (404) 588-7939
Fax: (404) 742-3610 Fax: (404) 742-3610
<PAGE>
Name of Initial Lender: WACHOVIA BANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Bradley S. Marcus Attn: Bradley S. Marcus
Phone: (404) 332-6483 Phone: (404) 332-6483
Fax: (404) 332-5016 Fax: (404) 332-5016
Operations: Operations:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Gay Winters Attn: Gay Winters
Phone: (404) 332-4055 Phone: (404) 332-4055
Fax: (404) 332-5016 Fax: (404) 332-5016
Competitive Bid Matters: Competitive Bid Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Gay Winters Attn: Gay Winters
Phone: (404) 332-4055 Phone: (404) 332-4055
Fax: (404) 332-5016 Fax: (404) 332-5016
<PAGE>
EXHIBIT A-1 TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
U.S.$_______________ Dated: _______________, 1995
FOR VALUE RECEIVED, the undersigned, UNITED PARCEL SERVICE OF AMERICA,
INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of [Name of Lender] (the "Lender") for the account of its Applicable
Lending Office on the Final Maturity Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Credit Agreement (364-Day Facility) dated as of June 12, 1995 among the
Borrower, the Lender and certain other lenders parties thereto, Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers,
NationsBank of Georgia, N.A., as Documentation Agent and Citibank, N.A., as
Administrative Agent for the Lender and such other lenders (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined
therein being used herein as therein defined) outstanding on the Final Maturity
Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at 399 Park
Avenue, New York, New York 10022 in same day funds. Each Revolving Credit
Advance owing to
the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (a) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Revolving Credit
Advance being evidenced by this Promissory Note, and (b) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein
specified.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title: <PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By<PAGE>
EXHIBIT A-2 TO THE
CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
U.S.$_______________ Dated: _______________, 1995
FOR VALUE RECEIVED, the undersigned, UNITED PARCEL SERVICE OF
AMERICA, INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of [Name of Lender] (the "Lender") for the account of its
Applicable
Lending Office (as defined in the Credit Agreement (364-Day Facility) dated as
of June 12, 1995 among the Borrower, the Lender and certain other lenders
parties thereto, Citicorp Securities, Inc. and NationsBanc Capital Markets,
Inc., as Co-Arrangers, NationsBank of Georgia, N.A., as Documentation Agent and
Citibank,
N.A., as Administrative Agent for the Lender and such other lenders (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined)), on _______ __,
____, the principal amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
[Default Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).]
Interest Payment Dates:
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, for the account of
the Lender at 399 Park Avenue, New York, New York 10022 in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
<PAGE>
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:
<PAGE>
EXHIBIT B-1 TO THE
CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
Attention: _______________
[Date]
Ladies and Gentlemen:
The undersigned, United Parcel Service of America, Inc., refers to
the Credit Agreement (364-Day Facility) dated as of June 12, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among the
undersigned, certain Lenders parties thereto, Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia,
N.A., as Documentation Agent and Citibank, N.A., as Administrative Agent for
the Lenders and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a Revolving
Credit Borrowing under the Credit Agreement, and in that connection sets forth
below the information relating to such Revolving Credit Borrowing (the
"Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of the
Credit Agreement:
(a) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, 199_.
(b) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(c) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(d) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(i) the representations and warranties contained in Section 4.01
of the Credit Agreement [(except the representations set forth in
subsection (f) thereof and in subsection (h) thereof)] are correct,
before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(ii) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default [(except for breach
of the representations set forth in subsection (f) and in subsection (h)
of Section 4.01 of the Credit Agreement)].
Notwithstanding any condition precedent to the contrary contained
in the Credit Agreement, a labor dispute of any sort involving employees of
the undersigned or its Subsidiaries shall not prevent the undersigned from
borrowing thereunder unless as a result thereof the undersigned is in Default
under Section 6.01(a) or (e) of the Credit Agreement.
Very truly yours,
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:
<PAGE>
EXHIBIT B-2 TO THE
CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, UNITED PARCEL SERVICE OF AMERICA, INC., refers to
the Credit Agreement (364-Day Facility) dated as of June 12, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined), among the
undersigned, certain Lenders parties thereto, Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia,
N.A., as Documentation Agent and Citibank, N.A., as Administrative Agent for
the Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(a) Date of Competitive Bid Borrowing ________________________
(b) Amount of Competitive Bid Borrowing ________________________
(c) [Maturity Date] [Interest Period] ________________________
(d) Interest Rate Basis ________________________
(e) Interest Payment Date(s) ________________________
(f) ___________________ ________________________
(g) ___________________ ________________________
(g) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(i) the representations and warranties contained in Section 4.01
are correct [(except the representations set forth in subsection (f)
thereof and in subsection (h) thereof)], before and after giving effect
to the Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default [(except for breach
of the representations set forth in subsection (f) and in subsection (h)
of Section 4.01 of the Credit Agreement)]; and
(iii) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
Notwithstanding any condition precedent to the contrary contained
in the Credit Agreement, a labor dispute of any sort involving employees of
the undersigned or its Subsidiaries shall not prevent the undersigned from
borrowing thereunder unless as a result thereof the undersigned is in Default
under Section 6.01(a) or (e) of the Credit Agreement.
Very truly yours,
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:<PAGE>
EXHIBIT C TO THE
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement (364-Day Facility) dated
as of June 12, 1995 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"; terms defined therein being used herein as
therein defined) among United Parcel Service of America, Inc., a Delaware
corporation (the "Borrower"), the Lenders parties thereto, Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers,
NationsBank of Georgia, N.A., as Documentation Agent and Citibank, N.A., as
Administrative Agent (the "Administrative Agent") for the Lenders.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified on Schedule
1 hereto of all outstanding rights and obligations under the Credit Agreement
(other than in respect of Competitive Bid Advances and Competitive Bid Notes).
After giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Revolving Credit Advances owing to the Assignee will be as
set forth on Schedule 1 hereto.
2. The Assignor (a) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; and (d) attaches the Revolving Credit Note held by
the Assignor and requests that the Administrative Agent exchange such
Revolving Credit Note for a new Revolving Credit Note payable to the order of
the Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto or new Revolving Credit Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements referred
to in Section 4.01 of the Credit Agreement 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; (b) agrees that it
will, independently and without reliance upon any Agent, the Assignor or any
other Lender 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 any Loan Document; (c) confirms that it is an
Eligible Assignee; (d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto, and appoints and authorizes the Documentation
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under any Loan Document as are delegated to the Documentation
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (e) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of any Loan Document
are required to be performed by it as a Lender; and (f) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof by
the Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent and so long as the Borrower has consented thereto, as of the Effective
Date, (a) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Revolving Credit Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Revolving Credit Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.<PAGE>
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: _____%
Assignee's Commitment: $________
Aggregate outstanding principal amount of Revolving Credit Advances assigned:
$__________
Principal amount of Revolving Credit Note payable to Assignee:
$__________
Principal amount of Revolving Credit Note payable to Assignor:
$__________
Effective Date: _______________, 199_
[Name of Assignor], as Assignor
By
Title:
Dated: _______________, 199_
[Name of Assignee], as Assignee
By
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
<PAGE>
Accepted this ___ day of
_______________, 199_
CITIBANK, N.A., as Administrative Agent
By
Title:
Consented to this ___ day of
_______________, 199_
UNITED PARCEL SERVICE OF AMERICA,
INC., as Borrower
By
Title:
<PAGE>
EXHIBIT D TO THE
CREDIT AGREEMENT
FORM OF DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Credit Agreement (364-Day Facility) dated
as of June 12, 1995 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") among United Parcel Service of America, Inc.,
a Delaware corporation (the "Borrower"), the Lenders parties thereto, Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers,
NationsBank of Georgia, N.A., as Documentation Agent and Citibank, N.A., as
Administrative Agent (the "Administrative Agent") for the Lenders. Terms
defined in the Credit Agreement are used herein with the same meaning.
[Name of Designor] (the "Designor") and [Name of Designee] (the
"Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Competitive
Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes
no responsibility with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant thereto and (b) the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto.
3. The Designee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements referred
to in Section 4.01 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will,
independently and without reliance upon any Agent, the Designor or any other
Lender 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 any Loan Document; (c) confirms that it is a
Designated Bidder; (d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto, and appoints and authorizes the Documentation
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under any Loan Document as are delegated to the Documentation
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (e) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of any
Loan Document are required to be performed by it as a Lender.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
for this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on
the signature page hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the Credit
Agreement with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.03 of the Credit Agreement and the rights and obligations of a
Lender related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Designation Agreement by
telecopier shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly
authorized as of the date first above written.
Effective Date: _______________, 199__
[Name of Designor],
as Designor
By
Title:
[Name of Designee],
as Designee
By
Title:
Applicable Lending Office (and
address for notices):
[Address]
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By
Title:
<PAGE>
EXECUTION COPY
GUARANTY
This GUARANTY (364-Day Facility) dated as of June 12, 1995, made
by UNITED PARCEL SERVICE, INC., a New York corporation, UNITED PARCEL SERVICE,
INC., an Ohio corporation, UNITED PARCEL SERVICE CO., a Delaware corporation
(each, a "Guarantor" and collectively, the "Guarantors") in favor of CITIBANK,
N.A., as administrative agent (the "Administrative Agent") for the Lenders (as
defined in the Credit Agreement referred to below).
The Lenders have agreed to make certain loans to United Parcel
Service of America, Inc., a Delaware corporation (the "Borrower"), pursuant
to, and subject to the terms and conditions specified in, the Credit Agreement
(364-Day Facility) dated as of June 12, 1995 (as amended, supplemented and
otherwise modified from time to time, the "Credit Agreement"; terms defined
therein and not otherwise defined herein being used herein as therein defined)
among the Borrower, the Lenders parties thereto, Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia,
N.A., as Documentation Agent and the Administrative Agent. The obligation of
the Lenders to make Advances under the Credit Agreement is conditioned on,
among other things, the execution and delivery by the Guarantors of this
Guaranty.
In order to induce the Lenders to make Advances, the Guarantors
are willing to execute and deliver this Guaranty. Accordingly, the parties
hereto agree as follows:
SECTION 1. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely
as a surety, the due and punctual payment of principal of and interest on each
of the Notes, when and as due, whether at maturity, by acceleration, by notice
of prepayment or otherwise, and all other monetary obligations of the Borrower
to each Lender, the Documentation Agent and the Administrative Agent under the
Loan Documents to which the Borrower is or is to be a party (collectively, the
"Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligation.
SECTION 2. Each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Guaranteed Obligations,
and also waives notice of acceptance of its guarantee and notice of protest
for nonpayment. The obligations of each Guarantor hereunder shall not be
affected by (a) the failure of any Lender or any Agent to assert any claim or
demand or to enforce any right or remedy against the Borrower under the
provisions of any Loan Document or otherwise; (b) any recision, waiver,
amendment or modification of any of the terms or provisions of any Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Guaranty, except to the extent that a discharge or
satisfaction of the Guaranteed Obligations is effected thereto; (c) the
release of any security held by any Lender or any Agent for the Guaranteed
Obligations or any of them; or (d) the failure of any Lender or any Agent to
exercise any right or remedy against any other Guarantor or guarantor of the
Guaranteed Obligations.
SECTION 3. Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by any Lender or any Agent to any
security held for payment of the Guaranteed Obligations or to any balance of
any deposit account or credit on the books of such Lender or such Agent in
favor of the Borrower or any other Person.
SECTION 4. The obligations of each Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise, other than the indefeasible payment in full in cash of the
Guaranteed Obligations in accordance with the terms of this Guaranty. Without
limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of any Lender or any Agent to assert any claim or demand or to
enforce any remedy under any Loan Document, any guarantee or any other
agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in any manner
or to any extent vary the risk of any Guarantor or otherwise operate as a
discharge of any Guarantor as a matter of law or equity.
SECTION 5. Each Guarantor further agrees that its guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
payment or any part thereof, or principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender or any
Agent upon the insolvency, bankruptcy or reorganization of the Borrower, any
other Loan Party or otherwise.
SECTION 6. In furtherance of the foregoing and not in limitation
of any other right that any Lender or any Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Borrower to
pay any Guaranteed Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment (and failure on the
designated date to make such payment) or otherwise, each Guarantor hereby
promises to and will, upon receipt of written demand by any Lender or the
Administrative Agent, forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Lenders in cash the amount of
such Guaranteed Obligation, and thereupon each Lender shall, in a reasonable
manner, assign the amount of such Guaranteed Obligation owed to it and paid by
such Guarantor pursuant to this Guaranty to such Guarantor, such assignment to
be pro tanto to the extent to which such Guaranteed Obligation in question was
discharged by such Guarantor, or make such other disposition thereof as such
Guarantor shall direct (all without recourse to such Lender or such Agent and
without any representation or warranty thereby, and no such assignment to be
effective prior to the indefeasible payment in full in cash of such Guaranteed
Obligation); provided, however, that the Lenders shall not receive from the
Guarantors pursuant to such demand an aggregate amount in excess of the amount
of such Guaranteed Obligation.
SECTION 7. Each Guarantor represents and warrants as to itself
that all representations and warranties that relate to it contained in the
Credit Agreement are true and correct.
SECTION 8. The guarantees made hereunder shall survive and be in
full force and effect so long as any Guaranteed Obligation is outstanding and
has not been indefeasibly paid in full in cash and so long as any of the
Commitments under the Credit Agreement have not been terminated and shall be
reinstated to the extent provided in Section 5. Each Guarantor shall be
released from its guarantee hereunder in the event that all the capital stock
of such Guarantor shall be sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement.
SECTION 9. Whenever in this Guaranty any of the parties hereto is
referred to, such reference shall, except as provided in Section 8, be deemed
to include the successors and assigns of such party and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained
in this Guaranty shall bind and inure to the benefit of their respective
successors and assigns. None of the Guarantors may assign or transfer any of
its rights or obligations hereunder without the prior written consent of all
of the Lenders, the Documentation Agent and the Administrative Agent, except
as provided in Section 8.
SECTION 10. No failure on the part of the Administrative Agent
to exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. Except as provided in the Credit Agreement,
neither the Administrative Agent nor any of the Lenders shall be deemed to
have waived any rights hereunder or under any other agreement or instrument
unless such waiver shall be in writing and signed by such parties.
SECTION 11. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF YORK.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 8.02 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth in Schedule I hereto, with a copy to the Borrower.
SECTION 13. In case any one or more of the provisions contained
in this Guaranty should be held invalid, illegal or unenforceable in any
respect with respect to any Guarantor, no party hereto shall be required to
comply with such provision with respect to such Guarantor for so long as such
provision is held to be invalid, illegal or unenforceable, and the validity,
legality and enforceability of the remaining provisions contained herein, and
of such provision with respect to any other Guarantor, shall not in any way be
affected or impaired. The parties shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 14. This Guaranty may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, provided that this
Guaranty shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder. Delivery
of an executed counterpart of a signature page to this Guaranty by telecopier
shall be effective as delivery of a manually executed counterpart of this
Guaranty.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty
to be executed by their duly authorized officers as of the day and year first
above written.
UNITED PARCEL SERVICE, INC., a
New York corporation
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an
Ohio corporation
By
Name:
Title:
UNITED PARCEL SERVICE CO., a
Delaware corporation
By
Name:
Title:<PAGE>
SCHEDULE I TO
THE GUARANTY
ADDRESSES OF GUARANTORS
UNITED PARCEL SERVICE, INC.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
UNITED PARCEL SERVICE, INC.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
UNITED PARCEL SERVICE CO.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
<PAGE>
EXECUTION COPY
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT dated as of June 12, 1995, among UNITED PARCEL SERVICE
OF AMERICA, INC., a Delaware corporation (the "Company"), and UNITED PARCEL
SERVICE, INC., a New York corporation, UNITED PARCEL SERVICE, INC., an Ohio
corporation, and UNITED PARCEL SERVICE CO., a Delaware corporation (each, a
"Guarantor" and collectively, the "Guarantors").
Pursuant to the Credit Agreement
(364-Day Facility) dated as of June 12, 1995 (the "Credit Agreement"; terms
defined therein unless otherwise defined herein being used herein as therein
defined) among the Company, the Lenders parties thereto, Citicorp Securities,
Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of
Georgia, N.A., as Documentation Agent, and Citibank, N.A., as Administrative
Agent (the "Administrative Agent") for the Lenders, the Lenders have agreed to
make certain Advances to the Company. Pursuant to the Guaranty (364-Day
Facility) dated as of June 12, 1995 (the "Guaranty") made by the Guarantors in
favor of the Administrative Agent on behalf of the Lenders, the Guarantors
have guaranteed the Guaranteed Obligations (as defined in the Guaranty),
including repayment of Advances and the other obligations of the Company under
the Credit Agreement.
The Company and the Guarantors
desire to enter into the indemnification, subrogation and contribution
agreements set forth below with respect to the Guaranty.
Accordingly, the Company and the
Guarantors agree as follows:
SECTION 1. Indemnity and
Subrogation. In addition to all such rights of indemnity and subrogation as
the Guarantors may have under applicable law (but subject to Section 3), the
Company agrees that (a) in the event a payment shall be made by any Guarantor
under the Guaranty, the Company shall indemnify such Guarantor for the full
amount of such payment and such Guarantor shall be subrogated to the rights of
the person to whom such payment shall have been made to the extent of such
payment and (b) in the event any assets of any Guarantor shall be sold
pursuant to any mortgage, security agreement or similar instrument or
agreement to satisfy a claim of any Lender or any Agent, the Company shall
indemnify such Guarantor in an amount equal to the greater of (i) the book
value and (ii) the fair market value of the assets so sold.
SECTION 2. Contribution. Each
Guarantor agrees (subject to Section 3) that in the event a payment shall be
made by any Guarantor under the Guaranty or assets of any Guarantor shall be
sold pursuant to any mortgage, security agreement or similar instrument or
agreement to satisfy a claim of any Lender or any Agent and such Guarantor
(the "Claiming Guarantor") shall not have been indemnified by the Company as
provided in Section 1, each other Guarantor (a "Contributing Guarantor") shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of (i) the book value and (ii) the fair market value of
such assets, as the case may be, multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate of the net worth of all the
Guarantors on the date hereof. Any Contributing Guarantor making any payment
to a Claiming Guarantor pursuant to this Section 2 shall be subrogated to the
rights of such Claiming Guarantor under Section 1 to the extent of such
payment.
SECTION 3. Subordination.
Notwithstanding any provision of this Agreement to the contrary, all rights of
the Guarantors under Sections 1 and 2 shall be fully subordinated to the final
and indefeasible payment and performance in full of the Guaranteed
Obligations. In furtherance of the foregoing, each Guarantor agrees that it
will not exercise any rights against the Borrower under, or receive any
payments in respect of amounts owing under, Sections 1 and 2 during the
existence of an Event of Default.
SECTION 4. Modification and
Termination. This Agreement may be modified or terminated only by an
instrument in writing executed by each of the parties hereto, and then only
with the prior written consent of the Required Lenders; provided, however,
that in the event the Guaranty of any Guarantor is released or terminated for
any reason, the obligations and rights of such Guarantor hereunder shall
forthwith terminate and such Guarantor shall cease to be a Guarantor for all
purposes of this Agreement.
SECTION 5. Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
SECTION 6. Execution in
Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their duly authorized
officers as of the day and year first above written.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Name:
Title:<PAGE>
UNITED PARCEL SERVICE, INC., a
New York corporation
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an
Ohio corporation
By _________________________________
Name:
Title:
UNITED PARCEL SERVICE CO., a
Delaware corporation
By
Name:
Title:<PAGE>
MAYER, BROWN & PLATT
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
(Attorneys at law)
EXHIBIT G
June 12, 1995
To each of the Lenders parties
to the Credit Agreements dated
as of June 12, 1995 among United
Parcel Service of America, Inc.,
such Lenders, Citibank, N.A., as
Administrative Agent, NationsBank of
Georgia, N.A., as Documentation Agent,
and Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc.,
as Co-Arrangers
Re: United Parcel Service of America, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e) (viii) of
the Credit Agreement (364-Day Facility) and of the Credit Agreement (Five-Year
Facility), each dated as of June 12, 1995 (collectively, the "Credit
Agreements"), among United Parcel Service of America, Inc. (the "Borrower"),
the Lenders parties thereto (the "Lenders"), Citibank, N.A., as Administrative
Agent, NationsBank of Georgia, N.A., as Documentation Agent and Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers.
Terms defined in the Credit Agreements are used herein as therein defined.
We have acted as special New York counsel for the Borrower in connection
with the preparation, execution and delivery of each Credit Agreement. In
addition, we have acted as special New York counsel for United Parcel Service
Co., a Delaware corporation, United Parcel Service, Inc., a New York
corporation, and United Parcel Service, Inc., an Ohio corporation as
Guarantors, in connection with the execution and delivery of each Guaranty and
each Indemnity Agreement.
In that connection, we have examined:
(1) the Credit Agreements;<PAGE>
(2) the Revolving Notes;
(3) each Guaranty;
(4) each Indemnity Agreement;
(5) the documents furnished by the Borrower and the Guarantors
pursuant to Sections 3.01(e)(iv), (e)(v), (e)(vi) and (e)(vii) of
the Credit Agreements;
(6) the corporate charters of the Borrower and the Guarantors and all
amendments thereto (with respect to each such Person, its
"Charter");
(7) the by-laws of the Borrower and the Guarantors and all amendments
thereto (with respect to each such Person, its "By-laws"); and
(8) certificates of the Secretary of State of Delaware, the Secretary
of State of New York and the Secretary of State of Ohio, dated
June 7, 1995, June 7, 1995, June 6, 1995 and June 7, 1995,
respectively, attesting to the continued corporate existence and
good standing of the Borrower and the Guarantors in such States.
We have also examined the certificate of the Senior Vice President, Treasurer
and Assistant Secretary of the Borrower and the Treasurer of each of the
Guarantors, dated June 12, 1995 and attached hereto (without any of the
Annexes thereto except for Annex I) as Exhibit A (the "Certificate") and the
originals, or copies certified to our satisfaction, of the documents listed in
the Certificate. In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of the Borrower
and each Guarantor, certificates of public officials and of officers of the
Borrower and each Guarantor, and agreements, instruments and other documents,
as we have deemed necessary as a basis for the opinions expressed below. As
to questions of fact material to such opinions, we have, when relevant facts
were not independently established by us, relied upon the representations and
warranties of the Borrower and each Guarantor contained in the Loan Documents
and certificates of the Borrower or the Guarantors or their respective
officers or of public officials.<PAGE>
For purposes of this opinion, we have assumed that all items submitted
to us as originals are authentic and all signatures thereon are genuine, all
items submitted to us as copies conform to the originals, and each such item
has been duly executed and delivered by each party pursuant to due
authorization therefor and constitutes such party's (other than the Borrower's
and each Guarantor's) legal, valid and binding obligation, enforceable against
such party in accordance with its respective terms.
Our opinions expressed herein are limited to Applicable Laws and we do
not express any opinion herein concerning any other law. The term "Applicable
Laws" means those laws, rules and regulations of the General Corporation Law
of the State of Delaware, the State of New York and of the laws of the United
States of America which are actually known to us (based upon our review of
those laws, rules and regulations which, in our experience, are normally
applicable to transactions of the type contemplated by the Credit Agreements).
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion that as of the date hereof:
1. Each of the Borrower and each Guarantor is a corporation validly
existing and in good standing under the laws of the state of its
incorporation.
2. The execution, delivery and performance by the Borrower of the
Credit Agreements, the Revolving Notes and each Indemnity Agreement, and the
consummation of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) its Charter or its By-laws or (ii)
any Applicable Laws applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or (iii)
any contractual or legal restriction contained in any document listed in Annex
I to the Certificate or otherwise known to us. The Credit Agreements, the
Revolving Notes and each Indemnity Agreement have been duly executed and
delivered on behalf of the Borrower.
3. The execution, delivery and performance by each Guarantor of each
Guaranty and each Indemnity Agreement, and the consummation of the
transactions contemplated hereby, are within such Guarantor's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) its Charter or its By-laws or (ii) any Applicable Laws
applicable to such Guarantor (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) or (iii) any contractual
or legal restriction contained in any document listed in Annex I to the
Certificate or otherwise known to us. Each Guaranty and each Indemnity
Agreement have been duly executed and delivered on behalf of the Guarantors.
4. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Credit
Agreements, the Revolving Notes and each Indemnity Agreement or for the due
execution, delivery and performance by each Guarantor of each Guaranty and
each Indemnity Agreement. In connection with the opinions expressed in this
paragraph, we note that there are certain state laws requiring regulatory
approval of the incurrence of debt or the making of guarantees by common
carriers which we believe are, under governing Federal law, inapplicable to
the execution, delivery, and performance of the Credit Agreement, the
Revolving Notes, each Guaranty and each Indemnity Agreement.
5. The Credit Agreements, the Notes (when and to the extent funded)
and each Indemnity Agreement are the legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms. Each Guaranty and each Indemnity Agreement are the legal,
valid and binding obligations of each Guarantor enforceable against such
Guarantor in accordance with their respective terms.
6. To our knowledge, except as otherwise described in Section 4.01(h)
of the Credit Agreements, there are no pending or overtly threatened actions
or proceedings against the Borrower, any Guarantor or any of their respective
Material Subsidiaries before any court, governmental agency or arbitrator
which purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreements, any of the Revolving Notes, any
Guaranty or any other Loan Document or the consummation of the transactions
contemplated thereby or which are likely to have a materially adverse effect
upon the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole.
The opinions set forth above are subject to the following qualifications:
(a) No opinion is rendered as to matters not specifically referred to
herein and you may not infer from anything stated herein or not stated herein
any opinions with respect thereto.
(b) Our opinion in paragraph 5 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance of similar laws affecting creditors' rights generally.
(c) Our opinion in paragraph 5 above is subject to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(d) No opinion is rendered as to (i) whether a Federal or state court
outside of the State of New York would give effect to the choice of New York
law provided for in the Credit Agreements and the other Loan Documents, (ii)
Section 2.15 of the Credit Agreements insofar as it provides that any Lender
purchasing a participation from another Lender pursuant thereto may exercise
setoff or similar rights with respect to such participation, (iii) the effect
of the law of any jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit Agreements or the
Notes may be sought that limits the rates of interest legally chargeable or
collectible or (iv) the submission by the Borrower to the non-exclusive
jurisdiction of New York State courts or Federal courts of the United States
of America, sitting in New York City. In addition, certain other provisions
contained in the Loan Documents may be limited or rendered ineffective by
Applicable Laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the then
existing circumstances, but the inclusion of such provisions does not affect
the validity of the Loan Documents as a whole and does not materially diminish
the practical realization of the substantive rights and benefits intended to
be provided thereby.
(e) Whenever our opinion with respect to the existence or absence of
facts is indicated to be based on our knowledge or awareness, we are referring
solely to the actual knowledge of the particular Mayer, Brown & Platt
attorneys who have represented the Borrower and each of the Guarantors in
connection with the negotiation, execution and delivery of the Loan Documents.
Except as expressly set forth herein, we have not undertaken any independent
investigation to determine the existence or absence of such fact and no
inference as to our knowledge concerning such facts should be drawn from the
fact that such representation has been undertaken by us.
We are aware that Shearman & Sterling will rely upon the opinions set
forth in paragraphs 1, 2, 3 and 4 of this opinion in rendering their opinion
furnished pursuant to Section 3.01(e)(ix) of each Credit Agreement.
Additionally, the opinions set forth herein are intended only for the benefit
of the Lenders, and any future Eligible Assignee of or successor to the
Lenders' rights under the Credit Agreements, in connection with the
transactions contemplated by the Credit Agreements and may not be relied upon
by, or delivered to, any other Person or used for any other purpose, without
our written permission.
Very truly yours,
MAYER, BROWN & PLATT
By ____________________
J. Paul Forrester<PAGE>
EXHIBIT A
CERTIFICATE OF
AUTHORIZED OFFICER
I, Robert J. Clanin, do hereby certify as follows:
1. I am (i) the duly elected and qualified Senior Vice President,
Treasurer and Assistant Secretary of United Parcel Service of America, Inc., a
corporation duly organized, existing and in good standing under the laws of
the State of Delaware (the "Borrower") and (ii) the duly elected and qualified
Treasurer of each of (x) United Parcel Service Co., a corporation organized,
existing and in good standing under the laws of the State of Delaware and a
wholly owned Subsidiary of the Corporation ("UPSDE"), (y) United Parcel
Service, Inc., a corporation organized, existing and in good standing under
the laws of the State of New York and a wholly owned Subsidiary of the
Corporation ("UPSNY") and (z) United Parcel Service, Inc., a corporation
organized, existing and in good standing under the laws of the State of Ohio
and a wholly owned Subsidiary of the Corporation ("UPSOH") and am familiar
with the matters referred to below and am authorized to make the
certifications contained herein.
2. This Certificate is being furnished to Mayer, Brown & Platt in
connection with the opinion which it is giving as a condition precedent to the
closing of the transactions contemplated by (i) that certain Credit Agreement
(Five-Year Facility), dated as of June 12, 1995, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the Lenders,
NationsBank of Georgia, N.A., as the Documentation Agent for the Lenders, and
Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc., as the
Co-Arrangers (the "Long-Term Credit Agreement"); and (ii) that certain Credit
Agreement (364 Day Facility), dated as of June 12, 1995, among the
Corporation, the Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank of Georgia, N.A., as the Documentation Agent for the
Lenders, and Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc.,
as the Co-Arrangers (the "Short-Term Credit Agreement"; and, with the Long-Term
Credit Agreement, the "Credit Agreements"). Capitalized terms used in
this Certificate, unless otherwise defined, shall have the meanings assigned
to such terms in the Credit Agreement.
3. To the best of my knowledge and belief, attached hereto as Annex I
is a list of all of the indentures, loan or credit agreements, leases,
guarantees, mortgages, security agreements, bonds, notes and other agreements
or instruments, and all of the orders, writs, judgments, awards, injunctions
and decrees, which<PAGE>
affect or purport to affect the Borrower's right to borrow
money, the Borrower's obligations under the Credit Agreements or the Notes or a
Guarantor's obligations under the Guaranty or Indemnity Agreement. Attached
hereto as Annex A-1 through A-2, inclusive, are true, correct and complete
copies of such items (including, without limitation, any amendments or
modifications thereto), respectively, as in full force and effect on the date
hereof.
4. Attached hereto as Annex B-1, B-2, B-3 and B-4, inclusive, are
true, correct and complete copies of the Certificate of Incorporation of each
of the Borrower, UPSDE, UPSNY and UPSOH, respectively and each amendment, if
any, thereto, as filed with the secretaries of state of their state of
incorporation and as in full force and effect on the date hereof.
5. Attached hereto as Annex C-1, C-2, C-3 and C-4, inclusive, are
true, correct and complete copies of the By-laws of each of the Borrower,
UPSDE, UPSNY and UPSOH, respectively, as in full force and effect on the date
hereof.
6. Except as otherwise described in Section 4.01(h) of the Credit
Agreements, there are no pending or overtly threatened actions or proceedings
against the Borrower, any Guarantor or any of their respective Material
Subsidiaries before any court, governmental agency or arbitrator which purport
to affect the legality, validity, binding effect or enforceability of the
Credit Agreements, any of the Revolving Notes, any Guaranty or any other Loan
Document or the consummation of the transactions contemplated thereby or which
are likely to have a materially adverse effect upon the financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
IN WITNESS WHEREOF, I have subscribed my name as (i) the Senior Vice
President, Treasurer and Assistant Secretary of the Borrower and (ii) the
Treasurer of each of UPSDE, UPSNY and UPSOH on this 12th day of June, 1995.
_________________________
Robert J. Clanin <PAGE>
ANNEX I
Indenture, dated as of December 1, 1989, between United parcel Service of
America, Inc. And Chemical Bank, as Trustee.
Guarantee Agreement, dated as of December 1, 1985 between United Parcel
Service of America, Inc. And Irving Trust Company, as Trustee (the "Trustee")
under the Trust Indenture dated as of the same date between the Delaware
County Industrial Development Authority and the Trustee
<PAGE>
Exhibit H
Incorporated by Reference to Exhibit 4(c) to Registration Statement No.
33-32481.
EXECUTION COPY
U.S. $1,250,000,000
CREDIT AGREEMENT
(Five-Year Facility)
Dated as of June 12, 1995
Among
UNITED PARCEL SERVICE OF AMERICA, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
as Co-Arrangers
and
NATIONSBANK OF GEORGIA, N.A.
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE>
T A B L E O F C O N T E N T S
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. . . . . . . . 1
SECTION 1.02. Computation of Time Periods. . . . . 15
SECTION 1.03. Accounting Terms . . . . . . . . . . 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. . . . 16
SECTION 2.02. Making the Revolving Credit Advances 16
SECTION 2.03. The Competitive Bid Advances . . . . 18
SECTION 2.04. Fees . . . . . . . . . . . . . . . . 21
SECTION 2.05. Termination or Reduction of the Commitments 22
SECTION 2.06. Repayment of Revolving Credit Advances 22
SECTION 2.07. Interest on Revolving Credit Advances 22
SECTION 2.08. Interest Rate Determination. . . . . 23
SECTION 2.09. Optional Conversion of Revolving Credit
Advances . . . . . . . . . . . . . . . . . . . 24
SECTION 2.10. Optional Prepayments of Advances . . 24
SECTION 2.11. Increased Costs. . . . . . . . . . . 24
SECTION 2.12. Illegality . . . . . . . . . . . . . 25
SECTION 2.13. Payments and Computations. . . . . . 25
SECTION 2.14. Taxes. . . . . . . . . . . . . . . . 26
SECTION 2.15. Sharing of Payments, Etc.. . . . . . 28
SECTION 2.16. Substitution of Lender . . . . . . . 29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. . . . . . . . . 29
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. . . . . . . . . . . . . . . . . . . 31
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. . . . . . . . . . . . . . . . . . . 31
SECTION 3.04. Determinations Under Section 3.01. . 32
SECTION 3.05. Labor Dispute. . . . . . . . . . . . 32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower . . . . . . . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. . . . . . . . 36
SECTION 5.02. Negative Covenants . . . . . . . . . 40
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. . . . . . . . . . 43
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action . . . . . . 46
SECTION 7.02. The Agents' Reliance, Etc. . . . . . 46
SECTION 7.03. Citibank, NationsBank and Their Affiliates 47
SECTION 7.04. Lender Credit Decision . . . . . . . 47
SECTION 7.05. Indemnification. . . . . . . . . . . 47
SECTION 7.06. Successor Agents . . . . . . . . . . 48
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . 48
SECTION 8.02. Notices, Etc.. . . . . . . . . . . . 49
SECTION 8.03. No Waiver; Remedies. . . . . . . . . 49
SECTION 8.04. Costs and Expenses . . . . . . . . . 49
SECTION 8.05. Right of Setoff. . . . . . . . . . . 50
SECTION 8.06. Binding Effect . . . . . . . . . . . 51
SECTION 8.07. Assignments, Designations and Participations 51
SECTION 8.08. Confidentiality. . . . . . . . . . . 56
SECTION 8.09. Governing Law. . . . . . . . . . . . 56
SECTION 8.10. Execution in Counterparts. . . . . . 56
SECTION 8.11. Jurisdiction, Etc. . . . . . . . . . 56
<PAGE>
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Guaranty
Exhibit F - Form of Indemnity Agreement
Exhibit G - Form of Opinion of Counsel for the Borrower
Exhibit H - Debenture Indenture
<PAGE>
CREDIT AGREEMENT
(Five-Year Facility)
Dated as of June 12, 1995
UNITED PARCEL SERVICE OF AMERICA, INC., a Delaware corporation
(the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature
pages hereof, CITIBANK, N.A. ("Citibank"), as administrative agent (the
"Administrative Agent") for the Lenders (as hereinafter defined),
NATIONSBANK OF GEORGIA, N.A. ("NationsBank"), as documentation agent (the
"Documentation Agent") for the Lenders, and CITICORP SECURITIES, INC.
("Citicorp Securities") and NATIONSBANC CAPITAL MARKETS, INC. ("NCMI"), as
co-arrangers (the "Co-Arrangers") under the Loan Documents (as hereinafter
defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at
Citibank with its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Brigitte Milian.
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance, as the context may require.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under
common control with such Person; provided, however, that Overseas
Partners shall not be deemed to be an Affiliate of the Borrower.
"Agent" means the Administrative Agent or the Documentation
Agent, as the context may require.
"Applicable Fee Percentage" means, as of any date, a
percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below:
Public Debt Rating Applicable Fee
S&P/Moody's Percentage
Level 1
AA- / Aa3 or above 0.070%
Level 2
Lower than Level 1 0.090%
but at least
A- / A3
Level 3
Lower than Level 2 0.125%
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent and the Borrower as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
Public Debt Rating Applicable Margin Applicable Margin
S&P/Moody's for for
Base Rate Eurodollar Rate
Advances Advances
Level 1
AA- / Aa3 or above 0.00% 0.08%
Level 2
Lower than Level 1 0.00% 0.16%
but at least
A- / A3
Level 3
Lower than Level 2 0.00% 0.20%
provided, however, that if as of any date of determination the
aggregate principal amount of Advances outstanding exceeds 33% of
the aggregate Commitments, the Applicable Margin for such date shall
be the percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth above plus 0.05%.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit C
hereto.
"Attributable Debt" has the meaning specified in the Debenture
Indenture.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%)
of (i) 1/2 of 1% per annum plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month Dollar
nonpersonal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar
deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Beneficial Ownership" means beneficial ownership as
determined in accordance with Rule 13d-3 of the Securities and
Exchange Commission under the Exchange Act, as in effect on the date
hereof.
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
designated in writing by the Borrower to the Administrative Agent
from time to time.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing, as the context may require.
"Business Day" means a day of the year (other than a Saturday
or a Sunday) on which banks are not required or authorized by law to
close in New York City and, if the applicable Business Day relates
to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Capital Lease Obligations" of any Person means all
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP.
"Change of Control" means the occurrence of any of the
following:
(a) any Person or two or more Persons acting in
concert other than a Permitted Person shall have acquired
Beneficial Ownership, directly or indirectly, through a
purchase, merger or other transaction or series of
transactions or otherwise, of (i) 10% or more of the shares of
common stock of the Borrower or (ii) Voting Stock of the
Borrower to which 10% or more of the total Voting Power of the
Borrower is attributable; or
(b) Permitted Persons shall not have Beneficial
Ownership of (i) 75% or more of the shares of common stock of
the Borrower or (ii) Voting Stock of the Borrower to which 75%
or more of the total Voting Power of the Borrower is
attributable.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Citicorp Securities" has the meaning specified in the recital
of parties to this Agreement.
"Co-Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
auction bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance, as the context may
require.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to an Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to an Agent or such Lender from a source other than the
Borrower (unless such Agent or such Lender knows that such
information is not generally available to the public).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Net Tangible Assets" has the meaning specified
in the Debenture Indenture.
"Consolidated Net Worth" means the shareholders' equity of the
Borrower and its Subsidiaries, computed in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debenture Indenture" means the Indenture, dated as of
December 1, 1989, between the Borrower and Chemical Bank pursuant to
which the 8-3/8% Debentures Due April 1, 2020 were issued, as in
effect on the date of this Agreement (without giving effect to any
amendment, supplement or other modification thereto, any repayment
or covenant defeasance thereunder or any termination thereof), a
copy of which is attached as Exhibit H hereto.
"Debt" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, or with respect to
deposits with or advances of any kind to such Person, (b) all
obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements
relating to property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services, (f) all Debt of others
secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on
property or assets owned or acquired by such Person (other than
Non-Recourse Debt), (g) all Guarantees by such Person of Debt of others,
(h) all Capital Lease Obligations of such Person, (i) all
obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest
or exchange rate hedging arrangements; provided, however, that at
any given time the term "obligations" as used in this clause (i)
shall only include the net amounts due and payable at such time
under any such agreements or arrangements and (j) all obligations of
such Person as an account party in respect of letters of credit and
bankers' acceptances. The Debt of any Person shall include the Debt
of any partnership in which such Person is a general partner.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of
its business and that issues (or the parent of which issues)
commercial paper rated at least "Prime-1" (or the then equivalent
grade) by Moody's or "A-1" (or the then equivalent grade) by S&P
that, in either case, (i) is organized under the laws of the United
States or any state thereof or the District of Columbia, (ii) shall
have become a party to this Agreement pursuant to Section 8.07(d),
(e) and (f) and (iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially
the form of Exhibit D hereto.
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"Dollars" and the sign "$" mean lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify
to the Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of
a Lender that is otherwise an Eligible Assignee; (iii) a commercial
bank organized under the laws of the United States, or any state
thereof, and having total assets in excess of $1,000,000,000,
calculated in accordance with the accounting principles prescribed
by the regulatory authority applicable to such bank in its
jurisdiction of organization; (iv) a commercial bank organized under
the laws of any other country that is a member of the OECD, or a
political subdivision of any such country, and having total assets
in excess of $1,000,000,000, calculated in accordance with the
accounting principles prescribed by the regulatory authority
applicable to such bank in its jurisdiction of organization, so long
as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is
described in this clause (iv); (v) the central bank of any country
that is a member of the OECD; (vi) a finance company, insurance
company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) organized under the
laws of the United States, or any state thereof, that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having total assets in excess of
$1,000,000,000, calculated in accordance with the accounting
principles prescribed by the regulatory authority applicable to such
entity in its jurisdiction of organization; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify
as an Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is
a member and which is treated as a single employer under Section 414
of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify
to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such
a multiple) of the rate per annum at which deposits in Dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such
Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of
the same Revolving Credit Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates furnished to
and received by the Administrative Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08(e).
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate Advances
comprising part of the same Borrowing, the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New
York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances or LIBO Rate Advances
is determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Existing Credit Facilities" means the credit facilities
provided pursuant to (a) the 364-day Credit Agreement dated as of
June 14, 1993, as amended, supplemented or otherwise modified from
time to time, among the Borrower, the banks named therein, Citibank,
as administrative agent, Citibank, as agent, and NationsBank, as co-agent,
and (b) the three-year Credit Agreement dated as of June 14,
1993, as amended, supplemented or otherwise modified from time to
time, among the Borrower, the banks named therein, Citibank, as
administrative agent, Citibank, as agent, and NationsBank, as co-agent.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financial Officer" of any corporation means the chief
financial officer, principal accounting officer, treasurer,
assistant treasurer or controller of such corporation.
"Fiscal Year" means, with respect to any Person, the period
commencing on January 1 and ending on December 31 of any calendar
year.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person,
direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or
to advance or supply funds for the purchase of) any security for the
payment of such Debt, (b) to purchase property, securities or
services for the purpose of assuring the owner of such debt of the
payment of such Debt or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such
Debt; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit, in either case in the
ordinary course of business.
"Guarantor" means each of UPSCO, UPSNY and UPSO.
"Guaranty" has the meaning specified in Section 3.01(e)(ii).
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Incurrence" has the meaning specified in Section 5.02(a).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Indemnified Matters" has the meaning specified in Section
8.04(b).
"Indemnity Agreement" has the meaning specified in Section
3.01(e)(iii).
"Information Memorandum" means the information memorandum
dated April 1995 used by the Agents and the Co-Arrangers in
connection with the syndication of the Commitments.
"Initial Lender" has the meaning specified in the recital of
parties to this Agreement.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day
of the period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall
be (a) in the case of Eurodollar Rate Advances, one, two, three or
six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest
Period, select and (b) in the case of LIBO Rate Advances, a minimum
of seven days; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of (A) any Interest Period
in respect of Eurodollar Rate Advances or (B) any Interest
Period in respect of LIBO Rate Advances the durations of which
are one, two, three or six months, occurs on a day of an
initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to a Revolving Credit Advance, a
Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or
a related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars are
offered to the principal office of each of the Reference Banks in
London, England by prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing
to be outstanding during such Interest Period and for a period equal
to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
LIBO Rate for any Interest Period for each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing shall be
determined by the Administrative Agent on the basis of applicable
rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, including, without limitation, the lien or
retained security title of a conditional vendor and any easement,
right of way or other encumbrance on title to real property and, in
the case of securities, any purchase option, call or similar right
of a third party with respect to such securities.
"Loan Documents" means this Agreement, the Notes, the Guaranty
and the Indemnity Agreement.
"Loan Parties" means, collectively, the Borrower and each of
the Guarantors.
"Margin Stock" means all "margin stock" within the meaning of
Regulations G and U.
"Material Adverse Change" means any material adverse change in
the business, assets, operations, prospects or condition (financial
or otherwise) of the Borrower and its Subsidiaries, taken as a
whole. For purposes hereof, it is understood and agreed that the
occurrence of a labor dispute shall not in and of itself constitute
a Material Adverse Change.
"Material Adverse Effect" means (a) a material adverse effect
on the business, assets, operations, prospects or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken
as a whole, (b) material impairment of the ability of the Borrower
or any Material Subsidiary to perform any of its obligations under
any Loan Document to which it is or is to be a party or (c) material
impairment of the rights of or benefits available to the Lenders
under any of the Loan Documents. For purposes hereof, it is
understood and agreed that the occurrence of a labor dispute shall
not in and of itself constitute a Material Adverse Effect.
"Material Subsidiary" means any Subsidiary of the Borrower
having (a) 5% of the Consolidated Net Tangible Assets or (b) 5% of
the total revenues appearing on the most recently prepared
Consolidated income statements of the Borrower and its Subsidiaries
as of the end of the immediately preceding fiscal quarter of the
Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its
ERISA Affiliates (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"NationsBank" has the meaning specified in the recital of
parties to this Agreement.
"Non-Recourse Debt" means, with respect to any Person, Debt
for which such Person neither (a) provides credit support nor (b) is
directly or indirectly liable.
"Note" means a Revolving Credit Note or a Competitive Bid
Note, as the context may require.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"OECD" means the Organization for Economic Cooperation and
Development and any successor.
"Overseas Partners" means Overseas Partners Ltd., a Bermuda
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor.
"Permitted Person" means the UPS Managers Stock Trust, the UPS
Stock Trust, the Annie E. Casey Foundation, any retiree or present
or former employee of the Borrower or any of its Subsidiaries or
their respective present or former spouse, relatives (by
consanguinity or law), estate or heirs (or their respective spouse's
estate or heirs) or any other Person that has Beneficial Ownership
of the common stock of the Borrower on the date of this Agreement,
or any Person that is created for the benefit of any of the
foregoing after the date of this Agreement.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company
or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means any pension plan subject to the provisions of
Title IV of ERISA or Section 412 of the Internal Revenue Code that
is maintained for employees of the Borrower or any ERISA Affiliate.
"Principal Property" has the meaning specified in the
Debenture Indenture.
"Public Debt Rating" means, as of any date, the higher rating
that has been most recently announced by either S&P or Moody's, as
the case may be, for any class of non-credit enhanced long-term
senior unsecured debt issued by the Borrower. For purposes of the
foregoing, (a) if only one of S&P and Moody's shall have in effect
a Public Debt Rating, the Applicable Margin and the Applicable Fee
Percentage shall be determined by reference to the available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Fee Percentage will
be set in accordance with Level 3 under the definition of
"Applicable Margin" or "Applicable Fee Percentage", as the case may
be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin shall be based upon
the higher rating; provided, however, that if the lower of such
ratings is more than one level below the level of the higher of such
ratings, then the Applicable Margin and the Applicable Fee
Percentage shall be based upon the level immediately above the level
of the lower of such ratings; (d) if any rating established by S&P
or Moody's shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the
rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as
the case may be; provided, however, that if prior thereto the
Borrower has selected, and the Required Lenders have approved, a
rating agency to replace S&P or Moody's, as the case may be, such
selection shall be deemed to be S&P or Moody's, as the case may be,
for all purposes hereof.
"Reference Banks" means Citibank, NationsBank, The Fuji Bank,
Limited and Royal Bank of Canada, or if any such Lender assigns all
of its Commitment, the Advances owing to it and the Note or Notes
held by it pursuant to Section 8.07(a), such other Lender as may be
designated by the Required Lenders and approved by the Borrower
(such approval not to be unreasonably withheld).
"Register" has the meaning specified in Section 8.07(g).
"Regulation A", "Regulation D", "Regulation G", "Regulation
T", "Regulation U" or "Regulation X" means Regulation A, Regulation
D, Regulation G, Regulation T, Regulation U or Regulation X,
respectively, of the Board of Governors of the Federal Reserve
System, in each case as in effect from time to time, and all
official rulings and interpretations thereunder or thereof,
respectively.
"Reportable Event" means any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Internal Revenue Code).
"Required Lenders" means at any time Lenders owed at least 51%
of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least 51% of the Commitments.
"Restricted Subsidiary" has the meaning specified in the
Debenture Indenture.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a
Base Rate Advance or a Eurodollar Rate Advance (each of which shall
be a "Type" of Revolving Credit Advance), as the context may
require.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of
the Borrower to such Lender resulting from the Revolving Credit
Advances made by such Lender.
"Sale and Leaseback Transaction" has the meaning specified in
the Debenture Indenture.
"Secured Indebtedness" has the meaning specified in the
Debenture Indenture.
"S&P" means Standard & Poor's Rating Group, a division of
McGraw-Hill, Inc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which
(or in which) more than 50% of (a) the Voting Power to elect a
majority of the board of directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or
profits of such partnership or joint venture or (c) the beneficial
interest in such trust or estate is at the time owned or controlled
by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries;
provided, however, that Overseas Partners shall not be deemed to be
a Subsidiary of the Borrower.
"Termination Date" means the earlier of (a) June 12, 2000 and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Type" has the meaning specified in the definition of
"Revolving Credit Advance".
"UPSCO" means United Parcel Service Co., a Delaware
corporation and a wholly owned Subsidiary of the Borrower.
"UPSNY" means United Parcel Service, Inc., a New York
corporation and a wholly owned Subsidiary of the Borrower.
"UPSO" means United Parcel Service, Inc., an Ohio corporation
and a wholly owned Subsidiary of the Borrower.
"Voting Power" means, with respect to any Voting Stock of any
Person at any time, the number of votes entitled to vote generally
in the election of directors of such Person that are attributable to
such Voting Stock at such time divided by the number of votes
entitled to vote generally in the election of directors of such
Person that are attributable to all shares of capital stock of such
Person (including such Voting Stock) at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions)
of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(c), as such amount may
be reduced pursuant to Section 2.05 (such Lender's "Commitment"), provided
that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount of the
Competitive Bid Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be allocated among the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "Competitive Bid Reduction").
Each Revolving Credit Borrowing shall be in an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof (or,
if less, an amount equal to the remaining aggregate amount of unused
Commitments or equal to the amount by which the aggregate amount of a
proposed Competitive Bid Borrowing requested by the Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the
Lenders and accepted by the Borrower in respect of such Competitive Bid
Borrowing, if such Competitive Bid Borrowing is made on the same date as
such Revolving Credit Borrowing) and shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each
Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a)
Each Revolving Credit Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or on
the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing")
shall be by telephone, telecopier or telex, confirmed promptly in writing,
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate
amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Revolving Credit Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make
such funds available to the Borrower in same day funds at the Borrower's
Account.
(b) Anything in subsection (a) of this Section 2.02 to the
contrary notwithstanding, the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate amount of
such Revolving Credit Borrowing is less than $25,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure by the Borrower to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for
such Revolving Credit Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as
part of such Revolving Credit Borrowing when such Revolving Credit
Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Revolving Credit Borrowing
that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Revolving Credit Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such
amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's Revolving Credit Advance as part of such
Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make
its Revolving Credit Advance on the date of such Revolving Credit
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Revolving Credit Advance to be made by such other
Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings
under this Section 2.03 from time to time on any Business Day during the
period from the date hereof until the date occurring prior to the
Termination Date in the manner set forth below; provided that, following
the making of each Competitive Bid Advance, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Administrative Agent,
by telecopier or telex, confirmed promptly in writing, a notice of
a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein (A) the date of such proposed Competitive Bid
Borrowing, (B) the aggregate amount of such proposed Competitive Bid
Borrowing, (C) in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, the Interest Period for such LIBO Rate
Advances, (D) the maturity date for repayment of each Competitive
Bid Advance to be made as part of such Competitive Bid Borrowing
(which maturity date may not be earlier than the date occurring
seven days after the date of such Competitive Bid Borrowing or later
than the Termination Date and, in the case of any LIBO Rate Advance
to be made as part of such Competitive Bid Borrowing, shall be the
last day of the interest period for such LIBO Rate Advance), (E) the
interest payment date or dates relating thereto, and (F) any other
terms to be applicable to such Competitive Bid Borrowing, not later
than 10:00 A.M. (New York City time) (1) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing
that the rates of interest to be offered by the Lenders shall be
fixed rates per annum (the Advances comprising any such Competitive
Bid Borrowing being referred to herein as "Fixed Rate Advances") and
(2) at least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall instead specify in
the Notice of Competitive Bid Borrowing that the rates of interest
to be offered by the Lenders are to be based on the LIBO Rate (the
Advances comprising such Competitive Bid Borrowing being referred to
herein as "LIBO Rate Advances"). The Administrative Agent shall in
turn promptly notify each Lender of each request for a Competitive
Bid Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if in its sole discretion it elects to
do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest (including default rates
not to exceed 1% per annum above the rate per annum required to be
paid on such Competitive Bid Advance) specified by such Lender in
its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment,
if any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Administrative Agent in its capacity
as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:00 A.M.
(New York City time) on the date on which notice of such election is
to be given to the Administrative Agent by the other Lenders. If
any Lender shall elect not to make such an offer, such Lender shall
so notify the Administrative Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Administrative Agent by the other Lenders, and such Lender shall
not be obligated to, and shall not, make any Competitive Bid Advance
as part of such Competitive Bid Borrowing; provided that the failure
by any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:30 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, either:
(A) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any
Lender or Lenders pursuant to subsection (a)(ii) of this
Section 2.03, in its sole discretion, by giving notice to the
Administrative Agent of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf
of such Lender for such Competitive Bid Advance pursuant to
subsection (a)(ii) of this Section 2.03) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to subsection
(a)(ii) of this Section 2.03 by giving the Administrative
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders; provided, however, that if
the Borrower has a reasonable basis to believe that acceptance
of the offer of any such Lender has a reasonable likelihood of
subjecting the Borrower to additional costs pursuant to the
provisions of Section 2.11, 2.12 or 2.14, the Borrower may
reject the offer of such Lender and accept the offer of the
Lender offering the next lowest rate of interest. Subject to
the next preceding sentence, if two or more Lenders have
offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated among such Lenders in
proportion to the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to subsection
(a)(iii)(A) of this Section 2.03, the Administrative Agent shall
give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to subsection (a)(iii)(B) of this
Section 2.03, the Administrative Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in subsection
(a)(ii) of this Section 2.03, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or
offers made by such Lender pursuant to subsection (a)(ii) of this
Section 2.03 have been accepted by the Borrower, (B) each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt,
that the Administrative Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article
III. Each Lender that is to make a Competitive Bid Advance as part
of such Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing specified
in the notice received from the Administrative Agent pursuant to
clause (A) of the next preceding sentence or at such later date when
such Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the next preceding sentence, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same
day funds, such Lender's portion of such Competitive Bid Borrowing.
Upon fulfillment of the applicable conditions set forth in Article
III and after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower
in same day funds at the Borrower's Account. Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Competitive Bid Borrowing, the
Borrower shall be in compliance with the limitation set forth in the
proviso to the first sentence of subsection (a) of this Section 2.03.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay pursuant to subsection (d) of this Section 2.03, and
reborrow under this Section 2.03, provided that a Competitive Bid
Borrowing shall not be made within three Business Days of the date of any
other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being
that specified by the Borrower for repayment of such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) of this Section 2.03 and provided in the
Competitive Bid Note evidencing such Competitive Bid Advance), the then
unpaid principal amount of such Competitive Bid Advance. The Borrower may
prepay any principal amount of any Competitive Bid Advance, subject to the
provisions of Sections 2.10 and 8.04(c).
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive
Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive
Bid Advance specified by the Lender making such Competitive Bid Advance in
its notice with respect thereto delivered pursuant to subsection (a)(ii)
of this Section 2.03, payable on the interest payment date or dates
specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) of this Section 2.03, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default, the Borrower shall pay interest on
the amount of unpaid principal of and interest on each Competitive Bid
Advance owing to a Lender, payable in arrears on the date or dates
interest is payable thereon, at a rate per annum equal to the default rate
specified by the appropriate Lender in respect of such Competitive Bid
Advance. Upon repayment in full of each Competitive Bid Advance in
accordance with the provisions of subsection (d) of this Section 2.03 and
the terms of the Competitive Bid Note evidencing such Competitive Bid
Advance, the Lender holding such Competitive Bid Note shall cancel such
Note and return such Note to the Borrower.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the
Borrower payable to the order of the Lender making such Competitive Bid
Advance. Upon repayment in full of each Competitive Bid Advance in
accordance with the provisions of subsection (d) of this Section 2.03 and
the terms of the Competitive Bid Note evidencing such Competitive Bid
Advance, the Lender holding such Competitive Bid Note shall cancel such
Note and return such Note to the Borrower.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees
to pay to the Administrative Agent for the account of each Lender (other
than the Designated Bidders) a facility fee on the aggregate amount of
such Lender's Commitment from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date at a rate per annum equal to the
Applicable Fee Percentage, payable in arrears quarterly on the last day of
each March, June, September and December, commencing June 30, 1995, and on
the Termination Date.
(b) Agents' Fees. The Borrower shall pay to each Agent for
its own account such fees as may from time to time be agreed between the
Borrower and such Agent.
SECTION 2.05. Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least four Business Days'
notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof and provided further that the aggregate amount of the Commitments
of the Lenders shall not be reduced to an amount that is less than the
aggregate principal amount of the Competitive Bid Advances then
outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account
of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid
principal amount of each Revolving Credit Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (A) the Base Rate in effect from
time to time plus (B) the Applicable Margin in effect from time to
time, payable in arrears quarterly on the last day of each March,
June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Revolving Credit Advance plus (B) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on
(i) the unpaid principal amount of each Revolving Credit Advance owing to
each Lender, payable in arrears on the dates referred to in subsection
(a)(i) or (a)(ii) of this Section 2.07, at a rate per annum equal at all
times to 1% per annum above the rate per annum required to be paid on such
Revolving Credit Advance pursuant to subsection (a)(i) or (a)(ii) of this
Section 2.07 and (ii) the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per
annum equal at all times to 1% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to subsection (a)(i) of this
Section 2.07.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate and each
LIBO Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks, subject to the provisions of subsection
(e) of this Section 2.08. The Administrative Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of Section 2.07(a)(i)
or 2.07(a)(ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section
1.01, the Administrative Agent will forthwith so notify the Borrower and
the Lenders and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Base Rate Advances.
(c) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Revolving Credit
Borrowing shall be reduced, by payment or prepayment or otherwise, to less
than $25,000,000, such Advances shall automatically Convert into Base Rate
Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into
a Base Rate Advance and (ii) the obligations of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar
Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate Advances,
as the case may be,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligations of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances, or to Convert Revolving Credit
Advances into Eurodollar Rate Advances, shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.08, 2.12 and 8.04(c), Convert all
Revolving Credit Advances of one Type comprising the same Borrowing into
Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified
above, specify (a) the date of such Conversion, (b) the Revolving Credit
Advances to be Converted, and (c) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. Optional Prepayments of Advances. The Borrower
may, upon at least three Business Days' notice in the case of Eurodollar
Rate Advances or LIBO Rate Advances and one Business Day's notice in the
case of Base Rate Advances or Fixed Rate Advances to the Administrative
Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of such Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided,
however, that (a) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and (b) in the event of any such prepayment of a Eurodollar
Rate Advance or LIBO Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i)
the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost as measured from
the date hereof to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances, then the
Borrower shall from time to time, upon demand by such Lender (with a copy
of such demand to the Administrative Agent), promptly pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the
Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender (other than the Designated Bidders)
determines that compliance with any law or regulation or any guideline or
request from any central bank or other Governmental Authority (whether or
not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall promptly pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender or such corporation in the
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of
such Lender's commitment to lend hereunder. A certificate as to such
amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Administrative
Agent that the introduction of or any change in or in the interpretation
of any law or regulation by any governmental authority charged with such
interpretation makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, (a) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i),
as the case may be, and (b) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances, or to Convert Revolving
Credit Advances into Eurodollar Rate Advances, shall be suspended until
the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 1:00
P.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest,
facility fees or utilization fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior
to such effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent,
if and to the extent payment owed to any Lender is not made when due
hereunder or under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with the Administrative
Agent any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of facility fees shall
be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
facility fees are payable. Each determination by the Administrative Agent
of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest
or facility fees, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurodollar
Rate Advances or LIBO Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to
the Lenders hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.13, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and each Agent, taxes imposed on its net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender or such Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes
imposed on its net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes") .
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or
any Agent (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.14) such Lender or such
Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent
for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or such Agent
or any of its Affiliates (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from
the date such Lender, such Agent or such Affiliate (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof. If no Taxes are payable in respect of any
payment hereunder or under the Notes, the Borrower will furnish to the
Administrative Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the
date of the Assignment and Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to time thereafter
if requested in writing by the Borrower (but only so long as such Lender
remains lawfully able to do so), shall provide each of the Administrative
Agent and the Borrower with Internal Revenue Service form 1001 or 4224, or
(in the case of a Lender that has certified in writing to the
Administrative Agent that it is not a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code) Form W-8 (and, if such Non-U.S.
Lender delivers a Form W-8, a certificate representing that such Non-U.S.
Lender is not a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower and is
not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Internal Revenue Code)),as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States. Each such Lender
shall provide the Administrative Agent and the Borrower with a new form
1001, 4224 or W-8, as appropriate, if and at such time as the previously
provided form becomes invalid. If the form provided by a Lender at the
time such Lender first becomes a party to this Agreement or at any other
time indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from
"Taxes" as defined in Section 2.14(a).
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in subsection
(e) of this Section 2.14 (other than if such failure is due to a change in
law occurring subsequent to the date on which a form originally was
required to be provided, or if such form otherwise is not required under
the first sentence of subsection (e) of this Section 2.14), such Lender
shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.14 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Notwithstanding any contrary provisions of this
Agreement, in the event that a Lender that originally provided such form
as may be required under subsection (e) of this Section 2.14 thereafter
ceases to qualify for complete exemption from United States withholding
tax, such Lender, with the prior written consent of the Borrower, which
consent shall not be unreasonably withheld, may assign its interest under
this Agreement to any assignee and such assignee shall be entitled to the
same benefits under this Section 2.14 as the assignor provided that the
rate of United States withholding tax applicable to such assignee shall
not exceed the rate then applicable to the assignor.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.14 shall survive the payment in full of
principal and interest hereunder and under the Notes.
(i) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change
the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of the Revolving Credit
Advances owing to it (other than pursuant to Section 2.11, 2.14 or
8.04(c)) in excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the
Revolving Credit Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment
is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to
the proportion of (i) the amount of such Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Substitution of Lender. If the obligation of
any Lender to make Eurodollar Rate Advances has been suspended pursuant to
Section 2.12 or any Lender has demanded compensation or the Borrower is
otherwise required to pay additional amounts under Section 2.11, 2.13 or
2.14, the Borrower shall have the right to seek a substitute lender or
lenders who qualify as Eligible Assignees to assume, in accordance with
the provisions of Section 8.07, the Commitment of such Lender and to
purchase the Revolving Credit Advances made by such Lender (without
recourse to or warranty by such Lender).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall
become effective on and as of the first date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) The Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(b) The Borrower shall have paid all fees and other amounts
due and payable.
(c) The Borrower shall have repaid all outstanding advances
and shall have paid all other amounts payable under each of the
Existing Credit Facilities and the commitments under each such
Existing Credit Facility shall have been terminated.
(d) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the
account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date; and
(ii) no event has occurred and is continuing that
constitutes a Default.
(e) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such day, in
form and substance satisfactory to the Administrative Agent and
(except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) A guaranty, in substantially the form of Exhibit
E hereto (as amended, supplemented or otherwise modified from
time to time, the "Guaranty"), duly executed by each of the
Guarantors.
(iii) An indemnity, subrogation and contribution
agreement, in substantially the form of Exhibit F hereto (as
amended, supplemented or otherwise modified from time to time,
the "Indemnity Agreement"), duly executed by the Borrower and
each of the Guarantors.
(iv) Certified copies of the resolutions of the board
of directors of the Borrower approving this Agreement, the
Notes and the Indemnity Agreement, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Notes
and the Indemnity Agreement.
(v) Certified copies of the resolutions of the board
of directors of each of the Guarantors approving the Guaranty
and the Indemnity Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to the Guaranty and the Indemnity
Agreement.
(vi) A certificate of the Secretary or an Assistant
Secretary of each of the Guarantors certifying the names and
true signatures of the officers of such Guarantor authorized
to sign the Guaranty and the Indemnity Agreement and the other
documents to be delivered hereunder.
(vii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes and the Indemnity Agreement and the
other documents to be delivered hereunder.
(viii) A favorable opinion of Mayer, Brown & Platt,
counsel for the Borrower, substantially in the form of Exhibit
G hereto.
(ix) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit
Advance on the occasion of each Revolving Credit Borrowing shall be
subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Revolving Credit Borrowing the following
statements shall be true (and each of the giving of the applicable Notice
of Revolving Credit Borrowing and the acceptance by the Borrower of the
proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Borrowing such statements are true):
(a) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (f) thereof
and in subsection (h) thereof) are correct on and as of the date of
such Revolving Credit Borrowing, before and after giving effect to
such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default (except for breach of
the representations contained in subsection (f) and in subsection
(h) of Section 4.01).
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive
Bid Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is
subject to the conditions precedent that (a) the Administrative Agent
shall have received the written confirmatory Notice of Competitive Bid
Borrowing with respect thereto, (b) on or before the date of such
Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing,
the Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance
in accordance with Section 2.03, and (c) on the date of such Competitive
Bid Borrowing the following statements shall be true (and each of the
giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower of the proceeds of such Competitive Bid
Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Competitive Bid Borrowing such statements are
true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (f) thereof
and in subsection (h) thereof) are correct on and as of the date of
such Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default (except for breach of
the representations contained in subsection (f) and in subsection
(h) of Section 4.01).
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in
Section 3.01, each Lender shall be deemed to have consented to, approved
or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Lenders unless an officer of the Administrative Agent responsible
for the transactions contemplated by this Agreement shall have received
notice from such Lender prior to the proposed Effective Date, as notified
by the Borrower to the Lenders, specifying its objection thereto. The
Administrative Agent shall promptly notify the Borrower and the other
Lenders of the occurrence of any such objection. The Administrative Agent
shall promptly notify the Borrower and the Lenders of the Effective Date.
SECTION 3.05. Labor Dispute. Notwithstanding any condition
precedent to the contrary contained herein, a labor dispute of any sort
involving employees of the Borrower or its Subsidiaries shall not prevent
the Borrower from borrowing hereunder unless as a result thereof the
Borrower is in violation of the covenant set forth in Section 5.02(d) or
a Default exists under Section 6.01(a) or (e).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each of the Loan Parties and the Subsidiaries of the
Borrower (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the requisite power and authority to own its
property and assets and to carry on its business as now conducted,
(iii) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify
would not result in a Material Adverse Effect, (iv) in the case of
each of the Loan Parties, has the corporate power and authority to
execute, deliver and perform its obligations under each Loan
Document to which it is or is to be a party and each other agreement
or instrument contemplated thereby to which it is or is to be a
party and (v) in the case of the Borrower, has the corporate power
and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the
Loan Parties of each Loan Document to which it is or is to be a
party and the consummation of the transactions contemplated thereby
are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action and, if required,
Stockholder action, and do not (i) contravene the charter or other
constitutive documents or by-laws of such Loan Party or any
Subsidiary of the Borrower, (ii) violate any law or order of any
Governmental Authority or any provision of any indenture, agreement
or other instrument to which any Loan Party or any Subsidiary of the
Borrower is a party or by which any of them or any of their property
is or may be bound or affected, (iii) conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other
instrument or (iv) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or
hereafter acquired by any Loan Party or any Subsidiary of the
Borrower.
(c) No authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by any Loan Party of
this Agreement, the Notes or any other Loan Document to which it is
or is to be a party, or for the consummation of the transactions
contemplated hereby and thereby, except for such authorizations,
approvals, actions, notices or filings that have been made or
obtained and are in full force and effect.
(d) This Agreement has been, and each of the Notes and each
other Loan Document when delivered hereunder will have been, duly
executed and delivered by each of the Loan Parties party thereto.
This Agreement is, and each of the Notes and each other Loan
Document when delivered hereunder will be, the legal, valid and
binding obligation of each of the Loan Parties party thereto
enforceable against such Loan Party in accordance with their
respective terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights generally).
(e) (i) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at December 31, 1994, and the related
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the Fiscal Year then ended, all audited and
certified by Deloitte & Touche LLP, independent public accountants,
and (ii) the Consolidated balance sheets of each of the Guarantors
and its Subsidiaries as at December 31, 1994, and the related
Consolidated statements of income and cash flows of each of the
Guarantors and its Subsidiaries, in the form submitted by such
Guarantor to (A) in the case of UPSNY and UPSO, the Interstate
Commerce Commission and (B) in the case of UPSCO, the Department of
Transportation, in each case copies of which have been furnished to
each Lender, fairly present the Consolidated financial condition of
the Borrower and its Subsidiaries and of each of the Guarantors and
its Subsidiaries as at such dates and the Consolidated results of
the operations of the Borrower and its Subsidiaries and of each of
the Guarantors and its Subsidiaries for the periods ended on such
dates, all in accordance with GAAP consistently applied. Such
balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and its
Subsidiaries on a Consolidated basis and of each of the Guarantors
and its Subsidiaries on a Consolidated basis, respectively, as of
the dates thereof.
(f) There has been no Material Adverse Change since December
31, 1994.
(g) Each of the Borrower and its Material Subsidiaries has
good and marketable title to, or valid leasehold interests in, all
their material properties and assets, except for such properties as
are no longer used or useful in the conduct of their businesses or
as have been disposed of in the ordinary course of business and
except for minor defects in title that do not interfere with the
ability of the Borrower or any of its Material Subsidiaries to
conduct its businesses as currently conducted. All such properties
and assets are free and clear of Liens, other than Liens expressly
permitted by Section 5.02(b).
(h) Except as set forth in the financial statements referred
to in subsection (e) of this Section 4.01, there is no pending or,
to the knowledge of the Borrower, threatened action, suit,
investigation, litigation or proceeding affecting the Borrower or
any of its Material Subsidiaries or any business, property or rights
of the Borrower or any Material Subsidiary (i) as to which there is
a reasonable possibility of an adverse determination and which, if
adversely determined, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (ii)
that purports to affect the legality, validity or enforceability of
this Agreement, any Note or any other Loan Document or the
consummation of the transactions contemplated hereby or thereby.
Neither the Borrower nor any of its Subsidiaries is in violation of
any law, rule or regulation, or in default with respect to any
judgement, writ, injunction or decree of any Governmental Authority,
where such violation or default could result in a Material Adverse
Effect.
(i) Neither the Borrower nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any corporate
restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect. Neither the Borrower nor any
of its Subsidiaries is in default in any manner under any provision
of any indenture or other agreement or instrument evidencing Debt,
or any other material agreement or instrument to which it is a party
or by which it or any of its properties or assets are or may be
bound, where such default could result in a Material Adverse Effect.
(j) Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock. No part of the proceeds of any Advance will
be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or
to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such
purpose or (ii) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the Regulations of the
Board of Governors of the Federal Reserve System, including
Regulation G, T, U or X thereof.
(k) Neither the Borrower nor any of its Subsidiaries is (i)
an "investment company", as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended or (ii) a
"holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935, as amended.
(1) The Borrower will use the proceeds of the Advances only
for lawful general corporate purposes.
(m) Each of the Borrower and its Subsidiaries has filed or
caused to be filed all federal, state and local tax returns required
to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments
received by it, except taxes that are otherwise permitted in
accordance with the provisions of Section 5.01(b).
(n) No information, report, financial statement, exhibit or
schedule prepared or furnished by or on behalf of the Borrower to
the Administrative Agent, the Documentation Agent, any Co-Arranger
or any Lender in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto
contained, contains or will contain any material misstatement of
fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not
misleading.
(o) Each of the Borrower and its Subsidiaries is in
compliance in all material respects with the applicable provisions
of ERISA and the regulations and published interpretations
thereunder that are applicable to the Borrower and its Subsidiaries.
As of the date hereof, no Reportable Event has occurred as to which
the Borrower or any of its Subsidiaries was required to file a
report with the PBGC, and no material unfunded vested liabilities
exist under any Plan.
(p) Each of the Borrower and its Subsidiaries is in
substantial compliance with all applicable federal, state and local
environmental laws, regulations and ordinances governing its
business, properties or assets with respect to discharges into the
ground and surface water, emissions into the ambient air and
generation, storage, transportation and disposal of waste materials
or process by-products, except such noncompliances as are not likely
to have a Material Adverse Effect. All licenses, permits or
registrations required for the business of the Borrower and its
Subsidiaries under any federal, state or local environmental laws,
regulations or ordinances have been secured, and the Borrower and
each Subsidiary are in substantial compliance therewith, except such
licenses, permits or registrations the failure to secure or to
comply therewith are not likely to have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, and will cause each of its Material Subsidiaries to, unless
the Required Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply with all applicable
laws, rules, regulations and orders of any Governmental Authority,
whether now in effect or hereafter enacted, such compliance to
include, without limitation, compliance with ERISA and applicable
environmental laws, except for such noncompliance as would not
result in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge promptly when
due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as
well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings
or where the failure to pay such tax, assessment, charge, levy or
claim would not (i) result in a Material Adverse Effect or
(ii) result in the imposition of any lien securing a material amount
in favor of any party entitling such party to priority of payment
over the Lenders, and the Borrower or such Subsidiary shall, to the
extent required by generally accepted accounting principles applied
on a consistent basis, have set aside on its books adequate reserves
with respect thereto.
(c) Maintenance of Insurance. (i) Keep its insurable
properties adequately insured at all times by financially sound and
reputable insurers, (ii) maintain such other insurance, to such
extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies
in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by the Borrower or any
of its Subsidiaries, in such amount as the Borrower or such
Subsidiary shall reasonably deem necessary and (iii) maintain such
other insurance as may be required by law or as may be reasonably
requested by the Lenders for purposes of assuring compliance with
this Section 5.01(c) (it being understood that the Borrower may
self-insure against certain risks to the extent customary with
companies similarly situated and in the same or similar lines of
business).
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause its Subsidiaries to preserve and maintain, its
corporate existence; obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks and tradename
material to the conduct of its business (unless the failure to so
preserve or renew would not result in a Material Adverse Effect);
and maintain and operate, and cause its Subsidiaries to maintain and
operate, its businesses in materially the same manner in which they
are currently conducted and operated; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(e).
(e) Visitation Rights. At any reasonable time and from time
to time, upon ten Business Days' prior notice, permit the
Administrative Agent or any Lender (other than a Designated Bidder)
or any agents or representatives thereof, to examine and make copies
of and abstracts from the records and books of account of, and visit
the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any
of its Subsidiaries (i) with any of their officers and (ii) with
their independent certified public accountants, in the presence of
one or more officers of the Borrower if so requested by the Borrower
(it being understood that information obtained by the Lenders
pursuant to this Section 5.01(e) shall be kept confidential except
to the extent that any such information becomes public or is
required to be disclosed by law or requested to be disclosed by any
Governmental Authority).
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve
all of its properties material to the conduct of its business in
good repair, working order and condition, ordinary wear and tear
excepted, and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on
in connection therewith may be properly conducted at all times.
(h) Reporting Requirements. In the case of the Borrower,
furnish to each Agent and each Lender (other than a Designated
Bidder):
(i) within 120 days after the end of each Fiscal Year
of the Borrower, (A) Consolidated balance sheets of the
Borrower showing the financial condition of the Borrower as of
the close of such Fiscal Year and the related statements of
Consolidated income and statements of Consolidated cash flow
as of and for such Fiscal Year, all such Consolidated
financial statements of the Borrower to be reported on by
Deloitte & Touche or other independent accountants acceptable
to the Required Lenders, and to be in form reasonably
acceptable to the Required Lenders and (B) Consolidated
balance sheets of each Guarantor showing the financial
condition of such Guarantor as of the close of such Fiscal
Year and the related statements of Consolidated income and
statements of Consolidated cash flow as of and for such Fiscal
Year, all such Consolidated financial statements of such
Guarantor to be in form reasonably acceptable to the Required
Lenders and to be either (1) in the form submitted by such
Guarantor to (I) in the case of UPSNY and UPSO, the Interstate
Commerce Commission and (II) in the case of UPSCO, the
Department of Transportation or (2) unaudited and certified by
a Financial Officer of such Guarantor as presenting fairly the
financial position of such Guarantor on a Consolidated basis
and as having been prepared in accordance with GAAP;
(ii) within 60 days after the end of the first three
fiscal quarters of each Fiscal Year, unaudited Consolidated
balance sheets and statements of Consolidated income and
statements of Consolidated cash flow showing the financial
condition and results of operations of the Borrower as of the
end of each such quarter and, with respect to statements of
Consolidated cash flow, for the then-elapsed portion of the
Fiscal Year, certified by a Financial Officer of the Borrower
as presenting fairly the financial position and results of
operations of the Borrower on a Consolidated basis and as
having been prepared in accordance with GAAP, in each case
subject to normal year-end audit adjustments;
(iii) promptly after the same become publicly available,
copies of (A) such annual, periodic and other reports, and
such proxy statements and other information as shall be filed
by the Borrower or any Material Subsidiary with the Securities
and Exchange Commission pursuant to the requirements of the
Exchange Act and (B) such registration statements filed by the
Borrower or any Material Subsidiary pursuant to the
requirements of Securities Act of 1933, as amended, other than
any such registration statements filed on Form S-8 or any
comparable form;
(iv) concurrently with subsections (h)(i) and (h)(ii)
of this Section 5.01, a certificate of a Financial Officer of
the Borrower stating compliance, as of the dates of the
financial statements being furnished at such time, with the
covenants set forth in Sections 5.02(a) and (d);
(v) concurrently with subsections (h)(i) and (h)(ii)
of this Section 5.01, a certificate of the Person referred to
therein (which certificate furnished by the independent
accountants referred to in subsection (h)(i) of this Section
5.01 may be limited to accounting matters and disclaim
responsibility for legal interpretations) certifying that to
the best of his, her or its knowledge no Default or Event of
Default has occurred and, in the case of a certificate of a
Financial Officer of the Borrower, if such a Default or Event
of Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be
taken with respect thereto;
(vi) prompt written notice of any Default, specifying
the nature and extent thereof and any corrective action taken
or proposed to be taken with respect thereto;
(vii) prompt written notice of the filing or
commencement of, or any threat or notice of intention of any
Person to file or commence, any action, suit, arbitration
proceeding or other proceeding, whether at law or in equity or
by or before any Governmental Authority, against the Borrower
or any Subsidiary thereof that, if adversely determined, could
result in a Material Adverse Effect;
(viii) prompt written notice of any development in
the business or affairs of the Borrower or any of its
Subsidiaries that has resulted in or which is likely, in the
reasonable judgment of the Borrower, to result in a Material
Adverse Effect (it being understood that material provided to
any Agent or Lender pursuant to this subsection (h)(viii) of
this Section 5.01 shall be kept confidential except to the
extent that any such material becomes public or is required to
be disclosed by law or requested to be disclosed by any
Governmental Authority having jurisdiction over such Agent or
Lender);
(ix) prompt written notice of the issuance by any
Governmental Authority of any injunction, order, decision or
other restraint prohibiting, or having the effect of
prohibiting, the making of the Advances or the initiation of
any litigation or similar proceedings seeking any such
injunction, order or other restraint;
(x) prompt written notice of any Change of Control;
(xi) prompt written notice of any change in the
identity of the Principal Properties from those set forth on
the schedule to be delivered pursuant to Section 5.01(j) after
the date such schedule is delivered to the Administrative
Agent and each Lender; and
(xii) prompt written notice of any change in the
identity of the Restricted Subsidiaries from those set forth
on the schedule to be delivered pursuant to Section 5.01(j)
after the date such schedule is delivered to the
Administrative Agent and each Lender.
(i) Compliance with ERISA. Comply in all material respects
with the applicable provisions of ERISA and furnish to the
Administrative Agent, the Documentation Agent and each Lender (other
than a Designated Bidder) (i) as soon as possible, and in any event
within 30 days after any Financial Officer of the Borrower knows or
has reason to know that any Reportable Event has occurred that alone
or together with any other Reportable Event with respect to the same
or another Plan could reasonably be expected to result in liability
of the Borrower or any Subsidiary to the PBGC in an aggregate amount
exceeding $1,000,000, a statement of a Financial Officer setting
forth details as to such Reportable Event and the action proposed to
be taken with respect thereto, together with a copy of the notice,
if any, of such Reportable Event given to the PBGC and (ii) promptly
after receipt thereof, a copy of any notice the Borrower or any
Subsidiary may receive from the PBGC relating to the intention of
the PBGC to terminate any Plan or Plans or to appoint a trustee to
administer any Plan or Plans.
(j) Principal Properties; Restricted Subsidiaries. Promptly
deliver to the Administrative Agent and each Lender (other than a
Designated Bidder) on the date on which the Borrower's Public Debt
Rating is lower than S&P AA- or Moody's AA3, a schedule setting
forth each Principal Property and each Restricted Subsidiary as of
such date.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not, and will not permit any of its Subsidiaries to, without
the written consent of the Required Lenders:
(a) Secured Indebtedness. In the case of the Borrower and
each of its Restricted Subsidiaries, create, assume, incur or
guarantee, or permit any Restricted Subsidiary to create, assume,
incur or guarantee (each such creation, assumption, incurrence or
guarantee being an "Incurrence"), any Secured Indebtedness without
making provision whereby all amounts outstanding under this
Agreement and each other Loan Document shall be secured equally and
ratably with (or prior to) such Secured Indebtedness (together with,
if the Borrower shall so determine, any other Debt of the Borrower
or such Restricted Subsidiary then existing or thereafter created
that is not subordinate to such amounts outstanding under this
Agreement and the other Loan Documents) so long as such Secured
Indebtedness shall be outstanding, unless such Secured Indebtedness,
when added to (i) the aggregate amount of all Secured Indebtedness
then outstanding (not including in this computation (A) any Secured
Indebtedness if all amounts outstanding under this Agreement and
each other Loan Document are secured equally and ratably with (or
prior to) such Secured Indebtedness and (B) any Secured Indebtedness
that is concurrently being retired) and (ii) the aggregate amount of
all Attributable Debt then outstanding pursuant to Sale and
Leaseback Transactions entered into by the Borrower after December
1, 1989, or entered into by any Restricted Subsidiary after December
1, 1989, or, if later, the date on which such Subsidiary became a
Restricted Subsidiary (not including in this computation any
Attributable Debt that is currently being retired) would not exceed
10% of Consolidated Net Tangible Assets at the time of such
Incurrence.
(b) Liens, Etc. In the case of the Borrower and each of the
Restricted Subsidiaries, create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other
securities of any Person, including any Subsidiary) now owned or
hereafter acquired, or assign or convey any rights to or security
interests in any future revenue, except:
(i) Liens on property or assets of the Borrower and
its Subsidiaries existing on the date hereof and (A) disclosed
in the financial statements referred to in Section 4.01(e) or
(B) securing Debt in an aggregate principal amount not in
excess of $50,000,000; provided that such Liens shall secure
only those obligations which they secure on the date hereof;
(ii) any Lien existing on any property or asset prior
to the acquisition thereof by the Borrower or any Subsidiary;
provided that (A) such Lien is not created in contemplation of
or in connection with such acquisition and (B) such Lien does
not apply to any other property or assets of the Borrower or
any Subsidiary;
(iii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business and securing obligations that are
not due or which are otherwise allowed in accordance with the
provisions of Section 5.01(b);
(iv) pledges and deposits made in the ordinary course
of business in compliance with workmen's compensation,
unemployment insurance and other social security laws or
regulations;
(v) deposits to secure the performance of bids, trade
contracts (other than for Debt), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(vi) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business that,
in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(vii) Liens upon any property acquired, constructed or
improved by the Borrower or any Subsidiary that are created or
incurred contemporaneously with acquisition, construction or
improvement to secure or provide for the payment of any part
of the purchase price of such property or the cost of such
construction or improvement (but no other amounts); provided
that any such Lien shall not apply to any other property of
the Borrower or any Subsidiary;
(viii) Liens securing the payment of taxes,
assessments and governmental charges or levies, either (A) not
delinquent or (B) permitted in accordance with Section
5.01(b);
(ix) Liens on the property or assets of any Subsidiary
in favor of the Borrower or another Subsidiary;
(x) extensions, renewals and replacements of Liens
referred to in subsections (b)(i) through (b)(ix) of this
Section 5.02; provided that any such extension, renewal or
replacement Lien shall be limited to the property or assets
covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the
amount of the obligations secured by the Lien extended,
renewed or replaced;
(xi) Liens in connection with Debt permitted to be
incurred pursuant to subsections (a) and (c) of this Section
5.02;
(xii) Liens in connection with Debt incurred in the
ordinary course of business in connection with workmen's
compensation, unemployment insurance and other social security
laws or regulations;
(xiii) any attachment or judgment Lien not in
excess of $50,000,000 unless (A) enforcement proceedings shall
have been commenced by any creditor upon such attachment or
judgment or (B) there shall be any period of 45 consecutive
days during which a stay of enforcement of such attachment or
judgment, by reason of a pending appeal or otherwise, shall
not be in effect;
(xiv) other Liens securing Debt in an aggregate
principal amount not to exceed 1% of Consolidated Net Worth at
any time outstanding; and
(xv) Liens arising in connection with rights of setoff
that commercial banks and other financial institutions obtain
against monies, securities or other properties of the Borrower
and its Restricted Subsidiaries in possession of or on deposit
with such banks or financial institutions, whether in general
or special deposit accounts or held for safekeeping,
transmission, collection or otherwise; and
(xvi) Liens on aircraft, airframes or aircraft engines,
aeronautic equipment or computers and electronic data
processing equipment.
(c) Sale and Lease-Back Transactions. In the case of the
Borrower and its Restricted Subsidiaries, enter into any Sale and
Leaseback Transaction unless at such time it would be permitted to
enter into such Sale and Leaseback Transaction pursuant to Section
1006 of the Debenture Indenture.
(d) Consolidated Net Worth. In the case of the Borrower,
permit its Consolidated Net Worth at any time to be less than $3.0
billion; provided, however, that the Borrower shall be permitted to
have a Consolidated Net Worth of not less than $2.5 billion for a
single period during the term of this Agreement of not more than 12
months' duration.
(e) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) to, any
Person, or permit another Person to merge into it, or acquire all or
substantially all of the assets of any other Person, except that (i)
any Subsidiary of the Borrower may merge into the Borrower or any
other Subsidiary of the Borrower, (ii) the Borrower or any
Subsidiary of the Borrower may merge or consolidate with or into any
other Person so long as the Borrower or such Subsidiary is the
surviving corporation, and (iii) the Borrower and any of its
Subsidiaries may acquire all or substantially all of the assets of
another Person; provided that any Subsidiary that is not a Guarantor
may not acquire all or substantially all of the assets of a
Guarantor unless such Subsidiary duly executes a guaranty in favor
of the Lenders in substantially the form of Exhibit E hereto; and
provided further, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would
result therefrom.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any
Advance when the same becomes due and payable or (ii) any interest
on any Advance or any other amount payable under this Agreement or
any Note when the same becomes due and payable and such failure to
pay such interest or such other amount shall remain unremedied for
five days; or
(b) any representation or warranty made or deemed made by
any Loan Party (or any of its officers) in or in connection with any
Loan Document or any Borrowing under this Agreement, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall
prove to have been incorrect in any material respect when made or
deemed made; or
(c) the Borrower or any of its Subsidiaries shall fail to
perform or observe (i) any term, covenant or agreement contained in
subsection (a), (d), (e), (f), (g) or (h) (other than subsection
(h)(i) through (h)(v)) of Section 5.01 or Section 5.02 or (ii) any
other term, covenant or agreement contained in any Loan Document on
its part to be performed or observed if such failure to perform such
other term, covenant or agreement shall remain unremedied for 30
days after written notice thereof shall have been given to the
Borrower or such Subsidiary, as the case may be, by the
Administrative Agent; or
(d) the Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal amount of at least $100,000,000 in the
aggregate (but excluding Debt evidenced by the Notes) of the
Borrower or such Subsidiary (as the case may be), when the same
becomes due and payable (whether at maturity, by acceleration or
otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
event or condition is to accelerate (with or without notice or lapse
of time or both), or to permit the acceleration (with or without
notice or lapse of time or both) of, the maturity of such Debt; or
(e) the Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Borrower or any of its Material Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) any final judgment or order for the payment of money in
excess of $50,000,000 in the aggregate shall be rendered against the
Borrower or any of its Subsidiaries or any combination thereof and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any
period of 45 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(g) any Change of Control shall have occurred; or
(h) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(1) of the Internal Revenue Code), shall have occurred
with respect to any Plan or Plans that reasonably could be expected
to result in liability of the Borrower or any Subsidiary to the PBGC
or to a Plan in an aggregate amount exceeding $25,000,000 and,
within 30 days after the reporting of any such Reportable Event or
Reportable Events to the Administrative Agent, the Administrative
Agent shall have notified the Borrower, in writing that (i) the
Required Lenders have made a determination that, on the basis of
such Reportable Event or Reportable Events or the failure to make a
required payment, there are reasonable grounds (A) for the
termination of such Plan or Plans by the PBGC or (B) for the
appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans and (ii) as a result
thereof, an Event of Default exists hereunder; or the PBGC shall
have instituted proceedings to terminate any Plan or Plans with
vested unfunded liabilities aggregating in excess of $25,000,000; or
a trustee shall be appointed by a United States District Court to
administer any such Plan or Plans and the Borrower is being
requested to make a payment with respect to vested unfunded
liabilities aggregating in excess of $25,000,000; or
(i) (i) any senior debt securities of the Borrower shall
become rated BBB- (or the equivalent thereof) or lower by S&P or
Baa3 (or the equivalent thereof) or lower by Moody's and such
ratings shall remain in effect for a period of 90 days (it being
understood that if either S&P or Moody's (but not both such rating
agencies) shall cease to rate the senior debt securities of the
Borrower, then the occurrence of the event described in this
subsection (i)(i) shall be determined solely by reference to the
rating assigned to the senior debt securities of the Borrower by the
rating agency continuing to rate such securities) or (ii) the senior
debt securities of the Borrower shall cease to be rated by both S&P
and Moody's; or
(j) this Agreement, the Guaranty or any other Loan Document
shall for any reason cease to be, or shall be asserted by the
Borrower, any Guarantor or any other Subsidiary of the Borrower not
to be, a legal, valid and binding obligation of any party thereto
(other than the Administrative Agent or any Lender), enforceable in
accordance with its terms, except as otherwise permitted by Section
5.02(e);
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual
or deemed entry of an order for relief with respect to the Borrower or any
of its Subsidiaries under the Federal Bankruptcy Code, (A) the obligation
of each Lender to make Advances shall automatically be terminated and (B)
the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes (a) the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto, and (b) the Documentation Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Documentation Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes),
the Administrative Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon
the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that
the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary
to this Agreement or applicable law. The Administrative Agent agrees to
give to each Lender prompt notice of each notice given to it by the
Borrower or any of its Subsidiaries pursuant to the terms of this
Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent or the Documentation Agent nor any of its
respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent and the Documentation Agent: (i)
may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii)
may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts;
(iii) make no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or any of its
Subsidiaries or to inspect the property (including the books and records)
of the Borrower or any of its Subsidiaries; (v) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by
telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank, NationsBank and Their Affiliates.
With respect to its Commitment, the Advances made by it and the Note
issued to it, each of Citibank and NationsBank shall have the same rights
and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Administrative Agent or the Documentation
Agent, respectively; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include each of Citibank and NationsBank in
its individual capacity. Citibank, NationsBank and their Affiliates may
accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if Citibank, NationsBank and their Affiliates were
not the Administrative Agent or the Documentation Agent, respectively, and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Administrative Agent
or any other Lender 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 this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify each of the Administrative Agent,
the Documentation Agent and their respective Affiliates (to the extent not
reimbursed by the Borrower), ratably according to the respective principal
amounts of the Revolving Credit Notes then held by each of them (or if no
Revolving Credit Notes are at the time outstanding or if any Revolving
Credit Notes are held by Persons that are not Lenders, ratably according
to the respective amounts of their Commitments), from and against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent, the Documentation Agent or such Affiliate in any way
relating to or arising out of this Agreement or any action taken or
omitted by the Administrative Agent or the Documentation Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's, the Documentation Agent's or such Affiliate's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender
(other than the Designated Bidders) agrees to reimburse the Administrative
Agent, the Documentation Agent and their respective Affiliates promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees and disbursements) incurred by the Administrative Agent, the
Documentation Agent or such Affiliate in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that the Administrative Agent, the Documentation
Agent or such Affiliate is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Agents. The Administrative Agent or
the Documentation Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower and may be removed at any time
with or without cause by the Required Lenders. Upon any such resignation
or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent or Documentation Agent, as the case may be,
with the approval of the Borrower, such approval not to be unreasonably
withheld. If no successor Administrative Agent or Documentation Agent, as
the case may be, shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's or Documentation Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring
Administrative Agent or Documentation Agent, then the retiring
Administrative Agent or Documentation Agent may, on behalf of the Lenders,
with the approval of the Borrower, such approval not to be unreasonably
withheld, appoint a successor Administrative Agent or Documentation Agent,
as the case may be, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent or Documentation
Agent hereunder by a successor Administrative Agent or Documentation
Agent, as the case may be, such successor Administrative Agent or
Documentation Agent shall thereupon succeed to and become vested with all
the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent or Documentation Agent, and the retiring
Administrative Agent or Documentation Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring
Administrative Agent's or Documentation Agent's resignation or removal
hereunder as Administrative Agent or Documentation Agent, the provisions
of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent or
Documentation Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to
any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed
by all the Lenders (other than the Designated Bidders), do any of the
following: (a) waive any of the conditions specified in Section 3.01,
3.02 or 3.03, (b) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (c) reduce the principal of, or
interest on, the Revolving Credit Notes or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any fees or
other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving
Credit Notes, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder, (f) except as
permitted in accordance with Section 5.02(e), release any Guarantor under
the Guaranty or (g) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Documentation Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent or Documentation Agent, as the case may be, under
this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at
55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, Attention: Financial
Resources Department (telecopier number (404) 828-6562); if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a
Lender; if to the Administrative Agent, to it c/o Citicorp N.A., Inc., 400
Perimeter Center Terraces North, Suite 600, Atlanta, Georgia 30346,
Attention: Bruce Simmons (telecopier number (404) 668-8137); and if to the
Documentation Agent, at its address at 600 Peachtree Street, N.E., 21st
Floor, Atlanta, Georgia 30308-2213, Attention: James S. Scully (telecopier
number (404) 607-6467); or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to
the Borrower and the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, respectively, except
that notices and communications to the Administrative Agent pursuant to
Article II, III or VII shall not be effective until received by the
Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender, the Administrative Agent or the Documentation Agent to
exercise, and no delay in exercising, any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay on demand all costs and expenses of the Administrative Agent and
Citicorp Securities in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement,
the Notes, each other Loan Document and the other documents to be
delivered hereunder, including, without limitation, (i) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit
expenses and (ii) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Administrative Agent, the Documentation Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees
and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the
Notes, each other Loan Document and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Administrative Agent, the Documentation Agent and each
Lender in connection with the enforcement of rights under this Section
8.04(a).
(b) The Borrower agrees to defend, protect, indemnify and
hold harmless the Administrative Agent, the Documentation Agent, each
Co-Arranger, each Lender, each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party")
from and against any and all liabilities, obligations, losses (other than
loss of profits), damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever
(excluding any taxes and including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnified Party in connection
with any investigative, administrative or judicial proceeding, whether or
not such Indemnified Party shall be designated a party thereto), imposed
on, incurred by, or asserted against such Indemnified Party in any manner
relating to or arising out of this Agreement, the Notes, the other Loan
Documents, any of the transactions contemplated hereby or thereby, the
Commitments, the use of proceeds, or any act, event or transaction related
or attendant thereto (collectively, the "Indemnified Matters"); provided,
however, the Borrower shall have no obligation to an Indemnified Party
hereunder with respect to Indemnified Matters directly caused by or
directly resulting from the willful misconduct or gross negligence of such
Indemnified Party, as determined by a court of competent jurisdiction.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or
for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant
to Section 2.08(c) or (d), 2.10 or 2.12, acceleration of the maturity of
the Notes pursuant to Section 6.01 or for any other reason, or by an
Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and obligations under
this Agreement pursuant to Section 8.07 as a result of a demand by the
Borrower pursuant to Section 8.07(a), the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to
authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, but excluding
any accounts designated as collateral accounts securing other Debt) at any
time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under
this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly
to notify the Borrower after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender and its Affiliates
under this Section 8.05 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) that such Lender
and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in
Sections 3.01 and 3.03) when it shall have been executed by the Borrower,
the Administrative Agent and the Documentation Agent and when the
Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Administrative Agent, the
Documentation Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent
of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may, with the consent of
the Borrower, such consent not to be unreasonably withheld or delayed, and
shall, so long as no Default has occurred and is continuing and if
demanded by the Borrower (pursuant to the provisions of Section 2.16 upon
at least five Business Days' notice to such Lender and the Administrative
Agent, assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided, however, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it or Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment
of all of a Lender's rights and obligations under this Agreement,
the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower, shall be to an Eligible Assignee acceptable to the
Administrative Agent (which acceptance shall not be unreasonably
withheld) and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the
assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment
as a result of a demand by the Borrower pursuant to this Section
8.07(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees
in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this
Agreement, and
(vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, (A) the
assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (B) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows:
(i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection
with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto;
(ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under this Agreement, any other
Loan Document or any other instrument or document furnished pursuant
hereto or thereto;
(iii) such assignee confirms that it has received a copy of
this Agreement and each other Loan Document, together with copies of
the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance;
(iv) such assignee will, independently and without reliance
upon the Administrative Agent, the Documentation Agent, such
assigning Lender or any other Lender 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
this Agreement or any other Loan Document;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes (A) the
Administrative Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and each
other Loan Document as are delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto and (B) the
Documentation Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and each
other Loan Document as are delegated to the Documentation Agent by
the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement and each other Loan Document are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes
subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto and has been consented to by the Borrower, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the Borrower. Within five Business Days after its receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Revolving Credit Note
a new Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment hereunder, a new
Revolving Credit Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Revolving
Credit Note or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Revolving Credit Note
or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1
hereto.
(d) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than five
such designations, (ii) each such Lender making one or more of such
designations shall retain the right to make Competitive Bid Advances as a
Lender pursuant to Section 2.03, (iii) each such designation shall be to
a Designated Bidder and (iv) the parties to each such designation shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, a Designation Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in each Designation Agreement, the designee thereunder shall be
a party hereto with a right to make Competitive Bid Advances as a Lender
pursuant to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder
confirm and agree with each other and the other parties hereto as follows:
(i) such Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with this Agreement or
any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto;
(ii) such Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
any Loan Party or the performance or observance by any Loan Party of
any of its obligations under this Agreement or any other Loan
Document or any other instrument or document furnished pursuant
hereto or thereto;
(iii) such designee confirms that it has received a copy of
this Agreement and each other Loan Document, together with copies of
the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Designation
Agreement;
(iv) such designee will, independently and without reliance
upon the Administrative Agent, the Documentation Agent, such
designating Lender or any other Lender 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 this Agreement or any other Loan Document;
(v) such designee confirms that it is a Designated Bidder;
(vi) such designee appoints and authorizes (A) the
Administrative Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and each
other Loan Document as are delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto and (B) the
Documentation Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and each
other Loan Document as are delegated to the Documentation Agent by
the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and
(vii) such designee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement and each other Loan Document are required to be performed
by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by
a designating Lender and a designee representing that it is a Designated
Bidder, the Administrative Agent shall, if such Designation Agreement has
been completed and is substantially in the form of Exhibit D hereto, (i)
accept such Designation Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and
each Designation Agreement delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and, with
respect to Lenders (other than Designated Bidders), the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent, the Documentation Agent and the Lenders shall treat
only the Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement and each other Loan Document.
The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall be considered to act as the agent
of the Borrower in connection with its duties in respect of the Register.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of
its Commitment, the Advances owing to it and the Note or Notes held by
it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Administrative
Agent, the Documentation Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents
and (v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of this Agreement, any
Note or any other Loan Document, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee,
designee or participant or proposed assignee, designee or participant, any
information relating to any Loan Party furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the
assignee, designee or participant or proposed assignee, designee or
participant shall agree to preserve the confidentiality of any
Confidential Information relating to any Loan Party received by it from
such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A.
SECTION 8.08. Confidentiality. None of the Administrative
Agent, the Documentation Agent, or any Lender shall disclose any
Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Administrative Agent's, the Documentation
Agent's, or such Lender's Affiliates and their officers, directors,
employees, agents, advisors, auditors and accountants and to actual or
prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process,
(c) to any rating agency when required by it, provided that, prior to any
such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender and (d) as requested or required by any
state, federal or foreign authority or examiner regulating banks or
banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document to
which it is a party, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably <PAGE>
and unconditionally agrees
that all claims in respect of any such action
or proceeding may be heard and determined in any such New York State or,
to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing
in this Agreement shall affect any right that any party may otherwise have
to bring any action or proceeding relating to this Agreement or any other
Loan Document to which it is a party in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document to which it is a
party in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
UNITED PARCEL SERVICE OF
AMERICA, INC., as Borrower
By
Title:
CITIBANK, N.A., as
Administrative Agent
By
Title:
NATIONSBANK OF GEORGIA, N.A.,
as Documentation Agent
By
Title:
CITICORP SECURITIES, INC., as
Co-Arranger
By
Title:
NATIONSBANC CAPITAL MARKETS,
INC., as Co-Arranger
By
Title:
Commitment Initial Lenders
$112,500,000 CITIBANK, N.A.
By
Title:
$100,000,000 NATIONSBANK OF GEORGIA,
N.A.
By
Title:
$ 87,500,000 CHEMICAL BANK
By
Title:
$ 87,500,000 CREDIT SUISSE
By
Title:
By
Title:
$ 87,500,000 PNC BANK, NATIONAL
ASSOCIATION
By
Title:
$ 87,500,000 ROYAL BANK OF CANADA
By
Title:
$ 87,500,000 BANK OF AMERICA ILLINOIS
By
Title:
$ 75,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE
By
Title:
$ 75,000,000 WACHOVIA BANK OF GEORGIA,
N.A.
By
Title:
$ 75,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
Title:
$ 62,500,000 BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By
Title:
By
Title:
$ 62,500,000 THE FUJI BANK, LIMITED
By
Title:
$ 50,000,000 FIRST UNION NATIONAL BANK
OF GEORGIA, N.A.
By
Title:
$ 50,000,000 TRUST COMPANY BANK
By
Title:
By
Title:
$ 50,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By
Title:
$ 50,000,000 THE SANWA BANK, LIMITED
By
Title:
$ 25,000,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By
Title:
$25,000,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
Title:
$1,250,000,000 TOTAL OF THE COMMITMENTS<PAGE>
SCHEDULE I TO THE
CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender: BANK OF AMERICA ILLINOIS
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
555 S. Flower Street, 11th Floor 555 S. Flower Street, 11th Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Timothy C. Hintz, Attn: Timothy C. Hintz,
V.P., Credit Products V.P., Credit Products
LA II #5618 LA II #5618
Phone: (213) 228-2810 Phone: (213) 228-2810
Fax: (213) 228-2756 Fax: (213) 228-2756
Operations: Operations:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Josie Nahoe, Attn: Josie Nahoe,
Account Administration, #5693 Account Aministration, #5693
Phone: (510) 675-7156 Phone: (510) 675-7156
Fax: (510) 675-7531/32 Fax: (510) 675-7531/32
Competitive Bid Matters: Competitive Bid Matters:
555 California Street, 10th Floor 555 California Street, 10th Floor
San Francisco, CA 94104 San Francisco, CA 94104
Attn: Carolyn Alberts Attn: Carolyn Alberts
Phone: (415) 622-2020 Phone: (415) 622-2020
Fax: (415) 622-2235 Fax: (415) 622-2235
<PAGE>
Name of Initial Lender: BANQUE NATIONALE DE PARIS, NEW YORK BRANCH
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Nuala Marley Attn: Nuala Marley
Phone: (212) 415-5726 Phone: (212) 415-5726
Fax: (212) 415-9695 Fax: (212) 415-9695
Operations: Operations:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Charmaine Robinson Attn: Charmaine Robinson
Phone: (212) 415-9785 Phone: (212) 415-9785
Fax: (212) 415-9695 Fax: (212) 415-9695
Competitive Bid Matters: Competitive Bid Matters:
499 Park Avenue, 2nd Floor 499 Park Avenue, 2nd Floor
New York, New York 10022 New York, New York 10022
Attn: Charmaine Robinson Attn: Charmaine Robinson
Phone: (212) 415-9785 Phone: (212) 415-9785
Fax: (212) 415-9695 Fax: (212) 415-9695
<PAGE>
Name of Initial Lender: THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Ian M. Fowler Attn: Ian M. Fowler
Phone: (314) 466-7061 Phone: (314) 466-7061
Fax: (314) 466-6499 Fax: (314) 466-6499
Operations: Operations:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Wanda Bailey Attn: Wanda Bailey
Phone: (314) 466-6757 Phone: (314) 466-6757
Fax: (314) 466-6499 Fax: (314) 466-6499
Competitive Bid Matters: Competitive Bid Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Ian M. Fowler Attn: Ian M. Fowler
Phone: (314) 466-7061 Phone: (314) 466-7061
Fax: (314) 466-6499 Fax: (314) 466-6499
<PAGE>
Name of Initial Lender: CANADIAN IMPERIAL BANK OF COMMERCE
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Two Paces West Two Paces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (404) 319-4907 Phone: (404) 319-4907
Fax: (404) 319-4954 Fax: (404) 319-4954
Operations: Operations:
Two Paces West Two Pces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Pluria Howell Attn: Pluria Howell
Phone: (404) 319-4814 Phone: (404) 319-4814
Fax: (404) 319-4950/1 Fax: (404) 319-4950/1
Competitive Bid Matters: Competitive Bid Matters:
Two Paces West Two Paces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (404) 319-4907 Phone: (404) 319-4907
Fax: (404) 319-4954 Fax: (404) 319-4954
Other Administrative Matters:
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attn: Miriam McCart
Phone: (404) 319-4842
Fax: (404) 319-4950/1
<PAGE>
Name of Initial Lender: CHEMICAL BANK
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Julie S. Long Attn: Julie S. Long
Phone: (212) 270-1053 Phone: (212) 270-1053
Fax: (212) 972-9854 Fax: (212) 972-9854
Operations: Operations:
270 Park Avenue 270 Park Avenue
8th Floor 8th Floor
New York, NY 10017 New York, NY 10017
Attn: Carmen Fulton Attn: Carmen Fulton
Phone: (212) 270-6745 Phone: (212) 270-6745
Fax: (212) 270-8317 Fax: (212) 270-8317
Competitive Bid Matters: Competitive Bid Matters:
270 Park Avenue 270 Park Avenue
8th Floor 8th Floor
New York, NY 10017 New York, NY 10017
Attn: Russel Gmuca Attn: Russel Gmuca
Phone: (212) 834-3462 Phone: (212) 834-3462
Fax: (212) 834-6521 Fax: (212) 834-6521 <PAGE>
Name of Initial Lender: CITIBANK, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
400 Perimter Center Terrace 400Perimeter Center Terrace
Suite 600 Suite 600
Atlanta, GA 30346 Atlanta, GA 30346
Attn: Bruce Simmons Attn: Bruce Simmons
Phone: (404) 668-8108 Phone: (404) 668-8108
Fax: (404) 668-8137 Fax: (404) 668-8137
Operations: Operations:
1 Court Square, 7th Floor 1 Court Square, 7th Floor
Long Island City, NY 11120 Long Island City, NY 11120
Attn: Brigitte Milian, Loan Administrator Attn: Brigitte Milian, Loan
Administrator
Phone: (718) 248-4478 Phone: (718) 248-4478
Fax: (718) 248-4844 Fax: (718) 248-4844
Competitive Bid Matters: Competitive Bid Matters:
1 Court Square, 7th Floor 1 Court Square, 7th Floor
Long Island City, NY 11120 Long Island City, NY 11120
Attn: Brigitte Milian, Loan Administrator Attn: Brigitte Milian, Loan
Administrator
Phone: (718) 248-4478 Phone: (718) 248-4478
Fax: (718) 248-4844 Fax: (718) 248-4844
<PAGE>
Name of Initial Lender: CREDIT SUISSE
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
12 East 49th Street 12 East 49th Street
New York, New York 10017 New York, New York 10017
Attn: Hazel Leslie Attn: Hazel Leslie
Phone: (212) 238-5218 Phone: (212) 238-5218
Fax: (212) 238-5246 Fax: (212) 238-5246
Operations: Operations:
191 Peachtree Street, NE 191 Peachtree Street, NE
Suite 3500 Suite 3500
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Pamela Myers Attn: Pamela Myers
Phone: (404) 577-6100 Phone: (404) 577-6100
Fax: (404) 577-9029 Fax: (404) 577-9029
Competitive Bid Matters: Competitive Bid Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Suite 3500 Suite 3500
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Pamela Myers Attn: Pamela Myers
Phone: (404) 577-6100 Phone: (404) 577-6100
Fax: (404) 577-9029 Fax: (404) 577-9029
<PAGE>
Name of Initial Lender: DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Susan A. Hodge Attn: Susan A. Hodge
V.P., Corporate Banking V.P., Corporate Banking
Phone: (212) 574-0246 Phone: (212) 574-0246
Fax: (212) 898-0524 Fax: (212) 898-0524
Operations: Operations:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Lora Lam Attn: Lora Lam
Phone: (212) 574-0288 Phone: (212) 574-0288
Fax: (212) 574-0130 Fax: (212) 574-0130
Competitive Bid Matters: Competitive Bid Matters:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Susan A. Hodge Attn: Susan A. Hodge
Phone: (212) 574-0288 Phone: (212) 574-0288
Fax: (212) 574-0130 Fax: (212) 574-0130
with a copy to: with a copy to:
Attn: Lora Lam Attn: Lora Lam
V.P., Corporate Banking V.P., Corporate Banking
Phone: (212) 574-0246 Phone: (212) 574-0246
Fax: (212) 898-0524 Fax: (212) 898-0524
<PAGE>
Name of Initial Lender: FIRST UNION NATIONAL BANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: R. Michael Dunlap Attn: R. Michael Dunlap
Phone: (404) 225-4055 Phone: (404) 225-4055
Fax: (404) 225-4255 Fax: (404) 225-4255
Operations: Operations:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Gwen Evans Attn: Gwen Evans
Phone: (404) 225-4013 Phone: (404) 225-4013
Fax: (404) 225-4255 Fax: (404) 225-4255
Competitive Bid Matters: Competitive Bid Matters:
999 Peachtree Street, 11th Floor 999 Peachtree Street, 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Gwen Evans Attn: Gwen Evans
Phone: (404) 225-4013 Phone: (404) 225-4013
Fax: (404) 225-4255 Fax: (404) 225-4255
<PAGE>
Name of Initial Lender: THE FUJI BANK, LIMITED
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Marquis One Tower, Suite 2100 Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E. 245 Peachtree Center Ave., N.E.
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Brett P. Johnson Attn: Brett P. Johnson
Phone: (404) 653-2100 Phone: (404) 653-2100
Fax: (404) 653-2119 Fax: (404) 653-2119
Operations: Operations:
Marquis One Tower, Suite 2100 Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E. 245 Peachtree Center Ave., N.E.
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Connie Fowls Attn: Connie Fowls
Phone: (404) 653-2100 Phone: (404) 653-2100
Fax: (404) 653-2119 Fax: (404) 653-2119
Competitive Bid Matters: Competitive Bid Matters: <PAGE>
Name of Initial Lender: NATIONSBANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
Operations: Operations:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
Competitive Bid Matters: Competitive Bid Matters:
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
21st Floor 21st Floor
Atlanta, GA 30308-2213 Atlanta, GA 30308-2213
Attn: James S. Scully Attn: James S. Scully
Phone: (404) 607-5529 Phone: (404) 607-5529
Fax: (404) 607-6467 Fax: (404) 607-6467
<PAGE>
Name of Initial Lender: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Perry G. Pelos Attn: Perry G. Pelos
Phone: (612) 667-8609 Phone: (612) 667-8609
Fax: (612) 667-4145 Fax: (612) 667-4145
Operations: Operations:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145
Competitive Bid Matters: Competitive Bid Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145<PAGE>
Name of Initial Lender: PNC BANK, NATIONAL ASSOCIATION
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15265 Pittsburgh, PA 15265
Attn: Robert J. Mitchell, V.P. Attn: Robert J. Mitchell, V.P.
Phone: (412) 762-6547 Phone: (412) 762-6547
Fax: (412) 762-6484 Fax: (412) 762-6484
Operations: Operations:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15625 Pittsburgh, PA 15625
Attn: Terry Mayton Attn: Terry Mayton
Phone: (412) 762-2593 Phone: (412) 762-2593
Fax: (412) 762-6484 Fax: (412) 762-6484
Competitive Bid Matters: Competitive Bid Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15625 Pittsburgh, PA 15625
Attn: Terry Mayton Attn: Terry Mayton
Phone: (412) 762-2593 Phone: (412) 762-2593
Fax: (412) 762-6484 Fax: (412) 762-6484<PAGE>
Name of Initial Lende: ROYAL BANK OF CANADA
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: D.G. Calancie Attn: D.G. Calancie
Phone: (212) 428-6445 Phone: (212) 428-6445
Fax: (212) 428-6459 Fax: (212) 428-6459
Operations: Operations:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Jewel Haines Attn: Jewel Haines
Phone: (212) 428-6321 Phone: (212) 428-6321
Fax: (212) 428-2372 Fax: (212) 428-2372
Competitive Bid Matters: Competitive Bid Matters:
One Financial Square One Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: D.G. Calancie Attn: D.G. Calancie
Phone: (212) 428-6445 Phone: (212) 428-6445
Fax: (212) 428-6459 Fax: (212) 428-6459
<PAGE>
Name of Initial Lender: THE SANWA BANK, LIMITED
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: John E. Hansen Attn: John E. Hansen
Phone: (404) 586-6889 Phone: (404) 586-6889
Fax: (404) 589-1629 Fax: (404) 589-1629
Operations: Operations:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Kristie Hartramph Attn: Kristie Hartramph
or or
Attn: Angela LeClair Attn: Angela LeClair
Phone: (404) 586-6893 Phone: (404) 586-6893
Phone: (404) 586-6884 Phone: (404) 586-6884
Fax: (404) 589-1629 Fax: (404) 589-1629
Competitive Bid Matters: Competitive Bid Matters:
133 Peachtree Street, Suite 4750 133 Peachtree Street, Suite 4750
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Kristie Hartramph Attn: Kristie Hartramph
or or
Attn: Angela LeClair Attn: Angela LeClair
Phone: (404) 586-6893 Phone: (404) 586-6893
Phone: (404) 586-6884 Phone: (404) 586-6884
Fax: (404) 589-1629
Fax: (404) 589-1629
<PAGE>
Name of Initial Lender: THE SUMITOMO BANK, LIMITED NEW YORK BRANCH
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Yas Miyoshi Attn: Yas Miyoshi
Phone: (212) 224-4120 Phone: (212) 224-4120
Fax: (212) 593-9522 Fax: (212) 593-9522
Operations: Operations:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Christine Bonifacic, USCD Attn: Christine Bonifacic, USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
Competitive Bid Matters: Competitive Bid Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Christine Bonifacic, USCD Attn: Christine Bonifacic, USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
<PAGE>
Name of Initial Lender: TRUST BANK COMPANY
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: J. Christopher Deisley Attn: J. Christopher Deisley
Phone: (404) 588-8684 Phone: (404) 588-8684
Fax: (404) 588-8833 Fax: (404) 588-8833
Operations: Operations:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Laura G. Harrison Attn: Laura G. Harrison
Phone: (404) 588-7939 Phone: (404) 588-7939
Fax: (404) 742-3610 Fax: (404) 742-3610
Competitive Bid Matters: Competitive Bid Matters:
25 Park Place 25 Park Place
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Laura G. Harrison Attn: Laura G. Harrison
Phone: (404) 588-7939 Phone: (404) 588-7939
Fax: (404) 742-3610 Fax: (404) 742-3610
<PAGE>
Name of Initial Lender: WACHOVIA BANK OF GEORGIA, N.A.
Domestic Lending Office Eurodollar Lending Office
Credit and Relationship Matters: Credit and Relationship Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Bradley S. Marcus Attn: Bradley S. Marcus
Phone: (404) 332-6483 Phone: (404) 332-6483
Fax: (404) 332-5016 Fax: (404) 332-5016
Operations: Operations:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Gay Winters Attn: Gay Winters
Phone: (404) 332-4055 Phone: (404) 332-4055
Fax: (404) 332-5016 Fax: (404) 332-5016
Competitive Bid Matters: Competitive Bid Matters:
191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Gay Winters Attn: Gay Winters
Phone: (404) 332-4055 Phone: (404) 332-4055
Fax: (404) 332-5016 Fax: (404) 332-5016
<PAGE>
EXHIBIT A-1 TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
U.S.$_______________ Dated: _______________, 1995
FOR VALUE RECEIVED, the undersigned, UNITED PARCEL SERVICE OF
AMERICA, INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to
the order of [Name of Lender] (the "Lender") for the account of its Applicable
Lending Office on the Final Maturity Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of Lender's
Commitment
in figures] or, if less, the aggregate principal amount of the Revolving Credit
Advances made by the Lender to the Borrower pursuant to the Credit Agreement
(Five-Year Facility) dated as of June 12, 1995 among the Borrower, the Lender
and
certain other lenders parties thereto, Citicorp Securities, Inc. and NationsBanc
Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia, N.A., as
Documentation Agent and Citibank, N.A., as Administrative Agent for the Lender
and such other lenders (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined) outstanding on the Final Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at 399 Park
Avenue,
New York, New York 10022 in same day funds. Each Revolving Credit Advance owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (a) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Revolving Credit
Advance being evidenced by this Promissory Note, and (b) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title: <PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By<PAGE>
EXHIBIT A-2 TO THE
CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
U.S.$_______________ Dated: _______________, 1995
FOR VALUE RECEIVED, the undersigned, UNITED PARCEL SERVICE OF
AMERICA, INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of [Name of Lender] (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement (Five-Year
Facility) dated as of June 12, 1995 among the Borrower, the Lender and certain
other lenders parties thereto, Citicorp Securities, Inc. and NationsBanc
Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia, N.A., as
Documentation Agent and Citibank, N.A., as Administrative Agent for the Lender
and such other lenders (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined)), on _______ __, ____, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in
full, at the interest rate and payable on the interest payment date or dates
provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
[Default Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).]
Interest Payment Dates:
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, for the
account of the Lender at 399 Park Avenue, New York, New York 10022 in same day
funds.
This Promissory Note is one of the Competitive Bid Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
<PAGE>
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:
<PAGE>
EXHIBIT B-1 TO THE
CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
Attention: _______________
[Date]
Ladies and Gentlemen:
The undersigned, United Parcel Service of America, Inc., refers to
the Credit Agreement (Five-Year Facility) dated as of June 12, 1995 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citicorp Securities,
Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of
Georgia, N.A., as Documentation Agent and Citibank, N.A., as Administrative
Agent for the Lenders and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(a) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, 199_.
(b) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(c) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(d) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(i) the representations and warranties contained in Section 4.01
of the Credit Agreement [(except the representations set forth in
subsection (f) thereof and in subsection (h) thereof)] are correct,
before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(ii) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default [(except for breach
of the representations set forth in subsection (f) and in subsection (h)
of Section 4.01 of the Credit Agreement)].
Notwithstanding any condition precedent to the contrary contained
in the Credit Agreement, a labor dispute of any sort involving employees of
the undersigned or its Subsidiaries shall not prevent the undersigned from
borrowing thereunder unless as a result thereof the undersigned is in
violation of the covenant set forth in Section 5.02(d) of the Credit Agreement
or is in Default under Section 6.01(a) or (e) of the Credit Agreement.
Very truly yours,
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:
<PAGE>
EXHIBIT B-2 TO THE
CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, UNITED PARCEL SERVICE OF AMERICA, INC., refers to
the Credit Agreement (Five-Year Facility) dated as of June 12, 1995 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citicorp Securities,
Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of
Georgia, N.A., as Documentation Agent and Citibank, N.A., as Administrative
Agent for the Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(a) Date of Competitive Bid Borrowing ________________________
(b) Amount of Competitive Bid Borrowing ________________________
(c) [Maturity Date] [Interest Period] ________________________
(d) Interest Rate Basis ________________________
(e) Interest Payment Date(s) ________________________
(f) ___________________ ________________________
(g) ___________________ ________________________
(g) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(i) the representations and warranties contained in Section 4.01
are correct [(except the representations set forth in subsection (f)
thereof and in subsection (h) thereof)], before and after giving effect
to the Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default [(except for breach
of the representations set forth in subsection (f) and in subsection (h)
of Section 4.01 of the Credit Agreement)]; and
(iii) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
Notwithstanding any condition precedent to the contrary contained
in the Credit Agreement, a labor dispute of any sort involving employees of
the undersigned or its Subsidiaries shall not prevent the undersigned from
borrowing thereunder unless as a result thereof the undersigned is in
violation of the convenant set forth in Section 5.01(d) of the Credit
Agreement or in Default under Section 6.01(a) or (e) of the Credit Agreement.
Very truly yours,
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:<PAGE>
EXHIBIT C TO THE
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement (Five-Year Facility)
dated as of June 12, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; terms defined therein being used herein
as therein defined) among United Parcel Service of America, Inc., a Delaware
corporation (the "Borrower"), the Lenders parties thereto, Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers,
NationsBank of Georgia, N.A., as Documentation Agent and Citibank, N.A., as
Administrative Agent (the "Administrative Agent") for the Lenders.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified on Schedule
1 hereto of all outstanding rights and obligations under the Credit Agreement
(other than in respect of Competitive Bid Advances and Competitive Bid Notes).
After giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Revolving Credit Advances owing to the Assignee will be as
set forth on Schedule 1 hereto.
2. The Assignor (a) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; and (d) attaches the Revolving Credit Note held by
the Assignor and requests that the Administrative Agent exchange such
Revolving Credit Note for a new Revolving Credit Note payable to the order of
the Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto or new Revolving Credit Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements referred
to in Section 4.01 of the Credit Agreement 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; (b) agrees that it
will, independently and without reliance upon any Agent, the Assignor or any
other Lender 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 any Loan Document; (c) confirms that it is an
Eligible Assignee; (d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto, and appoints and authorizes the Documentation
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under any Loan Document as are delegated to the Documentation
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (e) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of any Loan Document
are required to be performed by it as a Lender; and (f) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof by
the Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent and so long as the Borrower has consented thereto, as of the Effective
Date, (a) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Revolving Credit Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Revolving Credit Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.<PAGE>
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit Advances assigned:
$__________
Principal amount of Revolving Credit Note payable to Assignee:
$__________
Principal amount of Revolving Credit Note payable to Assignor:
$__________
Effective Date: _______________, 199_
[Name of Assignor], as Assignor
By
Title:
Dated: _______________, 199_
[Name of Assignee], as Assignee
By
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
<PAGE>
Accepted this ___ day of
_______________, 199_
CITIBANK, N.A., as Administrative Agent
By
Title:
Consented to this ___ day of
_______________, 199_
UNITED PARCEL SERVICE OF AMERICA,
INC., as Borrower
By
Title:
<PAGE>
EXHIBIT D TO THE
CREDIT AGREEMENT
FORM OF DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Credit Agreement (Five-Year Facility)
dated as of June 12, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among United Parcel Service of America,
Inc., a Delaware corporation (the "Borrower"), the Lenders parties thereto,
Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc., as
Co-Arrangers, NationsBank of Georgia, N.A., as Documentation Agent and Citibank,
N.A., as Administrative Agent (the "Administrative Agent") for the Lenders.
Terms defined in the Credit Agreement are used herein with the same meaning.
[Name of Designor] (the "Designor") and [Name of Designee] (the
"Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Competitive
Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes
no responsibility with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant thereto and (b) the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto.
3. The Designee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements referred
to in Section 4.01 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will,
independently and without reliance upon any Agent, the Designor or any other
Lender 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 any Loan Document; (c) confirms that it is a
Designated Bidder; (d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto, and appoints and authorizes the Documentation
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under any Loan Document as are delegated to the Documentation
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (e) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of any
Loan Document are required to be performed by it as a Lender.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
for this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on
the signature page hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the Credit
Agreement with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.03 of the Credit Agreement and the rights and obligations of a
Lender related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Designation Agreement by
telecopier shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly
authorized as of the date first above written.
Effective Date: _______________, 199__
[Name of Designor],
as Designor
By
Title:
[Name of Designee],
as Designee
By
Title:
Applicable Lending Office (and
address for notices):
[Address]
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By
Title:<PAGE>
EXHIBIT E TO THE
CREDIT AGREEMENT
FORM OF GUARANTY
This GUARANTY (Five-Year Facility) dated as of June 12, 1995, made
by UNITED PARCEL SERVICE, INC., a New York corporation, UNITED PARCEL SERVICE,
INC., an Ohio corporation, UNITED PARCEL SERVICE CO., a Delaware corporation
(each, a "Guarantor" and collectively, the "Guarantors") in favor of CITIBANK,
N.A., as administrative agent (the "Administrative Agent") for the Lenders (as
defined in the Credit Agreement referred to below).
The Lenders have agreed to make certain loans to United Parcel
Service of America, Inc., a Delaware corporation (the "Borrower"), pursuant
to, and subject to the terms and conditions specified in, the Credit Agreement
(Five-Year Facility) dated as of June 12, 1995 (as amended, supplemented and
otherwise modified from time to time, the "Credit Agreement"; terms defined
therein and not otherwise defined herein being used herein as therein defined)
among the Borrower, the Lenders parties thereto, Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank of Georgia,
N.A., as Documentation Agent and the Administrative Agent. The obligation of
the Lenders to make Advances under the Credit Agreement is conditioned on,
among other things, the execution and delivery by the Guarantors of this
Guaranty.
In order to induce the Lenders to make Advances, the Guarantors
are willing to execute and deliver this Guaranty. Accordingly, the parties
hereto agree as follows:
SECTION 1. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely
as a surety, the due and punctual payment of principal of and interest on each
of the Notes, when and as due, whether at maturity, by acceleration, by notice
of prepayment or otherwise, and all other monetary obligations of the Borrower
to each Lender, the Documentation Agent and the Administrative Agent under the
Loan Documents to which the Borrower is or is to be a party (collectively, the
"Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligation.
SECTION 2. Each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Guaranteed Obligations,
and also waives notice of acceptance of its guarantee and notice of protest
for nonpayment. The obligations of each Guarantor hereunder shall not be
affected by (a) the failure of any Lender or any Agent to assert any claim or
demand or to enforce any right or remedy against the Borrower under the
provisions of any Loan Document or otherwise; (b) any recision, waiver,
amendment or modification of any of the terms or provisions of any Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Guaranty, except to the extent that a discharge or
satisfaction of the Guaranteed Obligations is effected thereto; (c) the
release of any security held by any Lender or any Agent for the Guaranteed
Obligations or any of them; or (d) the failure of any Lender or any Agent to
exercise any right or remedy against any other Guarantor or guarantor of the
Guaranteed Obligations.
SECTION 3. Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by any Lender or any Agent to any
security held for payment of the Guaranteed Obligations or to any balance of
any deposit account or credit on the books of such Lender or such Agent in
favor of the Borrower or any other Person.
SECTION 4. The obligations of each Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise, other than the indefeasible payment in full in cash of the
Guaranteed Obligations in accordance with the terms of this Guaranty. Without
limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of any Lender or any Agent to assert any claim or demand or to
enforce any remedy under any Loan Document, any guarantee or any other
agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in any manner
or to any extent vary the risk of any Guarantor or otherwise operate as a
discharge of any Guarantor as a matter of law or equity.
SECTION 5. Each Guarantor further agrees that its guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
payment or any part thereof, or principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender or any
Agent upon the insolvency, bankruptcy or reorganization of the Borrower, any
other Loan Party or otherwise.
SECTION 6. In furtherance of the foregoing and not in limitation
of any other right that any Lender or any Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Borrower to
pay any Guaranteed Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment (and failure on the
designated date to make such payment) or otherwise, each Guarantor hereby
promises to and will, upon receipt of written demand by any Lender or the
Administrative Agent, forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Lenders in cash the amount of
such Guaranteed Obligation, and thereupon each Lender shall, in a reasonable
manner, assign the amount of such Guaranteed Obligation owed to it and paid by
such Guarantor pursuant to this Guaranty to such Guarantor, such assignment to
be pro tanto to the extent to which such Guaranteed Obligation in question was
discharged by such Guarantor, or make such other disposition thereof as such
Guarantor shall direct (all without recourse to such Lender or such Agent and
without any representation or warranty thereby, and no such assignment to be
effective prior to the indefeasible payment in full in cash of such Guaranteed
Obligation); provided, however, that the Lenders shall not receive from the
Guarantors pursuant to such demand an aggregate amount in excess of the amount
of such Guaranteed Obligation.
SECTION 7. Each Guarantor represents and warrants as to itself
that all representations and warranties that relate to it contained in the
Credit Agreement are true and correct.
SECTION 8. The guarantees made hereunder shall survive and be in
full force and effect so long as any Guaranteed Obligation is outstanding and
has not been indefeasibly paid in full in cash and so long as any of the
Commitments under the Credit Agreement have not been terminated and shall be
reinstated to the extent provided in Section 5. Each Guarantor shall be
released from its guarantee hereunder in the event that all the capital stock
of such Guarantor shall be sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement.
SECTION 9. Whenever in this Guaranty any of the parties hereto is
referred to, such reference shall, except as provided in Section 8, be deemed
to include the successors and assigns of such party and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained
in this Guaranty shall bind and inure to the benefit of their respective
successors and assigns. None of the Guarantors may assign or transfer any of
its rights or obligations hereunder without the prior written consent of all
of the Lenders, the Documentation Agent and the Administrative Agent, except
as provided in Section 8.
SECTION 10. No failure on the part of the Administrative Agent
to exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. Except as provided in the Credit Agreement,
neither the Administrative Agent nor any of the Lenders shall be deemed to
have waived any rights hereunder or under any other agreement or instrument
unless such waiver shall be in writing and signed by such parties.
SECTION 11. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF YORK.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 8.02 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth in Schedule I hereto, with a copy to the Borrower.
SECTION 13. In case any one or more of the provisions contained
in this Guaranty should be held invalid, illegal or unenforceable in any
respect with respect to any Guarantor, no party hereto shall be required to
comply with such provision with respect to such Guarantor for so long as such
provision is held to be invalid, illegal or unenforceable, and the validity,
legality and enforceability of the remaining provisions contained herein, and
of such provision with respect to any other Guarantor, shall not in any way be
affected or impaired. The parties shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 14. This Guaranty may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, provided that this
Guaranty shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder. Delivery
of an executed counterpart of a signature page to this Guaranty by telecopier
shall be effective as delivery of a manually executed counterpart of this
Guaranty.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty
to be executed by their duly authorized officers as of the day and year first
above written.
UNITED PARCEL SERVICE, INC., a
New York corporation
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an
Ohio corporation
By
Name:
Title:
UNITED PARCEL SERVICE CO., a
Delaware corporation
By
Name:
Title:<PAGE>
SCHEDULE I TO
THE GUARANTY
ADDRESSES OF GUARANTORS
UNITED PARCEL SERVICE, INC.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
UNITED PARCEL SERVICE, INC.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
UNITED PARCEL SERVICE CO.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
<PAGE>
EXHIBIT F TO THE
CREDIT AGREEMENT
FORM OF INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT dated as of
June 12, 1995, among UNITED PARCEL SERVICE OF AMERICA, INC., a Delaware
corporation (the "Company"), and UNITED PARCEL SERVICE, INC., a New York
corporation, UNITED PARCEL SERVICE, INC., an Ohio corporation, and UNITED
PARCEL SERVICE CO., a Delaware corporation (each, a "Guarantor" and
collectively, the "Guarantors").
Pursuant to the Credit Agreement (Five-Year Facility) dated as of
June 12, 1995 (the "Credit Agreement"; terms defined therein unless otherwise
defined herein being used herein as therein defined) among the Company, the
Lenders parties thereto, Citicorp Securities, Inc. and NationsBanc Capital
Markets, Inc., as Co-Arrangers, NationsBank of Georgia, N.A., as Documentation
Agent, and Citibank, N.A., as Administrative Agent (the "Administrative
Agent") for the Lenders, the Lenders have agreed to make certain Advances to
the Company. Pursuant to the Guaranty (Five-Year Facility) dated as of June
12, 1995 (the "Guaranty") made by the Guarantors in favor of the
Administrative Agent on behalf of the Lenders, the Guarantors have guaranteed
the Guaranteed Obligations (as defined in the Guaranty), including repayment
of Advances and the other obligations of the Company under the Credit
Agreement.
The Company and the Guarantors desire to enter into the
indemnification, subrogation and contribution agreements set forth below with
respect to the Guaranty.
Accordingly, the Company and the Guarantors agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under
applicable law (but subject to Section 3), the Company agrees that (a) in the
event a payment shall be made by any Guarantor under the Guaranty, the Company
shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such payment
shall have been made to the extent of such payment and (b) in the event any
assets of any Guarantor shall be sold pursuant to any mortgage, security
agreement or similar instrument or agreement to satisfy a claim of any Lender
or any Agent, the Company shall indemnify such Guarantor in an amount equal to
the greater of (i) the book value and (ii) the fair market value of the assets
so sold.
SECTION 2. Contribution. Each Guarantor agrees (subject to
Section 3) that in the event a payment shall be made by any Guarantor under
the Guaranty or assets of any Guarantor shall be sold pursuant to any
mortgage, security agreement or similar instrument or agreement to satisfy a
claim of any Lender or any Agent and such Guarantor (the "Claiming Guarantor")
shall not have been indemnified by the Company as provided in Section 1, each
other Guarantor (a "Contributing Guarantor") shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment or the greater of
(i) the book value and (ii) the fair market value of such assets, as the case
may be, multiplied by a fraction of which the numerator shall be the net worth
of the Contributing Guarantor on the date hereof and the denominator shall be
the aggregate of the net worth of all the Guarantors on the date hereof. Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this Section 2 shall be subrogated to the rights of such Claiming Guarantor
under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
shall be fully subordinated to the final and indefeasible payment and
performance in full of the Guaranteed Obligations. In furtherance of the
foregoing, each Guarantor agrees that it will not exercise any rights against
the Borrower under, or receive any payments in respect of amounts owing under,
Sections 1 and 2 during the existence of an Event of Default.
SECTION 4. Modification and Termination. This Agreement may be
modified or terminated only by an instrument in writing executed by each of
the parties hereto, and then only with the prior written consent of the
Required Lenders; provided, however, that in the event the Guaranty of any
Guarantor is released or terminated for any reason, the obligations and rights
of such Guarantor hereunder shall forthwith terminate and such Guarantor shall
cease to be a Guarantor for all purposes of this Agreement.
SECTION 5. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers as of the day and year first
above written.
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Name:
Title:<PAGE>
UNITED PARCEL SERVICE, INC., a
New York corporation
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an
Ohio corporation
By _________________________________
Name:
Title:
UNITED PARCEL SERVICE CO., a
Delaware corporation
By
Name:
Title:<PAGE>
MAYER, BROWN & PLATT
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
(Attorneys at law)
EXHIBIT G
June 12, 1995
To each of the Lenders parties
to the Credit Agreements dated
as of June 12, 1995 among United
Parcel Service of America, Inc.,
such Lenders, Citibank, N.A., as
Administrative Agent, NationsBank of
Georgia, N.A., as Documentation Agent,
and Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc.,
as Co-Arrangers
Re: United Parcel Service of America, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e) (viii) of
the Credit Agreement (364-Day Facility) and of the Credit Agreement (Five-Year
Facility), each dated as of June 12, 1995 (collectively, the "Credit
Agreements"), among United Parcel Service of America, Inc. (the "Borrower"),
the Lenders parties thereto (the "Lenders"), Citibank, N.A., as Administrative
Agent, NationsBank of Georgia, N.A., as Documentation Agent and Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers.
Terms defined in the Credit Agreements are used herein as therein defined.
We have acted as special New York counsel for the Borrower in connection
with the preparation, execution and delivery of each Credit Agreement. In
addition, we have acted as special New York counsel for United Parcel Service
Co., a Delaware corporation, United Parcel Service, Inc., a New York
corporation, and United Parcel Service, Inc., an Ohio corporation as
Guarantors, in connection with the execution and delivery of each Guaranty and
each Indemnity Agreement.
In that connection, we have examined:
(1) the Credit Agreements;<PAGE>
(2) the Revolving Notes;
(3) each Guaranty;
(4) each Indemnity Agreement;
(5) the documents furnished by the Borrower and the Guarantors
pursuant to Sections 3.01(e)(iv), (e)(v), (e)(vi) and (e)(vii) of
the Credit Agreements;
(6) the corporate charters of the Borrower and the Guarantors and all
amendments thereto (with respect to each such Person, its
"Charter");
(7) the by-laws of the Borrower and the Guarantors and all amendments
thereto (with respect to each such Person, its "By-laws"); and
(8) certificates of the Secretary of State of Delaware, the Secretary
of State of New York and the Secretary of State of Ohio, dated
June 7, 1995, June 7, 1995, June 6, 1995 and June 7, 1995,
respectively, attesting to the continued corporate existence and
good standing of the Borrower and the Guarantors in such States.
We have also examined the certificate of the Senior Vice President, Treasurer
and Assistant Secretary of the Borrower and the Treasurer of each of the
Guarantors, dated June 12, 1995 and attached hereto (without any of the
Annexes thereto except for Annex I) as Exhibit A (the "Certificate") and the
originals, or copies certified to our satisfaction, of the documents listed in
the Certificate. In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of the Borrower
and each Guarantor, certificates of public officials and of officers of the
Borrower and each Guarantor, and agreements, instruments and other documents,
as we have deemed necessary as a basis for the opinions expressed below. As
to questions of fact material to such opinions, we have, when relevant facts
were not independently established by us, relied upon the representations and
warranties of the Borrower and each Guarantor contained in the Loan Documents
and certificates of the Borrower or the Guarantors or their respective
officers or of public officials.<PAGE>
For purposes of this opinion, we have assumed that all items submitted
to us as originals are authentic and all signatures thereon are genuine, all
items submitted to us as copies conform to the originals, and each such item
has been duly executed and delivered by each party pursuant to due
authorization therefor and constitutes such party's (other than the Borrower's
and each Guarantor's) legal, valid and binding obligation, enforceable against
such party in accordance with its respective terms.
Our opinions expressed herein are limited to Applicable Laws and we do
not express any opinion herein concerning any other law. The term "Applicable
Laws" means those laws, rules and regulations of the General Corporation Law
of the State of Delaware, the State of New York and of the laws of the United
States of America which are actually known to us (based upon our review of
those laws, rules and regulations which, in our experience, are normally
applicable to transactions of the type contemplated by the Credit Agreements).
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion that as of the date hereof:
1. Each of the Borrower and each Guarantor is a corporation validly
existing and in good standing under the laws of the state of its
incorporation.
2. The execution, delivery and performance by the Borrower of the
Credit Agreements, the Revolving Notes and each Indemnity Agreement, and the
consummation of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) its Charter or its By-laws or (ii)
any Applicable Laws applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or (iii)
any contractual or legal restriction contained in any document listed in Annex
I to the Certificate or otherwise known to us. The Credit Agreements, the
Revolving Notes and each Indemnity Agreement have been duly executed and
delivered on behalf of the Borrower.
3. The execution, delivery and performance by each Guarantor of each
Guaranty and each Indemnity Agreement, and the consummation of the
transactions contemplated hereby, are within such Guarantor's corporate
powers, have been duly authorized by<PAGE>
all necessary corporate action, and do
not contravene (i) its Charter or its
By-laws or (ii) any Applicable Laws applicable to such Guarantor (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (iii) any contractual or legal restriction contained in any
document listed in Annex I to the Certificate or otherwise known to us. Each
Guaranty and each Indemnity Agreement have been duly executed and delivered on
behalf of the Guarantors.
4. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Credit
Agreements, the Revolving Notes and each Indemnity Agreement or for the due
execution, delivery and performance by each Guarantor of each Guaranty and
each Indemnity Agreement. In connection with the opinions expressed in this
paragraph, we note that there are certain state laws requiring regulatory
approval of the incurrence of debt or the making of guarantees by common
carriers which we believe are, under governing Federal law, inapplicable to
the execution, delivery, and performance of the Credit Agreement, the
Revolving Notes, each Guaranty and each Indemnity Agreement.
5. The Credit Agreements, the Notes (when and to the extent funded)
and each Indemnity Agreement are the legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms. Each Guaranty and each Indemnity Agreement are the legal,
valid and binding obligations of each Guarantor enforceable against such
Guarantor in accordance with their respective terms.
6. To our knowledge, except as otherwise described in Section 4.01(h)
of the Credit Agreements, there are no pending or overtly threatened actions
or proceedings against the Borrower, any Guarantor or any of their respective
Material Subsidiaries before any court, governmental agency or arbitrator
which purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreements, any of the Revolving Notes, any
Guaranty or any other Loan Document or the consummation of the transactions
contemplated thereby or which are likely to have a materially adverse effect
upon the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole.
<PAGE>
The opinions set forth above are subject to the following qualifications:
(a) No opinion is rendered as to matters not specifically referred to
herein and you may not infer from anything stated herein or not stated herein
any opinions with respect thereto.
(b) Our opinion in paragraph 5 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance of similar laws affecting creditors' rights generally.
(c) Our opinion in paragraph 5 above is subject to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(d) No opinion is rendered as to (i) whether a Federal or state court
outside of the State of New York would give effect to the choice of New York
law provided for in the Credit Agreements and the other Loan Documents, (ii)
Section 2.15 of the Credit Agreements insofar as it provides that any Lender
purchasing a participation from another Lender pursuant thereto may exercise
setoff or similar rights with respect to such participation, (iii) the effect
of the law of any jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit Agreements or the
Notes may be sought that limits the rates of interest legally chargeable or
collectible or (iv) the submission by the Borrower to the non-exclusive
jurisdiction of New York State courts or Federal courts of the United States
of America, sitting in New York City. In addition, certain other provisions
contained in the Loan Documents may be limited or rendered ineffective by
Applicable Laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the then
existing circumstances, but the inclusion of such provisions does not affect
the validity of the Loan Documents as a whole and does not materially diminish
the practical realization of the substantive rights and benefits intended to
be provided thereby.
(e) Whenever our opinion with respect to the existence or absence of
facts is indicated to be based on our knowledge or awareness, we are referring
solely to the actual knowledge of the <PAGE>
particular Mayer, Brown & Platt
attorneys who have represented the Borrower
and each of the Guarantors in connection with the negotiation, execution and
delivery of the Loan Documents. Except as expressly set forth herein, we have
not undertaken any independent investigation to determine the existence or
absence of such fact and no inference as to our knowledge concerning such
facts should be drawn from the fact that such representation has been
undertaken by us.
We are aware that Shearman & Sterling will rely upon the opinions set
forth in paragraphs 1, 2, 3 and 4 of this opinion in rendering their opinion
furnished pursuant to Section 3.01(e)(ix) of each Credit Agreement.
Additionally, the opinions set forth herein are intended only for the benefit
of the Lenders, and any future Eligible Assignee of or successor to the
Lenders' rights under the Credit Agreements, in connection with the
transactions contemplated by the Credit Agreements and may not be relied upon
by, or delivered to, any other Person or used for any other purpose, without
our written permission.
Very truly yours,
MAYER, BROWN & PLATT
By ____________________
J. Paul Forrester<PAGE>
EXHIBIT A
CERTIFICATE OF
AUTHORIZED OFFICER
I, Robert J. Clanin, do hereby certify as follows:
1. I am (i) the duly elected and qualified Senior Vice President,
Treasurer and Assistant Secretary of United Parcel Service of America, Inc., a
corporation duly organized, existing and in good standing under the laws of
the State of Delaware (the "Borrower") and (ii) the duly elected and qualified
Treasurer of each of (x) United Parcel Service Co., a corporation organized,
existing and in good standing under the laws of the State of Delaware and a
wholly owned Subsidiary of the Corporation ("UPSDE"), (y) United Parcel
Service, Inc., a corporation organized, existing and in good standing under
the laws of the State of New York and a wholly owned Subsidiary of the
Corporation ("UPSNY") and (z) United Parcel Service, Inc., a corporation
organized, existing and in good standing under the laws of the State of Ohio
and a wholly owned Subsidiary of the Corporation ("UPSOH") and am familiar
with the matters referred to below and am authorized to make the
certifications contained herein.
2. This Certificate is being furnished to Mayer, Brown & Platt in
connection with the opinion which it is giving as a condition precedent to the
closing of the transactions contemplated by (i) that certain Credit Agreement
(Five-Year Facility), dated as of June 12, 1995, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the Lenders,
NationsBank of Georgia, N.A., as the Documentation Agent for the Lenders, and
Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc., as the
Co-Arrangers (the "Long-Term Credit Agreement"); and (ii) that certain Credit
Agreement (364 Day Facility), dated as of June 12, 1995, among the
Corporation, the Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank of Georgia, N.A., as the Documentation Agent for the
Lenders, and Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc.,
as the Co-Arrangers (the "Short-Term Credit Agreement"; and, with the Long-Term
Credit Agreement, the "Credit Agreements"). Capitalized terms used in
this Certificate, unless otherwise defined, shall have the meanings assigned
to such terms in the Credit Agreement.
3. To the best of my knowledge and belief, attached hereto as Annex I
is a list of all of the indentures, loan or credit agreements, leases,
guarantees, mortgages, security agreements, bonds, notes and other agreements
or instruments, and all of the orders, writs, judgments, awards, injunctions
and decrees, which<PAGE>
affect or purport to affect the Borrower's right to borrow
money, the
Borrower's obligations under the Credit Agreements or the Notes or a
Guarantor's obligations under the Guaranty or Indemnity Agreement. Attached
hereto as Annex A-1 through A-2, inclusive, are true, correct and complete
copies of such items (including, without limitation, any amendments or
modifications thereto), respectively, as in full force and effect on the date
hereof.
4. Attached hereto as Annex B-1, B-2, B-3 and B-4, inclusive, are
true, correct and complete copies of the Certificate of Incorporation of each
of the Borrower, UPSDE, UPSNY and UPSOH, respectively and each amendment, if
any, thereto, as filed with the secretaries of state of their state of
incorporation and as in full force and effect on the date hereof.
5. Attached hereto as Annex C-1, C-2, C-3 and C-4, inclusive, are
true, correct and complete copies of the By-laws of each of the Borrower,
UPSDE, UPSNY and UPSOH, respectively, as in full force and effect on the date
hereof.
6. Except as otherwise described in Section 4.01(h) of the Credit
Agreements, there are no pending or overtly threatened actions or proceedings
against the Borrower, any Guarantor or any of their respective Material
Subsidiaries before any court, governmental agency or arbitrator which purport
to affect the legality, validity, binding effect or enforceability of the
Credit Agreements, any of the Revolving Notes, any Guaranty or any other Loan
Document or the consummation of the transactions contemplated thereby or which
are likely to have a materially adverse effect upon the financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
IN WITNESS WHEREOF, I have subscribed my name as (i) the Senior Vice
President, Treasurer and Assistant Secretary of the Borrower and (ii) the
Treasurer of each of UPSDE, UPSNY and UPSOH on this 12th day of June, 1995.
_________________________
Robert J. Clanin <PAGE>
ANNEX I
Indenture, dated as of December 1, 1989, between United parcel Service of
America, Inc. And Chemical Bank, as Trustee.
Guarantee Agreement, dated as of December 1, 1985 between United Parcel
Service of America, Inc. And Irving Trust Company, as Trustee (the "Trustee")
under the Trust Indenture dated as of the same date between the Delaware
County Industrial Development Authority and the Trustee
<PAGE>
EXHIBIT H
Incorporated by Reference to Exhibit 4(c) to Registration Statement No.
33-32481.
