<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15 (d)
of the Securities Exchange Act of 1934
For the Quarter Ended June 30, 1996
Commission file number 0-4714
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 Exchange Act of 1934 during the preceding 12 months,
and (2) has been subject to such filing requirements of the past
90 days.
YES X NO
Common Stock, par value $.10 per share
(Title of Class)
570,000,000 shares
Outstanding as of August 13, 1996
<PAGE> 2
PART I. FINANCIAL INFORMATION
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
June 30, 1996 (unaudited) and December 31, 1995
(In millions except share amounts)
ASSETS 1996 1995
------- --------
CURRENT ASSETS:
Cash and short-term investments $ 225 $ 211
Accounts receivable 2,162 1,925
Prepaid employee benefit costs 251 285
Materials, supplies and prepaid expenses 503 393
Common stock held for stock plans 471 413
------- -------
TOTAL CURRENT ASSETS 3,612 3,227
PROPERTY, PLANT AND EQUIPMENT - at cost, net
of accumulated depreciation of $6,428
in 1996 and $6,060 in 1995 9,212 8,998
OTHER ASSETS 395 420
------- -------
$13,219 $12,645
======= =======
LIABILITIES AND SHAREOWNERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,297 $ 1,137
Accrued wages and withholdings 1,069 1,127
Dividends payable - 178
Deferred income taxes 93 87
Other current liabilities 558 437
------- -------
TOTAL CURRENT LIABILITIES 3,017 2,966
------- -------
LONG-TERM DEBT, net of current maturities
of $1 in 1996 and 1995 1,744 1,729
------- -------
ACCUMULATED POSTRETIREMENT BENEFIT
OBLIGATION, NET 814 763
------- -------
DEFERRED TAXES, CREDITS AND OTHER LIABILITIES 2,141 2,036
------- -------
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
570,000,000, net of 10,000,000 in treasury 57 57
Additional paid-in capital 89 76
Retained earnings 5,336 4,961
Cumulative foreign currency adjustments 21 57
------- -------
5,503 5,151
------- -------
$13,219 $12,645
======= =======
See notes to consolidated financial statements.
<PAGE> 3
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three Months and Six Months Ended June 30, 1996 and 1995
(In millions except per share amounts)
(unaudited)
Three Months Ended Six Months Ended
1996 1995 1996 1995
------- ------- ------- -------
Revenue $ 5,508 $ 5,158 $10,843 $10,260
------- ------- ------- -------
Operating Expenses:
Wages and employee benefits 3,165 3,015 6,343 6,046
Other 1,789 1,612 3,524 3,179
------- ------- ------- -------
4,954 4,627 9,867 9,225
------- ------- ------- -------
Operating Profit 554 531 976 1,035
------- ------- ------- -------
Other income and (expense):
Interest income 10 5 19 10
Interest expense (21) (18) (44) (38)
Miscellaneous, net (11) (13) (17) (18)
------- ------- ------- -------
(22) (26) (42) (46)
------- ------- ------- -------
Income before income taxes 532 505 934 989
Income taxes 213 194 374 388
------- ------- ------- -------
Net income $ 319 $ 311 $ 560 $ 601
------- ------- ------- -------
Net income per share $ 0.56 $ 0.54 $ 0.98 $ 1.04
------- ------- ------- -------
See notes to consolidated financial statements.
<PAGE> 4
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREOWNERS' EQUITY
Six Months Ended June 30, 1996
(In millions)
(unaudited)
Cumulative
Additional Foreign Total
Common Stock Paid-In Retained Currency Shareowners'
Shares Amount Capital Earnings Adjustments Equity
------ ----- ------- -------- ----------- --------
Balance, January 1,
1996 570 $57 $76 $4,961 $57 $5,151
Net Income - - - 560 - 560
Gain on issuance of
common stock held
for stock plans - - 28 - - 28
Exercise of stock
options - - (15) - - (15)
Dividends
($.33 per share) - - - (185) - (185)
Foreign currency
adjustments - - - - (36) (36)
----- ---- ---- ------ ---- -------
Balance, June 30,
1996 570 $57 $89 $5,336 $21 $5,503
===== ==== ==== ====== ==== =======
See notes to consolidated financial statements.
<PAGE> 5
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Six Months Ended June 30, 1996 and 1995
(In millions)
(unaudited)
1996 1995
------ ------
Cash flows from operating activities:
Net income $ 560 $ 601
Adjustments to reconcile net income to net
cash provided from operating activities:
Depreciation and amortization 459 420
Postretirement benefits 51 52
Deferred taxes, credits, and other 101 76
Changes in assets and liabilities:
Accounts receivable (237) (82)
Prepaid employee benefit costs 34 88
Materials, supplies and prepaid
expenses (113) (168)
Common stock held for stock plans (58) (305)
Accounts payable 160 (8)
Accrued wages and withholdings (58) (32)
Dividends payable (178) (170)
Other current liabilities 120 73
------ ------
Net cash provided from operating activities 841 545
------ ------
Cash flows from investing activities:
Capital expenditures (722) (732)
Disposals of property, plant and equipment 26 32
Other asset receipts and payments 21 (134)
------ ------
Net cash (used in) investing activities (675) (834)
------ ------
Cash flows from financing activities:
Proceeds from borrowings 710 530
Repayment of borrowings (694) (110)
Dividends (185) (181)
Other transactions 13 8
------ ------
Net cash provided from (used in)
financing activities (156) 247
------ ------
Effect of exchange rate changes on cash 4 21
------ ------
Net increase (decrease) in cash and short-term
investments 14 (21)
Cash and short-term investments:
Beginning of period 211 261
------ ------
End of period $ 225 $ 240
====== ======
Cash paid during the period for:
Interest (net of amount capitalized) $ 31 $ 31
====== ======
Income taxes $ 193 $ 287
====== ======
See notes to consolidated financial statements.
<PAGE> 6
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months and Six Months Ended June 30, 1996 and 1995
(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 various employee benefit plans
based on one quarter of the estimated annual expense for each three month
period.
Net income per share is based on 570,000,000 shares in 1996 and
580,000,000 in 1995, 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, 1996, the results of operations for the three
months and six months ended June 30, 1996 and 1995, and cash flows for the
six months ended June 30, 1996 and 1995.
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., 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 ranges
from $89 million to $148 million, plus penalties and interest, and is 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 years. Penalties and interest are in
addition to these amounts. The majority of these adjustments would reverse
in future years.
<PAGE> 7
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months and Six Months Ended June 30, 1996 and 1995
(unaudited)
In August, 1995, the Company filed a petition in Tax Court in
opposition to the Notice of Deficiency related to the 1983 and 1984 tax
years. 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 Company has appealed with the IRS all issues related to the
1985 through 1987 tax years. The IRS may take positions similar to those
in the reports described above for periods after 1987.
4. As part of UPS's overall effort to lower operating expense, the
Company implemented a program of voluntary early retirement and severance
packages for certain, primarily management, employees during 1995. The
total charge to 1995 operating expense for this program was $372 million of
which $19 million was incurred during the quarter ended June 30, 1995, and
the balance in the quarter ended September 30, 1995.
<PAGE> 8
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended June 30, 1996 and 1995
- -----------------------------------------
Revenue increased by $350 million, or 6.8% for the three months ended
June 30, 1996 over the three months ended June 30, 1995. For the second
quarter of 1996, domestic revenue totaled $4.765 billion, an increase of
$303 million over the second quarter of 1995, and international revenue
totaled $743 million, an increase of $47 million.
Domestic revenue increased as a result of favorable changes in rates,
higher volume, which was up 3.1% over the second quarter of 1995, and a
continuing shift toward higher yielding packages.
The increase in international revenue was primarily attributable to a
15.5% revenue growth in export operations over the corresponding quarter of
the previous year. Export revenues increased primarily as a result of
higher volume, which was up 21.0%. Foreign domestic revenues decreased by
6.2% primarily due to changes in the currency exchange rates, and, to a
lesser extent, lower volume, which in turn resulted primarily from the
Company's efforts to improve profitability by increasing revenue yields on
these products.
Operating expenses increased by $327 million, or 7.1%, raising the
operating ratio from 89.7 during 1995 to 89.9 during 1996. The modest
deterioration of the operating ratio resulted primarily from increased
depreciation and amortization, higher fuel costs and labor expenses.
Operating profit for the period increased by $23 million, or 4.3%, as
a result of higher revenue.
Income before income taxes ("pre-tax income") increased $27 million,
or 5.3%. Domestic pre-tax income amounted to $558 million, a decrease of
$1 million, or 0.3%, with respect to the corresponding quarter of the
previous year.
The international pre-tax loss decreased by $28 million, or 52.2%, to
$26 million for the quarter. The international pre-tax loss attributable
to the foreign domestic operations increased by $1 million, or 2.5%.
Export operations improved by $29.0 million resulting in a moderate pre-tax
profit. The continuation of this favorable trend in export operations
resulted primarily from higher volume and improved operating margins on
European and U.S. exports. Export volume increased by 18.1% and 25.6% for
international and U.S. origin, export shipments, respectively. Despite the
continued improvement of the export operations, UPS expects that the cost
of operating its international business will continue to exceed revenue in
the near future.
Net income increased by $8 million, or 2.6%, over the corresponding
quarter of the prior year. The net increase resulted primarily from
improved operating profit.
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Six Months Ended June 30, 1996 and 1995
- ---------------------------------------
Revenue increased by $583 million, or 5.7% for the six months ended
June 30, 1996 over the six months ended June 30, 1995. For the first six
months of 1996, domestic revenue totaled $9.356 billion, an increase of
$455 million over the first six months of 1995, and international revenue
totaled $1.487 billion, an increase of $128 million.
Domestic revenue increased as a result of higher volume, which was up
1.4%, first quarter rate increases and a continuing shift toward higher
yielding packages. During the first quarter of 1996, the Company
implemented distance-based pricing for its domestic air express services.
This new pricing structure is based on both weight and distance of packages
shipped. Under the revised structure, air express rates are geographically
defined by ZIP Code. The continental United States is divided into the
same seven zones used for UPS standard ground services. Previously,
express shipments were priced by weight only, the standard method in the
industry. The new structure means that prices for UPS Next Day Air have
been reduced by as much as 40% in short-distance zones, while prices in
longer zones have increased up to 28%.
In addition, rates for standard ground shipments were increased an
average of 2.9% for commercial deliveries and 3.9% for residential
deliveries. Rates for the newly-zoned UPS Next Day Air and UPS 2nd Day Air
services increased approximately 4.9%. Rates for UPS 3-Day Select, already
zoned, increased approximately 3.9%. Rates for international shipments
originating in the United States were increased 4.9% for UPS Worldwide
Express, 6.9% for UPS Worldwide Expedited and 3.9% for UPS Standard Service
to Canada. Rate changes for shipments originating outside the United
States have been made throughout the past year and vary by geographic
market.
The increase in international revenue was primarily attributable to an
18.0% revenue growth in export operations over the corresponding six months
of the previous year. Export revenues increased primarily as a result of
higher volume, which was up 22.1%. Foreign domestic revenues decreased by
3.0% primarily due to changes in the currency exchange rates and volume
reductions of 2.1%. The decreases in foreign domestic volume are a result
of the Company's efforts to improve profitability by increasing revenue
yields on these products.
Operating expenses increased by $642 million, or 7.0%, raising the
operating ratio from 89.9 during 1995 to 91.0 during 1996. The
deterioration of the operating ratio resulted primarily from increased
depreciation and amortization, increased labor costs, higher fuel costs,
and, severe weather conditions during the first quarter which disrupted
both air and ground operations. This is in contrast to the mild weather
conditions experienced in the comparable quarter in 1995.
Operating profit for the period decreased by $59 million, or 5.7%, as
a result of the proportionally higher operating costs.
<PAGE> 10
MANAGEMENT,S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Income before income taxes ("pre-tax income") decreased $55 million,
or 5.6%. Domestic pre-tax income amounted to $1.0 billion, a decrease of
$89 million, or 8.2% over the corresponding period of the previous year.
The decrease was primarily a result of proportionally higher operating
costs as discussed above.
The international pre-tax loss decreased by $34 million, or 34.2%, to
$66 million for the first six months of 1996.
The international pre-tax loss attributable to the foreign domestic
operations increased by $2 million, or 2.2%. Export operations improved by
$36 million over 1995, resulting in a moderate pre-tax profit. The
continuation of this favorable trend in export operations resulted
primarily from higher volume and improved operating margins on European and
U.S. exports. Export volume increased by 18.3% and 28.1% for international
and U.S. origin, export shipments, respectively. As noted previously in
the discussion for the second quarter, UPS expects that the cost of
operating its international business will continue to exceed revenue in the
near future, despite the continued improvement of the export operations.
Net income decreased by $41 million, or 6.8%, over the corresponding
period of the prior year. The net decrease resulted primarily from higher
operating costs as discussed above.
The results of operations for the three months and six months ended
June 30, 1996 are not necessarily indicative of the results to be expected
for the full year.
<PAGE> 11
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Liquidity and Capital Resources
- -------------------------------
In March, 1996, the Board of Directors authorized an increase in the
Commercial Paper borrowing limits from $1.0 to $1.5 billion. In June, 1996,
UPS renegotiated and extended two credit agreements with a consortium of banks.
These agreements provide revolving credit facilities of $1.25 billion each,
with one expiring June 9, 1997 and the other June 8, 2001.
In recognition of a continuing need for borrowing over the near term,
and to take advantage of attractive borrowing costs in medium-term debt
markets, UPS has entered into two financiang transactions through the first
six months of 1996 and is continuing to examine other favorable alternatives.
In January, 1996, UPS issued $200 million of 5.5% Eurobond notes which are due
January 1999. In April, 1996, UPS issued $166 million of 3.25% Swiss Franc
notes which are due in October 1999.
In June, 1996, UPS established a $500 million European medium-term note
program. Under this program UPS may from time to time issue notes denominated
in any currency. In addition, the company filed a shelf registration in
July, 1996 which enables UPS to issue notes up to $300 million in the United
States. Under the combined programs, the Company currently does not plan to
exceed $500 million in borrowings.
Management believes that these funds and borrowing programs, combined
with the Company's internally generated resources and other credit facilities,
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.
During 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> 12
PART II
Item 4 - Submission of Matters to a Vote of Security Holders
---------------------------------------------------
The annual meeting of shareowners of the Registrant was held on May 9,
1996.
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 are
presented below.
Director Percent of
Number of Votes Total Voting
John W. Alden For 456,067,233 93.9%
Withheld 29,582,463 6.1%
William H. Brown, III For 459,146,205 94.5%
Withheld 26,503,491 5.5%
Robert J. Clanin For 459,561,546 94.6%
Withheld 26,088,150 5.4%
Carl Kaysen For 456,485,577 94.0%
Withheld 29,164,119 6.0%
James P. Kelly For 459,538,325 94.6%
Withheld 26,111,371 5.4%
Gary E. MacDougal For 458,209,401 94.3%
Withheld 27,440,295 5.7%
Joseph R. Moderow For 459,701,190 94.7%
Withheld 25,948,506 5.3%
Kent C. Nelson For 457,725,737 94.3%
Withheld 27,923,959 5.7%
Victor A. Pelson For 458,462,260 94.4%
Withheld 27,187,436 5.6%
John W. Rogers For 458,771,268 94.5%
Withheld 26,878,428 5.5%
Charles L. Schaffer For 459,686,469 94.7%
Withheld 25,963,227 5.3%
Robert M. Teeter For 459,121,254 94.5%
Withheld 26,528,442 5.5%
Calvin E. Tyler Jr. For 459,447,501 94.6%
Withheld 26,202,195 5.4%
<PAGE> 13
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 1996 For 474,205,718 97.7%
Stock Option Plan Against 7,920,062 1.6%
Abstain 3,523,916 0.7%
3. To confirm the appointment For 480,793,656 99.0%
of Deloitte & Touche LLP, Against 3,625,138 0.7%
independent auditors, as auditors Abstain 1,230,902 0.3%
of UPS and its subsidiaries for
the year ending December 31, 1996
Item 6 - Exhibits and reports on Form 8-K
A) Exhibits:
10) Material contracts
a) Credit Agreement (364-Day Facility) dated June 10,
1996 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
10, 1996 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> 14
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 13, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 225
<SECURITIES> 0
<RECEIVABLES> 2,162
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 3,612
<PP&E> 15,640
<DEPRECIATION> 6,428
<TOTAL-ASSETS> 13,219
<CURRENT-LIABILITIES> 3,017
<BONDS> 1,744
0
0
<COMMON> 57
<OTHER-SE> 5,446
<TOTAL-LIABILITY-AND-EQUITY> 13,219
<SALES> 10,843
<TOTAL-REVENUES> 10,843
<CGS> 0
<TOTAL-COSTS> 9,867
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 44
<INCOME-PRETAX> 934
<INCOME-TAX> 374
<INCOME-CONTINUING> 560
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 560
<EPS-PRIMARY> 0.98
<EPS-DILUTED> 0.98
</TABLE>
- ---------------------------------------------------------------------
U.S. $1,250,000,000
CREDIT AGREEMENTS
(364 and Five-Year Facility)
Dated as of June 10, 1996
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, N.A. (SOUTH)
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
- ---------------------------------------------------------------------
CONFORMED COPY
U.S. $1,250,000,000
CREDIT AGREEMENT
(364-Day Facility)
Dated as of June 10, 1996
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, N.A. (SOUTH)
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
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.................33
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........48
SECTION 7.04. Lender Credit Decision............................48
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.................................58
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
CREDIT AGREEMENT
(364-Day Facility)
Dated as of June 10, 1996
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, N.A. (SOUTH) ("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: Lee Tang.
"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 0.050%
Level 2
Lower than Level 1
but at least
A- / A3 0.075%
Level 3
Lower than Level 2 0.100%
"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 0.12% 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% 0.100%
Level 2
Lower than Level 1
but at least
A- / A3 0.00% 0.175%
Level 3
Lower than Level 2 0.00% 0.200%
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
12, 1995, as amended, supplemented or otherwise modified from time to
time, among the Borrower, the banks named therein, Citibank, as
administrative agent, and NationsBank, as documentation agent, and (b)
the five-year Credit Agreement dated as of June 12, 1995, as amended,
supplemented or otherwise modified from time to time, among the
Borrower, the banks named therein, Citibank, as administrative agent,
and NationsBank, as documentation 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 9, 1997 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 0.03% 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, 1996, 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 Administrative Agent shall promptly
notify each Extending Lender of the aggregate Commitments of the
Declining Lender. 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, 1995, 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, 1995, 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, 1995.
(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 (770) 668-
8137); and if to the Documentation Agent, at its address at 600
Peachtree Street, N.E., 21st Floor, Atlanta, Georgia 30308-2213,
Attention: John Gregg (telecopier number (704) 386-2329); 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 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/s/ Robert J. Clavin
Title: Senior Vice
President and Treasurer
CITIBANK, N.A., as Administrative Agent
By/s/ David L. Harris
Title: Vice President
NATIONSBANK, N.A. (SOUTH),
as Documentation Agent
By/s/ James S. Scully
Title: Vice President
CITICORP SECURITIES, INC.,
as Co-Arranger
By/s/ Heidi K. McKibbon
Title: Vice President
NATIONSBANC CAPITAL MARKETS,
INC., as Co-Arranger
By/s/ James S. Scully
Title: Vice President
Commitment Initial Lenders
$112,500,000 CITIBANK, N.A.
By/s/ David L. Harris
Title: Vice President
$100,000,000 NATIONSBANK, N.A. (SOUTH)
By/s/ James S. Scully
Title: Vice President
$87,500,000 BANK OF AMERICA ILLINOIS
By/s/ Timothy C. Hintz
Title: Vice President
$87,500,000 CHEMICAL BANK
By/s/ Richard C. Smith
Title: Vice President
$87,500,000 CREDIT SUISSE
By/s/ William P. Murray
Title: Member of Senior Management
By/s/ Kristinn R. Kristinsson
Title: Associate
$87,500,000 PNC BANK, NATIONAL ASSOCIATION
By/s/ Robert J. Mitchell, Jr.
Title: Vice President
$87,500,000 ROYAL BANK OF CANADA
By/s/ Brian Bolot
Title: Associate
$75,000,000 CANADIAN IMPERIAL BANK OF COMMERCE
By/s/ Kim Frederking
Title: Authorized Signatory
$75,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By/s/ Yoshinori Kawamura
Title: Joint General Manager
$75,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By/s/ Bradley S. Marcus
Title: Senior Vice President
$62,500,000 BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By/s/ Robert S. Taylor
Title: Senior Vice President
By/s/ Richard L. Sted
Title: Senior Vice President
$62,500,000 THE FUJI BANK, LIMITED
By/s/ Shinichiro Fujimoto
Title: Joint General Manager
$50,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By/s/ J. Michael Leffler
Title: Senior Vice President
By/s/ Robert Grella
Title: Vice President
$50,000,000 FIRST UNION NATIONAL BANK OF
GEORGIA, N.A.
By/s/ Jonathan D. Hook
Title: Vice President
$50,000,000 THE SANWA BANK, LIMITED
By/s/ Shelley Browne
Title: Vice President
By/s/
Title: Vice President
$25,000,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By/s/ Scott Bjelde
Title: Assistant Vice President
$25,000,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By/s/ Michael S. Harvey
Title: Vice President
$25,000,000 SUNTRUST BANK, ATLANTA
By/s/ J. Christopher Deisley
Title: Vice President
By/s/ Jeffrey L. Selig
Title: Vice President
$25,000,000 WELLS FARGO BANK
By/s/ Peter G. Olsen
Title: Senior Vice President
By/s/ Lancy Gin
Title: Assistant Vice President
$1,250,000,000 TOTAL OF THE COMMITMENTS
SCHEDULE I TO THE
CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Bank of America Illinois Credit and Relationship Credit and Relationship
Matters: Matters:
555 S. Flower Street 555 S.Flower Street
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Patrick Horan Attn: Patrick Horan
Senior Vice President Senior Vice President
LA II #5618 LA II #5618
Phone: (213) 228-3443 Phone: (213) 228-3443
Fax: (213) 228-2758 Fax: (213) 228-2758
Operations: Operations:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Josie Nahoe, Attn: Josie Nahoe,
Account Administration, Account Administration,
#5693 #569
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, 555 California Street,
10th Floor 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Banque Nationale
de Paris, Credit and Relationship Credit and Relationship
New York Branch Matters: Matters:
499 Park Avenue 499 Park Avenue
New York, New York 10022 New York, New York 10022
Attn: Robert S. Taylor Attn: Robert S. Taylor
Phone: (212) 415-9713 Phone: (212) 415-9713
Fax: (212) 415-9606 Fax: (212) 415-9606
Operations: Operations:
499 Park Avenue, 499 Park Avenue,
9th Floor 9th Floor
New York, New York 10022 New York, New York 10022
Attn: Andree Mitton Attn: Andree Mitton
Phone: (212) 415-9617 Phone: (212) 415-9617
Fax: (212) 415-9606 Fax: (212) 415-9606
Competitive Bid Matters: Competitive Bid Matters:
499 Park Avenue, 499 Park Avenue,
9th Floor 9th Floor
New York, New York 10022 New York, New York 10022
Attn: Andree Mitton Attn: Andree Mitton
Phone: (212) 415-9617 Phone: (212) 415-9617
Fax: (212) 415-9606 Fax: (212) 415-9606
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Boatmen's National Credit and Relationship Credit and Relationship
Bank of St. Louis Matters: Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Michael S. Harvey Attn: Michael S. Harvey
Phone: (314) 466-7089 Phone: (314) 466-7089
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Canadian Imperial Bank Credit and Relationship Credit and Relationship
of Commerce Matters: Matters:
Two Paces West Two PacesWest
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (770) 319-4907 Phone: (770) 319-4907
Fax: (770) 319-4954 Fax: (770) 319-4954
Operations: Operations:
Two Paces West Two Pces West
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
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
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
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
Suite 1200
2727 Paces Ferry Road
Atlanta, GA 30339
Attn: Miriam McCart
Phone: (404) 319-4842
Fax: (404) 319-4950/1
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Chemical Bank Credit and Relationship Credit and Relationship
Matters: Matters:
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Matthis Shinnick Attn: Matthis Shinnick
Phone: (212) 270-3622 Phone: (212) 270-3622
Fax: (212) 270-9647 Fax: (212) 270-9647
Operations: Operations:
140 East 45th Street 140 East 45th Street
29th Floor 29th Floor
New York, NY 10017 New York, NY 10017
Attn: Winslowe Ogbourne Attn: Winslowe Ogbourne
Phone: (212) 622-9560 Phone: (212) 622-9560
Fax: (212) 622-0854 Fax: (212) 622-0854
Competitive Bid Matters: Competitive Bid Matters:
270 Park Avenue 270 Park Avenue
6th Floor 6th Floor
New York, NY 10017 New York, NY 10017
Attn: Frank Angelico Attn: Frank Angelico
Phone: (212) 834-4434 Phone: (212) 834-4434
Fax: (212) 834-6160 Fax: (212) 834-6160
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Citibank, N.A. Credit and Relationship Credit and Relationship
Matters: Matters:
400 Perimeter Ctr Terrace 400 Perimeter Ctr Terrace
Suite 600 Suite 600
Atlanta, GA 30346 Atlanta, GA 30346
Attn: Bruce Simmons Attn: Bruce Simmons
Phone: (770) 668-8108 Phone: (770) 668-8108
Fax: (770) 668-8137 Fax: (770) 668-8137
Operations: Operations:
1 Court Square, 1 Court Square,
7th Floor 7th Floor
Long Island, NY 11120 Long Island, NY 11120
Attn: Lei Tang Attn: Lei Tang
Phone: (718) 248-4490 Phone: (718) 248-4490
Fax: (718) 248-4844 Fax: (718) 248-4844
Competitive Bid Matters: Competitive Bid Matters:
1 Court Square, 1 Court Square,
7th Floor 7th Floor
Long Island, NY 11120 Long Island, NY 11120
Attn: Lei Tang Attn: Lei Tang
Phone: (718) 248-4490 Phone: (718) 248-4490
Fax: (718) 248-4844 Fax: (718) 248-4844
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Credit Suisse Credit and Relationship Credit and Relationship
Matters: Matters:
191 Peachtree Street, N.E. 12 East 49th Street
Atlanta, GA 30303 New York, NY 10017
Attn: Robert Finney Attn: K. Kristinsson
Phone: (404) 577-6100 Phone: (212) 238-5206
Fax: (404) 577-9029 Fax: (212) 238-5245
Operations: Operations:
12 East 49th Street 12 East 49th Street
New York, NY 10017 New York, NY 10017
Attn: Hazel Leslie Attn: Hazel Leslie
Phone: (212) 238-5218 Phone: (212) 238-5218
Fax: (212) 238-5246 Fax: (212) 238-5246
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Dresdner Bank AG, Credit and Relationship Credit and Relationship
New York and Matters: Matters:
Grand Cayman Branches 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) 429-2246 Phone: (212) 429-2246
Fax: (212) 429-2524 Fax: (212) 429-2524
Operations: Operations:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Howard Ramlal - Attn: Howard Ramlal -
Credit Services Credit Services
Phone: (212) 429-2281 Phone: (212) 429-2281
Fax: (212) 429-2130 Fax: (212) 429-429-2130
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) 429-2246 Phone: (212) 429-2246
Fax: (212) 429-2524 Fax: (212) 429-2524
with a copy to: with a copy to:
Attn: Howard Ramlal - Attn: Howard Ramlal -
Credit Services Credit Services
Phone: (212) 429-2281 Phone: (212) 429-2281
Fax: (212) 429-2130 Fax: (212) 429-2130
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
First Union National Credit and Relationship Credit and Relationship
Bank of Georgia, N.A. Matters: Matters:
999 Peachtree Street 999 Peachtree Street
11th Floor 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Jonathan Hook Attn: Jonathan Hook
Phone: (404) 225-4055 Phone: (404) 225-4055
Fax: (404) 225-4255 Fax: (404) 225-4255
Operations: Operations:
999 Peachtree Street, 999 Peachtree Street
11th Floor 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 999 Peachtree Street
11th Floor 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Fuji Bank, Limited Credit and Relationship Credit and Relationship
Matters: Matters:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Brett P. Johnson Attn: Brett P. Johnson
Phone: (404) 653-2113 Phone: (404) 653-2113
Fax: (404) 653-2119 Fax: (404) 653-2119
Operations: Operations:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
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:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
NationsBank, N.A. Credit and Relationship Credit and Relationship
(South) Matters: Matters:
600 Peachtree Street, NE 600 Peachtree Street, NE
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) 607-6529 Fax: (404) 607-6529
Operations: Operations:
901 Main Street 901 Main Street
14th Floor 14th Floor
Dallas, TX 75283 Dallas, TX 75283
Attn: Jean Wright Attn: Jean Wright
Phone: (214) 508-0993 Phone: (214) 508-0993
Fax: (214) 508-0944 Fax: (214) 508-0944
Competitive Bid Matters: Competitive Bid Matters:
600 Peachtree Street, NE 600 Peachtree Street, NE
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Norwest Bank Minnesota, Credit and Relationship Credit and Relationship
National Association Matters: Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 554795 Minneapolis, MN 55479
Attn: Scott Bjelde Attn: Scott Bjelde
Phone: (612) 667-6126 Phone:(612) 667-6126
Fax: (612) 667-4145 Fax: (612) 667-4145
Operations: Operations:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479 Minneapolis, MN 55479
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 Minneapolis, MN 55479
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
PNC Bank, Credit and Relationship Credit and Relationship
National Association Matters: Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15265 Pittsburgh, PA 15265
Attn:Robert Mitchell, VP Attn:Robert Mitchell, VP
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Royal Bank of Canada Credit and Relationship Credit and Relationship
Matters: 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Sanwa Bank, Limited Credit and Relationship Credit and Relationship
Matters: Matters:
4950 Georgia-Pacific Ct 4950 Georgia-Pacific Ctr
133 Peachtree Street 133 Peachtree Street
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Shelley Browne Attn: Shelley Browne
Phone: (404) 586-6889 Phone: (404) 586-6889
Fax: (404) 589-1629 Fax: (404) 589-1629
Operations: Operations:
55 East 52nd Street 55 East 52nd Street
Park Avenue Plaza Park Avenue Plaza
New York, NY 10055 New York, NY 10055
Attn: Renko Hara Attn: Rneko Hara
Phone: (212) 339-6390 Phone: (212) 339-6390
Fax: (212) 754-2368 Fax: (212) 754-2368
Competitive Bid Matters: Competitive Bid Matters:
55 East 52nd Street 55 East 52nd Street
Park Avenue Plaza Park Avenue Plaza
New York, NY 10055 New York, NY 10055
Attn: Renko Hara Attn: Renko Hara
Phone: (212) 339-6390 Phone: (212) 339-6390
Fax: (212) 754-2368 Fax: (212) 754-2368
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Sumitomo Bank, Credit and Relationship Credit and Relationship
Limited New York Branch Matters: Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Angelo Belestrieri Attn: Angelo Belestrieri
Phone: (212) 224-4143 Phone: (212) 224-4143
Fax: (212) 224-5188 Fax: (212) 224-5188
Operations: Operations:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: C. Bonifacic, Attn: C. Bonifacic,
USCD 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: C. Bonifacic, Attn: C. Bonifacic,
USCD USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
SunTrust Bank, Atlanta Credit and Relationship Credit and Relationship
Matters: Matters:
25 Park Place 25 Park Place
Center Code #116 Center Code #116
Atlanta, GA 30303 Atlanta, GA 30303
Attn: C. Deisley Attn: C. 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
Center Code #112 Center Code #112
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
Center Code #112 Center Code #112
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Wachovia Bank of Credit and Relationship Credit and Relationship
Georgia, N.A. Matters: 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Wells Fargo Bank, N.A. Credit and Relationship Credit and Relationship
Matters: Matters:
885 Third Ave, 4th Floor 885 Third Ave, 4th Floor
New York, NY 10022 New York, NY 10022
Attn: Sanford Horowitz Attn: Sanford Horowitz
Phone: (212) 836-4141 Phone: (212) 836-4141
Fax: (212) 593-5241 Fax: (212) 593-5241
Operations: Operations:
18700 NW Walker Road 18700 NW Walker Road
Building 92 Building 92
Beaverton, OR 97006 Beaverton, OR 97006
Attn: Commercial Loan Attn: Commercial Loan
Services Services
Phone: (503) 614-6436 Phone: (503) 614-6436
Fax: (503) 614-5878 Fax: (503) 614-5878
Competitive Bid Matters: Competitive Bid Matters:
885 Third Ave, 4th Floor 885 Third Ave, 4th Floor
New York, NY 10022 New York, NY 10022
Attn: Sanford Horowitz Attn: Sanford Horowitz
Phone: (212) 836-4141 Phone: (212) 836-4141
Fax: (212) 593-5241 Fax: (212) 593-5241
EXHIBIT A-1 TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
U.S.$_______________ Dated: ________, 1996
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 10, 1996 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:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
EXHIBIT A-2 TO THE
CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
U.S.$_______________ Dated: __________, 1996
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 10, 1996 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.
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:
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 10, 1996 (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:
- -------------------------
* To be excluded in any notice of a Borrowing on the Effective Date.
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 10, 1996 (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
there from, 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:
- --------------------------
* To be excluded in any notice of a Borrowing on the Effective Date.
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 10, 1996 (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.
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]
- -----------------------------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
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:
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 10, 1996 (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]
- ---------------------------
* This date should be no earlier than five Business Days after the delivery
of this Designation Agreement to the Administrative Agent.
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By _________________________
Title:
EXHIBIT E TO THE
CREDIT AGREEMENT
FORM OF GUARANTY
This GUARANTY (364-Day Facility) dated as of June 10, 1996, 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 10, 1996 (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:
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
EXHIBIT F TO THE
CREDIT AGREEMENT
FORM OF INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT dated as of
June 10, 1996, 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
10, 1996 (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 10, 1996 (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:
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:
EXHIBIT G
MAYER, BROWN & PLATT
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
BERLIN 312-782-0600
BRUSSELS TELEX 190404
HOUSTON FACSIMILE
LONDON 312-701-7711
LOS ANGELES
NEW YORK
WASHINGTON
MEXICO CITY CORRESPONDENT
JAUREGUI, NAVARRETE, NADER Y ROJAS
J. Paul Forrester
312-701-7336
June 10, 1996
To each of the Lenders parties to the Credit Agreements dated as
of June 10, 1996 among United Parcel Service of America, Inc.,
such Lenders, Citibank, N.A., as Administrative Agent,
NationsBank, N.A. (South), 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 10,
1996 (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, N.A. (South), 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;
(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 3, 1996, June 3, 1996,
June 3, 1996 and June 4, 1996, 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 10, 1996 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.
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 or 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
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 10, 1996, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank, N.A. (South), 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 10, 1996, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank, N.A. (South), 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 Agreements.
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
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 _____ day of June, 1996.
_________________________________
Robert J. Clanin
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.
Trust Indenture, dated as of January 4, 1996, between United
Parcel Service of America, Inc. and Citibank, N.A. as Trustee.
Bond Purchase and Paying Agency Agreement, dated as of April 12,
1996, between United Parcel Service of America, Inc. and Merrill
Lynch Capital Markets AG, as Lead Manager.
CONFORMED COPY
U.S. $1,250,000,000
CREDIT AGREEMENT
(Five-Year Facility)
Dated as of June 10, 1996
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, N.A. (SOUTH)
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
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 . . . . . . . . 16
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. . . . . . . . . . . . . . . . . . . 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. Extensions of Termination Date . . . . . . . . . . . 29
SECTION 2.17. Substitution of Lender . . . . . . . . . . . . . . . 30
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing 31
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing 32
SECTION 3.04. Determinations Under Section 3.01. . . . . . . . . . 32
SECTION 3.05. Labor Dispute. . . . . . . . . . . . . . . . . . . . 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower . . . 33
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. Administrative Agent's 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. . . . . . . . . . . . . . . . . . . 49
SECTION 8.02. Notices, Etc.. . . . . . . . . . . . . . . . . . . . 49
SECTION 8.03. No Waiver; Remedies. . . . . . . . . . . . . . . . . 49
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . . . . . . 50
SECTION 8.05. Right of Setoff. . . . . . . . . . . . . . . . . . . 51
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. . . . . . . . . . . . . . 57
SECTION 8.11. Jurisdiction, Etc. . . . . . . . . . . . . . . . . . 57
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
CREDIT AGREEMENT
(Five-Year Facility)
Dated as of June 10, 1996
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, N.A. (SOUTH)
("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: Lee Tang.
"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:
Level 1
AA- / Aa3 or above 0.050%
Level 2
Lower than Level 1
but at least
A- / A3 0.075%
Level 3
Lower than Level 2 0.100%
"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 for Applicable Margin
S&P/Moody's Base Rate for
Advances Eurodollar Rate
Advances
Level 1
AA- / Aa3 or above 0.00% 0.100%
Level 2
Lower than Level 1
but at least
A- / A3 0.00% 0.175%
Level 3
Lower than Level 2 0.00% 0.200%
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.
"Declining Lender" has the meaning specified in Section 2.16.
"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 12, 1995,
as amended, supplemented or otherwise modified from time to time, among
the Borrower, the banks named therein, Citibank, as administrative
agent, and NationsBank, as documentation agent, and (b) the five-year
Credit Agreement dated as of June 12, 1995, as amended, supplemented or
otherwise modified from time to time, among the Borrower, the banks
named therein, Citibank, as administrative agent, and NationsBank, as
documentation agent.
"Extending Lender" has the meaning specified in Section 2.16.
"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 inter-
pretations thereunder or thereof, respectively.
"Replacement Lenders" has the meaning specified in Section 2.16.
"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 8, 2001 or, if
extended pursuant to Section 2.16, the date that is one year 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 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. Extensions of Termination Date. No earlier than 60
days and no later than 45 days prior to each anniversary of the Effective
Date, the Borrower may, by written notice to the Administrative Agent, request
that the Termination Date then in effect be extended for a 1-year period.
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 anniversary 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 anniversary 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 then 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 Administrative Agent shall promptly notify each Extending
Lender of the aggregate Commitments of the Declining Lenders. 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 anniversary 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 such
anniversary date 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, but only if, Extending Lenders and Replacement
Lenders provide Commitments in an aggregate amount equal to 100% of the
aggregate amount of the Commitments outstanding immediately prior to such
anniversary date, the Termination Date shall be extended by 1-year.
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. 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, 1995, 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, 1995, 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,
1995.
(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
(770) 668-8137); and if to the Documentation Agent, at its address at 600
Peachtree Street, N.E., 21st Floor, Atlanta, Georgia 30308-2213, Attention:
John Gregg (telecopier number (704) 386-2329); 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 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.
[Remainder of page intentionally left blank]
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/s/ Robert J. Clavin
Title: Senior Vice President
and Treasurer
CITIBANK, N.A., as Administrative Agent
By/s/ David L. Harris
Title: Vice President
NATIONSBANK, N.A. (SOUTH),
as Documentation Agent
By/s/ James S. Scully
Title: Vice President
CITICORP SECURITIES, INC.,
as Co-Arranger
By/s/ Heidi K. McKibbon
Title: Vice President
NATIONSBANC CAPITAL MARKETS,
INC., as Co-Arranger
By/s/ James S. Scully
Title: Vice President
Commitment Initial Lenders
$112,500,000 CITIBANK, N.A.
By/s/ David L. Harris
Title: Vice President
$100,000,000 NATIONSBANK, N.A. (SOUTH)
By/s/ James S. Scully
Title: Vice President
$87,500,000 BANK OF AMERICA ILLINOIS
By/s/ Timothy C. Hintz
Title: Vice President
$87,500,000 CHEMICAL BANK
By/s/ Richard Smith
Title: Vice President
$87,500,000 CREDIT SUISSE
By/s/ William P. Murray
Title: Member of Senior
Management
By/s/ Kristinn R. Kristinsson
Title: Associate
$87,500,000 PNC BANK, NATIONAL ASSOCIATION
By/s/ Robert J. Mitchell, Jr.
Title: Vice President
$87,500,000 ROYAL BANK OF CANADA
By/s/ Brian Bolot
Title: Associate
$75,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE
By/s/ Kim Frederking
Title: Authorized Signatory
$75,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By/s/ Yoshinori Kawamura
Title: Joint General Manager
$75,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By/s/ Bradley S. Marcus
Title: Senior Vice President
$62,500,000 BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By/s/ Robert S. Taylor
Title: Senior Vice President
By/s/ Richard L. Sted
Title: Senior Vice President
$62,500,000 THE FUJI BANK, LIMITED
By/s/ Shinichiro Fujimoto
Title: Joint General Manager
$50,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By/s/ J. Michael Leffler
Title: Senior Vice President
By/s/ Robert Grella
Title: Vice President
$50,000,000 FIRST UNION NATIONAL BANK OF
GEORGIA, N.A.
By/s/ Jonathan D. Hook
Title: Vice President
$50,000,000 THE SANWA BANK, LIMITED
By/s/ Shelley Browne
Title: Vice President
By/s/
Title: Vice President
$25,000,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By/s/ Scott Bjelde
Title: Assistant Vice President
$25,000,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By/s/ Michael S. Harvey
Title: Vice President
$25,000,000 SUNTRUST BANK, ATLANTA
By/s/ J. Christopher Deisley
Title: Vice President
By/s/ Jeffrey L. Selig
Title: Vice President
$25,000,000 WELLS FARGO BANK
By/s/ Peter G. Olson
Title: Senior Vice President
By/s/ Lancy Gin
Title: Assistant Vice President
$1,250,000,000 TOTAL OF THE COMMITMENTS
SCHEDULE I TO THE
CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Bank of America Illinois Credit and Relationship Credit and Relationship
Matters: Matters:
555 S. Flower Street 555 S.Flower Street
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Patrick Horan Attn: Patrick Horan
Senior Vice President Senior Vice President
LA II #5618 LA II #5618
Phone: (213) 228-3443 Phone: (213) 228-3443
Fax: (213) 228-2758 Fax: (213) 228-2758
Operations: Operations:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Josie Nahoe, Attn: Josie Nahoe,
Account Administration, Account Administration,
#5693 #569
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, 555 California Street,
10th Floor 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Banque Nationale
de Paris, Credit and Relationship Credit and Relationship
New York Branch Matters: Matters:
499 Park Avenue 499 Park Avenue
New York, New York 10022 New York, New York 10022
Attn: Robert S. Taylor Attn: Robert S. Taylor
Phone: (212) 415-9713 Phone: (212) 415-9713
Fax: (212) 415-9606 Fax: (212) 415-9606
Operations: Operations:
499 Park Ave, 9th Floor 499 Park Ave, 9th Floor
New York, New York 10022 New York, New York 10022
Attn: Andree Mitton Attn: Andree Mitton
Phone: (212) 415-9617 Phone: (212) 415-9617
Fax: (212) 415-9606 Fax: (212) 415-9606
Competitive Bid Matters: Competitive Bid Matters:
499 Park Avenue, 499 Park Avenue,
9th Floor 9th Floor
New York, New York 10022 New York, New York 10022
Attn: Andree Mitton Attn: Andree Mitton
Phone: (212) 415-9617 Phone: (212) 415-9617
Fax: (212) 415-9606 Fax: (212) 415-9606
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Boatmen's National Credit and Relationship Credit and Relationship
Bank of St. Louis Matters: Matters:
#1 Boatmen's Plaza #1 Boatmen's Plaza
800 Market Street 800 Market Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: Michael S. Harvey Attn: Michael S. Harvey
Phone: (314) 466-7089 Phone: (314) 466-7089
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Canadian Imperial Bank Credit and Relationship Credit and Relationship
of Commerce Matters: Matters:
Two Paces West Two PacesWest
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kim Frederking Attn: Kim Frederiking
Phone: (770) 319-4907 Phone: (770) 319-4907
Fax: (770) 319-4954 Fax: (770) 319-4954
Operations: Operations:
Two Paces West Two Pces West
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
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
Suite 1200 Suite 1200
2727 Paces Ferry Road 2727 Paces Ferry Road
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
Suite 1200
2727 Paces Ferry Road
Atlanta, GA 30339
Attn: Miriam McCart
Phone: (404) 319-4842
Fax: (404) 319-4950/1
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Chemical Bank Credit and Relationship Credit and Relationship
Matters: Matters:
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Matthis Shinnick Attn: Matthis Shinnick
Phone: (212) 270-3622 Phone: (212) 270-3622
Fax: (212) 270-9647 Fax: (212) 270-9647
Operations: Operations:
140 East 45th Street 140 East 45th Street
29th Floor 29th Floor
New York, NY 10017 New York, NY 10017
Attn: Winslowe Ogbourne Attn: Winslowe Ogbourne
Phone: (212) 622-9560 Phone: (212) 622-9560
Fax: (212) 622-0854 Fax: (212) 622-0854
Competitive Bid Matters: Competitive Bid Matters:
270 Park Avenue 270 Park Avenue
6th Floor 6th Floor
New York, NY 10017 New York, NY 10017
Attn: Frank Angelico Attn: Frank Angelico
Phone: (212) 834-4434 Phone: (212) 834-4434
Fax: (212) 834-6160 Fax: (212) 834-6160
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Citibank, N.A. Credit and Relationship Credit and Relationship
Matters: Matters:
400 Perimeter Ctr Terrace 400 Perimeter Ctr Terrace
Suite 600 Suite 600
Atlanta, GA 30346 Atlanta, GA 30346
Attn: Bruce Simmons Attn: Bruce Simmons
Phone: (770) 668-8108 Phone: (770) 668-8108
Fax: (770) 668-8137 Fax: (770) 668-8137
Operations: Operations:
1 Court Square, 1 Court Square,
7th Floor 7th Floor
Long Island, NY 11120 Long Island, NY 11120
Attn: Lei Tang Attn: Lei Tang
Phone: (718) 248-4490 Phone: (718) 248-4490
Fax: (718) 248-4844 Fax: (718) 248-4844
Competitive Bid Matters: Competitive Bid Matters:
1 Court Square, 1 Court Square,
7th Floor 7th Floor
Long Island, NY 11120 Long Island, NY 11120
Attn: Lei Tang Attn: Lei Tang
Phone: (718) 248-4490 Phone: (718) 248-4490
Fax: (718) 248-4844 Fax: (718) 248-4844
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Credit Suisse Credit and Relationship Credit and Relationship
Matters: Matters:
191 Peachtree Street, N.E. 12 East 49th Street
Atlanta, GA 30303 New York, NY 10017
Attn: Robert Finney Attn: K. Kristinsson
Phone: (404) 577-6100 Phone: (212) 238-5206
Fax: (404) 577-9029 Fax: (212) 238-5245
Operations: Operations:
12 East 49th Street 12 East 49th Street
New York, NY 10017 New York, NY 10017
Attn: Hazel Leslie Attn: Hazel Leslie
Phone: (212) 238-5218 Phone: (212) 238-5218
Fax: (212) 238-5246 Fax: (212) 238-5246
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Dresdner Bank AG, Credit and Relationship Credit and Relationship
New York and Matters: Matters:
Grand Cayman Branches 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) 429-2246 Phone: (212) 429-2246
Fax: (212) 429-2524 Fax: (212) 429-2524
Operations: Operations:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Howard Ramlal - Attn: Howard Ramlal -
Credit Services Credit Services
Phone: (212) 429-2281 Phone: (212) 429-2281
Fax: (212) 429-2130 Fax: (212) 429-429-2130
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) 429-2246 Phone: (212) 429-2246
Fax: (212) 429-2524 Fax: (212) 429-2524
with a copy to: with a copy to:
Attn: Howard Ramlal - Attn: Howard Ramlal -
Credit Services Credit Services
Phone: (212) 429-2281 Phone: (212) 429-2281
Fax: (212) 429-2130 Fax: (212) 429-2130
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
First Union National Credit and Relationship Credit and Relationship
Bank of Georgia, N.A. Matters: Matters:
999 Peachtree Street 999 Peachtree Street
11th Floor 11th Floor
Atlanta, GA 30309 Atlanta, GA 30309
Attn: Jonathan Hook Attn: Jonathan Hook
Phone: (404) 225-4055 Phone: (404) 225-4055
Fax: (404) 225-4255 Fax: (404) 225-4255
Operations: Operations:
999 Peachtree Street, 999 Peachtree Street
11th Floor 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 999 Peachtree Street
11th Floor 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Fuji Bank, Limited Credit and Relationship Credit and Relationship
Matters: Matters:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
Atlanta, GA 30303-1208 Atlanta, GA 30303-1208
Attn: Brett P. Johnson Attn: Brett P. Johnson
Phone: (404) 653-2113 Phone: (404) 653-2113
Fax: (404) 653-2119 Fax: (404) 653-2119
Operations: Operations:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
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:
Marquis One Tower Marquis One Tower
Suite 2100 Suite 2100
245 Peachtree Ctr Ave, NE 245 Peachtree Ctr Ave, NE
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
NationsBank, N.A. Credit and Relationship Credit and Relationship
(South) Matters: Matters:
600 Peachtree Street, NE 600 Peachtree Street, NE
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) 607-6529 Fax: (404) 607-6529
Operations: Operations:
901 Main Street 901 Main Street
14th Floor 14th Floor
Dallas, TX 75283 Dallas, TX 75283
Attn: Jean Wright Attn: Jean Wright
Phone: (214) 508-0993 Phone: (214) 508-0993
Fax: (214) 508-0944 Fax: (214) 508-0944
Competitive Bid Matters: Competitive Bid Matters:
600 Peachtree Street, NE 600 Peachtree Street, NE
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Norwest Bank Minnesota, Credit and Relationship Credit and Relationship
National Association Matters: Matters:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479 Minneapolis, MN 55479
Attn: Scott Bjelde Attn: Scott Bjelde
Phone: (612) 667-6126 Phone:(612) 667-6126
Fax: (612) 667-4145 Fax: (612) 667-4145
Operations: Operations:
Norwest Center Norwest Center
6th & Marquette 6th & Marquette
Minneapolis, MN 55479 Minneapolis, MN 55479
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 Minneapolis, MN 55479
Attn: Edna Harder Attn: Edna Harder
Phone: (612) 667-4747 Phone: (612) 667-4747
Fax: (612) 667-4145 Fax: (612) 667-4145
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
PNC Bank, Credit and Relationship Credit and Relationship
National Association Matters: Matters:
Fifth Avenue and Fifth Avenue and
Wood Street, 2nd Floor Wood Street, 2nd Floor
Pittsburgh, PA 15265 Pittsburgh, PA 15265
Attn:Robert Mitchell, VP Attn:Robert Mitchell, VP
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Royal Bank of Canada Credit and Relationship Credit and Relationship
Matters: 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Sanwa Bank, Limited Credit and Relationship Credit and Relationship
Matters: Matters:
4950 Georgia-Pacific Ctr 4950 Georgia-Pacific Ctr
133 Peachtree Street 133 Peachtree Street
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Shelley Browne Attn: Shelley Browne
Phone: (404) 586-6889 Phone: (404) 586-6889
Fax: (404) 589-1629 Fax: (404) 589-1629
Operations: Operations:
55 East 52nd Street 55 East 52nd Street
Park Avenue Plaza Park Avenue Plaza
New York, NY 10055 New York, NY 10055
Attn: Renko Hara Attn: Rneko Hara
Phone: (212) 339-6390 Phone: (212) 339-6390
Fax: (212) 754-2368 Fax: (212) 754-2368
Competitive Bid Matters: Competitive Bid Matters:
55 East 52nd Street 55 East 52nd Street
Park Avenue Plaza Park Avenue Plaza
New York, NY 10055 New York, NY 10055
Attn: Renko Hara Attn: Renko Hara
Phone: (212) 339-6390 Phone: (212) 339-6390
Fax: (212) 754-2368 Fax: (212) 754-2368
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Sumitomo Bank, Credit and Relationship Credit and Relationship
Limited New York Branch Matters: Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Angelo Belestrieri Attn: Angelo Belestrieri
Phone: (212) 224-4143 Phone: (212) 224-4143
Fax: (212) 224-5188 Fax: (212) 224-5188
Operations: Operations:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: C. Bonifacic, Attn: C. Bonifacic,
USCD 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: C. Bonifacic, Attn: C. Bonifacic,
USCD USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
SunTrust Bank, Atlanta Credit and Relationship Credit and Relationship
Matters: Matters:
25 Park Place 25 Park Place
Center Code #116 Center Code #116
Atlanta, GA 30303 Atlanta, GA 30303
Attn: C. Deisley Attn: C. 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
Center Code #112 Center Code #112
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
Center Code #112 Center Code #112
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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Wachovia Bank of Credit and Relationship Credit and Relationship
Georgia, N.A. Matters: 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
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Wells Fargo Bank, N.A. Credit and Relationship Credit and Relationship
Matters: Matters:
885 Third Avenue, 885 Third Avenue,
4th Floor 4th Floor
New York, NY 10022 New York, NY 10022
Attn: Sanford Horowitz Attn: Sanford Horowitz
Phone: (212) 836-4141 Phone: (212) 836-4141
Fax: (212) 593-5241 Fax: (212) 593-5241
Operations: Operations:
18700 NW Walker Road 18700 NW Walker Road
Building 92 Building 92
Beaverton, OR 97006 Beaverton, OR 97006
Attn: Commercial Loan Attn: Commercial Loan
Services Services
Phone: (503) 614-6436 Phone: (503) 614-6436
Fax: (503) 614-5878 Fax: (503) 614-5878
Competitive Bid Matters: Competitive Bid Matters:
885 Third Avenue, 885 Third Avenue,
4th Floor 4th Floor
New York, NY 10022 New York, NY 10022
Attn: Sanford Horowitz Attn: Sanford Horowitz
Phone: (212) 836-4141 Phone: (212) 836-4141
Fax: (212) 593-5241 Fax: (212) 593-5241
EXHIBIT A-1 TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
U.S.$_______________ Dated: _______________, 1996
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 10, 1996 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:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principle Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
EXHIBIT A-2 TO THE
CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
U.S.$_______________ Dated: _______________, 1996
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 10, 1996 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.
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:
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 10, 1996 (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:
__________________
* To be excluded in any notice of a borrowing on the Effective Date.
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 10, 1996 (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:
_________________
* To be excluded in any notice of a Borrowing on the Effective Date.
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 10, 1996 (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.
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]
________________________
* This date should be no earlier than five Business Days after the
delivery of this Asignment and Acceptance to the
Administrative Agent.
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:
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 10, 1996 (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:
___________________________________
* This dte should be no earlier than five Business Days after
the delivery of this Designation AGreement to the
Administrative Agent.
EXHIBIT E TO THE
CREDIT AGREEMENT
FORM OF GUARANTY
This GUARANTY (Five-Year Facility) dated as of June 10, 1996, 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 10, 1996 (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 Citibank, N.A., as 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:
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
EXHIBIT F TO THE
CREDIT AGREEMENT
FORM OF INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT dated as of
June 10, 1996, 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 10, 1996 (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
10, 1996 (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:
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:
EXHIBIT G
MAYER, BROWN & PLATT
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
BERLIN 312-782-0600
BRUSSELS TELEX 190404
HOUSTON FACSIMILE
LONDON 312-701-7711
LOS ANGELES
NEW YORK
WASHINGTON
MEXICO CITY CORRESPONDENT
JAUREGUI, NAVARRETE, NADER Y ROJAS
J. Paul Forrester
312-701-7336
June 10, 1996
To each of the Lenders parties to the Credit Agreements dated as
of June 10, 1996 among United Parcel Service of America, Inc.,
such Lenders, Citibank, N.A., as Administrative Agent,
NationsBank, N.A. (South), 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 10,
1996 (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, N.A. (South), 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;
(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 3, 1996, June 3, 1996,
June 3, 1996 and June 4, 1996, 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 10, 1996 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.
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 or 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
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 10, 1996, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank, N.A. (South), 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 10, 1996, among the Corporation, the
Lenders, Citibank, N.A., as the Administrative Agent for the
Lenders, NationsBank, N.A. (South), 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 Agreements.
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
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 _____ day of June, 1996.
_________________________________
Robert J. Clanin
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.
Trust Indenture, dated as of January 4, 1996, between United
Parcel Service of America, Inc. and Citibank, N.A. as Trustee.
Bond Purchase and Paying Agency Agreement, dated as of April 12,
1996, between United Parcel Service of America, Inc. and Merrill
Lynch Capital Markets AG, as Lead Manager.
