<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15 (d)
of the Securities and Exchange Act of 1934
For the Quarter Ended March 31, 1997
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 and 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 May 14, 1997
<PAGE> 2
PART I. FINANCIAL INFORMATION
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 31, 1997 (unaudited) and December 31, 1996
(In millions except share amounts)
ASSETS 1997 1996
CURRENT ASSETS:
Cash and short-term investments $ 479 $ 392
Accounts receivable 2,352 2,341
Prepaid employee benefit costs 657 401
Materials, supplies and prepaid expenses 607 581
Common stock held for stock plans 475 540
------ ------
TOTAL CURRENT ASSETS 4,570 4,255
PROPERTY, PLANT AND EQUIPMENT (including aircraft
under capitalized lease obligations)- at
cost, net of accumulated depreciation and
amortization of $6,944 in 1997 and $6,778 in
1996 10,239 10,230
OTHER ASSETS 452 469
------ ------
$15,261 $14,954
LIABILITIES AND SHAREOWNERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,113 $ 1,155
Accrued wages and withholdings 1,033 1,201
Dividends payable - 194
Deferred income taxes 149 149
Other current liabilities 605 459
------ ------
TOTAL CURRENT LIABILITIES 2,900 3,158
LONG-TERM DEBT (including capitalized lease
obligations), net of current maturities
of $20 in 1997 and $18 in 1996 2,766 2,573
------ ------
ACCUMULATED POSTRETIREMENT BENEFIT
OBLIGATION, NET 869 841
------ ------
DEFERRED TAXES, CREDITS AND OTHER LIABILITIES 2,629 2,481
------ ------
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 111 95
Retained earnings 5,956 5,728
Cumulative foreign currency adjustments (27) 21
------ ------
6,097 5,901
------ ------
$15,261 $14,954
====== ======
See notes to consolidated financial statements.
<PAGE> 3
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three Months Ended March 31, 1997 and 1996
(in millions except per share amounts)
(unaudited)
Three Months Ended
------------------
1997 1996
---- ----
Revenue $ 5,664 $ 5,335
------ ------
Operating Expenses:
Compensation and benefits 3,405 3,259
Other 1,833 1,651
------ ------
5,238 4,910
------ ------
Operating Profit 426 425
------ ------
Other income and (expense):
Interest income 10 9
Interest expense (41) (23)
Miscellaneous, net (7) (9)
------ ------
(38) (23)
Income before income taxes 388 402
Income taxes 160 161
------ ------
Net income $ 228 $ 241
------ ------
Net income per share $ 0.40 $ 0.42
------ ------
See notes to consolidated financial statements.
<PAGE>4
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREOWNERS' EQUITY
Three Months Ended March 31, 1997
(In millions)
(unaudited)
Cumulative
Additional Foreign Total
Common Stock Paid-In Retained Currency Shareowners'
Shares Amount Capital Earnings Adjustments Equity
Balance, January 1,
1997 570 $57 $95 $5,728 $21 $5,901
Net income - - - 228 - 228
Gain on issuance
of common stock
held for stock
plans - - 16 - - 16
Foreign currency
adjustments - - - - (48) (48)
---- ---- ---- ------ ---- ------
Balance, March 31,
1997 570 $57 $111 $5,956 $(27) $6,097
==== ==== ==== ====== ==== ======
See notes to consolidated financial statements.
<PAGE> 5
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Three Months Ended March 31, 1997 and 1996
(In millions)
(unaudited)
1997 1996
Cash flows from operating activities: -------- --------
Net income $ 228 $ 241
Adjustments to reconcile net income to net
cash provided from operating activities:
Depreciation and amortization 249 228
Postretirement benefits 28 26
Deferred taxes, credits, and other 140 74
Changes in assets and liabilities:
Accounts receivable (11) (129)
Prepaid employee benefit costs (256) (127)
Materials, supplies and prepaid
expenses (28) (92)
Common stock held for stock plans 65 24
Accounts payable (42) 87
Accrued wages and withholdings (168) (148)
Dividends payable (194) (178)
Other current liabilities 144 170
------ ------
Net cash provided from operating activities 155 176
------ ------
Cash flows from investing activities:
Capital expenditures (322) (318)
Disposals of property, plant and equipment 30 18
Other asset receipts 14 20
------ ------
Net cash (used in) investing activities (278) (280)
------ ------
Cash flows from financing activities:
Proceeds from borrowings 343 293
Repayment of borrowings (148) (56)
Other transactions 16 16
------ ------
Net cash provided from financing activities 211 253
------ ------
Effect of exchange rate changes on cash (1) (5)
------ ------
Net increase in cash and short-term investments 87 144
Cash and short-term investments:
Beginning of period 392 211
------ ------
End of period $ 479 $ 355
====== ======
Cash paid during the period for:
Interest (net of amount capitalized) $ 21 $ 4
====== ======
Income taxes $ 5 $ 30
====== ======
See notes to consolidated financial statements.
<PAGE> 6
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1997 and 1996
(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 1997 and 1996, 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
March 31, 1997, the results of operations for the three months ended March 31,
1997 and 1996, and cash flows for the three months ended March 31, 1997 and
1996.
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 are based on the same
theories included in the above described Notice of Deficiency.
In addition, the IRS and its agents have raised a number of other issues
relating to the timing of deductions; the characterization of expenses as
capital rather than ordinary; and UPS's entitlement to the Investment Tax
Credit in the 1983 through 1987 tax years. These issues total $32 million in
tax for the 1983 and 1984 tax years and $95 million in tax for the 1985 through
1987 tax 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 Ended March 31, 1997 and 1996
(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. The trial date is
set for September 8, 1997. 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 material
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. Certain prior period amounts have been reclassified to conform to the
current period presentation.
<PAGE> 8
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended March 31, 1997 and 1996
Revenue increased by $329 million, or 6.2%, for the three months ended March 31,
1997 over the three months ended March 31, 1996. For the first quarter of 1997,
domestic revenue totaled $4.955 billion, an increase of $364 million, or 7.9%,
over the first quarter of 1996, and international revenue totaled $709 million,
a decrease of $35 million, or 4.7%.
Domestic revenue increased as a result of rate increases and higher volume,
which was up 3.4%, and is inclusive of a 9.8% volume increase in higher yielding
express packages.
During the first quarter of 1997, rates for standard ground shipments were
increased an average of 3.4% for commercial deliveries and 4.3% for residential
deliveries. Rates for UPS Next Day Air, UPS 2nd Day Air, and UPS 3-Day Select
each increased approximately 3.9%.
Rates for international shipments originating in the United States were
increased 2.6% for UPS Worldwide Express and 4.9% for UPS Worldwide Expedited.
Rate changes for shipments originating outside the United States have been made
throughout the past year and vary by geographic market. Rates for UPS Standard
service to Canada did not change.
The decrease in international revenue was primarily attributable to a $55
million decrease in foreign domestic revenue, or 19.9%, and results from a
combination of a stronger U.S. dollar and an 11.8% decrease in volume. The
Company has focused attention on higher margin volume which is intended to
improve operating results in the long run but is resulting in revenue shortfalls
in the short term. A $20 million, or 4.3%, increase in export revenues helped
to offset the overall decrease in international revenue. Export revenues
increased primarily as a result of higher volume, which was up 8.7%, offset by a
stronger U.S. dollar.
Operating expenses increased by $328 million, or 6.7%, raising the operating
ratio from 92.0 during 1996 to 92.5 during 1997. The deterioration of the
operating ratio resulted primarily from increased fuel costs, depreciation and
amortization, technology improvements for customer information needs, and higher
operating labor costs.
Operating profit for the period remained relatively flat as increased revenues
offset the increases in operating expenses.
Interest expense amounted to $41 million, an increase of $18 million over the
corresponding quarter of the previous year. This increase is primarily
attributable to interest costs incurred on higher debt levels outstanding during
the current quarter in comparison to the corresponding quarter of the previous
year.
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended March 31, 1997 and 1996
Income before income taxes ("pre-tax income") decreased $14 million, or 3.5%.
Domestic pre-tax income amounted to $419 million, a decrease of $23 million, or
5.5% over the corresponding quarter of the previous year. The decrease was
primarily a result of proportionally higher operating costs as discussed above.
The international pre-tax loss improved by $9 million, or 23.1%, to $31 million
for the quarter.
The international pre-tax loss attributable to the foreign domestic operations
increased by $4 million, or 11.5%. The pre-tax loss associated with export
operations in 1996 improved by $13 million, and resulted in a modest gain for
1997. Export volume increased by 12.1% and 3.3% 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 decreased by $13 million, or 5.4%, over the corresponding quarter of
the prior year. The net decrease resulted primarily from the proportionally
higher operating costs as discussed above along with higher interest expense.
The results of operations for the three months ended March 31, 1997 are not
necessarily indicative of the results to be expected for the full year.
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Liquidity and Capital Resources
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 financing transactions during 1997 and is continuing to
examine other favorable alternatives. In February 1997, UPS issued $165 million
of 6.875% Pound Sterling notes which are due in February 2000. In April 1997,
UPS issued $200 million of 6.625% Euro Notes which are due April 2001. These
Euro Notes were issued through the European medium-term note program established
in 1996.
In April of 1997, the UPS Board of Directors agreed to increase the Company's
Commercial Paper borrowing limits from $1.5 billion to $2.5 billion. In May
1997, UPS renegotiated and extended a credit agreement with a consortium of
banks increasing the revolving credit facility that would have otherwise expired
on June 9, 1997, from $1.25 billion to $3.25 billion. This new agreement
expires May 6, 1998.
Management believes that these funds, 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.
Future Accounting Changes
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share". This
statement simplifies the rules for computing earnings per share. Management
does not anticipate that adoption of this standard will have a material effect
on earnings per share. The statement must be adopted for periods ending after
December 15, 1997. Earlier application is not permitted. UPS will adopt the
statement for its fiscal year ended December 31, 1997.
<PAGE> 11
PART II
Item 6 - Exhibits and Reports on Form 8-K
a) Exhibits:
(4) Instruments defining the rights of security
holders, including indentures
(a) Specimen Certificate of Available to the
$200,000,000 of 6.625% Euro Notes Commission upon
Notes due April 25, 2001 request
(b) Indenture relating to Available to the
$200,000,000 of 6.625% Euro Notes Commission upon
Notes due April 25, 2001 request
(10) Material Contracts
(a) Credit Agreement (364-Day Facility) dated May 7,
1997 among United Parcel Service of America,
Inc., the initial lenders named therein, CitiCorp
Securities, Inc. as Co-Arranger and Nations Banc
Capital Markets, Inc. as Co-Arranger and NationsBank,
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> 12
EXHIBIT INDEX
(4) Instruments defining the rights of security
holders, including indentures
(a) Specimen Certificate of Available to the
$200,000,000 of 6.625% Euro Notes Commission upon
Notes due April 25, 2001 request
(b) Indenture relating to Available to the
$200,000,000 of 6.625% Euro Notes Commission upon
Notes due April 25, 2001 request
(10) Material Contracts
(a) Credit Agreement (364-Day Facility) dated May 7,
1997 among United Parcel Service of America, Inc.,
the initial lenders named therein, CitiCorp Securities,
Inc. as Co-Arranger and Nations Banc Capital Markets,
Inc. as Co-Arranger and NationsBank, N.A. as Agent and
CitiBank, N.A. as Agent.
E-1
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNITED PARCEL SERVICE OF AMERICA, INC.
(Registrant)
By: --------------------------------
Robert J. Clanin
Senior Vice President,
Treasurer and
Chief Financial Officer
Date: May 14, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 479
<SECURITIES> 0
<RECEIVABLES> 2,352
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 4,570
<PP&E> 17,183
<DEPRECIATION> 6,944
<TOTAL-ASSETS> 15,261
<CURRENT-LIABILITIES> 2,900
<BONDS> 2,766
0
0
<COMMON> 57
<OTHER-SE> 6,040
<TOTAL-LIABILITY-AND-EQUITY> 15,261
<SALES> 5,664
<TOTAL-REVENUES> 5,664
<CGS> 0
<TOTAL-COSTS> 5,238
<OTHER-EXPENSES> 7
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 41
<INCOME-PRETAX> 388
<INCOME-TAX> 160
<INCOME-CONTINUING> 288
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 228
<EPS-PRIMARY> 0.40
<EPS-DILUTED> 0.40
</TABLE>
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: Lori Kannegiatar Attn: Lori Kannegiatar
Managing Director Managing Director
LA II #5618 LA II #5618
Phone: (213) 228-6379 Phone: (213) 228-6379
Fax: (213) 228-2756 Fax: (213) 228-2756
Operations: Operations:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Josie Nahoe, Attn: Josie Nahoe,
Account Administration, Account Aministration,
#5693 #5693
Phone: (510) 675-7156 Phone: (510) 675-7156
Fax: (510) 675-7531/32 Fax: (510) 675-7531/32
Competitive Bid Matters: Competitive Bid Matters:
555 California Street, 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 Credit and Relationship : Credit and Relationship
de Paris, Matters: Matters:
Houston Agency 333 Clay, Suite 3400 333 Clay, Suite 3400
Houston, TX 77002 Houston, TX 77002
Attn: John Stacy Attn: John Stacy
Phone: (713) 951-1240 Phone: (713) 951-1240
Fax: (713) 659-1414 Fax: (713) 659-1414
Back-Up: Aurora Abella Back-Up: Aurora Abella
Phone: (713) 951-1223 Phone: (713) 951-1223
Fax: (713) 659-1414 Fax: (713) 659-1414
Operations: Operations:
333 Clay, Suite 3400 333 Clay, Suite 3400
Houston, TX 77002 Houston, TX 77002
Attn: Donna Rose Attn: Donna Rose
Phone: (713) 951-1240 Phone: (713) 951-1240
Fax: (713) 659-1414 Fax: (713) 659-1414
Competitive Bid Matters: Competitive Bid Matters:
333 Clay, Suite 3400 333 Clay, Suite 3400
Houston, TX 77002 Houston, TX 77002
Attn: Donna Rose Attn: Donna Rose
Phone: (713) 951-1240 Phone: (713) 951-1240
Fax: (713) 659-1414 Fax: (713) 659-1414
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 Paces West
2727 Paces Ferry Road, 2727 Paces Ferry Road,
Suite 1200 Suite 1200
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
Back-Up: Roger Colden Back-Up: Roger Colden
Phone: (770) 319-4902 Phone: (770) 319-4902
Operations: Operations:
Two Paces West Two Paces West
2727 Paces Ferry Road, 2727 Paces Ferry Road,
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Kelli Jones Attn: Kelli Jones
Phone: (770) 319-4817 Phone: (770) 319-4817
Fax: (770) 319-4950/1 Fax: (770) 319-490/1
Competitive Bid Matters: Competitive Bid Matters:
425 Lexington Avenue 425 Lexington Avenue
New York, NY 10017 New York, NY 10017
Attn: Carol Kizzia Attn: Carol Kizzia
Phone: (212) 856-3693 Phone: (212) 856-3693
Fax: (212) 856-3533 Fax: (212) 856-3533
Other Administrative
Matters:
Two Paces West
2727 Paces Ferry Road,
Suite 1200
Atlanta, GA 30339
Attn: Clare Coyne
Phone: (770) 319-4836
Fax: (770) 319-4950/1
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Chase Manhattan Bank Credit and Relationship Credit and Relationship
Matters: Matters:
270 Park Avenue, 270 Park Avenue,
38th Floor 38th Floor
New York, New York 10022 New York, New York 10022
Attn: Richard C. Smith Attn: Richard C. Smith
Phone: (212) 270-5435 Phone: (212) 270-5435
Fax: (212) 270-1500 Fax: (212) 270-1500
Back-Up: Derek Donnelly Back-Up: Derek Donnelly
Phone: (212) 270-5477 Phone: (212) 270-5477
Fax: (212) 270-1500 Fax: (212) 270-1500
Operations: Operations:
1 Chase Manhattan Plaza 1 Chase Manhattan Plaza
8th Floor 8th Floor
New York, New York 10081 New York, New York 10081
Attn: May Fong Attn: May Fong
Phone: (212) 552-7314 Phone: (212) 552-7314
Fax: (212) 552-5650 Fax: (212) 552-5650
Competitive Bid Matters: Competitive Bid Matters:
1 Chase Manhattan Plaza 1 Chase Manhattan Plaza
8th Floor 8th Floor
New York, New York 10081 New York, New York 10081
Attn: Chris Consomer Attn: Chris Consomer
Phone: (212) 552-7259 Phone: (212) 552-7259
Fax: (212) 552-5627 Fax: (212) 552-5627
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Banca Commerciale Credit and Relationship Credit and Relationship
Italiana New York Matters: Matters:
Branch One William Street One William Street
New York, NY 10004 New York, NY 10004
Attn: Karen Purelis Attn: Karen Purelis
Phone: (212) 607-3868 Phone: (212) 607-3868
Fax: (212) 809-2124 Fax: (212) 809-2124
Back-Up:Charles Dougherty Back-Up:Charles Dougherty
Phone: (212) 607-3656 Phone: (212) 607-3656
Fax: (212) 809-2124 Fax: (212) 809-2124
Operations: Operations:
One William Street One William Street
New York, NY 10004 New York, NY 10004
Attn: Jonathan Sahr Attn: Jonathan Sahr
Phone: (212) 607-3814 Phone: (212) 607-3814
Fax: (212) 607-3537 Fax: (212) 607-3537
Competitive Bid Matters: Competitive Bid Matters:
One William Street One William Street
New York, NY 10004 New York, NY 10004
Attn: Karen Purelis Attn: Karen Purelis
Phone: (212) 607-3868 Phone: (212) 607-3868
Fax: (212) 809-2124 Fax: (212) 809-2124
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, 7th Floor 1 Court Square, 7th Floor
Long Isl. City, NY 11120 Long Isl. City, 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, 7th Floor 1 Court Square, 7th Floor
Long Isl. City, NY 11120 Long Isl. City, 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
First Boston Matters: Matters:
11 Madison Avenue 11 Madison Avenue
New Y ork, NY 10010-3629 New Y ork, NY 10010-3629
Attn: Robert Finney Attn: Robert Finney
Phone: (212) 325-9038 Phone: (212) 325-9038
Fax: (212) 325-8319 Fax: (212) 325-8319
Operations: Operations:
11 Madison Avenue 11 Madison Avenue
New York, NY 10010-3629 New York, NY 10010-3629
Attn: Kevin Kappel Attn: Kevin Kappel
Phone: (212) 325-9097 Phone: (212) 325-9097
Fax: (212) 325-8319 Fax: (212) 325-8319
Competitive Bid Matters: Competitive Bid Matters:
11 Madison Avenue 11 Madison Avenue
New York, NY 10010-3629 New York, NY 10010-3629
Attn: Kevin Kappel Attn: Kevin Kappel
Phone: (212) 325-9097 Phone: (212) 325-9097
Fax: (212) 325-8319 Fax: (212) 325-8319
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 Caymen 75 Wall Street 75 Wall
Branches New York, NY 10005-2889 New York, NY 10005-2889
Attn: B. Craig Erickson Attn: B. Craig Erickson
Phone: (212) 429-2183 Phone: (212) 429-2183
Fax: (212) 429-2781 Fax: (212) 429-2781
Operations: Operations:
75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Attn: Wendy Kwok Attn: Wendy Kwok
Phone: (212) 429-2277 Phone: (212) 429-2277
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: B. Craig Erickson Attn: B. Craig Erickson
Phone: (212) 429-2183 Phone: (212) 429-2183
Fax: (212) 429-2781 Fax: (212) 429-2781
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:
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, Credit and Relationship Credit and Relationship
Limited 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: Scott Keller Attn: Scott Keller
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 Sutie 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 St, NE 600 Peachtree St, 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 St, NE 600 Peachtree St, 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, National Credit and Relationship Credit and Relationship
Association Matters: Matters:
Fifth Avenue & Wood St, Fifth Avenue & Wood St,
2nd Floor 2nd Floor
Pittsburgh, PA 15265 Pittsburgh, PA 15265
Attn: R.J. Mitchell, V.P. Attn: R.J. Mitchell, V.P.
Phone: (412) 762-6547 Phone: (412) 762-6547
Fax: (412) 762-6484 Fax: (412) 762-6484
Operations: Operations:
Fifth Avenue & Wood St, Fifth Avenue & Wood St,
2nd Floor 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 & Wood St, Fifth Avenue & Wood St,
2nd Floor 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:
Financial Square Financial Square
24th Floor 24th Floor
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:
Financial Square Financial Square
23rd Floor 23rd Floor
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Karene Murphy Attn: Karene Murphy
Phone: (212) 428-6332 Phone: (212) 428-6332
Fax: (212) 428-2372 Fax: (212) 428-2372
Competitive Bid Matters: Competitive Bid Matters:
Financial Square Financial Square
23rd Floor 23rd Floor
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Irene Wanamaker Attn: Irene Wanamaker
Phone: (212) 428-6308 Phone: (212) 428-6308
Fax: (212) 428-2310 Fax: (212) 428-2310
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
The Sumitomo Bank, Credit and Relationship Credit and Relationship
Limited Matters: Matters:
New York Branch 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, USCD Attn: C. Bonifacic, USCD
Phone: (212) 224-4138 Phone: (212) 224-4138
Fax: (212) 224-5197 Fax: (212) 224-5197
Competitive Bid Matters: Competitive Bid Matters:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: C. Bonifacic, USCD Attn: C. Bonifacic, 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 #127 Center Code #127
Atlanta, GA 30303 Atlanta, GA 30303
Attn: John G. Taylor Attn: J.C. Deisley
Phone: (404) 724-3886 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 St, NE 191 Peachtree St, 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 St, NE 191 Peachtree St, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Tina Stevenson / Attn: Tina Stevenson /
Katrina Durrah Katrina Durrah
Phone: (404) 332-6079 Phone: (404) 332-6079
Fax: (404) 332-5016 Fax: (404) 332-5016
Competitive Bid Matters: Competitive Bid Matters:
191 Peachtree St, NE 191 Peachtree St, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Tina Stevenson/ Attn: Tina Stevenson /
Katrina Durrah Katrina Durrah
Phone: (404) 332-6079 Phone: (404) 332-6079
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:
707 Wilshire Blvd. 707 Wilshire Blvd.
MAC 2818-165 MAC 2818-165
Los Angeles, CA 90017 Los Angeles, CA 90017
Attn: Kathleen Barrnes Attn: Kathleen Barrnes
Phone: (213) 614-7782 Phone: (213) 614-7782
Fax: (213) 614-2305 Fax: (213) 614-2305
Operations: Operations:
201 Third Street. 201 Third Street.
MAC 0187-081 MAC 0187-081
San Francisco, CA 94103 San Francisco, CA 94103
Phone: (415) 477-5421 Phone: (415) 477-5421
Fax: (415) 979-0675 Fax: (415) 979-0675
Competitive Bid Matters: Competitive Bid Matters:
707 Wilshire Blvd. 707 Wilshire Blvd.
MAC 2818-165 MAC 2818-165
San Francisco, CA 94103 San Francisco, CA 94103
Attn: Matthew A. Frey Attn: Matthew A. Frey
Phone: (213) 614-5038 Phone: (213) 614-5038
Fax: (213) 614-2305 Fax: (213) 614-2305
AMENDED AND RESTATED CREDIT AGREEMENT
(364-Day Facility)
Dated as of May 7, 1997
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 (in such capacity, the "Administrative
Agent") for the Lenders (as hereinafter defined), NATIONSBANK, N.A. (SOUTH)
("NationsBank"), as documentation agent (in such capacity, the "Documentation
Agent") for the Lenders, and CITICORP SECURITIES, INC. ("Citicorp Securities")
and NATIONSBANC CAPITAL MARKETS, INC. ("NCMI"), as co-arrangers (in such
capacity, 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 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 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 the 364-day Credit Agreement dated as of June 10, 1996, as
amended, supplemented or otherwise modified from time to time prior to the
date hereof, among the Borrower, the banks named therein, Citicorp
Securities and NCMI, as co-arrangers, 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 1997 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) May 6, 1998 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, 1997, 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 there
in 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 short-
fall 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, 1996, 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, 1996, 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,
1996.
(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 (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of such
Indemnified Costs 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.
In the case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies whether any such investigation,
litigation or proceeding is brought by the Administrative Agent, any Lender or
a third party.
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, NE, 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, St 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, NE, 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 thegranting 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,
solong 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 ______________________________
Title:
CITIBANK, N.A., as Administrative Agent
By ______________________________
Title:
NATIONSBANK, N.A. (SOUTH),
as Documentation Agent
By ______________________________
Title:
CITICORP SECURITIES, INC.,
as Co-Arranger
By ______________________________
Title:
NATIONSBANC CAPITAL MARKETS,
INC., as Co-Arranger
By ______________________________
Title:
Commitment Initial Lenders
$355,000,000 CITIBANK, N.A.
By ____________________
Title:
$300,000,000 NATIONSBANK, N.A. (SOUTH)
By _____________________
Title:
$265,000,000 BANK OF AMERICA ILLINOIS
By _____________________
Title:
$265,000,000 THE CHASE MANHATTAN BANK
By _____________________
Title:
$265,000,000 CREDIT SUISSE FIRST BOSTON
By ________________________
Title:
By _______________________
Title:
$265,000,000 PNC BANK, NATIONAL ASSOCIATION
By _________________________
Title:
$265,000,000 ROYAL BANK OF CANADA
By _____________________________
Title:
$175,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By ___________________________
Title:
$175,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By ____________________________
Title:
$175,000,000 WELLS FARGO BANK, N. A.
By ____________________________
Title:
$125,000,000 BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By ____________________________
Title:
By ____________________________
Title:
$125,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By ___________________________
Title:
By ______________________________
Title:
$125,000,000 THE FUJI BANK, LIMITED
By ___________________________
Title:
$125,000,000 FIRST UNION NATIONAL BANK OF
GEORGIA, N.A.
By _____________________________
Title:
$65,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE
By _____________________________
Title:
$65,000,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By ______________________________
Title:
$65,000,000 SUNTRUST BANK, ATLANTA
By _____________________________
Title:
By _____________________________
Title:
$50,000,000 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By ____________________________
Title:
By ____________________________
Title:
$3,250,000,000 TOTAL OF THE COMMITMENTS
EXECUTION COPY
U.S. $3,250,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
(364-Day Facility)
Dated as of May 7, 1997
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 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
EXHIBIT A-1 TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
U.S.$_______________ Dated: ________ __, 199_
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 Amended and Restated Credit Agreement (364-Day Facility) dated as of May
7, 1997 among the Borrower, the Lender and certain other lenders parties
thereto, Citicorp Securities, Inc. and NationsBanc Capital Markets, Inc., as
Co-Arrangers, NationsBank, N.A. (South), 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 Unpaid
Date Amount of Principal Paid Principal Notation
Advance or Prepaid Balance Made By
EXHIBIT A-2 TO THE
CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
U.S.$_______________ Dated: __________ __, 199_
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 Amended and Restated Credit
Agreement (364-Day Facility) dated as of May 7, 1997 among the Borrower, the
Lender and certain other lenders parties thereto, Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc., as Co-Arrangers, NationsBank, N.A. (South),
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 Amended and Restated Credit Agreement (364-Day Facility) dated as of May 7,
1997 (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, N.A. (South), 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:
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 Amended and Restated Credit Agreement (364-Day Facility) dated as of May 7,
1997 (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, N.A. (South), as Documentation Agent and Citibank, N.A., as
Administrative Agent for the Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby
requests a Competitive Bid Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Competitive Bid Borrowing (the
"Proposed Competitive Bid Borrowing") is requested to be made:
(a) Date of Competitive Bid Borrowing ________________________
(b) Amount of Competitive Bid Borrowing ________________________
(c) [Maturity Date] [Interest Period] ________________________
(d) Interest Rate Basis ________________________
(e) Interest Payment Date(s) ________________________
(f) ___________________ ________________________
(g) ___________________ ________________________
(g) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(i) the representations and warranties contained in Section 4.01
are correct [(except the representations set forth in subsection (f)
thereof and in subsection (h)
thereof)]*, before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date;
(ii) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default [(except for breach of the
representations set forth in subsection (f) and in subsection (h) of
Section 4.01 of the Credit Agreement)]*; and
(iii) the aggregate amount of the Proposed Competitive Bid Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of the
Lenders.
Notwithstanding any condition precedent to the contrary contained in
the Credit Agreement, a labor dispute of any sort involving employees of the
undersigned or its Subsidiaries shall not prevent the undersigned from borrowing
thereunder unless as a result thereof the undersigned is in Default under
Section 6.01(a) or (e) of the Credit Agreement.
Very truly yours,
UNITED PARCEL SERVICE OF
AMERICA, INC.
By
Title:
EXHIBIT C TO THE
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement (364-
Day Facility) dated as of May 7, 1997 (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, N.A. (South), 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]
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 May 7, 1997 (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, N.A. (South), 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:
* To be excluded in any notice of a Borrowing on the Effective Date.
* To be excluded in any notice of a Borrowing on the Effective Date.
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Administrative Agent.
* This date 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 (364-Day Facility) dated as of May 7, 1997, 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 Amended and Restated
Credit Agreement (364-Day Facility) dated as of May 7, 1997 (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, N.A. (South), 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 NEW 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 May 7, 1997, 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 Amended and Restated Credit Agreement (364-Day
Facility) dated as of May 7, 1997 (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, N.A. (South), 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 May 7, 1997 (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:
