SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------
FORM 10-Q
Quarterly Report Under Section 13 or 15 (d)
of the Securities Exchange Act of 1934
- --------------------------------------------------------------------------
For the Quarter Ended March 31, 1998
Commission file number 0-4714
United Parcel Service of America, Inc.
- --------------------------------------------------------------------------
(Exact name of registrant specified in its charter)
Delaware 95-1732075
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Glenlake Parkway, NE
Atlanta, Georgia 30328
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(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)
562,000,000 shares
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Outstanding as of May 14, 1998
<PAGE>
PART I. ITEM 1- FINANCIAL INFORMATION
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 31, 1998 (unaudited) and December 31, 1997
(In millions except share amounts)
ASSETS 1998 1997
- ------ ------ -----
CURRENT ASSETS:
Cash and short-term investments $ 624 $ 460
Accounts receivable 2,383 2,405
Prepaid employee benefit costs 941 669
Materials, supplies and other prepaid expenses 466 417
Common stock held for stock plans 565 526
------ ------
TOTAL CURRENT ASSETS 4,979 4,477
PROPERTY, PLANT AND EQUIPMENT (including
aircraft under capitalized lease
obligations)- at cost, net of accumulated
depreciation and amortization of
$7,644 in 1998 and $7,495 in 1997 10,939 11,007
OTHER ASSETS 344 428
------ ------
$16,262 $15,912
======= =======
LIABILITIES AND SHAREOWNERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,122 $ 1,207
Accrued wages and withholdings 1,100 1,194
Dividends payable - 191
Deferred income taxes 142 140
Current maturities of long-term debt 229 41
Other current liabilities 804 625
------ ------
TOTAL CURRENT LIABILITIES 3,397 3,398
LONG-TERM DEBT (including capitalized lease
obligations) 2,456 2,583
------ ------
ACCUMULATED POSTRETIREMENT BENEFIT
OBLIGATION, NET 936 911
------ ------
DEFERRED TAXES, CREDITS AND OTHER LIABILITIES 3,051 2,933
------ ------
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
562,000,000, net of 18,000,000 in treasury 56 56
Additional paid-in capital 2 -
Retained earnings 6,464 6,112
Cumulative foreign currency adjustments (100) (81)
------ ------
6,422 6,087
------ ------
$16,262 $15,912
======= =======
See notes to consolidated financial statements.
<PAGE>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three Months Ended March 31, 1998 and 1997
(In millions except per share amounts)
(unaudited)
Three Months Ended
1998 1997
---- ----
Revenue $ 5,859 $ 5,664
----- -----
Operating Expenses:
Compensation and benefits 3,471 3,419
Other 1,748 1,819
----- -----
5,219 5,238
----- -----
Operating Profit 640 426
----- -----
Other income and (expense):
Interest income 14 10
Interest expense (58) (41)
Miscellaneous,net 5 (7)
----- -----
(39) (38)
Income before income taxes 601 388
Income taxes 249 160
----- -----
Net income $ 352 $ 228
===== =====
Basic Earnings Per Share $ 0.64 $ 0.41
===== =====
Diluted Earnings Per Share $ 0.64 $ 0.41
===== =====
See notes to consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREOWNERS' EQUITY
Three Months Ended March 31, 1998
(In millions)
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Cumulative
Additional Foreign Total
Common Stock Paid-In Retained Currency Shareowners'
Shares Amount Capital Earnings Adjustments Equity
------ ------ ------- -------- ----------- --------
Balance, January 1, 1998 562 $56 $- $6,112 $(81) $6,087
Comprehensive income:
Net income - - - 352 - 352
Foreign currency
adjustments - - - - (19) (19)
------
Comprehensive income $333
------
Gain on issuance of
common stock held
for stock plans - - 2 - - 2
--- --- -- ------ ----- ------
Balance, March 31, 1998 562 $56 $2 $6,464 $(100) $6,422
=== === == ====== ===== ======
</TABLE>
See notes to consolidated financial statements.
<PAGE>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Three Months Ended March 31, 1998 and 1997
(In millions)
(unaudited)
1998 1997
---- ----
Cash flows from operating activities:
Net income $ 352 $ 228
Adjustments to reconcile net income to net
cash provided from operating activities:
Depreciation and amortization 265 249
Postretirement benefits 25 28
Deferred taxes, credits, and other 101 140
Changes in assets and liabilities:
Accounts receivable 48 (11)
Prepaid employee benefit costs (272) (256)
Materials, supplies and other
prepaid expenses (49) (28)
Common stock held for stock plans (39) 65
Accounts payable (85) (42)
Accrued wages and withholdings (94) (168)
Dividends payable (191) (194)
Other current liabilities 179 144
----- -----
Net cash provided from operating activities 240 155
----- -----
Cash flows from investing activities:
Capital expenditures (290) (322)
Disposals of property, plant and equipment 90 30
Other asset receipts 65 14
----- -----
Net cash (used in) investing activities (135) (278)
----- ----
Cash flows from financing activities:
Proceeds from borrowings 128 343
Repayment of borrowings (67) (148)
Other transactions 2 16
----- -----
Net cash provided by financing activities 63 211
----- -----
Effect of exchange rate changes on cash (4) (1)
----- -----
Net increase in cash and short-term investments 164 87
Cash and short-term investments:
Beginning of period 460 392
----- -----
End of period $ 624 $ 479
===== =====
Cash paid during the period for:
Interest (net of amount capitalized) $ 40 $ 21
===== =====
Income taxes $ 132 $ 5
===== =====
See notes to consolidated financial statements.
<PAGE>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1998 and 1997
(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. Effective
January 1, 1998, UPS adopted Statement of Financial Accounting Standards No. 130
("FAS 130"), "Reporting Comprehensive Income". FAS 130 requires comprehensive
income and its components to be separately displayed within the financial
statements. Comprehensive income, which totaled $333 million for the three
months ended March 31, 1998, includes net income and foreign currency
adjustments and is displayed in the Consolidated Statement of Shareowners'
Equity. Comprehensive income for the comparable quarter of 1997 totaled $180
million and was comprised of net income of $228 million net of foreign currency
adjustments of $48 million.
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, 1998, the results of operations for the three months ended March 31,
1998 and 1997, and cash flows for the three months ended March 31, 1998 and
1997.
3. The following table sets forth the computation of basic and diluted earnings
per share (in millions except per share amounts):
1998 1997
---- ----
Numerator:
Numerator for basic and diluted earnings per share -
net income $ 352 $ 228
====== ======
Denominator:
Weighted-average shares- denominator for
basic earnings per share 546 554
Effect of dilutive securities:
Additional contingent shares - managers incentive
plan 3 3
Stock option plans 3 3
------- ------
Denominator for diluted earnings per share 552 560
======= ======
Basic earnings per share $0.64 $0.41
======= ======
Diluted earnings per share $0.64 $0.41
======= ======
<PAGE>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1998 and 1997
(unaudited)
4. 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 theories, which the Company believes are inconsistent, 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 1990 tax years. The additional tax sought by
the agents relating to package insurance for these periods range from $89
million to $148 million for the 1985 through 1987 tax years and up to $174
million for the 1988 through 1990 tax years, plus penalties and interest. The
IRS has based their assertions 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
and the Research Tax Credit in the 1983 through 1990 tax years. These issues
total $32 million in tax for the 1983 and 1984 tax years, $95 million in tax for
the 1985 through 1987 tax years, and $228 million in tax for the 1988 through
1990 tax years. Penalties and interest are in addition to these amounts. The
majority of these adjustments would reverse in future years.
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 matter was
tried before the Tax Court in two sessions, from September 15 through September
30, 1997, and from November 6 through November 7, 1997. The Company does not
anticipate that the Tax Court will render its decision for at least six to
twelve months. Management still believes that the eventual resolution of the
matters raised by the IRS will not result in a material adverse effect upon the
financial condition of the Company.
The Company has appealed with the IRS all material issues related to the
1985 through 1990 tax years. The IRS may take positions similar to those in the
reports described above for periods after 1990.
The Company is a defendant in various employment-related lawsuits. In two
of these actions, which allege employment discrimination by the Company, class
action status has been sought by the plaintiffs. In one case, class action
status has been granted, and the United States Equal Employment Opportunity
Commission has been granted the right to intervene. In the other case,
plaintiff's motion for class action status is pending. Also, lawsuits have been
<PAGE>
UNITED PARCEL SERVICE OF AMERICA, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1998 and 1997
(unaudited)
filed on behalf of more than 300 former contract pilots against the Company,
alleging, among other things, that in the late 1980's the Company did
not fulfill offers of employment to individuals to serve as pilots of
Company-operated aircraft. These cases generally do not allege specific amounts
of damages. However, one of these cases has been tried and resulted in a jury
verdict, which was affirmed on appeal. Though the compensatory and punitive
damages awarded were substantial, they were not material to the Company. Each of
the pending employment-related lawsuits is in its early stages, and the Company
is presently unable to estimate its exposure.
In addition to the preceding, UPS is a defendant in various other lawsuits
which arose in the normal course of business. In the opinion of management, none
of these cases are expected to have a material adverse effect upon the financial
condition of the Company.
5. Certain prior period amounts have been reclassified to conform to the current
period presentation.
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended March 31, 1998 and 1997
For the three months ended March 31, 1998, revenue increased by $195
million, or 3.4%, in comparison with the three months ended March 31, 1997. For
the first quarter of 1998, domestic revenue totaled $5.039 billion, an increase
of $83 million, or 1.7%, over the first quarter of 1997, and international
revenue totaled $820 million, an increase of $112 million, or 15.8%.
Domestic revenue increased primarily as a result of generally higher
yields along with improved product mix. Volume for the Company's higher yielding
express packages was up 5.2% for the quarter. However, domestic ground volume
has not yet returned to levels which existed prior to the August 1997
International Brotherhood of Teamsters strike.
During the first quarter of 1998, rates for standard ground shipments were
increased an average of 3.6% for commercial deliveries, and the ground
residential premium increased from $.80 to $1.00 over the commercial ground
rate. In addition, rates for UPS Next Day Air, UPS 2nd Day Air and 3 Day Select
each increased approximately 3.3%. Rates for international shipments originating
in the United States did not increase for UPS Worldwide Express, UPS Worldwide
Expedited and UPS Standard Service to Canada. Rate changes for shipments
originating outside the United States have been made throughout the past year
and vary by geographic market.
The increase in international revenue was primarily attributable to a $105
million increase in international export revenue, or 21.7%. In addition,
international domestic revenue improved $7 million, or 3.1%. Volume increased
18.5% and 16.4% for international export and domestic operations, respectively.
The continued strengthening of the U.S. dollar somewhat reduced the revenue
increases for both international export and domestic revenues.
Operating expenses decreased by $19 million, or 0.4%, which improved the
operating ratio from 92.5 during 1997 to 89.1 during 1998. This improvement
resulted primarily from lower fuel costs and the impact of cost containment
efforts. Fuel prices during the first quarter of 1998 were significantly less
than in 1997, and are subject to general market fluctuations.
Operating profit for the period increased $214 million, or 50.2%. The
increase is primarily attributable to the above mentioned increases in revenue
yields in conjunction with the decreases in operating expenses.
Income before income taxes ("pre-tax income") increased $213 million, or
54.9%. Domestic pre-tax income amounted to $567 million, an increase of $148
million, or 35.3% over the corresponding quarter of the previous year. The
increase was primarily a result of higher revenues and lower operating costs as
discussed above. International pre-tax income amounted to $34 million, an
improvement of $65 million over the loss of the corresponding quarter of the
previous year.
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Three Months Ended March 31, 1998 and 1997
Pre-tax income associated with international export and domestic
operations improved by $49 million and $16 million, respectively. The
continuation of these favorable trends in international export and domestic
operations resulted primarily from higher volume and better utilization of
existing capacity. Contributing to this improvement is the pan-European product
relaunch, which took place in late 1996. This relaunch provides a uniform
portfolio of pan-European services including guaranteed next-day delivery for
transborder shipments, as well as comprehensive package tracking capabilities
for all levels of service. Export volume increased by 27.3% and 3.9% for
international and U.S. origin export shipments, respectively.
Net income increased by $124 million, or 54.4%, over the corresponding
quarter of the prior year. The net increase resulted primarily from higher
revenues and lower operating costs as discussed above.
The results of operations for the three months ended March 31, 1998, are
not necessarily indicative of the results to be expected for the full year.
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND THE RESULTS OF OPERATIONS
Liquidity and Capital Resources
In April 1998, UPS renegotiated and extended its two credit agreements
with a consortium of banks. These agreements provide revolving credit facilities
of $1.25 billion each with one expiring April 29, 1999, and the other April 30,
2003.
Management believes that the resources described above, 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
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
1990 tax years. The Company is also a defendant in various employment-related
lawsuits. Each of the pending employment-related lawsuits is in its early
stages, and the Company is presently unable to estimate its exposure. Reference
is made here to Note 4 to the accompanying unaudited consolidated financial
statements for more information.
Future Accounting Changes
In March 1998, the Accounting Standards Executive Committee ("AcSEC")
issued Statement of Position No. 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use" ("SOP 98-1"), which requires
that certain costs to develop or obtain computer software for internal use be
capitalized. The new statement is effective for fiscal years beginning after
December 15, 1998, with earlier adoption encouraged but not required. The impact
of the new standard has not been fully determined, but the change will likely
result in lower expense for software costs in the initial year of adoption. The
Company currently intends to adopt SOP 98-1 beginning January 1, 1999.
<PAGE>
PART II
Item 6 - Exhibits and Reports on Form 8-K
A) Exhibits:
(10) Material Contracts
(a) Credit Agreement (364-Day Facility) dated April 30, 1998 among
United Parcel Service of America, Inc., the initial lenders
named therein, CitiCorp Securities, Inc. as Co-Arranger and
BancAmerica Robertson Stephens as Co-Arranger and Bank of
America NT & SA as Agent and Citibank, N.A. as Agent.
(b) Credit Agreement (Five-Year Facility) dated April 30, 1998
among United Parcel Service of America, Inc., the initial
lenders named therein, CitiCorp Securities, Inc. as
Co-Arranger and BancAmerica Robertson Stephens as Co-Arranger
and Bank of America NT & SA as Agent and Citibank, N.A. as
Agent.
B) Reports on Form 8-K: The Company filed a report on Form 8-K on March 4,
1998 filing under cover of Item 7, an exhibit containing amendments to the
Company's by-laws.
<PAGE>
EXHIBIT INDEX
(10) Material Contracts
(a) Credit Agreement (364-Day Facility) dated April 30, 1998 among
United Parcel Service of America, Inc., the initial lenders
named therein, CitiCorp Securities, Inc. as Co-Arranger and
BancAmerica Robertson Stephens as Co-Arranger and Bank of
America NT & SA as Agent and Citibank, N.A. as Agent.
(b) Credit Agreement (Five-Year Facility) dated April 30, 1998
among United Parcel Service of America, Inc., the initial
lenders named therein, CitiCorp Securities, Inc. as
Co-Arranger and BancAmerica Robertson Stephens as Co-Arranger
and Bank of America NT & SA as Agent and Citibank, N.A. as
Agent.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNITED PARCEL SERVICE OF AMERICA, INC.
(Registrant)
By: /S/ Robert J. Clanin
--------------------------------------
Robert J. Clanin
Senior Vice President,
Treasurer and
Chief Financial Officer
Date: May 14, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000809697
<NAME> UNITED PARCEL SERVICE OF AMERICA, INC.
<MULTIPLIER> 1,000,000
<CURRENCY> US$
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<EXCHANGE-RATE> 1.000
<CASH> 624
<SECURITIES> 0
<RECEIVABLES> 2,383
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 4,979
<PP&E> 18,583
<DEPRECIATION> 7,644
<TOTAL-ASSETS> 16,262
<CURRENT-LIABILITIES> 3,397
<BONDS> 2,456
0
0
<COMMON> 56
<OTHER-SE> 6,366
<TOTAL-LIABILITY-AND-EQUITY> 16,262
<SALES> 5,859
<TOTAL-REVENUES> 5,859
<CGS> 0
<TOTAL-COSTS> 5,219
<OTHER-EXPENSES> 5
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 58
<INCOME-PRETAX> 601
<INCOME-TAX> 249
<INCOME-CONTINUING> 352
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 352
<EPS-PRIMARY> 0.64
<EPS-DILUTED> 0.64
</TABLE>
DOCS03/304502
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(364-Day Facility)
Dated as of April 30, 1998
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), BANK OF AMERICA NT & SA ("B of
A"), as documentation agent (in such capacity, the "Documentation Agent") for
the Lenders, and CITICORP SECURITIES, INC. ("Citicorp Securities") and
BANCAMERICA ROBERTSON STEPHENS ("BARS"), 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:
<PAGE>
DOCS03/304502
- --------------------- ====================
Public Debt Rating Applicable Fee
S&P/Moody's Percentage
- --------------------- ====================
- --------------------- ====================
Level 1
AA- / Aa3 or above 0.050%
- --------------------- ====================
- --------------------- ====================
Level 2
Lower than Level 1 0.075%
but at least
A- / A3
- --------------------- ====================
- --------------------- ====================
Level 3
Lower than Level 2 0.100%
- --------------------- ====================
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Administrative Agent and the Borrower
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means (a) as of any date up to the Termination
Date, 0.00% per annum for Base Rate Advances and 0.12% per annum for
Eurodollar Rate Advances and (b) as of any date from and after the
Termination Date, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
------------------- -------------------- ==================
Public Debt Rating Applicable Margin Applicable
S&P/Moody's for Margin for
Base Rate Eurodollar Rate
Advances Advances
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 1
AA- / Aa3 or above 0.00% 0.100%
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 2
Lower than Level 1 0.00% 0.175%
but at least
A- / A3
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 3
Lower than Level 2 0.00% 0.200%
------------------- -------------------- ==================
<PAGE>
29
DOCS03/304502
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.
"B of A" has the meaning specified in the recital of parties to
this Agreement.
"BARS " has the meaning specified in the recital of parties to
this Agreement.
"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.
<PAGE>
"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.
<PAGE>
"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.
<PAGE>
"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 Hedge Agreements; 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.
<PAGE>
"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.
<PAGE>
"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.
<PAGE>
"Existing Credit Facilities" means the credit facilities provided
pursuant to (a) the 364-day Credit Agreement dated as of May 7, 1997, as
amended, supplemented or otherwise modified from time to time prior to the
date hereof, among the Borrower, the banks named therein, Citibank, as
administrative agent, and NationsBank, N.A. (South), as documentation
agent, and (b) the five-year Credit Agreement dated as of June 10, 1996,
as amended, supplemented or otherwise modified from time to time, among
the Borrower, the banks named therein, Citibank, as administrative agent,
and NationsBank, N.A. (South), 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.
<PAGE>
"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 1998 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;
<PAGE>
(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).
<PAGE>
"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
Regulation 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.
"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).
<PAGE>
"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.
<PAGE>
"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, B of A, 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 T", "Regulation U" or
"Regulation X" means Regulation A, Regulation D, 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.
<PAGE>
"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 Services, a division of The
McGraw-Hill Companies, 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) April 30, 1999 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.
<PAGE>
"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.
. 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".
. 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
. 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.
<PAGE>
. (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.
<PAGE>
(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.
. (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).
<PAGE>
(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
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
. (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, 1998, 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.
. 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.
. 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.
. (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.
<PAGE>
(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.
. (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,
<PAGE>
(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.
. 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.
. 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).
<PAGE>
. (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.
. 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.
<PAGE>
. (a) The Borrower shall make each payment hereunder and under the
Notes not later than 1:00 P.M. (New York City time) on the day when due in
Dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest,
facility fees or utilization fees ratably (other than amounts payable pursuant
to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent, if and
to the extent payment owed to any Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with the Administrative Agent any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fees, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
<PAGE>
. (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.
<PAGE>
(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.
<PAGE>
. 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.
<PAGE>
SECTION 2.16. Extensions of Termination Date and Final Maturity Date
. (a) No earlier than 60 days and no later than 45 days prior to the Termination
Date in effect at any time, the Borrower may, by written notice to the
Administrative Agent, request that such Termination Date be extended for a
period of 364 days. Such request shall be irrevocable and binding upon the
Borrower. The Administrative Agent shall promptly notify each Lender of such
request. If a Lender agrees, in its individual and sole discretion, to so extend
its Commitment (an "Extending Lender"), it shall deliver to the Administrative
Agent a written notice of its agreement to do so no earlier than 30 days and no
later than 20 days prior to such Termination Date and the Administrative Agent
shall notify the Borrower of such Extending Lender's agreement to extend its
Commitment no later than 15 days prior to such Termination Date. The Commitment
of any Lender that fails to accept or respond to the Borrower's request for
extension of the Termination Date (a "Declining Lender") shall be terminated on
the Termination Date originally in effect (without regard to any extension by
other Lenders) and on such Termination Date the Borrower shall pay in full the
principal amount of all Advances owing to such Declining Lender, together with
accrued interest thereon to the date of such payment of principal and all other
amounts payable to such Declining Lender under this Agreement. The
Administrative Agent shall promptly notify each Extending Lender of the
aggregate Commitments of the Declining Lender. The Extending Lenders, or any of
them, may offer to increase their respective Commitments by an aggregate amount
up to the aggregate amount of the Declining Lenders' Commitments and any such
Extending Lender shall deliver to the Administrative Agent a notice of its offer
to so increase its Commitment no later than 15 days prior to such Termination
Date. To the extent of any shortfall in the aggregate amount of extended
Commitments, the Borrower shall have the right to require any Declining Lender
to assign in full its rights and obligations under this Agreement to an Eligible
Assignee designated by the Borrower and acceptable to the Administrative Agent,
such acceptance not to be unreasonably withheld, that agrees to accept all of
such rights and obligations (a "Replacement Lender"), provided that (i) such
increase and/or such assignment is otherwise in compliance with Section 8.07,
(ii) such Declining Lender receives payment in full of the principal amount of
all Advances owing to such Declining Lender, together with accrued interest
thereon to the date of such payment of principal and all other amounts payable
to such Declining Lender under this Agreement and (iii) any such increase shall
be effective on the Termination Date in effect at the time the Borrower requests
such extension and any such assignment shall be effective on the date specified
by the Borrower and agreed to by the Replacement Lender and the Administrative
Agent. If Extending Lenders and Replacement Lenders provide Commitments in an
aggregate amount at least equal to 51% of the aggregate amount of the
Commitments outstanding 30 days prior to the Termination Date in effect at the
time the Borrower requests such extension, the Termination Date shall be
extended by 364 days for such Extending Lenders, subject, however, to the
provisions of subsection (b) of this Section 2.16.
(b) On the Termination Date in effect at any time, the Borrower may,
by written notice to the Administrative Agent, request that the Final Maturity
Date be a date occurring up to the third anniversary of the then scheduled
Termination Date. Such request shall be irrevocable and binding upon the
Borrower. The Administrative Agent shall promptly notify each Lender of such
request. Subject to the satisfaction of the applicable conditions set forth in
Section 3.02 as of such Termination Date, the Final Maturity Date shall be,
effective as of such Termination Date, such date as the Borrower shall request
pursuant to this subsection (b) of this Section 2.16. In the event that the
Borrower shall request that the Final Maturity Date be a date occurring up to
the third anniversary of the then scheduled Termination Date, and the Final
Maturity Date shall be so extended as provided in this subsection (b) of this
Section 2.16, the right of the Borrower to request an extension of the
Termination Date pursuant to subsection (a) of this Section 2.16 shall
automatically terminate and any extension of the Termination Date in effect at
the time such request is made which would otherwise occur as provided in
subsection (a) of this Section 2.16 shall automatically be cancelled. The
Administrative Agent shall promptly notify each Lender of any such extension of
the Final Maturity Date and any such cancellation of an extension of the
Termination Date.
. 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 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 2.0. 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.
<PAGE>
(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.
<PAGE>
(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 an. 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):
<PAGE>
(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).
. 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.
. 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
. The Borrower represents and warrants as follows:e Borrower
(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.
<PAGE>
(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, 1997, 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, 1997, 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.
<PAGE>
(f) There has been no Material Adverse Change since December 31,
1997.
(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 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.
<PAGE>
(1) The Borrower will use the proceeds of the Advances only as a
commercial paper backstop and 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
. 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:
<PAGE>
(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).
<PAGE>
(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;
<PAGE>
(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;
<PAGE>
(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.
. 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:
<PAGE>
(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;
<PAGE>
(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;
<PAGE>
(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
. 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
<PAGE>
(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
<PAGE>
(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);
<PAGE>
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
. 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.
<PAGE>
. 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.
. With respect to its Commitment, the Advances made by it and the
Note issued to it, each of Citibank and B of A 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 B of A in its individual
capacity. Citibank, B of A 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, B of A
and their Affiliates were not the Administrative Agent or the Documentation
Agent, respectively, and without any duty to account therefor to the Lenders.
. 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.
<PAGE>
. 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.
. 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.
SECTION 7.07. Documentation Agent. The Documentation Agent shall not
have any duty in connection with this Agreement and the other Loan Documents
except as expressly set forth herein or in the other Loan Documents.
ARTICLE VIII
MISCELLANEOUS
<PAGE>
. 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.
. All notices and other communications provided for hereunder shall
be in writing (including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower, at
its address at 55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, Attention:
Financial Resources Department (telecopier number (404) 828-6562); if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
if to the Administrative Agent, at its address at Two Penns Way, Suite 200, New
Castle, Delaware 19720, Attention: Jennifer Klemaszewski (telecopier number
(302) 894-6120), with a copy to 400 Perimeter Center Terrace, Suite 600,
Atlanta, Georgia 30346, Attention: Bruce Simmons (telecopier number (770)
668-8137); and if to the Documentation Agent, at its address at 231 South
LaSalle Street, Chicago, Illinois 60697, Attention:Bridget A. Garavalia
(telecopier number(312) 828-1997); 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.
. 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.
<PAGE>
. (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.
<PAGE>
. Upon (a) the occurrence and during the continuance of any Event of
Default and (b) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of Section 6.01, each Lender
and each of its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but
excluding any accounts designated as collateral accounts securing other Debt) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
. 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.
. (a) Each Lender (other than a Designated Bidder) may, with the
consent of the Borrower, such consent not to be unreasonably withheld or
delayed, and shall, so long as no Default has occurred and is continuing and if
demanded by the Borrower (pursuant to the provisions of Section 2.17) upon at
least five Business Days' notice to such Lender and the Administrative Agent),
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving Credit
Note or Notes held by it); provided, however, that:
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than
any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it or Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof,
<PAGE>
(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;
<PAGE>
(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.
<PAGE>
(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;
<PAGE>
(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.
<PAGE>
(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.
. 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.
. This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
. 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.
<PAGE>
. (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.
<PAGE>
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:
<PAGE>
CITIBANK, N.A., as Administrative
Agent
By
Title:
<PAGE>
BANK OF AMERICA NT & SA,
as Documentation Agent
By
Title:
<PAGE>
CITICORP SECURITIES, INC.,
as Co-Arranger
By
Title:
<PAGE>
BANCAMERICA ROBERTSON STEPHENS,
as Co-Arranger
By
Title:
<PAGE>
Commitment Initial Lenders
$ 200,000,000 CITIBANK, N.A.
By
Title:
<PAGE>
$ 137,500,000 BANK OF AMERICA NT & SA
By
Title:
<PAGE>
$ 87,500,000 FIRST UNION NATIONAL BANK
By
Title:
<PAGE>
$ 87,500,000 NATIONSBANK, N.A.
By
Title:
<PAGE>
$ 87,500,000 PNC BANK, N.A.
By
Title:
<PAGE>
$ 87,500,000 ROYAL BANK OF CANADA
By
Title:
<PAGE>
$ 87,500,000 THE CHASE MANHATTAN BANK
By
Title:
<PAGE>
$ 50,000,000 CREDIT SUISSE / FIRST BOSTON
By
Title:
<PAGE>
$ 50,000,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMEN BRANCHES
By
Title:
By
Title:
<PAGE>
$ 50,000,000 WACHOVIA BANK, N.A.
By
Title:
<PAGE>
$ 50,000,000 WELLS FARGO BANK, N.A.
By
Title:
<PAGE>
$ 25,000,000 ABN AMRO BANK N.V.
By
Title:
<PAGE>
$ 25,000,000 BANCA COMMERCIALE ITALIANA
By
Title:
<PAGE>
$ 25,000,000 BANK OF MONTREAL
By
Title:
<PAGE>
$ 25,000,000 BANKERS TRUST COMPANY
By
Title:
<PAGE>
$ 25,000,000 BARCLAYS BANK PLC
By
Title:
<PAGE>
$ 25,000,000 DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By
Title:
By
Title:
<PAGE>
$ 25,000,000 THE FUJI BANK, LIMITED ATLANTA
AGENCY
By
Title:
<PAGE>
$ 25,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
Title:
<PAGE>
$ 25,000,000 NORWEST BANK MINNESOTA, N.A.
By
Title:
<PAGE>
$ 25,000,000 STATE STREET BANK AND TRUST
COMPANY
By
Title:
<PAGE>
$ 25,000,000 SUN TRUST BANK, ATLANTA
By
Title:
$1,250,000,000 TOTAL OF THE COMMITMENTS
<PAGE>
DOCS03/304502
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
- -------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Citibank, N.A. Citibank, N.A. Citibank, N.A.
2 Penns Way 2 Penns Way
Suite 200 Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: Jennifer Attn: Jennifer
Klemaszewski Klemaszewski
T: (302) 894-6031 T: (302) 894-6031
F: (302) 894-6121 F: (302) 894-6121
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bank of America NT & SA Bank of America NT & SA Bank of America NT & SA
231 S. LaSalle Street 231 S. LaSalle Street
Chicago, IL 60697 Chicago, IL 60697
Attn: Bridget Garavalia Attn: Bridget Garavalia
T: 312-828-1259 T: 312-828-1259
F: 312-828-1997 F: 312-828-1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
First Union National Bank First Union National Bank First Union National Bank
214 Hogan Street 214 Hogan Street
Attn: PTC Clerk, FL0070 Attn: PTC Clerk, FL0070
Jacksonville, FL Jacksonville, FL
32231-4142 32231-4142
Attn: Jackie Warner Attn: Jackie Warner
T: 904-489-1729 T: 904-489-1729
F: 904-489-1010 F: 904-489-1010
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NationsBank, N.A. NationsBank, N.A. NationsBank, N.A.
101 N. Tryon Street, 15th 101 N. Tryon Street,
Floor 15th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Juanita D. Luke Attn: Juanita D. Luke
T: 704-386-3767 T: 704-386-3767
F: 704-386-8694 F: 704-386-8694
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PNC Bank, N.A. PNC Bank, N.A. PNC Bank, N.A.
249 Fifth Avenue 249 Fifth Avenue
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: Robert J. Mitchell Attn: Robert J. Mitchell
T: 412-762-6547 T: 412-762-6547
F: 412-762-6484 F: 412-762-6484
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
One Liberty Plaza, 5th One Liberty Plaza, 5th
Floor Floor
New York, NY 10006 New York, NY 10006
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
1 Chase Manhattan Plaza, 1 Chase Manhattan Plaza,
8th Floor 8th Floor
New York, NY 10081 New York, NY 10081
Attn: May Fong Attn: May Fong
T: 212-552-7314 T: 212-552-7314
F: 212-552-5650 F: 212-552-5650
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Credit Suisse/First Credit Suisse / First Credit Suisse / First
Boston Boston Boston
11 Madison Avenue, 20th 11 Madison Avenue, 20th
Floor Floor
New York, NY 10010-3629 New York, NY 10010-3629
Attn: Leroy Dworkin Attn: Leroy Dworkin
T: 212-325-9015 T: 212-325-9015
F: 212-325-6508 F: 212-325-6508
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dresdner Bank AG, New Dresdner Bank, New York Dresdner Bank, New York
York and Grand Cayman and Grand Cayman Branches and Grand Cayman Branches
Branches 75 Wall Street 75 Wall Street
New York, NY 10021-2833 New York, NY 10021-2833
Attention: Craig Erickson Attention: Craig Erickson
T: 212-429-2183 T: 212-429-2183
F: 212-429-2781 F: 212-429-2781
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Wachovia Bank, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
191 Peachtree Street, N.E. 191 Peachtree Street, N.E.
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Wayne Morgan/ Attn: Wayne Morgan/
Theresa St. Luce Theresa St.Luce
T: 404-332-6084/4061
F: 404-332-5016
T: 404-332-6084/4061
F: 404-332-5016
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Wells Fargo, N.A. Wells Fargo Bank Wells Fargo Bank
201 Third Street 201 Third Street
MAC 0187-081 MAC 0187-081
San Francisco, CA 94103 San Francisco, CA 94103
Attn: Sue Silver Attn: Sue Silver
T: 415-477-5374 T: 415-477-5374
F: 415-512-1943 (primary) F: 415-512-1943 (primary)
415-512-0675 415-512-0675
(secondary) (secondary)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ABN AMRO Bank, N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
135 South LaSalle Street, 135 South LaSalle
Suite 625 Street, Suite 625
Chicago, IL 60603 Chicago, IL 60603
Attn: Loan Administration Attn: Loan Administration
T: 312-904-8865 T: 312-904-8865
F: 312-904-6893 F: 312-904-6893
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Banca Commerciale Banca Commerciale Banca Commerciale
Italiana Italiana - New York Branch Italiana - New York
One William Street Branch
New York, NY 10004 One William Street
Attn: Anthony O'Mahony New York, NY 10004
T: 212-607-3852 Attn: Anthony O'Mahony
F: 212-809-2124 T: 212-607-3852
F: 212-809-2124
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bank of Montreal Bank of Montreal Bank of Montreal
115 S. LaSalle Street 115 S. LaSalle Street
Chicago, IL 60603 Chicago, IL 60603
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bankers Trust Company Bankers Trust Company Bankers Trust Company
130 Liberty street 130 Liberty street
New York, NY 10006 New York, NY 10006
Attn: Anita Mangliani Attn: Anita Mangliani
T: 212-250-7674 T: 212-250-7674
F: 212-250-7351 F: 212-250-7351
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Barclays Bank Plc Barclays Bank PLC Barclays Capital Ltd.
75 Wall Street 222 Broadway
New York, NY 10265 New York, NY 10038
Attn: Charmaine Tenn Sing Attn: Charmaine Tenn
Que Sing Que
T: 212-412-3728 T: 212-412-3728
F: 212-412-5306/5307/5308 F: 212-412-5306/5307/5308
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Deutsche Bank AG New Deutsche Bank AG New York Deutsche Bank AG Cayman
York and/or Cayman Branch Island Branch
Island Branches 31 West 52nd Street c/o Deutsche Bank AG New
New York, NY 10019 York Branch
31 West 52nd Street
New York, NY 10019
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
Atlanta Agency Atlanta Agency Atlanta Agency
Marquis One Tower, Suite Marquis One Tower, Suite
2100 2100
245 Peachtree Center 245 Peachtree Center
Ave., N.E. Ave., N.E.
Atlanta, GA 30303-1253 Atlanta, GA 30303-1253
Attn: George Flynn Attn: George Flynn
T: 404-215-3317 T: 404-215-3317
F: 404-653-2119 F: 404-653-2119
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Morgan Guaranty Trust Morgan Guaranty Trust Morgan Guaranty Trust
Company of New York Company of New York Company of New York
60 Wall Street Nassau Bahamas Office
New York, NY 10260-0060 c/o J. P. Morgan
Services Inc.
500 Stanton - Christiana
Road
Newark, DE 19713
Telex Number/Answerback:
177425 MBDEL UT
F: 302-634-1091
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Norwest Bank Minnesota, Norwest Bank Minnesota, Norwest Bank Minnesota,
N.A. N.A. N.A.
Sixth and Marguette Sixth and Marguette
Minneapolis, MN 55479-0035 Minneapolis, MN
Attn: Ann C. Pifer 55479-0035
T: 612-667-2893 Attn: Ann C. Pifer
F: 612-667-2276 T: 612-667-2893
F: 612-667-9787
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
States Street Bank and State Street Bank and State Street Bank and
Trust Company Trust Company Trust Company
225 Franklin Street 225 Franklin Street
Boston, MA 02110 Boston, MA 02110
Attn: C. Jaynelle Landy Attn: C. Jaynelle Landy
T: 617-664-4072 T: 617-664-4072
F: 617-664-6527 F: 617-664-6527
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Sun Trust Bank, Atlanta Suntrust Bank, Atlanta Suntrust Bank, Atlanta
25 Park Place 25 Park Place
Mail Code 127, 23rd Floor Mail Code 127, 23rd Floor
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Chris Deisley Attn: Chris Deisley
T: 404-588-8684 T: 404-588-8684
F: 404-588-8833 F: 404-588-8833
- -------------------------------------------------------------------------------
<PAGE>
DOCS03/304502
SCHEDULE II
LIST OF BANKS
Administrative Agent
Citibank, N.A.
Documentation Agent
Bank of American NT & SA
Co-Arranger
Citicorp Securities, Inc.
BancAmerica Robertson Stephens
Co-Agents
First Union National Bank
NationsBank, N.A.
PNC Bank, N.A.
Royal Bank of Canada
The Chase Manhattan Bank
Initial Lenders Commitment
- --------------- ----------
Citibank, N.A. $200,000,000
Bank of America NT & SA 137,500,000
First Union National Bank 87,500,000
NationsBank, N.A. 87,500,000
PNC Bank, N.A. 87,500,000
Royal Bank of Canada 87,500,000
The Chase Manhattan Bank 87,500,000
Credit Suisse / First Boston 50,000,000
Dresdner Bank AG, New York and Grand Cayman Branches 50,000,000
Wachovia Bank, N.A. 50,000,000
Wells Fargo, N.A. 50,000,000
ABN AMRO Bank, N.V. 25,000,000
Banca Commerciale Italiana 25,000,000
Bank of Montreal 25,000,000
Bankers Trust Company 25,000,000
Barclays Bank Plc 25,000,000
Deutsche Bank AG New York and/or Cayman Island Branches 25,000,000
The Fuji Bank, Limited Atlanta Agency 25,000,000
Norwest Bank Minnesota, N.A. 25,000,000
Revolving Commitment Vehicle Corporation 25,000,000
State Street Bank and Trust Company 25,000,000
Sun Trust Bank, Atlanta 25,000,000
$1,250,000,000
<PAGE>
U.S. $1,250,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(364-Day Facility)
Dated as of April 30, 1998
Among
UNITED PARCEL SERVICE OF AMERICA, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP SECURITIES, INC.
BANCAMERICA ROBERTSON STEPHENS
as Co-Arrangers
and
BANK OF AMERICA NT & SA
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE>
DOCS03/304502
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 andto ......................................
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, B of A 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
<PAGE>
v
DOCS03/304502
<PAGE>
SCHEDULE
Schedule I - List of Applicable Lending Offices
Schedule II - List of Banks
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
AMENDED AND RESTATED CREDIT AGREEMENT
(Five-Year Facility)
Dated as of April 30, 1998
UNITED PARCEL SERVICE OF AMERICA, INC., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, CITIBANK, N.A.
("Citibank"), as administrative agent (the "Administrative Agent") for the
Lenders (as hereinafter defined), BANK OF AMERICA NT & SA ("B of A"), (as
documentation agent (the "Documentation Agent") for the Lenders, and CITICORP
SECURITIES, INC. ("Citicorp Securities") and BANCAMERICA ROBERTSON STEPHENS
("BARS"), as co-arrangers (the "Co-Arrangers") under the Loan Documents (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at 399 Park Avenue, New York, New York 10043, Account
No. 36852248, Attention: Lee Tang.
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance, as the context may require.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person; provided, however, that Overseas Partners shall not be deemed
to be an Affiliate of the Borrower.
"Agent" means the Administrative Agent or the Documentation
Agent, as the context may require.
"Applicable Fee Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
<PAGE>
- --------------------- ====================
Level 1
AA- / Aa3 or above 0.050%
- --------------------- ====================
- --------------------- ====================
Level 2
Lower than Level 1 0.075%
but at least
A- / A3
- --------------------- ====================
- --------------------- ====================
Level 3
Lower than Level 2 0.100%
- --------------------- ====================
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Administrative Agent and the Borrower
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
------------------- -------------------- ==================
Public Debt Rating Applicable Margin Applicable
S&P/Moody's for Margin for
Base Rate Eurodollar Rate
Advances Advances
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 1
AA- / Aa3 or above 0.00% 0.100%
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 2
Lower than Level 1 0.00% 0.175%
but at least
A- / A3
------------------- -------------------- ==================
------------------- -------------------- ==================
Level 3
Lower than Level 2 0.00% 0.200%
------------------- -------------------- ==================
provided, however, that if as of any date of determination the aggregate
principal amount of Advances outstanding exceeds 33% of the aggregate
Commitments, the Applicable Margin for such date shall be the percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth above plus 0.05%.
<PAGE>
"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.
"B of A" has the meaning specified in the recital of parties to
this Agreement.
"BARS" has the meaning specified in the recital of parties to
this Agreement.
<PAGE>
"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.
<PAGE>
"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.
<PAGE>
"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 Hedge Agreements; provided, however, that at any given time the term
"obligations" as used in this clause (i) shall only include the net
amounts due and payable at such time under any such agreements or
arrangements and (j) all obligations of such Person as an account party in
respect of letters of credit and bankers' acceptances. The Debt of any
Person shall include the Debt of any partnership in which such Person is a
general partner.
"Declining Lender" has the meaning specified in Section 2.16.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
<PAGE>
"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.
<PAGE>
"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).
<PAGE>
"Eurodollar Rate Reserve Percentage" means, for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing, the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Existing Credit Facilities" means the credit facilities provided
pursuant to (a) the 364-day Credit Agreement dated as of May 7, 1997, as
amended, supplemented or otherwise modified from time to time, among the
Borrower, the banks named therein, Citibank, as administrative agent, and
NationsBank, N.A. (South), as documentation agent, and (b) the five-year
Credit Agreement dated as of June 10, 1996, as amended, supplemented or
otherwise modified from time to time, among the Borrower, the banks named
therein, Citibank, as administrative agent, and NationsBank, N.A. (South),
as documentation agent.
"Extending Lender" has the meaning specified in Section 2.16.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financial Officer" of any corporation means the chief financial
officer, principal accounting officer, treasurer, assistant treasurer or
controller of such corporation.
"Fiscal Year" means, with respect to any Person, the period
commencing on January 1 and ending on December 31 of any calendar year.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
<PAGE>
"Governmental Authority" means any federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or
to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Debt, (b) to purchase property,
securities or services for the purpose of assuring the owner of such debt
of the payment of such Debt or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt; provided,
however, that the term "Guarantee" shall not include endorsements for
collection or deposit, in either case in the ordinary course of business.
"Guarantor" means each of UPSCO, UPSNY and UPSO.
"Guaranty" has the meaning specified in Section 3.01(e)(ii).
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Incurrence" has the meaning specified in Section 5.02(a).
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Indemnified Matters" has the meaning specified in Section
8.04(b).
"Indemnity Agreement" has the meaning specified in Section
3.01(e)(iii).
"Information Memorandum" means the information memorandum dated
April 1998 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.
<PAGE>
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (a) in the case of Eurodollar Rate Advances, one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select
and (b) in the case of LIBO Rate Advances, a minimum of seven days;
provided, however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of (A) any Interest Period in
respect of Eurodollar Rate Advances or (B) any Interest Period in
respect of LIBO Rate Advances the durations of which are one, two,
three or six months, occurs on a day of an initial calendar month
for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and, except
when used in reference to a Revolving Credit Advance, a Revolving Credit
Borrowing, a Revolving Credit Note, a Commitment or a related term, each
Designated Bidder.
<PAGE>
"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
Regulation 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.
<PAGE>
"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.
"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.
<PAGE>
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means any pension plan subject to the provisions of Title IV
of ERISA or Section 412 of the Internal Revenue Code that is maintained
for employees of the Borrower or any ERISA Affiliate.
"Principal Property" has the meaning specified in the Debenture
Indenture.
"Public Debt Rating" means, as of any date, the higher rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Borrower. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin and the Applicable Fee Percentage shall be determined by reference
to the available rating; (b) if neither S&P nor Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable Fee
Percentage will be set in accordance with Level 3 under the definition of
"Applicable Margin" or "Applicable Fee Percentage", as the case may be;
(c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin shall be based upon the higher
rating; provided, however, that if the lower of such ratings is more than
one level below the level of the higher of such ratings, then the
Applicable Margin and the Applicable Fee Percentage shall be based upon
the level immediately above the level of the lower of such ratings; (d) if
any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or Moody's,
as the case may be; provided, however, that if prior thereto the Borrower
has selected, and the Required Lenders have approved, a rating agency to
replace S&P or Moody's, as the case may be, such selection shall be deemed
to be S&P or Moody's, as the case may be, for all purposes hereof.
"Reference Banks" means Citibank, B of A, 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).
<PAGE>
"Regulation A", "Regulation D", "Regulation T", "Regulation U" or
"Regulation X" means Regulation A, Regulation D, 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 Lenders" has the meaning specified in Section 2.16.
"Reportable Event" means any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Internal Revenue Code).
"Required Lenders" means at any time Lenders owed at least 51% of
the then aggregate unpaid principal amount of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least 51% of the Commitments.
"Restricted Subsidiary" has the meaning specified in the
Debenture Indenture.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance), as the context may require.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"Sale and Leaseback Transaction" has the meaning specified in the
Debenture Indenture.
"Secured Indebtedness" has the meaning specified in the Debenture
Indenture.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
<PAGE>
"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) April 30, 2003 or, if
extended pursuant to Section 2.16, the date that is one year after the
Termination Date then in effect, and (b) the date of termination in whole
of the Commitments pursuant to Section 2.05 or 6.01.
"Type" has the meaning specified in the definition of "Revolving
Credit Advance".
"UPSCO" means United Parcel Service Co., a Delaware corporation and
a wholly owned Subsidiary of the Borrower.
"UPSNY" means United Parcel Service, Inc., a New York corporation
and a wholly owned Subsidiary of the Borrower.
"UPSO" means United Parcel Service, Inc., an Ohio corporation and a
wholly owned Subsidiary of the Borrower.
"Voting Power" means, with respect to any Voting Stock of any Person
at any time, the number of votes entitled to vote generally in the
election of directors of such Person that are attributable to such Voting
Stock at such time divided by the number of votes entitled to vote
generally in the election of directors of such Person that are
attributable to all shares of capital stock of such Person (including such
Voting Stock) at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
. 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".
<PAGE>
. 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
. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
2.05 (such Lender's "Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be allocated
among the Lenders ratably according to their respective Commitments (such deemed
use of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, an amount equal to the remaining aggregate amount of unused Commitments or
equal to the amount by which the aggregate amount of a proposed Competitive Bid
Borrowing requested by the Borrower exceeds the aggregate amount of Competitive
Bid Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date as such Revolving Credit Borrowing) and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Commitment, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
<PAGE>
. (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.
<PAGE>
(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.
. (a) Each Lender severally agrees that the Borrower may make
Competitive Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the date occurring
prior to the Termination Date in the manner set forth below; provided that,
following the making of each Competitive Bid Advance, the aggregate amount of
the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
<PAGE>
(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
<PAGE>
(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.
<PAGE>
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to subsection (a)(iii)(B) of this Section 2.03,
the Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in subsection (a)(ii) of this Section
2.03, of the date and aggregate amount of such Competitive Bid Borrowing
and whether or not any offer or offers made by such Lender pursuant to
subsection (a)(ii) of this Section 2.03 have been accepted by the
Borrower, (B) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in Article III. Each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the next preceding sentence
or at such later date when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the next preceding
sentence, make available for the account of its Applicable Lending Office
to the Administrative Agent at the Administrative Agent's Account, in same
day funds, such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower in
same day funds at the Borrower's Account. Promptly after each Competitive
Bid Borrowing the Administrative Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower shall be in
compliance with the limitation set forth in the proviso to the first sentence of
subsection (a) of this Section 2.03.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay pursuant to subsection (d) of this Section 2.03, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a Competitive Bid Advance, on the maturity
date of each Competitive Bid Advance (such maturity date being that specified by
the Borrower for repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) of this
Section 2.03 and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrower may prepay any principal amount of any Competitive Bid
Advance, subject to the provisions of Sections 2.10 and 8.04(c).
(e) The Borrower shall pay interest on the unpaid principal amount
of each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) of this Section 2.03, payable on the interest
payment date or dates specified by the Borrower for such Competitive Bid Advance
in the related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) of this Section 2.03, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal to the default rate specified by the
appropriate Lender in respect of such Competitive Bid Advance. Upon repayment in
full of each Competitive Bid Advance in accordance with the provisions of
subsection (d) of this Section 2.03 and the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance, the Lender holding such Competitive Bid
Note shall cancel such Note and return such Note to the Borrower.
<PAGE>
(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.
. (a) Facility Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender (other than the Designated Bidders) a
facility fee on the aggregate amount of such Lender's Commitment from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Fee Percentage, payable in arrears quarterly on the last
day of each March, June, September and December, commencing June 30, 1998, and
on the Termination Date.
(b) Agents' Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
. 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.
. The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding.
. (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.
<PAGE>
(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.
. (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.
<PAGE>
(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.
. 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.
<PAGE>
. 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).
. (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.
<PAGE>
. 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.
. (a) The Borrower shall make each payment hereunder and under the
Notes not later than 1:00 P.M. (New York City time) on the day when due in
Dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest,
facility fees or utilization fees ratably (other than amounts payable pursuant
to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent, if and
to the extent payment owed to any Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with the Administrative Agent any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fees, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
<PAGE>
(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.
. (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.
<PAGE>
(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.
<PAGE>
(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.
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.
<PAGE>
. No earlier than 60 days and no later than 45 days prior to each
anniversary of the Effective Date, the Borrower may, by written notice to the
Administrative Agent, request that the Termination Date then in effect be
extended for a 1-year period. Such request shall be irrevocable and binding upon
the Borrower. The Administrative Agent shall promptly notify each Lender of such
request. If a Lender agrees, in its individual and sole discretion, to so extend
its Commitment (an "Extending Lender"), it shall deliver to the Administrative
Agent a written notice of its agreement to do so no earlier than 30 days and no
later than 20 days prior to such anniversary date and the Administrative Agent
shall notify the Borrower of such Extending Lender's agreement to extend its
Commitment no later than 15 days prior to such anniversary date. The Commitment
of any Lender that fails to accept or respond to the Borrower's request for
extension of the Termination Date (a "Declining Lender") shall be terminated on
the Termination Date then in effect (without regard to any extension by other
Lenders) and on such Termination Date the Borrower shall pay in full the
principal amount of all Advances owing to such Declining Lender, together with
accrued interest thereon to the date of such payment of principal and all other
amounts payable to such Declining Lender under this Agreement. The
Administrative Agent shall promptly notify each Extending Lender of the
aggregate Commitments of the Declining Lenders. The Extending Lenders, or any of
them, may offer to increase their respective Commitments by an aggregate amount
up to the aggregate amount of the Declining Lenders' Commitments and any such
Extending Lender shall deliver to the Administrative Agent a notice of its offer
to so increase its Commitment no later than 15 days prior to such anniversary
date. To the extent of any shortfall in the aggregate amount of extended
Commitments, the Borrower shall have the right to require any Declining Lender,
to assign in full its rights and obligations under this Agreement to an Eligible
Assignee designated by the Borrower and acceptable to the Administrative Agent,
such acceptance not to be unreasonably withheld, that agrees to accept all of
such rights and obligations (a "Replacement Lender"), provided that (i) such
increase and/or such assignment is otherwise in compliance with Section 8.07,
(ii) such Declining Lender receives payment in full of the principal amount of
all Advances owing to such Declining Lender, together with accrued interest
thereon to the date of such payment of principal and all other amounts payable
to such Declining Lender under this Agreement and (iii) any such increase shall
be effective on such anniversary date and any such assignment shall be effective
on the date specified by the Borrower and agreed to by the Replacement Lender
and the Administrative Agent. If, but only if, Extending Lenders and Replacement
Lenders provide Commitments in an aggregate amount equal to 100% of the
aggregate amount of the Commitments outstanding immediately prior to such
anniversary date, the Termination Date shall be extended by 1-year.
. 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 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).
<PAGE>
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.0. 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.
<PAGE>
(iv) Certified copies of the resolutions of the board of
directors of the Borrower approving this Agreement, the Notes and
the Indemnity Agreement, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Agreement, the Notes and the Indemnity Agreement.
(v) Certified copies of the resolutions of the board of
directors of each of the Guarantors approving the Guaranty and the
Indemnity Agreement, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
the Guaranty and the Indemnity Agreement.
(vi) A certificate of the Secretary or an Assistant Secretary
of each of the Guarantors certifying the names and true signatures
of the officers of such Guarantor authorized to sign the Guaranty
and the Indemnity Agreement and the other documents to be delivered
hereunder.
(vii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement, the
Notes and the Indemnity Agreement and the other documents to be
delivered hereunder.
(viii) A favorable opinion of Mayer, Brown & Platt, counsel
for the Borrower, substantially in the form of Exhibit G hereto.
(ix) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing . The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (f) thereof and in
subsection (h) thereof) are correct on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default (except for breach of the
representations contained in subsection (f) and in subsection (h) of
Section 4.01).
<PAGE>
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).
. 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.
. Notwithstanding any condition precedent to the contrary contained
herein, a labor dispute of any sort involving employees of the Borrower or its
Subsidiaries shall not prevent the Borrower from borrowing hereunder unless as a
result thereof the Borrower is in violation of the covenant set forth in Section
5.02(d) or a Default exists under Section 6.01(a) or (e).
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
. The Borrower represents and warrants as follows:e Borrower
(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.
<PAGE>
(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, 1997, 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, 1997, 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,
1997.
(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).
<PAGE>
(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 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 as a
commercial paper backstop and 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).
<PAGE>
(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
. 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.
<PAGE>
(b) Payment of Taxes, Etc. Pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give
rise to a Lien upon such properties or any part thereof; provided,
however, that such payment and discharge shall not be required with
respect to any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings or where the failure to pay such tax, assessment, charge, levy
or claim would not (i) result in a Material Adverse Effect or (ii) result
in the imposition of any lien securing a material amount in favor of any
party entitling such party to priority of payment over the Lenders, and
the Borrower or such Subsidiary shall, to the extent required by generally
accepted accounting principles applied on a consistent basis, have set
aside on its books adequate reserves with respect thereto.
(c) Maintenance of Insurance. (i) Keep its insurable properties
adequately insured at all times by financially sound and reputable
insurers, (ii) maintain such other insurance, to such extent and against
such risks, including fire and other risks insured against by extended
coverage, as is customary with companies in the same or similar
businesses, including public liability insurance against claims for
personal injury or death or property damage occurring upon, in, about or
in connection with the use of any properties owned, occupied or controlled
by the Borrower or any of its Subsidiaries, in such amount as the Borrower
or such Subsidiary shall reasonably deem necessary and (iii) maintain such
other insurance as may be required by law or as may be reasonably
requested by the Lenders for purposes of assuring compliance with this
Section 5.01(c) (it being understood that the Borrower may self-insure
against certain risks to the extent customary with companies similarly
situated and in the same or similar lines of business).
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause its Subsidiaries to preserve and maintain, its corporate
existence; obtain, preserve, renew, extend and keep in full force and
effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and tradename material to the conduct of its
business (unless the failure to so preserve or renew would not result in a
Material Adverse Effect); and maintain and operate, and cause its
Subsidiaries to maintain and operate, its businesses in materially the
same manner in which they are currently conducted and operated; provided,
however, that the Borrower and its Subsidiaries may consummate any merger
or consolidation permitted under Section 5.02(e).
<PAGE>
(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;
<PAGE>
(ii) within 60 days after the end of the first three fiscal
quarters of each Fiscal Year, unaudited Consolidated balance sheets
and statements of Consolidated income and statements of Consolidated
cash flow showing the financial condition and results of operations
of the Borrower as of the end of each such quarter and, with respect
to statements of Consolidated cash flow, for the then-elapsed
portion of the Fiscal Year, certified by a Financial Officer of the
Borrower as presenting fairly the financial position and results of
operations of the Borrower on a Consolidated basis and as having
been prepared in accordance with GAAP, in each case subject to
normal year-end audit adjustments;
(iii) promptly after the same become publicly available,
copies of (A) such annual, periodic and other reports, and such
proxy statements and other information as shall be filed by the
Borrower or any Material Subsidiary with the Securities and Exchange
Commission pursuant to the requirements of the Exchange Act and (B)
such registration statements filed by the Borrower or any Material
Subsidiary pursuant to the requirements of Securities Act of 1933,
as amended, other than any such registration statements filed on
Form S-8 or any comparable form;
(iv) concurrently with subsections (h)(i) and (h)(ii) of this
Section 5.01, a certificate of a Financial Officer of the Borrower
stating compliance, as of the dates of the financial statements
being furnished at such time, with the covenants set forth in
Sections 5.02(a) and (d);
(v) concurrently with subsections (h)(i) and (h)(ii) of this
Section 5.01, a certificate of the Person referred to therein (which
certificate furnished by the independent accountants referred to in
subsection (h)(i) of this Section 5.01 may be limited to accounting
matters and disclaim responsibility for legal interpretations)
certifying that to the best of his, her or its knowledge no Default
or Event of Default has occurred and, in the case of a certificate
of a Financial Officer of the Borrower, if such a Default or Event
of Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect
thereto;
(vi) prompt written notice of any Default, specifying the
nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto;
(vii) prompt written notice of the filing or commencement of,
or any threat or notice of intention of any Person to file or
commence, any action, suit, arbitration proceeding or other
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Subsidiary
thereof that, if adversely determined, could result in a Material
Adverse Effect;
<PAGE>
(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.
. 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:
<PAGE>
(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;
<PAGE>
(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;
<PAGE>
(xiv) other Liens securing Debt in an aggregate principal
amount not to exceed 1% of Consolidated Net Worth at any time
outstanding; and
(xv) Liens arising in connection with rights of setoff that
commercial banks and other financial institutions obtain against
monies, securities or other properties of the Borrower and its
Restricted Subsidiaries in possession of or on deposit with such
banks or financial institutions, whether in general or special
deposit accounts or held for safekeeping, transmission, collection
or otherwise; and
(xvi) Liens on aircraft, airframes or aircraft engines,
aeronautic equipment or computers and electronic data processing
equipment.
(c) Sale and Lease-Back Transactions. In the case of the Borrower
and its Restricted Subsidiaries, enter into any Sale and Leaseback
Transaction unless at such time it would be permitted to enter into such
Sale and Leaseback Transaction pursuant to Section 1006 of the Debenture
Indenture.
(d) Consolidated Net Worth. In the case of the Borrower, permit its
Consolidated Net Worth at any time to be less than $3.0 billion; provided,
however, that the Borrower shall be permitted to have a Consolidated Net
Worth of not less than $2.5 billion for a single period during the term of
this Agreement of not more than 12 months' duration.
(e) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit another Person
to merge into it, or acquire all or substantially all of the assets of any
other Person, except that (i) any Subsidiary of the Borrower may merge
into the Borrower or any other Subsidiary of the Borrower, (ii) the
Borrower or any Subsidiary of the Borrower may merge or consolidate with
or into any other Person so long as the Borrower or such Subsidiary is the
surviving corporation, and (iii) the Borrower and any of its Subsidiaries
may acquire all or substantially all of the assets of another Person;
provided that any Subsidiary that is not a Guarantor may not acquire all
or substantially all of the assets of a Guarantor unless such Subsidiary
duly executes a guaranty in favor of the Lenders in substantially the form
of Exhibit E hereto; and provided further, in each case, that no Default
shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
ARTICLE VI
EVENTS OF DEFAULT
. If any of the following events ("Events of Default") shall
occur and be continuing:
<PAGE>
(a) the Borrower shall fail to pay (i) any principal of any Advance
when the same becomes due and payable or (ii) any interest on any Advance
or any other amount payable under this Agreement or any Note when the same
becomes due and payable and such failure to pay such interest or such
other amount shall remain unremedied for five days; or
(b) any representation or warranty made or deemed made by any Loan
Party (or any of its officers) in or in connection with any Loan Document
or any Borrowing under this Agreement, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to
any Loan Document, shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) the Borrower or any of its Subsidiaries shall fail to perform or
observe (i) any term, covenant or agreement contained in subsection (a),
(d), (e), (f), (g) or (h) (other than subsection (h)(i) through (h)(v)) of
Section 5.01 or Section 5.02 or (ii) any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if
such failure to perform such other term, covenant or agreement shall
remain unremedied for 30 days after written notice thereof shall have been
given to the Borrower or such Subsidiary, as the case may be, by the
Administrative Agent; or
(d) the Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding
Debt evidenced by the Notes) of the Borrower or such Subsidiary (as the
case may be), when the same becomes due and payable (whether at maturity,
by acceleration or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is
to accelerate (with or without notice or lapse of time or both), or to
permit the acceleration (with or without notice or lapse of time or both)
of, the maturity of such Debt; or
<PAGE>
(e) the Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Borrower or any of its Material
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) any final judgment or order for the payment of money in excess
of $50,000,000 in the aggregate shall be rendered against the Borrower or
any of its Subsidiaries or any combination thereof and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 45 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(g) any Change of Control shall have occurred; or
(h) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(1) of the Internal Revenue Code), shall have occurred with respect
to any Plan or Plans that reasonably could be expected to result in
liability of the Borrower or any Subsidiary to the PBGC or to a Plan in an
aggregate amount exceeding $25,000,000 and, within 30 days after the
reporting of any such Reportable Event or Reportable Events to the
Administrative Agent, the Administrative Agent shall have notified the
Borrower, in writing that (i) the Required Lenders have made a
determination that, on the basis of such Reportable Event or Reportable
Events or the failure to make a required payment, there are reasonable
grounds (A) for the termination of such Plan or Plans by the PBGC or (B)
for the appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans and (ii) as a result thereof, an
Event of Default exists hereunder; or the PBGC shall have instituted
proceedings to terminate any Plan or Plans with vested unfunded
liabilities aggregating in excess of $25,000,000; or a trustee shall be
appointed by a United States District Court to administer any such Plan or
Plans and the Borrower is being requested to make a payment with respect
to vested unfunded liabilities aggregating in excess of $25,000,000; or
(i) (i) any senior debt securities of the Borrower shall become
rated BBB- (or the equivalent thereof) or lower by S&P or Baa3 (or the
equivalent thereof) or lower by Moody's and such ratings shall remain in
effect for a period of 90 days (it being understood that if either S&P or
Moody's (but not both such rating agencies) shall cease to rate the senior
debt securities of the Borrower, then the occurrence of the event
described in this subsection (i)(i) shall be determined solely by
reference to the rating assigned to the senior debt securities of the
Borrower by the rating agency continuing to rate such securities) or (ii)
the senior debt securities of the Borrower shall cease to be rated by both
S&P and Moody's; or
(j) this Agreement, the Guaranty or any other Loan Document shall
for any reason cease to be, or shall be asserted by the Borrower, any
Guarantor or any other Subsidiary of the Borrower not to be, a legal,
valid and binding obligation of any party thereto (other than the
Administrative Agent or any Lender), enforceable in accordance with its
terms, except as otherwise permitted by Section 5.02(e);
<PAGE>
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
. 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.
<PAGE>
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.
. With respect to its Commitment, the Advances made by it and the
Note issued to it, each of Citibank and B of A 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, B of A 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, B of A
and their Affiliates were not the Administrative Agent or the Documentation
Agent, respectively, and without any duty to account therefor to the Lenders.
. 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.
<PAGE>
. The Lenders (other than the Designated Bidders) agree to indemnify
each of the Administrative Agent, the Documentation Agent and their respective
Affiliates (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Revolving Credit Notes then held by each
of them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent, the Documentation Agent or such Affiliate in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent or the Documentation Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's, the
Documentation Agent's or such Affiliate's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender (other than the
Designated Bidders) agrees to reimburse the Administrative Agent, the
Documentation Agent and their respective Affiliates promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees and
disbursements) incurred by the Administrative Agent, the Documentation Agent or
such Affiliate in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent, the Documentation Agent or such Affiliate is not
reimbursed for such expenses by the Borrower.
. 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.
SECTION 7.07. Documentation Agent. The Documentation Agent shall not
have any duty in connection with this Agreement and the other Loan Documents
except as expressly set forth herein or in the other Loan Documents.
<PAGE>
ARTICLE VIII
MISCELLANEOUS
No amendment or waiver of any provision of this Agreement or the
Revolving Credit Notes, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (other than the Designated Bidders), do any of the
following: (a) waive any of the conditions specified in Section 3.01, 3.02 or
3.03, (b) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Revolving Credit Notes, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f) except
as permitted in accordance with Section 5.02(e), release any Guarantor under the
Guaranty or (g) amend this Section 8.01; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent or the Documentation Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Administrative Agent or
Documentation Agent, as the case may be, under this Agreement or any Note.
All notices and other communications provided for hereunder shall
be in writing (including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower, at
its address at 55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, Attention:
Financial Resources Department (telecopier number (404) 828-6562); if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
if to the Administrative Agent, at its address at Two Penns Way, Suite 200, New
Castle, Delaware 19720, Attention: Jennifer Klemaszewski (telecopier number
(302) 894-6120), with a copy to 400 Perimeter Center Terrace, Suite 600,
Atlanta, Georgia 30346, Attention: Bruce Simmons (telecopier number (770)
668-8137); and if to the Documentation Agent, at its address at 231 South
LaSalle Street, Chicago, Illinois 60697, Attention: Bridget A. Garavalia
(telecopier number (312) 828-1997); 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.
<PAGE>
. 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.
. (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.
<PAGE>
(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.
. Upon (a) the occurrence and during the continuance of any Event of
Default and (b) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of Section 6.01, each Lender
and each of its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but
excluding any accounts designated as collateral accounts securing other Debt) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
. 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.
. (a) Each Lender (other than a Designated Bidder) may, with the
consent of the Borrower, such consent not to be unreasonably withheld or
delayed, and shall, so long as no Default has occurred and is continuing and if
demanded by the Borrower (pursuant to the provisions of Section 2.17 upon at
least five Business Days' notice to such Lender and the Administrative Agent),
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving Credit
Note or Notes held by it); provided, however, that:
<PAGE>
(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).
<PAGE>
(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.
<PAGE>
(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;
<PAGE>
(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.
<PAGE>
(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.
. 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.
. This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
. 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.
<PAGE>
(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.
<PAGE>
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:
<PAGE>
CITIBANK, N.A., as Administrative Agent
By
Title:
<PAGE>
BANK OF AMERICA NT & SA,
as Documentation Agent
By
Title:
<PAGE>
CITICORP SECURITIES, INC.,
as Co-Arranger
By
Title:
<PAGE>
BANCAMERICA ROBERTSON STEPHENS,
as Co-Arranger
By
Title:
<PAGE>
Commitment Initial Lenders
$ 200,000,000 CITIBANK, N.A.
By
Title:
<PAGE>
$ 137,500,000 BANK OF AMERICA NT & SA
By
Title:
<PAGE>
$ 87,500,000 FIRST UNION NATIONAL BANK
By
Title:
<PAGE>
$ 87,500,000 NATIONSBANK, N.A.
By
Title:
<PAGE>
$ 87,500,000 PNC BANK, N.A.
By
Title:
<PAGE>
$ 87,500,000 ROYAL BANK OF CANADA
By
Title:
<PAGE>
$ 87,500,000 THE CHASE MANHATTAN BANK
By
Title:
<PAGE>
$ 50,000,000 CREDIT SUISSE / FIRST BOSTON
By
Title:
<PAGE>
$ 50,000,000 DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
Title:
By
Title:
<PAGE>
$ 50,000,000 WACHOVIA BANK, N.A.
By
Title:
<PAGE>
$ 50,000,000 WELLS FARGO BANK, N.A.
By
Title:
<PAGE>
$ 25,000,000 ABN AMRO BANK N.V.
By
Title:
<PAGE>
$ 25,000,000 BANCA COMMERCIALE ITALIANA
By
Title:
<PAGE>
$ 25,000,000 BANK OF MONTREAL
By
Title:
<PAGE>
$ 25,000,000 BANKERS TRUST COMPANY
By
Title:
<PAGE>
$ 25,000,000 BARCLAYS BANK PLC
By
Title:
<PAGE>
$ 25,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
By
Title:
<PAGE>
$ 25,000,000 THE FUJI BANK, LIMITED ATLANTA
AGENCY
By
Title:
<PAGE>
$ 25,000,000 REVOLVING COMMITMENT VEHICLE
CORPORATION
By
Title:
<PAGE>
$ 25,000,000 NORWEST BANK MINNESOTA, N.A.
By
Title:
<PAGE>
$ 25,000,000 STATE STREET BANK AND TRUST
COMPANY
By
Title:
<PAGE>
$ 25,000,000 SUN TRUST BANK, ATLANTA
By
Title:
$1,250,000,000 TOTAL OF THE COMMITMENTS
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
5-YEAR FACILITY
- -------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Citibank, N.A. Citibank, N.A. Citibank, N.A.
2 Penns Way 2 Penns Way
Suite 200 Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: Jennifer Attn: Jennifer
Klemaszewski Klemaszewski
T: (302) 894-6031 T: (302) 894-6031
F: (302) 894-6121 F: (302) 894-6121
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bank of America NT & SA Bank of America NT & SA Bank of America NT & SA
231 S. LaSalle Street 231 S. LaSalle Street
Chicago, IL 60697 Chicago, IL 60697
Attn: Bridget Garavalia Attn: Bridget Garavalia
T: 312-828-1259 T: 312-828-1259
F: 312-828-1997 F: 312-828-1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
First Union National Bank First Union National Bank First Union National Bank
214 Hogan Street 214 Hogan Street
Attn: PTC Clerk, FL0070 Attn: PTC Clerk, FL0070
Jacksonville, FL Jacksonville, FL
32231-4142 32231-4142
Attn: Jackie Warner Attn: Jackie Warner
T: 904-489-1729 T: 904-489-1729
F: 904-489-1010 F: 904-489-1010
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NationsBank, N.A. NationsBank, N.A. NationsBank, N.A.
101 N. Tryon Street, 15th 101 N. Tryon Street,
Floor 15th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Juanita D. Luke Attn: Juanita D. Luke
T: 704-386-3767 T: 704-386-3767
F: 704-386-8694 F: 704-386-8694
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PNC Bank, N.A. PNC Bank, N.A. PNC Bank, N.A.
249 Fifth Avenue 249 Fifth Avenue
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: Robert J. Mitchell Attn: Robert J. Mitchell
T: 412-762-6547 T: 412-762-6547
F: 412-762-6484 F: 412-762-6484
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
One Liberty Plaza, 5th One Liberty Plaza, 5th
Floor Floor
New York, NY 10006 New York, NY 10006
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
1 Chase Manhattan Plaza, 1 Chase Manhattan Plaza,
8th Floor 8th Floor
New York, NY 10081 New York, NY 10081
Attn: May Fong Attn: May Fong
T: 212-552-7314 T: 212-552-7314
F: 212-552-5650 F: 212-552-5650
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Credit Suisse/First Credit Suisse / First Credit Suisse / First
Boston Boston Boston
11 Madison Avenue, 20th 11 Madison Avenue, 20th
Floor Floor
New York, NY 10010-3629 New York, NY 10010-3629
Attn: Leroy Dworkin Attn: Leroy Dworkin
T: 212-325-9015 T: 212-325-9015
F: 212-325-6508 F: 212-325-6508
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dresdner Bank AG, New Dresdner Bank, New York Dresdner Bank, New York
York and Grand Cayman and Grand Cayman Branches and Grand Cayman Branches
Branches 75 Wall Street 75 Wall Street
New York, NY 10021-2833 New York, NY 10021-2833
Attention: Craig Erickson Attention: Craig Erickson
T: 212-429-2183 T: 212-429-2183
F: 212-429-2781 F: 212-429-2781
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Wachovia Bank, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
191 Peachtree Street, N.E. 191 Peachtree Street,N.E.
Atlanta, GA 30303-1757 Atlanta, GA 30303-1757
Attn: Wayne Morgan/ Attn: Wayne Morgan/
Theresa St. Luce Theresa St.Luce
T: 404-332-6084/4061
F: 404-332-5016
T: 404-332-6084/4061
F: 404-332-5016
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Wells Fargo, N.A. Wells Fargo Bank Wells Fargo Bank
201 Third Street 201 Third Street
MAC 0187-081 MAC 0187-081
San Francisco, CA 94103 San Francisco, CA 94103
Attn: Sue Silver Attn: Sue Silver
T: 415-477-5374 T: 415-477-5374
F: 415-512-1943 (primary) F: 415-512-1943 (primary)
415-512-0675 415-512-0675
(secondary) (secondary)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ABN AMRO Bank, N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
135 South LaSalle Street, 135 South LaSalle
Suite 625 Street, Suite 625
Chicago, IL 60603 Chicago, IL 60603
Attn: Loan Administration Attn: Loan Administration
T: 312-904-8865 T: 312-904-8865
F: 312-904-6893 F: 312-904-6893
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Banca Commerciale Banca Commerciale Banca Commerciale
Italiana Italiana - New York Branch Italiana - New York
One William Street Branch
New York, NY 10004 One William Street
Attn: Anthony O'Mahony New York, NY 10004
T: 212-607-3852 Attn: Anthony O'Mahony
F: 212-809-2124 T: 212-607-3852
F: 212-809-2124
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bank of Montreal Bank of Montreal Bank of Montreal
115 S. LaSalle Street 115 S. LaSalle Street
Chicago, IL 60603 Chicago, IL 60603
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Bankers Trust Company Bankers Trust Company Bankers Trust Company
130 Liberty street 130 Liberty street
New York, NY 10006 New York, NY 10006
Attn: Anita Mangliani Attn: Anita Mangliani
T: 212-250-7674 T: 212-250-7674
F: 212-250-7351 F: 212-250-7351
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Barclays Bank Plc Barclays Bank PLC Barclays Capital Ltd.
75 Wall Street 222 Broadway
New York, NY 10265 New York, NY 10038
Attn: Charmaine Tenn Sing Attn: Charmaine Tenn
Que Sing Que
T: 212-412-3728 T: 212-412-3728
F: 212-412-5306/5307/5308 F: 212-412-5306/5307/5308
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Deutsche Bank AG New Deutsche Bank AG New York Deutsche Bank AG Cayman
York and/or Cayman Branch Island Branch
Island Branches 31 West 52nd Street c/o Deutsche Bank AG New
New York, NY 10019 York Branch
31 West 52nd Street
New York, NY 10019
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
Atlanta Agency Atlanta Agency Atlanta Agency
Marquis One Tower, Suite Marquis One Tower, Suite
2100 2100
245 Peachtree Center 245 Peachtree Center
Ave., N.E. Ave., N.E.
Atlanta, GA 30303-1253 Atlanta, GA 30303-1253
Attn: George Flynn Attn: George Flynn
T: 404-215-3317 T: 404-215-3317
F: 404-653-2119 F: 404-653-2119
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Revolving Commitment Revolving Commitment Revolving
Vehicle Corporation Vehicle Corporation Commitment
500 Stanton Christiana Vehicle Corporation
Road 500 Stanton Christiana
Newark, DE 19713 Road
Newark, DE 19713
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Norwest Bank Minnesota, Norwest Bank Minnesota, Norwest Bank Minnesota,
N.A. N.A. N.A.
Sixth and Marguette Sixth and Marguette
Minneapolis, MN 55479-0035 Minneapolis, MN
Attn: Ann C. Pifer 55479-0035
T: 612-667-2893 Attn: Ann C. Pifer
F: 612-667-2276 T: 612-667-2893
F: 612-667-9787
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
States Street Bank and State Street Bank and State Street Bank and
Trust Company Trust Company Trust Company
225 Franklin Street 225 Franklin Street
Boston, MA 02110 Boston, MA 02110
Attn: C. Jaynelle Landy Attn: C. Jaynelle Landy
T: 617-664-4072 T: 617-664-4072
F: 617-664-6527 F: 617-664-6527
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Sun Trust Bank, Atlanta Suntrust Bank, Atlanta Suntrust Bank, Atlanta
25 Park Place 25 Park Place
Mail Code 127, 23rd Floor Mail Code 127, 23rd Floor
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Chris Deisley Attn: Chris Deisley
T: 404-588-8684 T: 404-588-8684
F: 404-588-8833 F: 404-588-8833
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE II
LIST OF BANKS
Administrative Agent
Citibank, N.A.
Documentation Agent
Bank of American NT & SA
Co-Arranger
Citicorp Securities, Inc.
BancAmerica Robertson Stephens
Co-Agents
First Union National Bank
NationsBank, N.A.
PNC Bank, N.A.
Royal Bank of Canada
The Chase Manhattan Bank
Initial Lenders Commitment
- --------------- ----------
Citibank, N.A. $200,000,000
Bank of America NT & SA 137,500,000
First Union National Bank 87,500,000
NationsBank, N.A. 87,500,000
PNC Bank, N.A. 87,500,000
Royal Bank of Canada 87,500,000
The Chase Manhattan Bank 87,500,000
Credit Suisse / First Boston 50,000,000
Dresdner Bank AG, New York and Grand Cayman Branches 50,000,000
Wachovia Bank, N.A. 50,000,000
Wells Fargo, N.A. 50,000,000
ABN AMRO Bank, N.V. 25,000,000
Banca Commerciale Italiana 25,000,000
Bank of Montreal 25,000,000
Bankers Trust Company 25,000,000
Barclays Bank Plc 25,000,000
Deutsche Bank AG New York and/or Cayman Island Branches 25,000,000
The Fuji Bank, Limited Atlanta Agency 25,000,000
Norwest Bank Minnesota, N.A. 25,000,000
Revolving Commitment Vehicle Corporation 25,000,000
State Street Bank and Trust Company 25,000,000
Sun Trust Bank, Atlanta 25,000,000
$1,250,000,000
<PAGE>
U.S. $1,250,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
(Five-Year Facility)
Dated as of April 30, 1998
Among
UNITED PARCEL SERVICE OF AMERICA, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP SECURITIES, INC.
BANCAMERICA ROBERTSON STEPHENS
as Co-Arrangers
and
BANK OF AMERICA NT & SA
as Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE>
T A B L E O F C O N T E N T S
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.................................... 1
SECTION 1.02. Computation of Time Periods.............................. 16
SECTION 1.03. Accounting Terms......................................... 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances............................ 16
SECTION 2.02. Making the Revolving Credit Advances..................... 16
SECTION 2.03. The Competitive Bid Advances............................. 18
SECTION 2.04. Fees..................................................... 22
SECTION 2.05. Termination or Reduction of the Commitments.............. 22
SECTION 2.06. Repayment of Revolving Credit Advances................... 22
SECTION 2.07. Interest on Revolving Credit Advances.................... 22
SECTION 2.08. Interest Rate Determination.............................. 23
SECTION 2.09. Optional Conversion of Revolving Credit Advances......... 24
SECTION 2.10. Optional Prepayments of Advances......................... 24
SECTION 2.11. Increased Costs.......................................... 24
SECTION 2.12. Illegality............................................... 25
SECTION 2.13. Payments and Computations................................ 25
SECTION 2.14. Taxes.................................................... 26
SECTION 2.15. Sharing of Payments, Etc................................. 28
SECTION 2.16. Extensions of Termination Date........................... 29
SECTION 2.17. Substitution of Lender................................... 30
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03....................................................... 30
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing.. 31
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing... 32
SECTION 3.04. Determinations Under Section 3.01........................ 32
SECTION 3.05. Labor Dispute............................................ 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower........... 33
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.................................... 36
SECTION 5.02. Negative Covenants....................................... 40
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................ 43
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action................................. 46
SECTION 7.02. Administrative Agent's Reliance, Etc..................... 46
SECTION 7.03. Citibank, B of A and Their Affiliates.................... 47
SECTION 7.04. Lender Credit Decision................................... 47
SECTION 7.05. Indemnification.......................................... 47
SECTION 7.06. Successor Agents......................................... 48
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.......................................... 49
SECTION 8.02. Notices, Etc............................................. 49
SECTION 8.03. No Waiver; Remedies...................................... 49
SECTION 8.04. Costs and Expenses....................................... 50
SECTION 8.05. Right of Setoff.......................................... 51
SECTION 8.06. Binding Effect........................................... 51
SECTION 8.07. Assignments, Designations and Participations............. 51
SECTION 8.08. Confidentiality.......................................... 56
SECTION 8.09. Governing Law............................................ 56
SECTION 8.10. Execution in Counterparts................................ 57
SECTION 8.11. Jurisdiction, Etc........................................ 57
<PAGE>
iv
<PAGE>
SCHEDULE
Schedule I - List of Applicable Lending Offices
Schedule II - List of Banks
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
