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HomeMy WebLinkAboutResolution 3332-04-2006 Resolution No 3332-04-2006 FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT THIS FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT (this Amendment")is dated as ofMay 1,2006,and is by and between the AllianceAirport Authority Inc.(the Authority"), a nonstock,nonprofit industrial development corporation,created to act on behalf of the City of Fort Worth,a home- rule city and a political subdivision of the State of Texas(the 'City"),pursuant to the Constitution and laws of the State of Texas, including particularly Article 5190 6, V.A.T C.S,, as amended (hereinafter called the 'Development Corporation Act"),and Federal Express Corporation,a Delaware corporation with its principal office in Memphis, Tennessee and authorized to do business in the State of Texas(hereinafter called the"Lessee"). WITNESSETH: WHEREAS,the City owns and operates the Alliance Airport(hereinafter called the Airport");and WHEREAS,the Lessee is primarily engaged in the business of the distribution of express cargo and parcels; and WHEREAS,at the request of the Lessee,the Authority caused to be acquired and developed certain real estate at the Airport and caused to be acquired and constructed thereon certain facilities for use by the Lessee in its business of the distribution of express cargo and parcels;and WHEREAS, in furtherance of the public purposes set forth in the Development Corporation Act,and in satisfaction of such request by the Lessee, the Authority issued its Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project)in the aggregate principal amount of$249,540 000(the 'Series 1996 Bonds"), pursuant to the terms of a Trust Indenture between the Authority and J.P Morgan Trust Company National Association(successor to The First National Bank of Chicago), as trustee, dated as of April 1, 1996 (the 1996 Indenture"),to finance a portion of the costs of the facilities leased to the Lessee;and WHEREAS, with respect to the issuance of the Series 1996 Bonds and the use of the facilities financed through the issuance of the Series 1996 Bonds,the Authority and the Lessee executed and delivered that certain Land and Special Facilities Lease Agreement,dated as of April 1, 1996(the 1996 Agreement');and WHEREAS,pursuant to rights reserved to it under the terms of the 1996 Agreement,the Lessee has requested that the Authority issue its Special Facilities Revenue Refunding Bonds, Series 2006(Federal Express Corporation Project),in the aggregate principal amount of$ (the 'Series 2006 Bonds"or the 'Bonds")under and pursuant to a Trust Indenture,dated as of May 1,2006 by and between the Authority and J.P Morgan Trust Company National Association,as trustee(the 'Indenture");and WHEREAS,the proceeds to be derived from the sale of the Series 2006 Bonds,together with surplus funds in the"Construction Fund"under the 1996 Indenture and funds to be contributed by the Lessee,are to be used to effect the refunding of all of the outstanding principal amount of the Series 1996 Bonds,and to pay the redemption premium and interest due and payable on the Series 1996 Bonds so refunded on the date fixed for redemption of the Series 1996 Bonds;and WHEREAS,in connection with the issuance of the Series 2006 Bonds,the Authority and the Lessee desire to amend the 1996 Agreement for the purposes hereinafter stated and in accordance herewith. NOW THEREFORE,in consideration of the mutual covenants and considerations herein contained and contained in the 1996 Agreement,the Authority and the Lessee hereby agree and covenant as follows: 1 ARTICLE I DEFINITIONS Section 1 Agreement. All references to the term Agreement"in the 1996 Agreement and in this Amendment shall mean the 1996 Agreement as amended by this Amendment. All references to the term 'Facilities Agreement" in the Indenture and in the Guaranty dated as of May 1 2006, from the Lessee to J.P Morgan Trust Company National Association relating to the Series 2006 Bonds shall mean the 1996 Agreement as amended by this Amendment. Section 2. Defined Terms. Section 101 of the 1996 Agreement is hereby amended by adding the terms 1996 Indenture" Series 1996 Bonds" '2006 Delivery Date"and '2006 Tax Representation Certificate"thereto as provided below and the other defined terms listed below and defined in Section 101 of the 1996 Agreement are hereby amended so that, as amended,they read in their entirety as follows. Authorized Lessee Representative or Authorized Company Representative"means such officer or employee of the Lessee authorized by the Lessee to act on its behalf under this Agreement or the Indenture as certified to the Authority the City and the Trustee in writing by the Lessee. 'Bonds"or Series 2006 Bonds"means the AllianceAirport Authority Inc. Special Facilities Revenue Refunding Bonds, Series 2006 (Federal Express Corporation Project) to be issued in the aggregate principal amount of 'Department" or 'Division means the Economic Development and Tourism Division within the Office of the Governor of the State,and any successor to the duties of the Economic Development and Tourism Division under the Development Corporation Act. 'Guaranty"means the Guaranty dated as of May 1, 2006 between the Lessee, as guarantor and the Trustee. 'Indenture" means the Trust Indenture dated as of May 1, 2006 between the Authority and J.P Morgan Trust Company National Association,as amended and supplemented from time to time,providing for the issuance of the Bonds. 'Interest Payment Date" means October 1 2006 and each April 1 and October 1 thereafter until maturity or redemption of the Bonds. 'Letter of Representations" means the letter of representation executed by the Lessee pursuant to the terms of the Underwriting Agreement. 1996 Indenture" means the Trust Indenture.between the Authority and J.P Morgan Trust Company National Association(successor to The First National Bank of Chicago),as trustee,dated as of April 1 1996 'NRMSIR means, as of any date, all nationally recognized municipal securities information repositories then recognized by the Commission for purposes of the Rule. As of the 2006 Delivery Date,the NRMSIRs are. Bloomberg Financial Markets Municipal Repository 100 Business Park Drive Skillman,NJ 08558-3629 Phone- (609)279-3225 Facsimile (609)279-5962 2 Email. Munis6i�Bloomberg.com Website- http.//www.bloomberg.com/markets/rates/municontacts.htnil DPC Data,Inc. One Executive Drive Fort Lee,NJ 07024 Phone (201) 346-0701 Facsimile (201)947-0107 Email nrmsir6tDdpcdata.com Website. !Mp.//www.dpcdata.com FT Interactive Data Attn. NRMSIR 100 William Street, 15t`Floor New York,NY 10038 Phone (212)771-6999- (800)689-8466 Facsimile: (212)7717390 Email. NRMSIR(dinteractivedata.com Website- http,//www.ftid.com Standard&Poor's Securities Evaluations,Inc 55 Water Street 45"'Floor New York,NY 10041 Phone (212)438-4595 Facsimile (212)438-3975 Email. nrmsir repositoU@sandp.com Website. www.iikenny.com/iikenny/user descrip data rep.html 'Series 1996 Bonds" means the AllianceAirport Authority Inc. Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project)issued in the aggregate principal amount of$249,540 000 'Trustee"means J.P Morgan Trust Company National Association,or any successor thereto or assignee thereof permitted by the Indenture. '2006 Delivery Date" means the date of issuance and delivery of the Series 2006 Bonds pursuant to the terms of the Underwriting Agreement. '2006 Tax Representation Certificate means the certificate executed by an Authorized Lessee Representative addressing matters relating to the tax-exempt status of the interest on the Series 2006 Bonds. 'Underwriting Agreement"means the Underwriting Agreement,dated _,2006,by and between the Authority and the underwriters named therein. Section 3. Other Definitions. Capitalized terms used in this Amendment but not otherwise defined herein shall have the respective meanings assigned to such terms in the 1996 Agreement as amended by this Amendment. Section 4. Definition of Bonds. The provisions of Section 2 of this Article notwithstanding,the term 'Bonds" as used in the terms Closing Date and 'Tax Representation Certificate" and in Sections 301(c),302(a),302(c),and 614 of the 1996 Agreement, shall mean the Series 1996 Bonds. 3 ARTICLE H REPRESENTATIONS AND WARRANTIES Section 1. Representations and Warranties by the Authority The Authority makes the following representations and warranties as of the 2006 Delivery Date as the basis for the undertakings on its part herein contained. (a) The Authority is duly organized as a nonstock,nonprofit industrial development corporation,existing and in good standing under the laws of the State,including specifically the Development Corporation Act,and has the power under the Development Corporation Act to enter into the transactions contemplated by this Amendment,the Underwriting Agreement and the Indenture and to carry out its obligations hereunder thereunder and under the Agreement. By written resolution as required by the Development Corporation Act,the City has duly approved the execution and delivery of the Indenture, the Underwriting Agreement and this Amendment by the Authority (b) The Authority has taken all action and has complied with all provisions of law with respect to the execution,delivery and performance of this Amendment,the Underwriting Agreement and the Indenture and the due authorization of the consummation of the transactions contemplated hereby and thereby and this Amendment,the Underwriting Agreement and the Indenture have been duly executed and delivered by and this Amendment, the Agreement,the Underwriting Agreement and the Indenture constitute the valid and legally binding agreements of,the Authority enforceable against the Authority in accordance with their respective terms. (c) Neither the execution and delivery of this Amendment, the Underwriting Agreement and the Indenture,the consummation ofthe transactions contemplated hereby and thereby nor the fulfillment of or compliance with the terms and conditions of this Amendment,the Agreement,the Underwriting Agreement and the Indenture, violate any law or regulation, or any Articles of Incorporation or Bylaws,or any judicial order,judgment,decree, or injunction,conflict with or results in a breach of any of the terms,conditions or provisions of any restriction,ordinance or any agreement or instrument to which the Authority is now a party or by which it is bound,or constitute a default under any of the foregoing, or result in the creation or imposition of any lien,charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority under the terms of any instrument or agreement. (d) There is no litigation now pending or to the Authority's knowledge, threatened challenging the powers of the Authority or its Board of Directors or in any way affecting this Amendment,the 1996 Agreement,the Underwriting Agreement,the Indenture or the Bonds. (e) The Authority has determined,at the request of the Lessee,that it will issue the Bonds for the purpose of refunding the Series 1996 Bonds,and deposit the proceeds from the sale of the Bonds into the 'Debt Service Fund created under the 1996 Indenture,together with surplus funds in the 'Construction Fund under the 1996 Indenture and additional funds to be contributed by the Lessee,to effect the redemption in full of the outstanding Series 1996 Bonds,consistent with the provisions of the Development Corporation Act and the 1996 Agreement. Section 2 Representations and Warranties by the Lessee The Lessee makes the following representations and warranties as of the 2006 Delivery Date as the basis for the undertakings on its part herein contained. (a) The Lessee is duly incorporated,validly existing and in good standing under the laws of the State of Delaware. The Lessee is duly qualified to do business and is in good standing in the State. The Lessee has the requisite power to execute and deliver this Amendment,the Guaranty and the Letter of Representations. (b) The execution and delivery of this Amendment,the Guaranty and the Letter of Representations by the Lessee have been duly authorized by all necessary corporate action of the Lessee.This Amendment,the Guaranty and the Letter of Representations have been duly executed and delivered by the Lessee. 4 (c) This Amendment,the Agreement,the Guaranty and the Letter of Representations constitute legal, valid and binding obligations of the Lessee,enforceable against the Lessee in accordance with their respective terms, subject to applicable bankruptcy insolvency reorganization,moratorium and other laws affecting the rights of creditors generally and subject to general principles of equity regardless of whether considered in a proceeding in equity or at law (d) The execution and delivery of this Amendment,the Guaranty the Letter of Representations and the 2006 Tax Representation Certificate by the Lessee do not require any consent or approval of any Person,except those that have been, or will in the normal course be,obtained, and except to the extent that the failure to obtain any such consent or approval, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on(1)the financial condition or results of operations of the Lessee or(2)the ability of the Lessee to perform its obligations under this Amendment, the Agreement, the Guaranty the Letter of Representations or the 2006 Tax Representation Certificate. (e) The execution and delivery of this Amendment,the Guaranty the Letter of Representations and the 2006 Tax Representation Certificate,the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and provisions of this Amendment,the Agreement,the Guaranty the Letter of Representations and the 2006 Tax Representation Certificate will not: (1) violate in any material respect the Lessee s restated certificate of incorporation or bylaws; (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Lessee under the terms of any indenture,agreement or other instrument, other than any lien, charge or encumbrance which would not reasonably be expected, individually or in the aggregate,to have a material adverse effect on(i)the financial condition or results of operations of the Lessee or(ii)the ability of the Lessee to perform its obligations under this Amendment,the Agreement,the Guaranty the Letter of Representations or the 2006 Tax Representation Certificate;or (3) violate or result in a breach or event of default under any indenture, agreement or other instrument to which the Lessee is a party or by which its properties are bound,other than any violation,breach or default which would not reasonably be expected,individually or in the aggregate with such other instances, to have a material adverse effect on(i)the financial condition or results of operations of the Lessee or(ii)the ability of the Lessee to perform its obligations under this Amendment, the Agreement, the Guaranty the Letter of Representations or the 2006 Tax Representation Certificate. (f) Except where the failure to do so,individually or in the aggregate,would not reasonably be expected to have a material adverse effect on(1)the business,financial condition or results of operations of the Lessee or(2) the ability of the Lessee to perform its obligations under the Agreement,the Lessee has duly and validly obtained all certificates, licenses and permits from all public authorities,both federal and state, required to enable the Lessee to carry on its business at the Special Facilities as presently conducted. (g) Except for(1)the matters described in the Lessee s Quarterly Report on Form 10-Q for the quarter ended February 28,2006 filed by the Lessee with the Commission and(2)the matters described in any Current Report on Form 8-K filed by the Lessee with the Commission after the filing of the aforementioned Form 10-Q and on or before the 2006 Delivery Date,there is no action or proceeding before any court or administrative agency pending or, to the knowledge of the Lessee s Senior Vice President and General Counsel,threatened against the Lessee that would reasonably be expected to have a material adverse effect on(i)the financial condition of the Lessee or(ii)the ability of the Lessee to perform its obligations under the Agreement or the Guaranty (h) To the knowledge of the Lessee s Senior Vice President and General Counsel, (1) no event has occurred and is continuing and no condition currently exists that constitutes, or which upon notice,lapse of time or both would constitute, an Event of Default and (2) since February 28, 2006 there has not been any event or development directly affecting the Lessee that would reasonably be expected to materially adversely affect the ability 5 of the Lessee to perform its obligations under the Agreement or the Guaranty (i) The Lessee has no present intention of disposing of or abandoning the Special Facilities,using or moving any portion of the Special Facilities out of the State,or of directing the Special Facilities to a use other than the uses represented to the Department and the Authority 0) The Lessee has no reason to believe,based upon the best information in the possession thereof,that the development of the Special Facilities in the City did not result in contributing to the economic growth or stability of the City by (1) increasing or stabilizing employment opportunities in the City (2) significantly increasing or stabilizing the property tax base of the City and the State,or(3)promoting commerce within the City and the State. ARTICLE III ISSUANCE OF BONDS The 1996 Agreement is hereby supplemented with a new Section 302A,to read as follows: Section 302A. Application of Proceeds of Series 2006 Bonds. Pursuant to the terms of the Indenture, and at the request of the Lessee, the Authority shall issue the Series 2006 Bonds to provide a portion of the funds for the purpose of refunding the Series 1996 Bonds. The Series 2006 Bonds shall be issued under and in accordance with the Indenture,the form of which shall have been approved by the Lessee prior to the delivery thereof. The proceeds of the Series 2006 Bonds shall be deposited directly by the Authority with the Trustee in the 'Debt Service Fund"established pursuant to the 1996 Indenture. The Authority does not make any warranty either express or implied, that the proceeds from the sale of the Series 2006 Bonds will be sufficient for the purpose of paying in full the principal of and interest on the Series 1996 Bonds due on the date fixed for the redemption thereof. The Lessee agrees that it will cause to be deposited with the Trustee such amounts as shall be sufficient,together with the proceeds from the sale of the Series 2006 Bonds,to pay in full the principal of,redemption premium and interest on the Series 1996 Bonds due on the date fixed for the redemption thereof. ARTICLE IV FEDERAL INCOME TAX COVENANTS The 1996 Agreement is hereby supplemented with a new Section 614A,to read as follows: Section 614A. 2006 Federal Tax Covenants. The Authority(to the extent that such matters are within its control) and the Lessee covenant to refrain from any action which would adversely affect, and to take such action (including the provision and enforcement by the Lessee in any document of sublease or assignment of the Lessee's leasehold interest in the Special Facilities of appropriate covenants of the sublessee or assignee thereunder) as is necessary to assure,the treatment of the Series 2006 Bonds as obligations described in section 103(a)of the Code,the interest on which is not includable in the gross income of the owner thereof for purposes of federal income taxation (other than the gross income of a 'substantial user"of the Special Facilities or a 'related person to such a 'substantial user" within the meaning of the Code) In particular,but not by way of limitation thereof,the Authority(to the extent that such matters are within its control)and the Lessee covenant as follows. (i) to take such action which may be reasonably available to the Authority or the Lessee to assure that the Series 2006 Bonds are 'exempt facility bonds" as defined in section 142(a) of the Code, at least 95 percent of the proceeds of which are used to provide airport facilities(within the meaning of section 142(a)of the Code) (ii) to ensure that at all times during the term of the Series 2006 Bonds that the property 6 provided with the proceeds thereof be treated as governmentally owned within the meaning of section 142(b) of the Code; (iii) to refrain from taking any action that would result in the Series 2006 Bonds being 'federally guaranteed"within the meaning of section 149(b)of the Code; (iv) to refrain from using any portion of the proceeds of the Series 2006 Bonds, directly or indirectly to acquire or to replace funds which were used, directly or indirectly to acquire investment property(as defined in section 148(b)(2)of the Code)which produces a materially higher yield over the term of the Series 2006 Bonds,other than investment property acquired with (1) proceeds of the Series 2006 Bonds invested for a reasonable temporary period or until such proceeds are needed for the purpose for which the Series 2006 Bonds are issued,and (2) proceeds of amounts invested in a bona fide debt service fund,within the meaning of section 1 148-1(b)of the Regulations; (v) to otherwise restrict the investment of the proceeds of the Series 2006 Bonds or amounts treated as proceeds of the Series 2006 Bonds,as may be necessary to satisfy the requirements of section 148 of the Code(relating to arbitrage); (vi) to use no more than two percent of the proceeds of the Series 2006 Bonds for the payment of costs of issuance(including underwriters'discount)of the Series 2006 Bonds; (vii) to use no portion of the proceeds of the Series 2006 Bonds to provide any airplane, sky-box or other private luxury box,facility primarily used for gambling or store the principal business of which is the sale of alcoholic beverages for consumption off-premises;and (viii) to comply with the limitations imposed by section 147(c) of the Code (relating to the limitation of the use of proceeds to acquire land)and section 147(d)of the Code(relating to restrictions on the use of bond proceeds to acquire existing buildings, structures or other property) It is the understanding of the Authority and the Lessee that the covenants contained herein are intended to assure compliance with the provisions of the Code,and any regulations or rulings promulgated by the U S.Department of the Treasury pursuant thereto, pertaining to obligations described in section 103(a) of the Code. In the event that regulations or rulings applicable to the Series 2006 Bonds are hereafter promulgated which modify or expand such provisions of the Code,the Authority and the Lessee will not be required to comply with any covenant contained herein to the extent that, in the opinion of Bond Counsel, such failure to comply will not adversely affect the excludability pursuant to section 103(a)of the Code of interest on the Series 2006 Bonds from the gross income of the owners thereof for federal income tax purposes. In the event that regulations or rulings are hereafter promulgated which impose additional requirements,pertaining to obligations described in section 103(a)of the Code,which are applicable to the Series 2006 Bonds, the Authority and the Lessee agree to comply with the additional requirements to the extent necessary in the opinion of Bond Counsel, to preserve the excludability pursuant to section 103(a) of the Code of interest on the Series 2006 Bonds from the gross income of the owners thereof for federal income tax purposes. The Lessee shall maintain or cause the Trustee to maintain for at least six years following final payment of interest and principal on the Series 2006 Bonds accurate investment records for the purpose of determining the amount of arbitrage rebate that shall be owed with respect to the Series 2006 Bonds to the United States in order to comply with the requirements of Section 148 of the Code with respect to the Series 2006 Bonds, The Lessee shall compute and cause to be paid, in the manner and time provided in the 2006 Tax Representation Certificate,the arbitrage rebate that is required to be paid to the United States pursuant to Section 148 of the Code in order to preserve the tax status of the interest on the Series 2006 Bonds. In any event,if the amount of cash held in the Special Rebate Fund immediately prior to the date on which any payment must be made by the Trustee pursuant to Article III(D)(2)of the Indenture shall 7 be insufficient to permit the Trustee to make such payment to the United States, the Lessee forthwith shall pay the amount of such insufficiency to the Trustee in immediately available funds. The obligations of the Lessee hereunder are direct obligations of the Lessee,acting under the authorization of,and on behalf of,the Authority and neither the City nor the Authority shall have any further obligation or duty with respect to the Special Rebate Fund. ARTICLE V ADDITIONAL AMENDMENTS TO THE 1996 AGREEMENT Section 1 Amendment to Sections 616(a)and(c)of the 1996 Agreement. Section 616(a)and Section 616(c) of the 1996 Agreement are hereby deleted in their entirety and replaced with the following: (a) Pursuant to Rule 15c2 12(b)(5)under the Exchange Act,the Lessee hereby agrees and undertakes, for the benefit of the holders and beneficial owners of the Bonds,to (1) file with the Commission,to the extent required to be filed by the Lessee under the Exchange Act, (i)within the required time period after the end of the Lessee s fiscal year ending May 31 2006 and each fiscal year thereafter,an annual report on Form 10-K including annual financial information concerning the Lessee for the prior fiscal year,including the Lessee s audited financial statements,prepared in accordance with United States generally accepted accounting principles in effect from time to time and(ii)within the required time period after the end of each of the first three fiscal quarters of each fiscal year of the Lessee(beginning with the quarter ending August 31 2006), a quarterly report on Form 10-Q; (2) to the extent the Lessee should cease to be a reporting company under the Exchange Act,then the Lessee shall,within 90 days after the end of the Lessee s fiscal year file with each NRMSIR and the SID an annual report that provides the Lessee s audited financial statements,prepared in accordance with United States generally accepted accounting principles in effect from time to time,and the type of information that would be included in an annual report filed with the Commission if the Lessee were an Exchange Act reporting company, (3) send,within 90 days after the end of the Lessee s fiscal year ending May 31,2006 and each fiscal year thereafter to the extent necessary notice to each NRMSIR and the SID that the Lessee s annual financial information filed with the Commission pursuant to the Exchange Act constitutes the Lessee s annual financial information for the prior fiscal year for purposes of this Section 616 and (4) provide timely notice to each NRMSIR, the MSRB and the SID of (i) the occurrence of any of the events enumerated in Rule 15c2 12(b)(5)(i)(C), as amended from time to time, with respect to the Bonds,if-material,and(ii) any failure of the Lessee to provide required annual financial information as described above. (c) This Section 616 may only be amended in accordance with the Rule and interpretations thereunder If this Section 616 is amended, the annual financial information will explain, in narrative form,the reasons for the amendment and the impact of the change in the type of financial information being provided. Section 2. Amendment to Section 1811 of the 1996 Agreement. Section 1811 of the 1996 Agreement is hereby amended so that,as amended, it reads in its entirety as follows: 8 Whenever any notice or payment(other than a payment required by Section 502 of the Agreement)is required by this Agreement to be made,given or transmitted to the parties hereto,such notice or payment(other than a payment required by Section 502 of the Agreement)shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail or Federal Express Priority Overnight delivery addressed as follows. if to the Authority 1000 Throckmorton, Fort Worth, Texas 76102, Attention. City Manager- if to the City 1000 Throckmorton,Fort Worth,Texas 76102,Attention. City Attorney if to the Lessee,Federal Express Corporation,c/o FedEx Corporation,942 S Shady Grove Road,3rd Floor Memphis,Tennessee 38120 Attention. Staff Vice President and Assistant Treasurer with a copy of such notice to be sent in the same manner to FedEx Corporation, 942 South Shady Grove Road,Memphis, Tennessee 38120 Attention. Corporate Vice President, Securities&Corporate Law and to Federal Express Corporation, 3680 Hacks Cross Road, Building H, 3rd Floor Memphis, Tennessee 38125 Attention.Managing Director Real Estate;and ifto the Trustee,227 W Monroe,26th Floor Chicago,Illinois 60606 Attention.Worldwide Securities Services. A duplicate copy of each notice,certificate,request,or other communication given hereunder to the Authority the City the Lessee,or the Trustee shall also be given to the others.The Lessee,the City the Authority and the Trustee may by notice given hereunder,designate any further or different addresses to which subsequent notices,certificates,requests or other communications shall be sent. ARTICLE VI MISCELLANEOUS Section 1 Counterparts. This Amendment may be executed in one or more counterparts,each of which shall be an original and all of which shall constitute but one and the same instrument. Section 2. Effective Date. This Amendment is dated as of May 1 2006 for administrative convenience purposes only and shall be effective upon the 2006 Delivery Date. Section 3 Amendment Controls. To the extent of any conflict between the terms and provisions of this Amendment and the terms and provisions of the 1996 Agreement,the terms of this Amendment shall control. Section 4 Governing Law This Amendment shall be governed by the laws of the State of Texas,without regard to its conflicts of laws or choice of laws principles. [THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY] 9 IN WITNESS WHEREOF the parties hereto have caused this First Amendment to Land and Special Facilities Lease Agreement to be executed as of the date first above mentioned at Port Worth, Texas. ALLIANCEAIRPORT AUTHORITY INC. By L Presi nt,B rd of Di tors -- (SEAL) -:c s By. Secretary Board of Directors FEDERAL EXPRESS CORPORATION By Name Burnetta B. Williams Title Vice President and Assistant Treasurer ACKNOWLEDGMENT AND CONSENT The City hereby acknowledges receipt of this First Amendment to Land and Special Facilities Lease Agreement(this Amendment"),and by resolution adopted by the City Council on April 4 2006 did approve this Amendment and the terms hereof. The City does hereby further acknowledge and consent to the pledge of the Special Facilities Rentals to the payment of the Series 2006 Bonds for purposes of Section 507 of the Agreement and pursuant to the terms of the Indenture,the terms of which were also approved by said resolution. CITY OF FORT WORTH,TEXAS Ewa �` ! r`•'`s • _* .� City Manager (SEAL) .• By City Se&etary APPROVED AS TO FORM. By City Attorne Date of Execution. 10 FIRST AMENDMENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT THIS FIRST AMENDMENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT (this Amendment") is made and entered into as of May 1 2006, by and between the AllianceAirport Authority Inc. ("Assignor"), a nonstock, nonprofit industrial development corporation, created pursuant to the Constitution and laws of the State of Texas, including particularly Article 5190 6, V.A.T C.S as amended (hereinafter called the 'Development Corporation Act"), and the City of Fort Worth, Texas, a home-rule city and a political subdivision of the State of Texas("Assignee") WITNESSETH. WHEREAS, Assignee owns and operates the Alliance Airport located in the City of Fort Worth, Texas(hereinafter called the Airport");and WHEREAS,at the request of Federal Express Corporation(the 'Lessee")and on behalf of Assignee, Assignor caused to be acquired and developed certain real estate at the Airport and caused to be acquired and constructed thereon certain facilities for use by the Lessee in its business of the distribution of express cargo and parcels,and WHEREAS, in furtherance of the public purposes set forth in the Development Corporation Act; and in satisfaction of such request by the Lessee and on behalf of Assignee, Assignor issued its Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project) in the aggregate principal amount of$249,540,000 (the 'Series 1996 Bonds"), pursuant to the terms of a Trust Indenture dated as of April 1 1996 (the 1996 Indenture"), by and between Assignor and J.P Morgan Trust Company National Association(successor to The First National Bank of Chicago),as trustee(the 1996 Trustee"),to finance a portion of the costs of the facilities leased to the Lessee;and WHEREAS, with respect to the issuance of the Series 1996 Bonds and the use of the facilities financed through the issuance of the Series 1996 Bonds,Assignor and the Lessee executed and delivered that certain Land and Special Facilities Lease Agreement, dated as of April 1 1996 (the 1996 Agreement"), and WHEREAS,in accordance with the terms of the 1996 Agreement, in connection with the issuance of the Series 1996 Bonds the Lessee agreed to pay Assignor 'Special Facilities Rentals" which are referred to herein as the 1996 Special Facilities Rentals" and WHEREAS, pursuant to the 1996 Indenture,Assignor assigned all of its right,title and interest in the 1996 Special Facilities Rentals to the 1996 Trustee;and WHEREAS, pursuant to the terms and provisions of an Assignment and Assumption of Facilities Agreement and Agreement for Donation and Assignment of Purchased Items dated as of April 1 1996 (the Assignment") and a Warranty Deed effective and filed of record in the real property records of Denton County Texas on April 10 1996,Assignor conveyed to Assignee the land and improvements which are the subject of the 1996 Agreement, and in conjunction therewith, Assignor assigned all of its right, title and interest in and to the 1996 Agreement to Assignee, except as otherwise provided in the Assignment, and Assignee agreed to assume and perform all of Assignor's liabilities and obligations arising under the 1996 Agreement,except as otherwise provided in the Assignment;and WHEREAS,pursuant to rights reserved to it under the terms of the 1996 Agreement,the Lessee has requested that Assignor issue its Special Facilities Revenue Refunding Bonds, Series 2006(Federal Express Corporation Project), in the maximum aggregate principal amount of $249,540 000 (the 'Series 2006 1 Bonds") under and pursuant to a Trust Indenture, dated as of May 1 2006 (the '2006 Indenture'), by and between Assignor and J.P Morgan Trust Company National Association, as trustee (the '2006 Trustee"), and WHEREAS,the proceeds to be derived from the sale of the Series 2006 Bonds,together with surplus funds in the 'Construction Fund"under the 1996 Indenture and funds to be contributed by the Lessee, are to be used to effect the refunding of all of the outstanding principal amount of the Series 1996 Bonds,and to pay the redemption premium and interest due and payable on the Series 1996 Bonds so refunded on the date fixed for redemption of the Series 1996 Bonds,and WHEREAS, in connection with the issuance of the Series 2006 Bonds, Assignor and the Lessee, with the written consent of Assignee,have agreed to amend the 1996 Agreement pursuant to the terms of a First Amendment to Land and Special Facilities Lease Agreement dated as of May 1 2006 (the 'First Amendment);and WHEREAS, in accordance with the terms of the 1996 Agreement, as amended by the First Amendment, in connection with the issuance of the Series 2006 Bonds the Lessee agreed to pay to Assignor 'Special Facilities Rentals" which are referred to herein as the '2006 Special Facilities Rentals" and WHEREAS, pursuant to the terms of the 2006 Indenture, Assignor has assigned all of its right, title and interest in and to the 2006 Special Facilities Rentals to the 2006 Trustee;and WHEREAS, in conjunction with the issuance of the Series 2006 Bonds and the execution and delivery of the First Amendment, Assignor and Assignee, with the written consent of the Lessee, have agreed to amend the Assignment to clarify that the 2006 Special Facilities Rentals are not rentals as such term is used in Section 2 of the Assignment and to acknowledge that the 2006 Special Facilities Rentals have been retained by Assignor and may be assigned by Assignor to the 2006 Trustee pursuant to the terms of the 2006 Indenture; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,Assignor and Assignee hereby agree and covenant as follows. Section 1 Assignment. Assignor and Assignee hereby acknowledge and agree that(a) the 2006 Special Facilities Rentals are not rentals as such term is used in Section 2 of the Assignment, (b)the 1996 Special Facilities Rentals were assigned by Assignor to the 1996 Trustee pursuant to the terms of the 1996 Indenture and (c) for purposes of this Assignment, Assignor has retained its interest in, and has full right, power and authority to pledge, the 2006 Special Facilities Rentals to the 2006 Trustee as security for the 2006 Bonds pursuant to the terms of the 2006 Indenture. Section 2. First Amendment. Assignee hereby acknowledges and agrees that the First Amendment is valid and binding upon Assignee to the extent that Assignee is the lessor under the 1996 Agreement,as amended by the First Amendment. Section 3 Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 4 Effective Date. This Amendment is dated as of May 1 2006, for administrative convenience purposes only and shall be effective upon the 2006 Delivery Date (as defined in the First Amendment) Section 5 Amendment Controls. To the extent of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Assignment, the terms of this Amendment shall control. 2 i Section 6 Governing Law.This Amendment shall be governed by the laws of the State of Texas, without regard to its conflicts of laws or choice of laws principles. IN WITNESS WHEREOF the parties hereto have caused this Amendment to the Assignment and Assumption of Facilities Agreement and Agreement for Donation and Assignment of Purchased Items to be executed as of the date first above mentioned in Fort Worth,Texas. ALLIANCEAIRPORT AUT TY INC. By __ Pre dent, rd of ctors (SEAL) By Secretary Board of Directors Y4, y 1 CITY OF FORT WORTH,TEXAS BY, City Manager ' EAL) ti By- City Secrets APPROVED AS TO FORM. By _'&Z� ,-City Attorney WeS cf .3 d The undersigned, the Lessee under the 1996 Agreement, as amended by the First Amendment, consents to and acknowledges the provisions of the above First Amendment to Assignment and Assumption Agreement by and between Assignor and Assignee. FEDERAL EXPRESS CORPORATION By- Name- Title- 3 THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the _ day of , 2006, by and and respectively of AllianceAirport Authority Inc., a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas,on behalf of said Corporation. Notary Public in and for the State of Texas My Commission Expires THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was c no ged before me on the _ day of 2006, by Charles Boswell,Marty Hendrix and City Manager City Secretary and City Attorney respectively of the City of Fort Worth,Texas,a municipal corporation,on behalf of the City SYLVIA D.GLOVER Nota Public in and for the State of Texas *: *: MY COMMISSION EXPIRES ., September 19,2009 My Commission Expires. -rum i ,4> ' THE STATE OF § COUNTY OF § This instrument was acknowledged before me on the _ day of 2006 by of Federal Express Corporation, a Delaware corporation, on behalf of said corporation. Notary Public in and for the State of My Commission Expires. 4 THE STATE OF TEXAS COUNTIES OF TARRANT AND DENTON CITY OF FORT WORTH On the 4 h day of April, 2006, the City Council of the City of Fort Worth, Texas, met in regular open, public meeting in the City Council Chamber in the City Hall, notice of which was given in the manner required by Chapter 551 Government Code,with the following members present,to-wit: Mike Moncrief Mayor Salvador Espino Councilmember District 2 Chuck Silcox Councilmember District 3 Becky Haskin Councilmember District 4 Donavan Wheatfall Councilmember District 5 Jungus Jordan Councilmember District 6 Carter Burdette Councilmember District 7 Kathleen Hicks Councilmember District 8 Wendy Davis Councilmember District 9 with more than a quorum present, and after the City Council had transacted certain business, the following business was transacted,to-wit: Councilmember U introduced a resolution and moved its passage The motion was seconded by Councilmember The resolution was read by the City Secretary The motion, carrying with it the passage of the resolution prevailed by a vote of q yeas, Z) nays. The resolution as passed is as follows. 769293_3 RESOLUTION AUTHORIZING THE EXECUTION OF AN ACKNOWLEDGEMENT AND CONSENT TO A FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT AND A FIRST AMENDMENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND RESOLVING OTHER MATTERS RELATED THERETO WHEREAS, AllianceAirport Authority Inc (the Authority") is a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas, including particularly the Development Corporation Act of 1979 Article 5190 6, V.A.T C S as amended (the Act"), with the power and authority to exercise all rights, privileges and functions essential to the accomplishment of the purposes for which it was organized, and WHEREAS, the Authority is a duly constituted public instrumentality of the City of Fort Worth, Texas (the 'City"), a political subdivision of the State of Texas, within the meaning of the regulations of the United States Treasury Department and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to section 103 of the Internal Revenue Code of 1986,as amended(the 'Code'), and the Authority is functioning and acting solely on behalf of the City- and WHEREAS, Federal Express Corporation (the 'Company") and the Authority executed a Land and Special Facilities Lease Agreement dated as of April 1 1996(the 1996 Agreement"), with respect to the acquisition, construction, equipping, furnishing and use of an express cargo package sorting and distribution facility at Alliance Airport within the boundaries of the City(the 'Facility"); and WHEREAS, the Authority issued its Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project) in the aggregate principal amount of $249,540,000 (the `Series 1996 Bonds")to finance the 'Costs" of the Facility as described in the 1996 Agreement, pursuant to the terms of a Trust Indenture dated as of April 1 1996 (the 1996 Indenture") between the Authority and J.P Morgan Trust Company National Association, successor to The First National Bank of Chicago, as trustee(the 'Trustee'); and WHEREAS,pursuant to the terms and provisions of an Assignment and Assumption of Facilities Agreement and Agreement for Donation and Assignment of Purchased Items dated as of April 1 1996 (the Assignment") and a Warranty Deed effective and filed of record in the real property records of Denton County Texas on April 10 1996, the Authority conveyed to the City the land and improvements which are the subject of the 1996 Agreement, and in conjunction therewith,the Authority assigned all of its right, title and interest in and to the 1996 Agreement to the City except as otherwise provided in the Assignment, and the City agreed to assume and perform all of the Authority's liabilities and obligations arising under the 1996 Agreement,except as otherwise provided in the Assignment; and WHEREAS, pursuant to rights reserved to it under the terms of the 1996 Agreement,the Company has requested that the Authority issue its Special Facilities Revenue Refunding Bonds, Series 2006 (Federal Express Corporation Project), in the maximum aggregate principal amount of$249,540 000 (the Series 2006 Bonds") under and pursuant to a Trust Indenture, dated as of May 1 2006 (the '2006 Indenture'), by and between the Authority and J.P Morgan Trust Company National Association, as trustee(the '2006 Trustee"); and WHEREAS, the proceeds to be derived from the sale of the Series 2006 Bonds, together with surplus funds in the 'Construction Fund" under the 1996 Indenture and funds to be contributed by the Company are to be used to effect the refunding of all of the outstanding principal amount of the Series 1996 Bonds, and to pay the redemption premium and interest due and payable on the Series 1996 Bonds so refunded on the date fixed for redemption of the Series 1996 Bonds,and WHEREAS, in connection with the issuance of the Series 2006 Bonds, the Authority and the Company with the written consent of the City have agreed to amend the 1996 Agreement pursuant to the terms of a First Amendment to Land and Special Facilities Lease Agreement dated as of May 1 2006(the 'First Amendment), and in connection therewith, the City has been requested to execute an Acknowledgement and Consent to the First Amendment(the Acknowledgement and Consent"),and WHEREAS, in conjunction with the issuance of the Series 2006 Bonds and the execution and delivery of the First Amendment, the Authority and the City with the written consent of the Company have agreed to execute a First Amendment to Assignment and Assumption Agreement dated as of May 1 2006 (the `First Amendment to Assignment and Assumption Agreement") in order to amend the Assignment to clarify that Special Facilities Rentals (as defined in the 1996 Agreement, as amended by the First Amendment) are not rentals as such term is used in Section 2 of the Assignment and to acknowledge that the Special Facilities Rentals have been retained by the Authority and may be assigned by the Authority to the 2006 Trustee pursuant to the terms of the 2006 Indenture. THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH THAT Section 1 The execution by the City Manager of the Acknowledgement and Consent and the First Amendment to Assignment and Assumption Agreement, each in substantially the form and substance as attached to this Resolution and made a part hereof for all purposes, is hereby approved. Section 2. The City Manager any Assistant City Manager and the City Attorney are hereby authorized to execute and deliver such other instruments, certificates, documents or papers and to take such further action and perform such other duties as such officers may deem advisable or appropriate to carry out the intent of this Resolution, or to consummate any of the matters or transactions referred to in or contemplated by the Acknowledgement and Consent and the First Amendment to Assignment and Assumption Agreement described in Section 1 hereof. Section 3 It is hereby officially found and determined that the meeting at which this Resolution was passed was open to the public, and public notice of the time, place and purpose of said meeting was given,all as required by Chapter 551 Texas Government Code,as amended. ADOPTED THIS 4Tx DAY OF APRIL,2006 t Mayor City of rt Worth ATTEST 4�' y s � City Secretary ; w APPROVED AS-TOFORMi`;/:,F'� /,,.-City Attorney THE STATE OF TEXAS COUNTIES OF TARRANT AND DENTON CITY OF FORT WORTH I, Marty Hendrix, City Secretary of the City of Fort Worth, in the State of Texas, do hereby certify that I have compared the attached and foregoing excerpt from the minutes of the regular open, public meeting of the City Council of the City of Fort Worth, Texas held on April 4 2006, and of Resolution No .3�, which was duly passed at said meeting, and that said copy is a true and correct copy of said excerpt and the whole of said resolution. In testimony whereof I have set my hand and have hereunto affixed the seal of said City of Fort Worth,this 4t'day of April, 2006 f\n 6 A City Secretary he City of Fort Worth,Texas �t4 ti (SEAL\) „ l +ti r1 ti~ FINAL 04/04/06 FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT By and Between FEDERAL EXPRESS CORPORATION and ALLIANCEAIRPORT AUTHORITY, INC. Dated as of May 1, 2006 FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT THIS FIRST AMENDMENT TO LAND AND SPECIAL FACILITIES LEASE AGREEMENT (this "Amendment")is dated as of May 1,2006,and is by and between the AllianceAirport Authority,Inc.(the"Authority"), a nonstock,nonprofit industrial development corporation,created to act on behalf of the City of Fort Worth,a home- rule city and a political subdivision of the State of Texas(the"City"),pursuant to the Constitution and laws of the State of Texas, including particularly Article 5190.6, V.A.T.C.S., as amended (hereinafter called the "Development Corporation Act"),and Federal Express Corporation,a Delaware corporation with its principal office in Memphis, Tennessee and authorized to do business in the State of Texas(hereinafter called the"Lessee"). WITNESSETH: WHEREAS,the City owns and operates the Alliance Airport(hereinafter called the "Airport");and WHEREAS,the Lessee is primarily engaged in the business of the distribution of express cargo and parcels; and WHEREAS,at the request of the Lessee,the Authority caused to be acquired and developed certain real estate at the Airport and caused to be acquired and constructed thereon certain facilities for use by the Lessee in its business of the distribution of express cargo and parcels;and WHEREAS, in furtherance of the public purposes set forth in the Development Corporation Act, and in satisfaction of such request by the Lessee, the Authority issued its Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project)in the aggregate principal amount of$249,540,000(the"Series 1996 Bonds"), pursuant to the terms of a Trust Indenture between the Authority and J.P. Morgan Trust Company, National Association (successor to The First National Bank of Chicago), as trustee, dated as of April 1, 1996 (the "1996 Indenture"),to finance a portion of the costs of the facilities leased to the Lessee; and WHEREAS, with respect to the issuance of the Series 1996 Bonds and the use of the facilities financed through the issuance of the Series 1996 Bonds,the Authority and the Lessee executed and delivered that certain Land and Special Facilities Lease Agreement,dated as of April 1, 1996(the"1996 Agreement"); and WHEREAS,pursuant to rights reserved to it under the terms of the 1996 Agreement,the Lessee has requested that the Authority issue its Special Facilities Revenue Refunding Bonds, Series 2006 (Federal Express Corporation Project), in the aggregate principal amount of$245,150,000 (the "Series 2006 Bonds" or the 'Bonds")under and pursuant to a Trust Indenture,dated as of May 1,2006,by and between the Authority and J.P.Morgan Trust Company, National Association,as trustee(the"Indenture");and WHEREAS,the proceeds to be derived from the sale of the Series 2006 Bonds,together with surplus funds in the"Construction Fund"under the 1996 Indenture and funds to be contributed by the Lessee,are to be used to effect the refunding of all of the outstanding principal amount of the Series 1996 Bonds,and to pay the redemption premium and interest due and payable on the Series 1996 Bonds so refunded on the date fixed for redemption of the Series 1996 Bonds;and WHEREAS,in connection with the issuance of the Series 2006 Bonds,the Authority and the Lessee desire to amend the 1996 Agreement for the purposes hereinafter stated and in accordance herewith. NOW, THEREFORE, in consideration of the mutual covenants and considerations herein contained and contained in the 1996 Agreement,the Authority and the Lessee hereby agree and covenant as follows: 1 ARTICLE I DEFINITIONS Section 1. Agreement. All references to the term"Agreement"in the 1996 Agreement and in this Amendment shall mean the 1996 Agreement as amended by this Amendment. All references to the term"Facilities Agreement" in the Indenture and in the Guaranty, dated as of May 1, 2006, from the Lessee to J.P. Morgan Trust Company, National Association relating to the Series 2006 Bonds shall mean the 1996 Agreement as amended by this Amendment. Section 2. Defined Terms. Section 101 of the 1996 Agreement is hereby amended by adding the terms"1996 Indenture","Series 1996 Bonds","2006 Delivery Date"and"2006 Tax Representation Certificate"thereto as provided below,and the other defined terms listed below and defined in Section 101 of the 1996 Agreement are hereby amended so that,as amended,they read in their entirety as follows: "Authorized Lessee Representative"or"Authorized Company Representative"means such officer or employee of the Lessee authorized by the Lessee to act on its behalf under this Agreement or the Indenture as certified to the Authority,the City and the Trustee in writing by the Lessee. "Bonds"or"Series 2006 Bonds"means the AllianceAirport Authority,Inc. Special Facilities Revenue Refunding Bonds, Series 2006 (Federal Express Corporation Project) to be issued in the aggregate principal amount of $245,150,000. "Department" or "Division" means the Economic Development and Tourism Division within the Office of the Governor of the State,and any successor to the duties of the Economic Development and Tourism Division under the Development Corporation Act. "Guaranty"means the Guaranty dated as of May 1,2006 between the Lessee,as guarantor, and the Trustee. "Indenture" means the Trust Indenture dated as of May 1, 2006 between the Authority and J.P. Morgan Trust Company,National Association,as amended and supplemented from time to time,providing for the issuance of the Bonds. "Interest Payment Date" means October 1, 2006 and each April 1 and October 1 thereafter until maturity or redemption of the Bonds. "Letter of Representations"means the letter of representation executed by the Lessee pursuant to the terms of the Underwriting Agreement. "1996 Indenture" means the Trust Indenture between the Authority and J.P. Morgan Trust Company, National Association(successor to The First National Bank of Chicago),as trustee, dated as of April 1, 1996. "NRMSIR" means, as of any date, all nationally recognized municipal securities information repositories then recognized by the Commission for purposes of the Rule. As of the 2006 Delivery Date,the NRMSIRs are: Bloomberg Financial Markets Municipal Repository 100 Business Park Drive Skillman,NJ 08558-3629 Phone: (609)279-3225 Facsimile: (609)279-5962 2 Email: MunisA loomberg.com Website: http://www.bloomberg.com/markets/rates/municontacts.html DPC Data, Inc. One Executive Drive Fort Lee,NJ 07024 Phone: (201)346-0701 Facsimile: (201)947-0107 Email: nrmsirAdpcdata.com Website: http:/iwww.dpcdata.com FT Interactive Data Attn: NRMSIR 100 William Street, 15t'Floor New York,NY 10038 Phone: (212)771-6999; (800)689-8466 Facsimile: (212)771-7390 Email: NRMSIR(dinteractivedata.com Website: httt)://www.ftid.com Standard&Poor's Securities Evaluations,Inc. 55 Water Street 45'Floor New York,NY 10041 Phone: (212)438-4595 Facsimile: (212)438-3975 Email: nrmsir repository(dsandp.com Website:www.iikenny.com/iikenw/pser descrip data rep.html "Series 1996 Bonds" means the AllianceAirport Authority, Inc. Special Facilities Revenue Bonds, Series 1996 (Federal Express Corporation Project)issued in the aggregate principal amount of$249,540,000. "Trustee"means J.P.Morgan Trust Company,National Association, or any successor thereto or assignee thereof permitted by the Indenture. "2006 Delivery Date"means the date of issuance and delivery of the Series 2006 Bonds pursuant to the terms of the Underwriting Agreement. "2006 Tax Representation Certificate" means the certificate executed by an Authorized Lessee Representative addressing matters relating to the tax-exempt status of the interest on the Series 2006 Bonds. "Underwriting Agreement"means the Underwriting Agreement,dated April 5,2006,by and between the Authority and the underwriters named therein. Section 3. Other Definitions. Capitalized terms used in this Amendment but not otherwise defined herein shall have the respective meanings assigned to such terms in the 1996 Agreement as amended by this Amendment. Section 4. Definition of Bonds. The provisions of Section 2 of this Article notwithstanding,the term"Bonds", as used in the terms"Closing Date"and"Tax Representation Certificate"and in Sections 301(c),302(a),302(c),and 614 of the 1996 Agreement, shall mean the Series 1996 Bonds. 3 ARTICLE H REPRESENTATIONS AND WARRANTIES Section 1. Representations and Warranties by the Authority. The Authority makes the following representations and warranties as of the 2006 Delivery Date as the basis for the undertakings on its part herein contained: (a) The Authority is duly organized as a nonstock,nonprofit industrial development corporation,existing and in good standing under the laws of the State,including specifically the Development Corporation Act,and has the power under the Development Corporation Act to enter into the transactions contemplated by this Amendment,the Underwriting Agreement and the Indenture and to carry out its obligations hereunder, thereunder and under the Agreement. By written resolution as required by the Development Corporation Act,the City has duly approved the execution and delivery of the Indenture,the Underwriting Agreement and this Amendment by the Authority. (b) The Authority has taken all action and has complied with all provisions of law with respect to the execution,delivery and performance of this Amendment,the Underwriting Agreement and the Indenture and the due authorization of the consummation of the transactions contemplated hereby and thereby, and this Amendment, the Underwriting Agreement and the Indenture have been duly executed and delivered by, and this Amendment, the Agreement,the Underwriting Agreement and the Indenture constitute the valid and legally binding agreements of,the Authority,enforceable against the Authority in accordance with their respective terms. (c) Neither the execution and delivery of this Amendment, the Underwriting Agreement and the Indenture,the consummation of the transactions contemplated hereby and thereby,nor the fulfillment of or compliance with the terms and conditions of this Amendment,the Agreement,the Underwriting Agreement and the Indenture, violate any law or regulation,or any Articles of Incorporation or Bylaws,or any judicial order,judgment, decree, or injunction,conflict with or results in a breach of any of the terms,conditions or provisions of any restriction,ordinance or any agreement or instrument to which the Authority is now a party or by which it is bound,or constitute a default under any of the foregoing, or result in the creation or imposition of any lien,charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority under the terms of any instrument or agreement. (d) There is no litigation now pending or, to the Authority's knowledge, threatened challenging the powers of the Authority or its Board of Directors or in any way affecting this Amendment, the 1996 Agreement,the Underwriting Agreement,the Indenture or the Bonds. (e) The Authority has determined,at the request of the Lessee,that it will issue the Bonds for the purpose of refunding the Series 1996 Bonds,and deposit the proceeds from the sale of the Bonds into the"Debt Service Fund" created under the 1996 Indenture,together with surplus funds in the"Construction Fund"under the 1996 Indenture and additional funds to be contributed by the Lessee,to effect the redemption in full of the outstanding Series 1996 Bonds,consistent with the provisions of the Development Corporation Act and the 1996 Agreement. Section 2. Representations and Warranties by the Lessee. The Lessee makes the following representations and warranties as of the 2006 Delivery Date as the basis for the undertakings on its part herein contained: (a) The Lessee is duly incorporated,validly existing and in good standing under the laws of the State of Delaware. The Lessee is duly qualified to do business and is in good standing in the State. The Lessee has the requisite power to execute and deliver this Amendment,the Guaranty, and the Letter of Representations. (b) The execution and delivery of this Amendment,the Guaranty and the Letter of Representations by the Lessee have been duly authorized by all necessary corporate action of the Lessee.This Amendment,the Guaranty and the Letter of Representations have been duly executed and delivered by the Lessee. 4 (c) This Amendment,the Agreement,the Guaranty and the Letter of Representations constitute legal, valid and binding obligations of the Lessee,enforceable against the Lessee in accordance with their respective terms, subject to applicable bankruptcy,insolvency,reorganization,moratorium and other laws affecting the rights of creditors generally and subject to general principles of equity,regardless of whether considered in a proceeding in equity or at law. (d) The execution and delivery of this Amendment,the Guaranty,the Letter of Representations and the 2006 Tax Representation Certificate by the Lessee do not require any consent or approval of any Person,except those that have been, or will in the normal course be,obtained,and except to the extent that the failure to obtain any such consent or approval, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on(1)the financial condition or results of operations of the Lessee or(2)the ability of the Lessee to perform its obligations under this Amendment, the Agreement, the Guaranty, the Letter of Representations or the 2006 Tax Representation Certificate. (e) The execution and delivery of this Amendment,the Guaranty,the Letter of Representations and the 2006 Tax Representation Certificate,the consummation of the transactions contemplated hereby and thereby,and the fulfillment of or compliance with the terms and provisions of this Amendment,the Agreement,the Guaranty,the Letter of Representations and the 2006 Tax Representation Certificate by the Lessee will not: (1) violate in any material respect the Lessee's restated certificate of incorporation or bylaws; (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Lessee under the terms of any indenture,agreement or other instrument, other than any lien, charge or encumbrance which would not reasonably be expected, individually or in the aggregate,to have a material adverse effect on(i)the financial condition or results of operations of the Lessee or(ii)the ability of the Lessee to perform its obligations under this Amendment,the Agreement,the Guaranty,the Letter of Representations or the 2006 Tax Representation Certificate;or (3) violate or result in a breach or event of default under any indenture, agreement or other instrument to which the Lessee is a party or by which its properties are bound,other than any violation,breach or default which would not reasonably be expected,individually or in the aggregate with such other instances, to have a material adverse effect on(i)the financial condition or results of operations of the Lessee or(ii)the ability of the Lessee to perform its obligations under this Amendment, the Agreement, the Guaranty, the Letter of Representations or the 2006 Tax Representation Certificate. (f) Except where the failure to do so,individually or in the aggregate,would not reasonably be expected to have a material adverse effect on(1)the business,financial condition or results of operations of the Lessee or(2) the ability of the Lessee to perform its obligations under the Agreement,the Lessee has duly and validly obtained all certificates, licenses and permits from all public authorities,both federal and state, required to enable the Lessee to carry on its business at the Special Facilities as presently conducted. (g) Except for(1)the matters described in the Lessee's Quarterly Report on Form 10-Q for the quarter ended February 28,2006 filed by the Lessee with the Commission and(2)the matters described in any Current Report on Form 8-K filed by the Lessee with the Commission after the filing of the aforementioned Form 10-Q and on or before the 2006 Delivery Date,there is no action or proceeding before any court or administrative agency pending or, to the knowledge of the Lessee's Senior Vice President and General Counsel,threatened against the Lessee that would reasonably be expected to have a material adverse effect on(i)the financial condition of the Lessee or(ii)the ability of the Lessee to perform its obligations under the Agreement or the Guaranty. (h) To the knowledge of the Lessee's Senior Vice President and General Counsel, (1) no event has occurred and is continuing and no condition currently exists that constitutes, or which upon notice,lapse of time or both would constitute, an Event of Default and (2) since February 28, 2006, there has not been any event or development directly affecting the Lessee that would reasonably be expected to materially adversely affect the ability 5 of the Lessee to perform its obligations under the Agreement or the Guaranty. (i) The Lessee has no present intention of disposing of or abandoning the Special Facilities,using or moving any portion of the Special Facilities out of the State, or of directing the Special Facilities to a use other than the uses represented to the Department and the Authority. 0) The Lessee has no reason to believe,based upon the best information in the possession thereof,that the development of the Special Facilities in the City did not result in contributing to the economic growth or stability of the City by (1) increasing or stabilizing employment opportunities in the City, (2) significantly increasing or stabilizing the property tax base of the City and the State,or(3)promoting commerce within the City and the State. ARTICLE III ISSUANCE OF BONDS The 1996 Agreement is hereby supplemented with a new Section 302A,to read as follows: Section 302A. Annlication of Proceeds of Series 2006 Bonds. Pursuant to the terms of the Indenture, and at the request of the Lessee,the Authority shall issue the Series 2006 Bonds to provide a portion of the funds for the purpose of refunding the Series 1996 Bonds. The Series 2006 Bonds shall be issued under and in accordance with the Indenture,the form of which shall have been approved by the Lessee prior to the delivery thereof. The proceeds of the Series 2006 Bonds shall be deposited directly by the Authority with the Trustee in the"Debt Service Fund"established pursuant to the 1996 Indenture. The Authority does not make any warranty, either express or implied, that the proceeds from the sale of the Series 2006 Bonds will be sufficient for the purpose of paying in full the principal of and interest on the Series 1996 Bonds due on the date fixed for the redemption thereof. The Lessee agrees that it will cause to be deposited with the Trustee such amounts as shall be sufficient,together with the proceeds from the sale of the Series 2006 Bonds,to pay in full the principal of,redemption premium and interest on the Series 1996 Bonds due on the date fixed for the redemption thereof. ARTICLE IV FEDERAL INCOME TAX COVENANTS The 1996 Agreement is hereby supplemented with a new Section 614A, to read as follows: Section 614A. 2006 Federal Tax Covenants. The Authority(to the extent that such matters are within its control) and the Lessee covenant to refrain from any action which would adversely affect, and to take such action (including the provision and enforcement by the Lessee in any document of sublease or assignment of the Lessee's leasehold interest in the Special Facilities of appropriate covenants of the sublessee or assignee thereunder) as is necessary to assure,the treatment of the Series 2006 Bonds as obligations described in section 103(a)of the Code,the interest on which is not includable in the"gross income"of the owner thereof for purposes of federal income taxation (other than the gross income of a"substantial user"of the Special Facilities or a"related person"to such a"substantial user",within the meaning of the Code). In particular,but not by way of limitation thereof,the Authority(to the extent that such matters are within its control)and the Lessee covenant as follows: (i) to take such action which may be reasonably available to the Authority or the Lessee to assure that the Series 2006 Bonds are "exempt facility bonds",as defined in section 142(a) of the Code, at least 95 percent of the proceeds of which are used to provide airport facilities(within the meaning of section 142(a)of the Code); (ii) to ensure that at all times during the term of the Series 2006 Bonds that the property 6 provided with the proceeds thereof be treated as governmentally owned within the meaning of section 142(b) of the Code; (iii) to refrain from taking any action that would result in the Series 2006 Bonds being"federally guaranteed"within the meaning of section 149(b)of the Code; (iv) to refrain from using any portion of the proceeds of the Series 2006 Bonds, directly or indirectly, to acquire or to replace funds which were used, directly or indirectly, to acquire investment property(as defined in section 148(b)(2)of the Code)which produces a materially higher yield over the term of the Series 2006 Bonds, other than investment property acquired with-- (1) proceeds of the Series 2006 Bonds invested for a reasonable temporary period or, until such proceeds are needed for the purpose for which the Series 2006 Bonds are issued,and (2) proceeds of amounts invested in a bona fide debt service fund,within the meaning of section 1.148-1(b)of the Regulations; (v) to otherwise restrict the investment of the proceeds of the Series 2006 Bonds or amounts treated as proceeds of the Series 2006 Bonds,as may be necessary,to satisfy the requirements of section 148 of the Code(relating to arbitrage); (vi) to use no more than two percent of the proceeds of the Series 2006 Bonds for the payment of costs of issuance(including underwriters'discount)of the Series 2006 Bonds; (vii) to use no portion of the proceeds of the Series 2006 Bonds to provide any airplane, sky-box or other private luxury box,facility primarily used for gambling or store the principal business of which is the sale of alcoholic beverages for consumption off-premises;and (viii) to comply with the limitations imposed by section 147(c) of the Code (relating to the limitation of the use of proceeds to acquire land)and section 147(d)of the Code(relating to restrictions on the use of bond proceeds to acquire existing buildings, structures or other property). It is the understanding of the Authority and the Lessee that the covenants contained herein are intended to assure compliance with the provisions of the Code,and any regulations or rulings promulgated by the U.S.Department of the Treasury pursuant thereto, pertaining to obligations described in section 103(a) of the Code. In the event that regulations or rulings applicable to the Series 2006 Bonds are hereafter promulgated which modify or expand such provisions of the Code,the Authority and the Lessee will not be required to comply with any covenant contained herein to the extent that, in the opinion of Bond Counsel, such failure to comply will not adversely affect the excludability pursuant to section 103(a)of the Code of interest on the Series 2006 Bonds from the gross income of the owners thereof for federal income tax purposes. In the event that regulations or rulings are hereafter promulgated which impose additional requirements,pertaining to obligations described in section 103(a)of the Code,which are applicable to the Series 2006 Bonds, the Authority and the Lessee agree to comply with the additional requirements to the extent necessary, in the opinion of Bond Counsel, to preserve the excludability pursuant to section 103(a) of the Code of interest on the Series 2006 Bonds from the gross income of the owners thereof for federal income tax purposes. The Lessee shall maintain or cause the Trustee to maintain for at least six years following final payment of interest and principal on the Series 2006 Bonds accurate investment records for the purpose of determining the amount of arbitrage rebate that shall be owed with respect to the Series 2006 Bonds to the United States in order to comply with the requirements of Section 148 of the Code with respect to the Series 2006 Bonds. The Lessee shall compute and cause to be paid, in the manner and time provided in the 2006 Tax Representation Certificate, the arbitrage rebate that is required to be paid to the United States pursuant to Section 148 of the Code in order to preserve the tax status of the interest on the Series 2006 Bonds. In any event,if the amount of cash held in the Special Rebate Fund immediately prior to the date on which any payment must be made by the Trustee pursuant to Article III(D)(2)of the Indenture shall 7 be insufficient to permit the Trustee to make such payment to the United States, the Lessee forthwith shall pay the amount of such insufficiency to the Trustee in immediately available funds. The obligations of the Lessee hereunder are direct obligations of the Lessee,acting under the authorization of,and on behalf of,the Authority,and neither the City nor the Authority shall have any further obligation or duty with respect to the Special Rebate Fund. ARTICLE V ADDITIONAL AMENDMENTS TO THE 1996 AGREEMENT Section 1. Amendment to Sections 616(a)and(c)of the 1996 Agreement Section 616(a)and Section 616(c) of the 1996 Agreement are hereby deleted in their entirety and replaced with the following: (a) Pursuant to Rule 15c2-12(b)(5)under the Exchange Act,the Lessee hereby agrees and undertakes, for the benefit of the holders and beneficial owners of the Bonds,to (1) file with the Commission,to the extent required to be filed by the Lessee under the Exchange Act, (i) within the required time period after the end of the Lessee's fiscal year ending May 31,2006,and each fiscal year thereafter,an annual report on Form 10-K including annual financial information concerning the Lessee for the prior fiscal year,including the Lessee's audited financial statements,prepared in accordance with United States generally accepted accounting principles in effect from time to time and(ii)within the required time period after the end of each of the first three fiscal quarters of each fiscal year of the Lessee(beginning with the quarter ending August 31,2006), a quarterly report on Form 10-Q; (2) to the extent the Lessee should cease to be a reporting company under the Exchange Act,then the Lessee shall,within 90 days after the end of the Lessee's fiscal year,file with each NRMSIR and the SID an annual report that provides the Lessee's audited financial statements,prepared in accordance with United States generally accepted accounting principles in effect from time to time,and the type of information that would be included in an annual report filed with the Commission if the Lessee were an Exchange Act reporting company; (3) send,within 90 days after the end of the Lessee's fiscal year ending May 31,2006, and each fiscal year thereafter, to the extent necessary, notice to each NRMSIR and the SID that the Lessee's annual financial information filed with the Commission pursuant to the Exchange Act constitutes the Lessee's annual financial information for the prior fiscal year for purposes of this Section 616;and (4) provide timely notice to each NRMSK the MSRB and the SID of (i) the occurrence of any of the events enumerated in Rule 15c2-12(b)(5)(i)(C), as amended from time to time, with respect to the Bonds, if material, and(ii)any failure of the Lessee to provide required annual financial information as described above. (c) This Section 616 may only be amended in accordance with the Rule and interpretations thereunder. If this Section 616 is amended, the annual financial information will explain, in narrative form,the reasons for the amendment and the impact of the change in the type of financial information being provided. Section 2. Amendment to Section 1803 of the 1996 A eement. Section 1803 of the 1996 Agreement is hereby amended so that, as amended,it reads in its entirety as follows: 8 The Lessee shall timely pay any lawfully imposed property taxes,assessments charged against the property, or sales and use taxes which may be assessed a charge against personal property included in or located on the Land or other permitted portions of the Airport,including without limitation the Excluded Personal Property. Furthermore, the Lessee shall not claim,solely by virtue of the Special Facilities being financed under the Development Corporation Act,that it is entitled to an exemption from State sales and use taxes on personal property acquired in connection with the financing of the Special Facilities under the Development Corporation Act;provided,however,that the Lessee shall not be prohibited from claiming exemptions from sales and use tax to which it may otherwise be entitled,including, without limitation, exemptions related to the purchase,use or ownership of said property. Section 3. Amendment to Section 1811 of the 1996 Agreement. Section 1811 of the 1996 Agreement is hereby amended so that, as amended, it reads in its entirety as follows: Whenever any notice or payment(other than a payment required by Section 502 of the Agreement)is required by this Agreement to be made,given or transmitted to the parties hereto,such notice or payment(other than a payment required by Section 502 of the Agreement)shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail or Federal Express Priority Overnight delivery,addressed as follows: if to the Authority, 1000 Throckmorton, Fort Worth, Texas 76102, Attention: City Manager; if to the City, 1000 Throckmorton,Fort Worth,Texas 76102,Attention: City Attorney;if to the Lessee,Federal Express Corporation,c/o FedEx Corporation,942 S.Shady Grove Road,3rd Floor,Memphis,Tennessee 38120,Attention:Staff Vice President and Assistant Treasurer,with a copy of such notice to be sent in the same manner to FedEx Corporation, 942 South Shady Grove Road, Memphis, Tennessee 38120, Attention: Corporate Vice President, Securities&Corporate Law, and to Federal Express Corporation, 3680 Hacks Cross Road, Building H, 3rd Floor, Memphis, Tennessee 38125, Attention:Managing Director-Real Estate;and if to the Trustee,227 W.Monroe,26th Floor,Chicago,Illinois 60606, Attention:Worldwide Securities Services. A duplicate copy of each notice,certificate,request,or other communication given hereunder to the Authority,the City,the Lessee,or the Trustee shall also be given to the others.The Lessee,the City, the Authority, and the Trustee may,by notice given hereunder, designate any further or different addresses to which subsequent notices,certificates, requests or other communications shall be sent. ARTICLE VI MISCELLANEOUS Section 1. Counterparts. This Amendment maybe executed in one or more counterparts,each of which shall be an original and all of which shall constitute but one and the same instrument. Section 2. Effective Date. This Amendment is dated as of May 1, 2006, for administrative convenience purposes only and shall be effective upon the 2006 Delivery Date. Section 3. Amendment Controls. To the extent of any conflict between the terms and provisions of this Amendment and the terms and provisions of the 1996 Agreement,the terms of this Amendment shall control. Section 4. Governing Law. This Amendment shall be governed by the laws of the State of Texas,without regard to its conflicts of laws or choice of laws principles. [THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY] 9 IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Land and Special Facilities Lease Agreement to be executed as of the date first above mentioned at Fort Worth, Texas. ALLIANCEAIRPORT AUTHORITY, INC. By. L-- Pre " ent, and of irectors (SEAL) By: 12-, 'VA,i&Jffii Secretary,Board of Directors FEDERAL EXPRESS CORPORATION Y By: a —i& Name: Burnetta B. Williams Title: Vice President and Assistant Treasurer ACKNOWLEDGMENT AND CONSENT The City hereby acknowledges receipt of this First Amendment to Land and Special Facilities Lease Agreement(this "Amendment"),and by resolution adopted by the City Council on April 4,2006,did approve this Amendment and the terms hereof. The City does hereby further acknowledge and consent to the pledge of the Special Facilities Rentals to the payment of the Series 2006 Bonds for purposes of Section 507 of the Agreement and pursuant to the terms of the Indenture,the terms of which were also approved by said resolution. CITY OF FORT WORTH, TEXAS By..OAVL(4,cv. &ALB .L City Manager (SEAL) By. �\ W/v City S retary APPROVED AS TO FORM: By: Z46i)c� /h, City Attor MAY I IAW Date of Execution: 10