Exhibit 10.43


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


THIS FIRST
AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of July 1,
2003, by and between Expeditors International of Washington, Inc., a Washington
corporation (“Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”).


 


RECITALS


 


WHEREAS,
Borrower is currently indebted to Bank pursuant to the terms and conditions of
that certain Credit Agreement between Borrower and Bank dated as of July 1,
2002, as amended from time to time (“Credit Agreement”).


 


WHEREAS, Bank
and Borrower have agreed to certain changes in the terms and conditions set
forth in the Credit Agreement and have agreed to amend the Credit Agreement to
reflect said changes.


 


NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree that the Credit Agreement shall
be amended as follows:


 


1.  Section 1.1. (a) is hereby amended by
deleting “July 1, 2003” as the last day on which Bank will make advances under
the Line of Credit, and by substituting for said date “July 1, 2004,” with such
change to be effective upon the execution and delivery to Bank of a promissory
note substantially in the form of Exhibit A attached hereto (which promissory
note shall replace and be deemed the Line of Credit Note defined in and made
pursuant to the Credit Agreement) and all other contracts, instruments and
documents required by Bank to evidence such change.


 


2.  Section 4.9. (b) is hereby deleted in its
entirety, and the following substituted therefor:


 


“(b)         Tangible Net Worth not at any time less
than $400,000,000.00, with “Tangible Net Worth” defined as the aggregate of
total stockholders’ equity plus subordinated debt less any intangible assets.”


 


3.  Except as specifically provided herein, all
terms and conditions of the Credit Agreement remain in full force and effect,
without waiver or modification.  All
terms defined in the Credit Agreement shall have the same meaning when used in
this Amendment.  This Amendment and the
Credit Agreement shall be read together, as one document.


 


4.  Borrower hereby remakes all representations
and warranties contained in the Credit Agreement and reaffirms all covenants
set forth therein.  Borrower further
certifies that as of the date of this Amendment there exists no Event of
Default as defined in the Credit Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.


 


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ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.


 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed as of the
day and year first written above.


 


	
  Expeditors International of

  Washington, Inc.

  	
   

  	
  WELLS FARGO BANK,

  NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
       /s/
  R. Jordan Gates

  	
   

  	
   

  	
  By:

  	
       /s/
  Russell Carson

  	
   

  
	
   

  	
  Jordan
  Gates, Executive Vice

  	
   

  	
   

  	
  Russell
  Carson, Relationship Manager

  
	
   

  	
  President/CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
       /s/
  Charles Lynch

  	
   

  	
   

  	
   

  
	
   

  	
  Charles
  Lynch, Vice President/

  	
   

  	
   

  
	
   

  	
  Corporate
  Controller

  	
   

  	
   

  



 


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REVOLVING LINE OF CREDIT NOTE


 


	
  $50,000,000.00

  	
  Seattle, Washington

  
	
   

  	
  July 1, 2003

  



 


FOR VALUE
RECEIVED, the undersigned Expeditors International of Washington, Inc.
(“Borrower”) promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Bank”) at its office at Seattle RCBO, 999 Third Avenue 11th
Floor, Seattle, Washington 98104, or at such other place as the holder hereof
may designate, in lawful money of the United States of America and in
immediately available funds, the principal sum of Fifty Million Dollars
($50,000,000.00), or so much thereof as may be advanced and be outstanding,
with interest thereon, to be computed on each advance from the date of its
disbursement as set forth herein.


 


DEFINITIONS:


 


As used
herein, the following terms shall have the meanings set forth after each, and
any other term defined in this Note shall have the meaning set forth at the
place defined:


 


(a)           “Business Day” means any day except a
Saturday, Sunday or any other day on which commercial banks in Washington are
authorized or required by law to close.


 


(b)           “Fixed Rate Term” means a period
commencing on a Business Day and continuing for 1, 2, 3 or 6 months, as
designated by Borrower, during which all or a portion of the outstanding
principal balance of this Note bears interest determined in relation to LIBOR;
provided however, that no Fixed Rate Term may be selected for a principal
amount less than One Million Dollars ($1,000,000.00); and provided further,
that no Fixed Rate Term shall extend beyond the scheduled maturity date
hereof.  If any Fixed Rate Term would
end on a day, which is not a Business Day, then such Fixed Rate Term shall be
extended to the next succeeding Business Day.


 


(c)           “LIBOR” means the rate per annum
(rounded upward, if necessary, to the nearest whole 1/8 of 1%) and determined
pursuant to the following formula:


 


	
  LIBOR=  

  	
  Base LIBOR

  
	
   

  	
  100% - LIBOR Reserve Percentage

  



 


(i)            “Base LIBOR” means the rate per
annum for United States dollar deposits quoted by Bank as the Inter-Bank Market
Offered Rate, with the understanding that such rate is quoted by Bank for the
purpose of calculating effective rates of interest for loans making reference
thereto, on the first day of a Fixed Rate Term for delivery of funds on said
date for a period of time approximately equal to the number of days in such
Fixed Rate Term and in an amount approximately equal to the principal amount to
which such Fixed Rate Term applies. 
Borrower understands and agrees that Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market indicators of
the Inter-Bank Market as Bank in its discretion deems appropriate including,
but not limited to, the rate offered for U.S. dollar deposits on the London
Inter-Bank Market.


 


(ii)           “LIBOR Reserve Percentage” means the
reserve percentage prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for “Eurocurrency


 


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Liabilities” (as defined in
Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for
expected changes in such reserve percentage during the applicable Fixed Rate
Term.


 


(d)           “Prime Rate” means at any time the
rate of interest most recently announced within Bank at its principal office as
its Prime Rate, with the understanding that the Prime Rate is one of Bank’s
base rates and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto, and is evidenced by the
recording thereof after its announcement in such internal publication or
publications as Bank may designate.


 


INTEREST:


 


(a)           Interest.  The outstanding principal balance of this
Note shall bear interest (computed on the basis of a 360-day year, actual days
elapsed) either (i) at a fluctuating rate per annum equal to the Prime Rate in
effect from time to time, or (ii) at a fixed rate per annum determined by Bank
to be three-quarters percent (.75%) above LIBOR in effect on the first day of
the applicable Fixed Rate Term.  When
interest is determined in relation to the Prime Rate, each change in the rate
of interest hereunder shall become effective on the date each Prime Rate change
is announced within Bank.  With respect
to each LIBOR selection hereunder, Bank is hereby authorized to note the date,
principal amount, interest rate and Fixed Rate Term applicable thereto and any
payments made thereon on Bank’s books and records (either manually or by
electronic entry) and/or on any schedule attached to this Note, which notations
shall be prima facie evidence of the accuracy of the information noted.


 


(b)           Selection of Interest Rate Options.  At any time any portion of this Note bears
interest determined in relation to LIBOR, it may be continued by Borrower at
the end of the Fixed Rate Term applicable thereto so that all or a portion
thereof bears interest determined in relation to the Prime Rate or to LIBOR for
a new Fixed Rate Term designated by Borrower. 
At any time any portion of this Note bears interest determined in
relation to the Prime Rate, Borrower may convert all or a portion thereof so
that it bears interest determined in relation to LIBOR for a Fixed Rate Term
designated by Borrower.   At such time
as Borrower requests an advance hereunder or wishes to select a LIBOR option
for all or a portion of the outstanding principal balance hereof, and at the
end of each Fixed Rate Term, Borrower shall give Bank notice specifying: (i)
the interest rate option selected by Borrower; (ii) the principal amount
subject thereto; and (iii) for each LIBOR selection, the length of the
applicable Fixed Rate Term.  Any such
notice may be given by telephone (or such other electronic method as Bank may
permit) so long as, with respect to each LIBOR selection, (A) if requested by
Bank, Borrower provides to Bank written confirmation thereof not later than
three (3) Business Days after such notice is given, and (B) such notice is
given to Bank prior to 10:00 a.m. on the first day of the Fixed Rate Term, or
at a later time during any Business Day if Bank, at it’s sole option but
without obligation to do so, accepts Borrower’s notice and quotes a fixed rate
to Borrower.  If Borrower does not
immediately accept a fixed rate when quoted by Bank, the quoted rate shall
expire and any subsequent LIBOR request from Borrower shall be subject to a
redetermination by Bank of the applicable fixed rate.  If no specific designation of interest is
made at the time any advance is requested hereunder or at the end of any Fixed
Rate Term, Borrower shall be deemed to have made a Prime Rate interest
selection for such advance or the principal amount to which such Fixed Rate
Term applied.


 


(c)           Taxes and Regulatory Costs.  Borrower shall pay to Bank immediately upon
demand, in addition to any other amounts due or to become due hereunder, any
and all (i) withholdings, interest equalization taxes, stamp taxes or other
taxes (except income and franchise taxes) imposed by any domestic or foreign
governmental authority and related in any


 


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manner to LIBOR, and (ii)
future, supplemental, emergency or other changes in the LIBOR Reserve
Percentage, assessment rates imposed by the Federal Deposit Insurance
Corporation, or similar requirements or costs imposed by any domestic or
foreign governmental authority or resulting from compliance by Bank with any
request or directive (whether or not having the force of law) from any central
bank or other governmental authority and related in any manner to LIBOR to the
extent they are not included in the calculation of LIBOR. In determining which
of the foregoing are attributable to any LIBOR option available to Borrower
hereunder, any reasonable allocation made by Bank among its operations shall be
conclusive and binding upon Borrower.


 


(d)           Payment of Interest.  Interest accrued on this Note shall be
payable on the first day of each month, commencing August 1, 2003.


 


(e)           Default Interest.  From and after the maturity date of this
Note, or such earlier date as all principal owing hereunder becomes due and
payable by acceleration or otherwise, the outstanding principal balance of this
Note shall bear interest until paid in full at an increased rate per annum
(computed on the basis of a 360-day year, actual days elapsed) equal to four
percent (4%) above the rate of interest from time to time applicable to this
Note.


 


BORROWING AND REPAYMENT:


 


(a)           Borrowing and Repayment.  Borrower may from time to time during the
term of this Note borrow, partially or wholly repay its outstanding borrowings,
and reborrow, subject to all of the limitations, terms and conditions of this
Note and of any document executed in connection with or governing this Note;
provided however, that the total outstanding borrowings under this Note shall
not at any time exceed the principal amount stated above. The unpaid principal
balance of this obligation at any time shall be the total amounts advanced
hereunder by the holder hereof less the amount of principal payments made
hereon by or for any Borrower, which balance may be endorsed hereon from time
to time by the holder. The outstanding principal balance of this Note shall be
due and payable in full on July 1, 2004.


 


(b)           Advances.  Advances hereunder, to the total amount of
the principal sum stated above, may be made by the holder at the written
request of Jordan Gates and Charles Lynch, acting together, who are authorized
to request advances and direct the disposition of any advances to any deposit
account of the Borrower until written notice of the revocation of such
authority is received by the holder at the office designated above, which
advances, when so deposited, shall be conclusively presumed to have been made
to or for the benefit of Borrower regardless of the fact that persons other
than those authorized to request advances may have authority to draw against
such account.


 


(c)           Application of Payments.  Each payment made on this Note shall be
credited first, to any interest then due and second, to the outstanding
principal balance hereof. All payments credited to principal shall be applied
first, to the outstanding principal balance of this Note which bears interest determined
in relation to the Prime Rate, if any, and second, to the outstanding principal
balance of this Note which bears interest determined in relation to LIBOR, with
such payments applied to the oldest Fixed Rate Term first.


 


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PREPAYMENT:


 


(a)           Prime Rate.  Borrower may prepay principal on any portion
of this Note which bears interest determined in relation to the Prime Rate at
any time, in any amount and without penalty.


 


(b)           LIBOR.  Borrower may prepay principal on any portion
of this Note which bears interest determined in relation to LIBOR at any time
and in the minimum amount of One Hundred Thousand Dollars ($100,000.00);
provided however, that if the outstanding principal balance of such portion of this
Note is less than said amount, the minimum prepayment amount shall be the
entire outstanding principal balance thereof. In consideration of Bank
providing this prepayment option to Borrower, or if any such portion of this
Note shall become due and payable at any time prior to the last day of the
Fixed Rate Term applicable thereto by acceleration or otherwise, Borrower shall
pay to Bank immediately upon demand a fee which is the sum of the discounted
monthly differences for each month from the month of prepayment through the
month in which such Fixed Rate Term matures, calculated as follows for each
such month:


 


(i)                                     Determine
the amount of interest which would have accrued each month on the amount
prepaid at the interest rate applicable to such amount had it remained
outstanding until the last day of the Fixed Rate Term applicable thereto.


 


(ii)                                  Subtract
from the amount determined in (i) above the amount of interest which would have
accrued for the same month on the amount prepaid for the remaining term of such
Fixed Rate Term at LIBOR in effect on the date of prepayment for new loans made
for such term and in a principal amount equal to the amount prepaid.


 


(iii)                               If
the result obtained in (ii) for any month is greater than zero, discount that
difference by LIBOR used in (ii) above.


 


Each Borrower acknowledges that
prepayment of such amount may result in Bank incurring additional costs,
expenses and/or liabilities, and that it is difficult to ascertain the full
extent of such costs, expenses and/or liabilities. Each Borrower, therefore,
agrees to pay the above-described prepayment fee and agrees that said amount
represents a reasonable estimate of the prepayment costs, expenses and/or
liabilities of Bank. If Borrower fails to pay any prepayment fee when due, the
amount of such prepayment fee shall thereafter bear interest until paid at a
rate per annum two percent (2.00%) above the Prime Rate in effect from time to
time (computed on the basis of a 360-day year, actual days elapsed). Each
change in the rate of interest on any such past due prepayment fee shall become
effective on the date each Prime Rate change is announced within Bank.


 


EVENTS OF DEFAULT:


 


This Note is
made pursuant to and is subject to the terms and conditions of that certain
Credit Agreement between Borrower and Bank dated as of July 1, 2002, as amended
from time to time (the “Credit Agreement”). Any default in the payment or
performance of any obligation under this Note, or any defined event of default
under the Credit Agreement, shall constitute an “Event of Default” under this
Note.


 


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MISCELLANEOUS:


 


(a)           Remedies.  Upon the occurrence of any Event of Default,
the holder of this Note, at the holder’s option, may declare all sums of
principal and interest outstanding hereunder to be immediately due and payable
without presentment, demand, notice of nonperformance, notice of protest,
protest or notice of dishonor, all of which are expressly waived by each
Borrower, and the obligation, if any, of the holder to extend any further
credit hereunder shall immediately cease and terminate. Subject to the last
sentence of this paragraph (which provides that the prevailing party in an
action to enforce this Note is entitled to recover certain fees and costs in
connection therewith), each Borrower shall pay to the holder immediately upon
demand the full amount of all payments, advances, charges, costs and expenses,
including reasonable attorneys’ fees (to include outside counsel fees),
expended or incurred by the holder in connection with the enforcement of the
holder’s rights and/or the collection of any amounts which become due to the
holder under this Note, and the prosecution or defense of any action in any way
related to this Note, including without limitation, any action for declaratory
relief, whether incurred at the trial or appellate level, in an arbitration
proceeding or otherwise, and including any of the foregoing incurred in
connection with any bankruptcy proceeding (including without limitation, any
adversary proceeding, contested matter or motion brought by Bank or any other
person) relating to any Borrower or any other person or entity. Notwithstanding
anything herein to the contrary, the prevailing party in any action to enforce
this Note shall be entitled to recover its reasonable outside attorneys’ fees
and costs incurred in connection with such action from the non-prevailing party
in such action.


 


(b)           Governing Law.  This Note shall be governed by and construed
in accordance with the laws of the State of Washington.


 


ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.


 


IN WITNESS
WHEREOF, the undersigned has executed this Note as of the date first written
above.


 


 


Expeditors International of
Washington, Inc.


 


	
  By:

  	
       /s/
  R. Jordan Gates

  	
   

  
	
   

  	
  Jordan
  Gates, Executive Vice President/CFO

  
	
   

  	
   

  
	
  By:

  	
       /s/
  Charles Lynch

  	
   

  
	
   

  	
  Charles
  Lynch, Vice President/Corporate Controller

  



 


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