**EXHIBIT10(g)**

 

 

 

 

 

 

 

 

 

 

 

 

ASSIGNMENT OF LEASES AND RENTS

 

 

from

 

 

ABX AIR, INC.,

 

WILMINGTON AIR PARK,INC.

 

and

 

AVIATION FUEL INC.

 

 

to

 

 

WACHOVIA BANK, N.A.,as Collateral Agent

 

 

 

 

 

June 29, 2001

 

 

 

 

 

 

ASSIGNMENT OF LEASES AND RENTS

 

            THISASSIGNMENT OF LEASES AND RENTS (as the same may from time to time be amended,restated or otherwise modified, this "Assignment") is made as of the 29thday of June, 2001, by ABX AIR, INC., a corporation organized under the laws ofDelaware ("ABX"), having its principal place of business at 145 Hunter Drive,Wilmington, Ohio 45177, WILMINGTON AIR PARK, INC., a corporation organizedunder the laws of Ohio ("Air Park"), having its principal place of business at145 Hunter Drive, Wilmington, Ohio 45177, AVIATION FUEL INC., a corporationorganized under the laws of Ohio ("Aviation Fuel"), having its principal placeof business at 145 Hunter Drive, Wilmington, Ohio 45177 (individually, an"Assignor," and, collectively, "Assignors"), in favor of WACHOVIA BANK, N.A., anational banking association, as collateral agent (herein, together with itssuccessors and assigns in such capacity, the "Collateral Agent"), for thebenefit of the Secured Creditors (as defined below):

 

PRELIMINARYSTATEMENTS:

 

                        (1)        Except as otherwise defined herein,capitalized terms used herein and defined in the Credit Agreement (as definedbelow) shall be used herein as therein defined.

 

                        (2)        This Assignment is one of the"Collateral Documents" described in, and is made pursuant to, that certainAmended and Restated Credit Agreement dated as of the Closing Date, by andamong Airborne Express, Inc., a Delaware corporation ("Express") and formerlyknown as Airborne Freight Corporation, a Delaware corporation ("AFC"), ABX (ABXand Express, each, a "Borrower" and together, jointly and severally, the"Borrowers"), Airborne, Inc., a Delaware corporation, as the "Parent," thefinancial institutions named as lenders therein (together with their respectivesuccessors and assigns, the "Lenders" and, each individually, a "Lender"), andWachovia Bank, N.A., a national banking association ("Wachovia"), as theAdministrative Agent for the Lenders under the agreement and in its capacity ascollateral agent, which agreement amends and restates that certain CreditAgreement dated as of July 27, 2000, by and among AFC, the Lenders, andWachovia as Administrative Agent, as amended by that certain First Amendment toCredit Agreement dated as of April 20, 2001, by and among Airborne, Inc., aDelaware corporation ("Airborne"), the Lenders, and Wachovia as AdministrativeAgent, as further amended by that certain Second Amendment to Credit Agreementdated as of May 31, 2001, by and among Airborne, the Lenders, and Wachovia asAdministrative Agent (collectively, together with any and all concurrent orsubsequent exhibits, schedules, extensions, supplements, amendments ormodifications thereto, the "Credit Agreement".Pursuant to a Joinder Agreement dated as of December 26, 2000, Airborneassumed AFC's obligations as "Borrower" under the Credit Agreement, and AFC wasreleased from its obligations as "Borrower" under the Credit Agreement.

 

                        (3)        The Credit Agreement provides for, amongother things, loans or advances, the issuance of letters of credit, and otherextensions of credit to or for the benefit of the Borrowers of up to$275,000,000, with such loans or advances being evidenced by promissory notes(the "Facility Notes").

 

                        (4)        AFC entered into an Indenture dated asof December 15, 1992, as supplemented by that certain First SupplementalIndenture dated as of September 15, 1995, relating to Express' 7.35% Notes due2005, as further supplemented by that certain Second Supplemental IndentureRelating to AFC's 8-7/8% Notes Due 2002 dated February 12, 1997, and as furthersupplemented by that certain Third Supplemental Indenture dated as of theClosing Date (herein, as amended or otherwise modified, restated, supplementedor replaced from time to time, the "Indenture"), pursuant to which Express,formerly known as AFC, (i) may issue and sell its debentures, notes, or otherevidences of indebtedness and (ii) has, prior to the date hereof, issued andsold to certain purchasers (the "Noteholders," such term to include theirsuccessors and assigns) (A) $100,000,000 aggregate original principal amount ofits "7.35% Notes Due 2005," (the "1995 Notes") and (B) $100,000,000 aggregateoriginal principal amount of its "8-7/8% Notes Due December 15, 2002" (the"1992 Notes," and together with the 1995 Notes, the "Indenture Debt," such termto include all debentures, notes, or other evidences of indebtedness issuedpursuant to the Indenture in addition to, issued in exchange for, or issued inreplacement of any Indenture Debt existing on the date hereof).  Express, in its capacity as issuer of theIndenture Debt, together with its successors and assigns, shall be referred toherein as the "Indenture Debt Issuer."

 

                        (5)        Subject to certain exceptions which arenot applicable hereto, Section 1008 of the Indenture prohibits any Assignorfrom creating any security interests in certain of the Assignors' propertyunless the Indenture Debt is equally and ratably secured by such securityinterest.

 

                        (6)        This Assignment is made in favor of theCollateral Agent for the benefit of the Lenders and the Noteholders (collectivelythe "Secured Creditors") to equally and ratably secure the Secured Obligations(as defined herein).

 

                        (7)        It is a condition precedent to themaking of Loans and the issuance of, and participation in, Letters of Creditunder the Credit Agreement that the Assignors shall have executed and deliveredto the Collateral Agent this Assignment.

 

                        (8)        The Assignors desire to execute thisAssignment to satisfy the conditions described in the preceding paragraphs (5)and (7).

 

ARTICLE 1 - ASSIGNMENT

Section 1.1             PROPERTY ASSIGNED.Assignors hereby absolutely and unconditionally assign and grant toCollateral Agent, for the benefit of the Secured Creditors, the followingproperty, rights, interests and estates, now owned or hereafter acquired byAssignors:

(a)               Leases.  Allexisting and future leases affecting the use, enjoyment, or occupancy of all orany part of that certain real property situated in the County of Clinton, Stateof Ohio, and more particularly described in Exhibit A attached hereto and madea part hereof (the "Land") (the Land, together with the buildings, structures,fixtures, additions, enlargements, extensions, modifications, repairs,replacements and improvements now or hereafter located thereon collectivelyreferred to as the "Property") and the right, title and interest of Assignors,their successors and assigns, therein and thereunder.

(b)              Other Leases and Agreements.  All other leases, subleases and other agreements, whether or notin writing, affecting the use, enjoyment or occupancy of the Property or anyportion thereof now or hereafter made, whether made before or after the filingby or against Assignors of any petition for relief under 11 U.S.C. Sec. 101 etseq., as the same may be amended from time to time (the "Bankruptcy Code"),together with any extension, renewal or replacement of the same, thisAssignment of other present and future leases and present and future agreementsbeing effective without further or supplemental assignment.  The leases described in Subsection 1.1(a)and the leases and other agreements described in this Subsection 1.1(b),together with all other present and future leases and present and futureagreements and any extension or renewal of the same are collectively referredto as the "Leases."

(c)               Rents.  Allrents, additional rents, revenues, income, issues and profits arising from theLeases and renewals and replacements thereof and any cash or security depositedin connection therewith and together with all rents, revenues, income, issuesand profits (including all oil and gas or other mineral royalties and bonuses)from the use, enjoyment and occupancy of the Property, whether paid or accruingbefore or after the filing by or against Assignors of any petition for reliefunder the Bankruptcy Code (collectively, the "Rents").

(d)              Bankruptcy Claims.All of Assignors' claims and rights (the "Bankruptcy Claims") to thepayment of damages arising from any rejection by a lessee of any Lease underthe Bankruptcy Code.

(e)               Lease Guaranties.All of Assignors' right, title and interest in and claims under any andall lease guaranties, letters of credit and any other credit support given byany guarantor in connection with any of the Leases (individually, a "LeaseGuarantor," collectively, the "Lease Guarantors") to Assignors (individually, a"Lease Guaranty," collectively, the "Lease Guaranties").

(f)                Proceeds.  Allproceeds from the sale or other disposition of the Leases, the Rents, the LeaseGuaranties and the Bankruptcy Claims.

(g)               Other.  Allrights, powers, privileges, options and other benefits of Assignors as lessorsunder the Leases and beneficiary under the Lease Guaranties, including withoutlimitation the immediate and continuing right to make claim for, receive,collect and receipt for all Rents payable or receivable under the Leases andall sums payable under the Lease Guaranties or pursuant thereto (and the rightto apply the same to the payment of the Secured Obligations as provided inSection 5.4 of the Credit Agreement), and to do all other things whichAssignors or any lessor are or may become entitled to do under the Leases orthe Lease Guaranties.

(h)               Entry.  Theright, at Collateral Agent's option, upon revocation of the license grantedherein, to enter upon the Property in person, by agent or by court-appointedreceiver, to collect the Rents.

(i)                 Power of Attorney.Assignors' irrevocable power of attorney, coupled with an interest, totake any and all of the actions set forth in Section 3.1 of this Assignment andany or all other actions designated by Collateral Agent for the propermanagement and preservation of the Property.

(j)                Other Rights and Agreements.  Any and all other rights of Assignors in and to the items setforth in subsections (a) through (i) above, and all amendments, modifications,replacements, renewals and substitutions thereof.

Section 1.2             SECURED OBLIGATIONS.This Assignment is given to secure the following (the "SecuredObligations"):

(a)               the Borrowers' full and prompt payment when due (whether atthe stated maturity, by acceleration or otherwise), and the due performance, ofall Facility Obligations; and 

(b)              the full and prompt payment when due (whether at the statedmaturity, by acceleration or otherwise) of all principal of, and interest on,the Indenture Debt, and the due performance of all other obligations of anyAssignor arising under or in connection with the Indenture Documents; and

(c)               all obligations and liabilities of any Assignor under thisAssignment, any Subsidiary Guaranty, Parent Guaranty, or any other LoanDocument to which any Assignor is a party; and

(d)              all obligations and liabilities of any Assignor under theIndenture Documents to which it is a party; and

(e)               all other obligations and liabilities owing by any Assignor toany of the Administrative Agent, the Collateral Agent, the Trustee, any Lender,or any Noteholder under this Assignment, the Credit Agreement or any other LoanDocument, or the Indenture Documents (including, without limitation,indemnities, fees and other amounts payable thereunder); and

(f)                the full and prompt payment when due of any and all CollateralAgent Expenses;

(g)               in all cases whether now existing, or hereafter incurredunder, arising out of, or in connection with, this Assignment, the CreditAgreement or any other Loan Document, or the Indenture Documents, including anysuch interest or other amounts which, but for any automatic stay under Section362(a) of the Bankruptcy Code, would become due.  It is acknowledged and agreed that the term "Secured Obligations"shall include, without limitation, extensions of credit and issuances ofsecurities of the types described above, whether outstanding on the date ofthis Assignment or extended or purchased from time to time after the date ofthis Assignment.

Section 1.3             TERMINATION OF ASSIGNMENT.  Upon payment in full of the Secured Obligations and the deliveryand recording of a satisfaction or discharge of that certain Open-End Mortgage,Assignment of Rents and Fixture Filing of even date herewith granted byAssignors, as mortgagors, to Collateral Agent (the "Mortgage") duly executed byCollateral Agent, this Assignment shall become null and void and shall be of nofurther force and effect.

ARTICLE 2 - TERMS OF ASSIGNMENT

Section 2.1             PRESENT ASSIGNMENT AND LICENSE BACK.  It is intended by Assignors that thisAssignment constitute a present, absolute assignment of the Leases, Rents,Lease Guaranties and Bankruptcy Claims, and not an assignment for additionalsecurity only.  Nevertheless, subject tothe terms of this Section 2.1, Collateral Agent grants to Assignors a revocablelicense to collect and receive the Rents and other sums due under the LeaseGuaranties.  Assignors shall hold theRents and all sums received pursuant to any Lease Guaranty, or a portionthereof sufficient to discharge all current sums due on the SecuredObligations, in trust for the benefit of Collateral Agent for use in thepayment of such sums.

Section 2.2             NOTICE TO LESSEES.

(a)               Assignors hereby authorize and direct the lessees named in theLeases or any other or future lessees or occupants of the Property and allLease Guarantors, upon receipt from Collateral Agent of written requesttherefor, to pay directly to Collateral Agent or to such other party asCollateral Agent directs all Rents and all sums thereafter becoming due andpayable under any Lease or Lease Guaranty upon receipt from Collateral Agent ofwritten request therefor, and to continue to do so until otherwise notified byCollateral Agent, and Assignors agree, promptly upon written demand fromCollateral Agent at any time, to confirm such authorization and direction in aseparate writing addressed to each such lessee and Lease Guarantor.  Collateral Agent agrees, however, not toexercise its right to request any lessee or Lease Guarantor to make suchpayments directly to Collateral Agent unless the license given by CollateralAgent to Assignors in Section 2.1 above has been revoked in accordance with theterms of this Assignment.

(b)              Any lessees or occupants of any part of the Property arehereby authorized to recognize the claims of Collateral Agent hereunder withoutinvestigating the reason for any action taken by Collateral Agent, or thevalidity or the amount of the Secured Obligations owing to Collateral Agent, orthe existence of any Default, or the application to be made by Collateral Agentof any amounts to be paid to Collateral Agent.The sole signature of Collateral Agent shall be sufficient for theexercise of any rights under this Assignment and the sole receipt of CollateralAgent for any sums received shall be a full discharge and release therefor toany such lessee or occupant of the Property.Checks for all or any part of the rentals collected under thisAssignment shall be drawn to the exclusive order of Collateral Agent.

Section 2.3             INCORPORATION BY REFERENCE.  All representations, warranties, covenants, conditions andagreements contained in the Credit Agreement and Mortgage, as same may bemodified, renewed, substituted or extended, are hereby made a part of thisAssignment to the same extent and with the same force as if fully set forthherein.

ARTICLE 3 - REMEDIES

Section 3.1             REMEDIES OF COLLATERAL AGENT.  Upon or at any time after the occurrence of an Event of Default(as defined in the Credit Agreement) (herein, a "Default"), the license grantedto Assignors in Section 2.1 of this Assignment shall automatically be revoked,and Collateral Agent shall immediately be entitled to possession of all Rentsand sums due under any Lease Guaranties, whether or not Collateral Agent entersupon or takes control of the Property.In addition, at any time during the continuance of a Default, CollateralAgent may, at its option, without waiving such Default, without notice andwithout regard to the adequacy of the security for the Secured Obligations,either in person or by agent, nominee or attorney, with or without bringing anyaction or proceeding, or by a receiver appointed by a court, dispossessAssignors and their agents and servants from the Property, without liabilityfor trespass, damages or otherwise and exclude Assignors and their agents orservants wholly therefrom, and take possession of the Property and all books,records and accounts relating thereto and have, hold, manage, lease and operatethe Property on such terms and for such period of time as Collateral Agent maydeem proper and either with or without taking possession of the Property in itsown name, demand, sue for or otherwise collect and receive all Rents and sumsdue under all Lease Guaranties, including those past due and unpaid with fullpower to make from time to time all alterations, renovations, repairs orreplacements thereto or thereof as may seem proper to Collateral Agent and mayapply the Rents and sums received pursuant to any Lease Guaranties to thepayment of the following in such order and proportion as Collateral Agent inits sole discretion may determine, any law, custom or use to the contrarynotwithstanding:  (a) all expenses ofmanaging and securing the Property, including, without being limited thereto,the salaries, fees and wages of a managing agent and such other employees oragents as Collateral Agent may deem necessary or desirable and all expenses ofoperating and maintaining the Property, including, without being limitedthereto, all taxes, charges, claims, assessments, water charges, sewer rentsand any other liens, and premiums for all insurance which Collateral Agent maydeem necessary or desirable, and the cost of all alterations, renovations, repairsor replacements, and all expenses incident to taking and retaining possessionof the Property; and (b) the Secured Obligations, together with all costs andreasonable attorneys' fees, in the order of priority set forth in Section 5.4of the Security Agreement.  In addition,during the continuance of a Default, Collateral Agent, at its option, may (1)complete any construction on the Property in such manner and form as CollateralAgent deems advisable, (2) exercise all rights and powers of Assignors, including,without limitation, the right to negotiate, execute, cancel, enforce or modifyLeases, obtain and evict tenants, and demand, sue for, collect and receive allRents from the Property and all sums due under any Lease Guaranties, (3) eitherrequire Assignors to pay monthly in advance to Collateral Agent, or anyreceiver appointed to collect the Rents, the fair and reasonable rental valuefor the use and occupancy of such part of the Property as may be in possessionof Assignors, or (4) require Assignors to vacate and surrender possession ofthe Property to Collateral Agent or to such receiver and, in default thereof,Assignors may be evicted by summary proceedings or otherwise.

Section 3.2             OTHER REMEDIES.Nothing contained in this Assignment and no act done or omitted byCollateral Agent pursuant to the power and rights granted to Collateral Agenthereunder shall be deemed to be a waiver by Collateral Agent of its rights andremedies under the Credit Agreement, the Mortgage, or any other CollateralDocuments and this Assignment is made and accepted without prejudice to any ofthe rights and remedies possessed by Collateral Agent under the termsthereof.  The right of Collateral Agentto collect the Secured Obligations and to enforce any other security thereforheld by it may be exercised by Collateral Agent either prior to, simultaneouslywith, or subsequent to any action taken by it hereunder.  Assignor hereby absolutely, unconditionallyand irrevocably waive any and all rights to assert any setoff, counterclaim orcrossclaim of any nature whatsoever with respect to the obligations ofAssignors under this Assignment, the Credit Agreement, the Mortgage, the otherCollateral Documents or otherwise with respect to the Secured Obligationssecured hereby in any action or proceeding brought by Collateral Agent tocollect same, or any portion thereof, or to enforce and realize upon the lienand security interest created by this Assignment, the Credit Agreement, theMortgage, or any of the other Collateral Documents (provided, however, that theforegoing shall not be deemed a waiver of Assignors' right to assert anycompulsory counterclaim if such counterclaim is compelled under local law orrule of procedure, nor shall the foregoing be deemed a waiver of Assignors'right to assert any claim which would constitute a defense, setoff,counterclaim or crossclaim of any nature whatsoever against Collateral Agent inany separate action or proceeding).

Section 3.3             OTHER SECURITY.Collateral Agent may take or release other security for the payment ofthe Secured Obligations, may release any party primarily or secondarily liabletherefor and may apply any other security held by it to the reduction orsatisfaction of the Secured Obligations without prejudice to any of its rightsunder this Assignment.

Section 3.4             NON-WAIVER.  Theexercise by Collateral Agent of the option granted it in Section 3.1 of thisAssignment and the collection of the Rents and sums due under the LeaseGuaranties and the application thereof as herein provided shall not beconsidered a waiver of any default by Assignors under the Credit Agreement, theMortgage, the Leases, this Assignment or the other Collateral Documents.  The failure of Collateral Agent to insistupon strict performance of any term hereof shall not be deemed to be a waiverof any term of this Assignment.Assignors shall not be relieved of Assignors' obligations hereunder byreason of (a) the failure of Collateral Agent to comply with any request ofAssignors or any other party to take any action to enforce any of the provisionshereof or of the Mortgage, the Credit Agreement or the other CollateralDocuments, (b) the release, regardless of consideration, of the whole or anypart of the Property, or (c) any agreement or stipulation by Collateral Agentextending the time of payment or otherwise modifying or supplementing the termsof this Assignment, the Credit Agreement, the Mortgage or the other CollateralDocuments.  Collateral Agent may takeany action to recover the Secured Obligations, or any portion thereof, or toenforce any covenant hereof without prejudice to the right of Collateral Agentthereafter to enforce its rights under this Assignment.  The rights of Collateral Agent under thisAssignment shall be separate, distinct and cumulative and none shall be giveneffect to the exclusion of the others.No act of Collateral Agent shall be construed as an election to proceedunder any one provision herein to the exclusion of any other provision.

Section 3.5             BANKRUPTCY.  

(a)               During the continuance of a Default, Collateral Agent shall havethe right to proceed in its own name or in the name of Assignors in respect ofany claim, suit, action or proceeding relating to the rejection of any Lease,including, without limitation, the right to file and prosecute, to theexclusion of Assignors, any proofs of claim, complaints, motions, applications,notices and other documents, in any case in respect of the lessee under suchLease under the Bankruptcy Code.

(b)              If there shall be filed by or against any Assignor a petitionunder the Bankruptcy Code, and such Assignor, as lessor under any Lease, shalldetermine to reject such Lease pursuant to Section 365(a) of the BankruptcyCode, then such Assignor shall give Collateral Agent not less than ten (10)days' prior notice of the date on which such Assignor shall apply to thebankruptcy court for authority to reject the Lease.  Collateral Agent shall have the right, but not the obligation, toserve upon such Assignor within such ten (10) day period a notice stating that(i) Collateral Agent demands that such Assignor assume and assign the Lease toCollateral Agent pursuant to Section 365 of the Bankruptcy Code and (ii)Collateral Agent covenants to cure or provide adequate assurance of futureperformance under the Lease.  IfCollateral Agent serves upon any Assignor the notice described in the precedingsentence, Assignor shall not seek to reject the Lease and shall comply with thedemand provided for in clause (i) of the preceding sentence within thirty (30)days after the notice shall have been given, subject to the performance byCollateral Agent of the covenant provided for in clause (ii) of the precedingsentence.

ARTICLE 4 - NO LIABILITY, FURTHERASSURANCES

Section 4.1             NO LIABILITY OF COLLATERAL AGENT.  This Assignment shall not be construed tobind Collateral Agent to the performance of any of the covenants, conditions orprovisions contained in any Lease or Lease Guaranty or otherwise impose anyobligation upon Collateral Agent.Collateral Agent shall not be liable for any loss sustained by Assignorsresulting from Collateral Agent's failure to let the Property after a Defaultor from any other act or omission of Collateral Agent in managing the Propertyafter a Default unless such loss is caused by the willful misconduct and badfaith of Collateral Agent.  CollateralAgent shall not be obligated to perform or discharge any obligation, duty orliability under the Leases or any Lease Guaranties or under or by reason ofthis Assignment and Assignors shall, and hereby agrees to, indemnify CollateralAgent for, and hold Collateral Agent harmless from, any and all liability, lossor damage which may or might be incurred under the Leases, any Lease Guarantiesor under or by reason of this Assignment and from any and all claims anddemands whatsoever, including the defense of any such claims or demands whichmay be asserted against Collateral Agent by reason of any alleged obligationsand undertakings on its part to perform or discharge any of the terms,covenants or agreements contained in the Leases or any Lease Guaranties.  Should Collateral Agent incur any suchliability, the amount thereof, including costs, expenses and reasonableattorneys' fees, shall be secured by this Assignment and by the Mortgage andthe other Collateral Documents and Assignors shall reimburse Collateral Agent thereforimmediately upon demand and upon the failure of Assignors so to do CollateralAgent may, at its option, declare all sums secured by this Assignment and bythe Mortgage and the Collateral Documents immediately due and payable.  This Assignment shall not operate to placeany obligation or liability for the control, care, management or repair of theProperty upon Collateral Agent, nor for the carrying out of any of the termsand conditions of the Leases or any Lease Guaranties; nor shall it operate to makeCollateral Agent responsible or liable for any waste committed on the Propertyby the tenants or any other parties, or for any dangerous or defectivecondition of the Property, including without limitation the presence of anyHazardous Substances (as defined in the Mortgage), or for any negligence in themanagement, upkeep, repair or control of the Property resulting in loss orinjury or death to any tenant, licensee, employee or stranger.

Section 4.2             NO MORTGAGEE IN POSSESSION.  Nothing herein contained shall be construed as constitutingCollateral Agent a "mortgagee in possession" in the absence of the taking ofactual possession of the Property by Collateral Agent.  In the exercise of the powers herein grantedCollateral Agent, no liability shall be asserted or enforced against CollateralAgent, all such liability being expressly waived and released by Assignors.

Section 4.3             FURTHER ASSURANCES.Assignors will, at the cost of Assignors, and without expense toCollateral Agent, do, execute, acknowledge and deliver all and every suchfurther acts, conveyances, assignments, notices of assignments, transfers andassurances as Collateral Agent shall, from time to time, require for the betterassuring, conveying, assigning, transferring and confirming unto CollateralAgent the property and rights hereby assigned or intended now or hereafter soto be, or which Assignors may be or may hereafter become bound to convey orassign to Collateral Agent, or for carrying out the intention or facilitatingthe performance of the terms of this Assignment or for filing, registering orrecording this Assignment and, on demand, will execute and deliver and herebyauthorizes Collateral Agent to execute in the name of Assignors to the extentCollateral Agent may lawfully do so, one or more financing statements, chattelmortgages or comparable Mortgages, to evidence more effectively the lien andsecurity interest hereof in and upon the Leases.

ARTICLE 5 - MISCELLANEOUSPROVISIONS

Section 5.1             NO ORAL CHANGE.This Assignment and any provisions hereof may not be modified, amended,waived, extended, changed, discharged or terminated orally, or by any act orfailure to act on the part of Assignors or Collateral Agent, but only by anagreement in writing signed by the party against whom the enforcement of anymodification, amendment, waiver, extension, change, discharge or termination issought.

Section 5.2             CERTAIN DEFINITIONS.Unless the context clearly indicates a contrary intent or unlessotherwise specifically provided herein, words used in this Assignment may beused interchangeably in singular or plural form and the word "Assignors" shallmean "each Assignors and any subsequent owner or owners of the Property or anypart thereof or interest therein," the word "Collateral Agent" shall mean"Collateral Agent and its successors and assigns," the word "person" shallinclude an individual, corporation, partnership, limited liability company,trust, unincorporated association, government, governmental authority, and anyother entity, the word "Property" shall include any portion of the Property andany interest therein, the phrases "attorneys' fees" and "counsel fees" shallinclude any and all attorneys', paralegal and law clerk fees and disbursements,including, but not limited to, fees and disbursements at the pre-trial, trialand appellate levels incurred or paid by Collateral Agent in protecting itsinterest in the Property, the Leases and the Rents and enforcing its rightshereunder.  Whenever the context mayrequire, any pronouns used herein shall include the corresponding masculine,feminine or neuter forms, and the singular form of nouns and pronouns shallinclude the plural and vice versa.

Section 5.3             AUTHORITY.Assignors represent and warrant that they have full power and authorityto execute and deliver this Assignment and the execution and delivery of thisAssignment has been duly authorized and does not conflict with or constitute adefault under any law, judicial order or other agreement affecting Assignors orthe Property.

Section 5.4             INAPPLICABLE PROVISIONS.  If any term, covenant or condition of this Assignment is held tobe invalid, illegal or unenforceable in any respect, this Assignment shall beconstrued without such provision.

Section 5.5             DUPLICATE ORIGINALS; COUNTERPARTS.  This Assignment may be executed in anynumber of duplicate originals and each such duplicate original shall be deemedto be an original.  This Assignment maybe executed in several counterparts, each of which counterparts shall be deemedan original instrument and all of which together shall constitute a singleAssignment.  The failure of any partyhereto to execute this Assignment, or any counterpart hereof, shall not relievethe other signatories from their obligations hereunder.

Section 5.6             GOVERNING LAW.This Assignment shall be governed, construed, applied and enforced inaccordance with the laws of the State of Ohio.

Section 5.7             NOTICES.  Anynotice given with respect to this Assignment may be personally served or givenin writing by depositing such notice in the United States mail, first classpostage prepaid, or by telex or telegram, charges prepaid, addressed to anyAssignor at the address and telecopy number set forth below, or at such otheraddress and telecopy number as such Assignor may from time to time designate inwriting to the Collateral Agent, and, to the Collateral Agent at the addressand telecopy number for notices set forth in the Credit Agreement, or at suchother address and telecopy number as the Collateral Agent may designate bywritten notice to the Parent or either of the Borrowers.

            P.O. Box 662

            Seattle, Washington 98111

            Attention: Chief Financial Officerand General Counsel

            CFO Telecopier number: (206)281-1444

            Confirmation number: (206) 281-1003

            GC Telecopier number: (206) 281-1444

            Confirmation number: (206) 281-1005

Section 5.8             **WAIVER OF TRIAL BYJURY.  ASSIGNORS HEREBY WAIVE, TOTHE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATINGDIRECTLY OR INDIRECTLY TO THE SECURED OBLIGATIONS, THIS ASSIGNMENT, THE CREDITAGREEMENT, THE MORTGAGE OR THE OTHER COLLATERAL DOCUMENTS OR ANY ACTS OROMISSIONS OF COLLATERAL AGENT, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS INCONNECTION THEREWITH.**

Section 5.9             LIABILITY.  Theobligations and liabilities of Assignors hereunder shall be joint andseveral.  This Assignment shall bebinding upon and inure to the benefit of Assignors and Collateral Agent andtheir respective successors and assigns forever.

Section5.10          HEADINGS, ETC.The headings and captions of various paragraphs of this Assignment arefor convenience of reference only and are not to be construed as defining orlimiting, in any way, the scope or intent of the provisions hereof.

Section5.11          NUMBER AND GENDER.Whenever the context may require, any pronouns used herein shall includethe corresponding masculine, feminine or neuter forms, and the singular form ofnouns and pronouns shall include the plural and vice versa.

Section5.12          SOLE DISCRETION OF COLLATERAL AGENT.  Wherever pursuant to this Assignment (a)Collateral Agent exercises any right given to it to approve or disapprove, (b)any arrangement or term is to be satisfactory to Collateral Agent, or (c) anyother decision or determination is to be made by Collateral Agent, the decisionof Collateral Agent to approve or disapprove, all decisions that arrangementsor terms are satisfactory or not satisfactory and all other decisions anddeterminations made by Collateral Agent, shall be in the sole discretion ofCollateral Agent, except as may be otherwise expressly and specificallyprovided herein.

Section5.13          COSTS AND EXPENSES OF ASSIGNORS.  Wherever pursuant to this Assignment it isprovided that Assignors pay any costs and expenses, such costs and expensesshall include, but not be limited to, legal fees, expert fees, anddisbursements of Collateral Agent, whether with respect to retained firms, thereimbursement of the expenses for in-house staff or otherwise, whether incurredprior to trial, at trial, or on appeal.

 

                        THISASSIGNMENT, together with the covenants and warranties therein contained, shallinure to the benefit of Collateral Agent and its successors and assigns  and shall be binding upon Assignors, theirsuccessors and assigns and any subsequent owner of the Property.

 

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            INWITNESS WHEREOF, Assignors have executed this Assignment as of the day and yearfirst above written.

 
| In the presence of:

 

 

/s/ W. Joseph Payne                                         

Print Name: W. Joseph Payne

 

 

/s/ Patricia A. Wallace                                      

Print Name: Patricia A. Wallace

 

  | ABX AIR, INC., a corporation organized under the laws of  Delaware

 

 

By: /s/ Joseph C. Hete                                       

       Name: Joseph C. Hete

       Title:  President and COO |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| In the presence of:

 

 

/s/ W. Joseph Payne                                         

Print Name: W. Joseph Payne

 

 

/s/ Patricia A. Wallace                                      

Print Name: Patricia A. Wallace

 

  | WILMINGTON AIR PARK, INC., a corporation organized under  the laws of Ohio

 

 

By: /s/ Joseph C. Hete                                       

       Name: Joseph C. Hete

       Title: President  |
| In the presence of:

 

 

/s/ W. Joseph Payne                                         

Print Name: W. Joseph Payne

 

 

/s/ Patricia A. Wallace                                      

Print Name: Patricia A. Wallace

 

  | AVIATION FUEL INC., a corporation organized under the laws  of Ohio

 

 

By: /s/ R.R. Hanke                                             

       Name: R. R. Hanke

       Title:  President         |

 

 

 

 

STATE OF  OHIO                             )

                                                          ) SS.

COUNTY OF  CLINTON                 )

 

 

Before me, a Notary Public in and for saidCounty and State, personally appeared the above-named ABX Air, Inc., acorporation organized under the laws of Delaware by __Joseph C. Hete________________,its ___President and COO___, who acknowledged that s/he did sign theforegoing instrument for and on behalf of ABX Air, Inc., and that the same isthe free act and deed of ABX Air, Inc. and his/her free act and deedindividually and as such __President and COO_______________________.

IN TESTIMONY WHEREOF, I have hereunto set myhand and official seal at __Wilmington_______, this __29___ dayof June, 2001.

 

/s/ Patricia A. Wallace______________________ 

Notary Public

 

 

STATE OF  OHIO                             )

                                                          ) SS.

COUNTY OF  CLINTON                 )

 

 

Before me, a Notary Public in and for saidCounty and State, personally appeared the above-named Wilmington Air Park,Inc., a corporation organized under the laws of Ohio by __Joseph C. Hete________________,its ___President and COO___, who acknowledged that s/he did sign theforegoing instrument for and on behalf of Wilmington Air Park, Inc., and thatthe same is the free act and deed of Wilmington Air Park, Inc. and his/her freeact and deed individually and as such __President and COO_______________________.

IN TESTIMONY WHEREOF, I have hereunto set myhand and official seal at __Wilmington_______, this __29___ dayof June, 2001.

 

/s/ Patricia A. Wallace______________________ 

Notary Public

 

 

STATE OF  OHIO                             )

                                                          ) SS.

COUNTY OF  CLINTON                 )

 

 

 

Before me, a Notary Public in and for saidCounty and State, personally appeared the above-named Aviation Fuel Inc., acorporation organized under the laws of Ohio by __Robert R. Hanke__________,its __President_______________, who acknowledged that s/he did sign theforegoing instrument for and on behalf of Aviation Fuel Inc., and that the sameis the free act and deed of Aviation Fuel Inc. and his/her free act and deedindividually and as such ____President_____________.

IN TESTIMONY WHEREOF, I have hereunto set myhand and official seal at __Wilmington_______, this __29___ dayof June, 2001.

 

/s/ Patricia A. Wallace______________________ 

Notary Public

 

 

 

This instrument prepared by:

 

Richard L. Reppert, Esq.

Jones, Day, Reavis & Pogue

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114-1190

 

 

EXHIBIT A

 

Legal Description