-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Nlkw0JT3O4kfFBJx4KpB0n6sf5Kvs+1tKRNyUlKBX9/rzxSp9ELJTBhkJ80lvRPB lp7f9rn3GYTmQomKf+nQpg== 0000950103-99-000191.txt : 19990322 0000950103-99-000191.hdr.sgml : 19990322 ACCESSION NUMBER: 0000950103-99-000191 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 19990319 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FDX CORP CENTRAL INDEX KEY: 0001048911 STANDARD INDUSTRIAL CLASSIFICATION: AIR COURIER SERVICES [4513] IRS NUMBER: 621721435 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-74701 FILM NUMBER: 99568929 BUSINESS ADDRESS: STREET 1: 6075 POPLAR AVENUE CITY: MEMPHIS STATE: TN ZIP: 38119 BUSINESS PHONE: 9013693600 MAIL ADDRESS: STREET 1: 6075 POPLAR AVENUE CITY: MEMPHIS STATE: TN ZIP: 38119 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FEDERAL EXPRESS CORP CENTRAL INDEX KEY: 0000230211 STANDARD INDUSTRIAL CLASSIFICATION: AIR COURIER SERVICES [4513] IRS NUMBER: 710427007 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-74701-01 FILM NUMBER: 99568930 BUSINESS ADDRESS: STREET 1: 2005 CORPORATE AVE CITY: MEMPHIS STATE: TN ZIP: 38132 BUSINESS PHONE: 9013693600 MAIL ADDRESS: STREET 1: 2005 CORPORATE AVE CITY: MEMPHIS STATE: TN ZIP: 38132 S-3 1 As filed with the Securities and Exchange Commission on March 19, 1999 Registration No. 333-_____ =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- FDX CORPORATION FEDERAL EXPRESS CORPORATION (Exact name of the Registrants as specified in their charters) Delaware 62-1721435 Delaware 71-0427007 (State or jurisdiction of incorporation (I.R.S. Employer or organization) Identification No.) FDX Corporation Federal Express Corporation 6075 Poplar Avenue 2005 Corporate Avenue Memphis, Tennessee 38119 Memphis, Tennessee 38132 (901) 369-3600 (901) 369-3600 (Address, including zip code, and telephone number, including area code, of the Registrants' principal executive offices) Kenneth R. Masterson, Esq. Executive Vice President, General Counsel and Secretary FDX Corporation 6075 Poplar Avenue Memphis, Tennessee 38119 (901) 369-3600 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------------- Copies to: Sarah Beshar, Esq. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 (212) 450-4000 ----------------------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined in light of market conditions and other factors. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE ====================================================================================================================== Proposed Proposed Maximum Maximum Title of Each Class of Amount to Be Aggregate Price Aggregate Amount of Securities Being Registered Registered(1) Per Unit Offering Price(1) Registration Fee - ---------------------------------------------------------------------------------------------------------------------- Debt Securities........................... Preferred Stock........................... Common Stock, par value $.10 per share.... Guarantees(3)............................. Total.................................. $1,000,000,000(2) 100% 1,000,000,000 $278,000 ======================================================================================================================
(1) Estimated solely for purposes of determining the registration fee. (2) Such indeterminate amount of Debt Securities or such indeterminate number of shares of Preferred Stock or Common Stock as may, from time to time, be issued at indeterminate prices, the combined total of one or all such offerings not to exceed $1,000,000,000. (3) Guarantees that may be provided by Federal Express Corporation, a co-Registrant and a wholly-owned subsidiary of FDX Corporation with respect to the Debt Securities registered hereunder. No additional consideration will be received for such guarantees. Pursuant to Rule 457(n) under the Securities Act, no additional filing fee is required in connection with such guarantees. The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. =============================================================================== EXPLANATORY NOTE This Registration Statement contains two forms of prospectus: each, as supplemented, to be used in connection with offerings of (1) debt securities or (2) common stock and preferred stock, respectively. No prospectus will be used to consummate sales of securities unless accompanied by a prospectus supplement applicable to the securities offered thereby. The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION PRELIMINARY PROSPECTUS DATED __________, 1999 PROSPECTUS [FDX LOGO] FDX CORPORATION DEBT SECURITIES ----------------------- We may offer and sell from time to time up to $1,000,000,000 aggregate initial public offering price of our unsecured debt securities. We may, at our option, direct our wholly-owned, direct subsidiary, Federal Express Corporation, to issue guarantees of the debt securities. We will provide specific terms of these securities in supplements to this prospectus. We will not use this prospectus to confirm sales of any securities unless it is attached to a prospectus supplement. Prior to their issuance there will have been no market for the debt securities. We do not intend to apply for the listing of any series of debt securities on a national securities exchange. Investing in our debt securities involves certain risks. See "Risk Factors" beginning on page 3. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. ----------------------- The date of this prospectus is _______, 1999. ABOUT OUR COMPANY FDX Corporation provides a broad portfolio of transportation, logistics and supply chain management services through its principal operating subsidiaries: Federal Express Corporation, for fast, reliable and time-definite express delivery; RPS, Inc., for business-to-business ground small package delivery; Roberts Express, Inc., for expedited surface delivery of critical freight shipments requiring special handling; Viking Freight, Inc., for regional less-than-truckload freight service in the western United States; and FDX Global Logistics, Inc., for contract information and logistics solutions. Our corporate headquarters are located at 6075 Poplar Avenue, Memphis, Tennessee 38119, telephone (901) 369-3600. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http: //www.sec.gov. You may also read and copy any document we file at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on its Public Reference Room. This prospectus constitutes a part of a registration statement on Form S-3 filed by us under the Securities Act. This prospectus does not contain all of the information which we are required to include in the registration statement. For further information with respect to FDX and the securities we are offering, we refer you to the registration statement and the exhibits and schedules filed as part of the registration statement. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act until we sell all of the debt securities. FDX SEC Filings Period ------------------------------- ----------------------------------------- Annual Report on Form 10-K Fiscal Year ended May 31, 1998 Quarterly Reports on Form 10-Q Quarters ended August 31 and November 30, 1998 Current Reports on Form 8-K Filed on February 22, 1999 FedEx SEC Filings Period ------------------------------- ----------------------------------------- Annual Report on Form 10-K Fiscal Year ended May 31, 1998 Quarterly Reports on Form 10-Q Quarters ended August 31 and November 30, 1998 Current Reports on Form 8-K Filed on July 14, July 15, August 5, September 10, October 5, October 6, November 12 and December 1, 1998 You may request a copy of these filings at no cost, by writing or telephoning us at: FDX Corporation Attention: Elizabeth R. Allen, Investor Relations Box 727 Memphis, Tennessee 38194-1854 (901) 395-3478 2 RISK FACTORS In addition to the information set forth elsewhere in this prospectus, you should consider carefully the factors set forth below in connection with an investment in our debt securities. Our Business Is Subject to Numerous Risks We provide a broad portfolio of transportation, logistics and supply chain management services through our principal operating subsidiaries. Our results of operations and financial condition are subject to certain risks and uncertainties, including: o economic conditions in the markets in which we operate which can affect demand for our services o competition from other providers of express services o our ability to compete with new or improved services offered by our competitors o changes in customer demand patterns o increases in aviation and motor fuel prices o our ability to match aircraft, vehicle and sort capacity with customer volume levels o work stoppages, strikes or slowdowns by our employees o our ability to obtain aviation rights in important international markets o contributions to financial results from the sale of engine noise reduction kits o changes in government regulation, weather and technological change o availability of financing on terms acceptable to us There Is No Limit on the Amount of Indebtedness That We May Incur The indenture, which is described below under "Description of Debt Securities and the Guarantees", does not limit the amount of secured or unsecured indebtedness which we or our subsidiaries may incur. The Indenture does not contain any debt covenants or provisions which would afford the holders of the debt securities protection in the event of a highly leveraged transaction. We Depend Upon Our Subsidiaries to Service Our Debt We are a holding company and derive all of our operating income from our subsidiaries. Our only source of cash to pay principal of, premium, if any, and interest on the debt securities is from dividends and other payments from our subsidiaries. Our subsidiaries' ability to make such payments may be restricted by, among other things, applicable state and foreign corporate laws and other laws and regulations. In addition, our right and the rights of our creditors, including holders of our debt securities, to participate in the assets of any subsidiary upon its liquidation or recapitalization would be subject to the prior claims of such subsidiary's creditors, except to the extent that we may ourselves be a creditor with recognized claims against such subsidiary. 3 Ratings of Our Debt Securities Could Be Lowered In the Future We expect that the debt securities will be rated "investment grade" by one or more nationally recognized statistical rating organizations. A rating is not a recommendation to purchase, hold or sell debt securities, since a rating does not predict the market price of a particular security or its suitability for a particular investor. The rating organization may lower our rating or decide not to rate our securities in its sole discretion. The rating of the debt securities will be based primarily on the rating organization's assessment of the likelihood of timely payment of interest when due on the debt securities and the ultimate payment of principal of the debt securities on the final maturity date. The reduction, suspension or withdrawal of the ratings of the debt securities will not, in and of itself, constitute an event of default under the indenture. An Active Trading Market For Our Debt Securities May Not Develop There is no established trading market for these debt securities since they are a new issue of securities. We do not intend to apply for the listing of any debt securities on a national securities exchange. We cannot assure you as to the liquidity of the public market for the debt securities or that any active public market for the debt securities will develop or continue. If an active public market does not develop or continue, the market price and liquidity of the debt securities may be adversely affected. RATIO OF EARNINGS TO FIXED CHARGES FDX Corporation (Unaudited) Six Months Ended Year Ended May 31, November 30, -------------------------------- ------------ 1994 1995 1996 1997 1998 1997 1998 ---- ---- ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges.................. 2.1 2.3 2.2 1.6 2.3 2.6 2.5 Earnings included in the calculation of the ratio of earnings to fixed charges represent income before income taxes plus fixed charges, other than capitalized interest. Fixed charges include interest expense, capitalized interest, amortization of debt issuance costs and a portion of rent expense representative of interest. We accounted for the transaction between us, FedEx and Caliber as a "pooling of interests." Accordingly, the ratios of earnings to fixed charges have been restated to include the results of operations for both FedEx and Caliber for all periods presented. Caliber operated on a 13 four-week period calendar ending December 31 with 12 weeks in each of the first three quarters and 16 weeks in the fourth quarter. FedEx's fiscal year ending May 31 consists of four, three-month quarters. Our consolidated results of operations for the year ended May 31, 1998 combine Caliber's 53-week period from May 25, 1997 to May 31, 1998 with FedEx's year ended May 31, 1998. Our consolidated results of operations for each of the four years in the period ended May 31, 1997 comprise Caliber's calendar years 1996- 1993 consolidated with FedEx's fiscal years 1997-1994. Due to the different fiscal year ends, Caliber's results for the 20-week period from January 1, 1997 to May 24, 1997 are not included in the restated results of operations for 1998 or 1997; for this period Caliber had a net loss of $40,912,000. 4 USE OF PROCEEDS We intend to use the net proceeds from the sale of the debt securities for our general corporate purposes. If we decide to use the net proceeds from a particular offering of debt securities for a specific purpose, we will describe that in a prospectus supplement. DESCRIPTION OF DEBT SECURITIES AND THE GUARANTEES This prospectus describes the general terms and provisions of the debt securities and the guarantees, if any. When we offer to sell a particular series of debt securities, we will describe the specific terms of the debt securities and the guarantees, if any, in a prospectus supplement. The form of indenture, which includes forms of the debt securities and guarantees, has been filed as an exhibit to the registration statement and you should read it for provisions that may be important to you. In the following description, we have included references to section numbers of the indenture so that you can easily locate these provisions. Terms; Form and Denomination The debt securities and the guarantees, if any, are to be issued under an indenture between FDX and The First National Bank of Chicago, as trustee. The indenture does not limit the aggregate amount of debt securities which may be issued under the indenture and provides that debt securities may be issued in one or more series. The debt securities will be unsecured obligations of FDX and will rank equally with all other unsecured and unsubordinated indebtedness of FDX. The indenture does not contain any debt covenants or provisions which would afford the holders of the debt securities protection in the event of a highly leveraged transaction. The prospectus supplement will include some or all of the following terms: o the title of the debt securities o the authorized denominations and aggregate principal amount o whether the debt securities are to be issued as individual certificates to each holder or in the form of global securities held by a depositary on behalf of holders o the date or dates on which principal will be payable o the manner in which we will calculate payments of principal, premium or interest and whether any payment will be fixed or based on a formula o the place or places where the principal of and any premium and interest on the debt securities shall be payable o the dates on which interest will be payable and the corresponding record dates o any mandatory or optional sinking fund or purchase fund or analogous provisions o any optional or mandatory redemption terms and the redemption price 5 o any provisions for the defeasance of the debt securities o the currency in which payments of principal of and any premium and interest on the debt securities will be payable o whether additional amounts are payable with respect to any debt securities that are held by a person who is not a United States person for tax purposes and whether we can redeem the debt securities if we have to pay additional amounts o any additional events of default or covenants applicable to the series o any other terms that are not inconsistent with the indenture o the terms of the guarantees, if any. Unless we indicate otherwise in a prospectus supplement, all outstanding debt securities will be exchangeable, transfers of debt securities will be registrable, and principal of, premium, if any, and interest, if any, on all debt securities will be payable, at the corporate trust office of the trustee at One First National Plaza, Chicago, Illinois; provided that payment of interest may, at our option, be made by check mailed to the address of the person entitled thereto as it appears in the security register or by transfer to an account maintained by the payee with a bank located in the United States. (Indenture, Sections 3.01, 3.07 and 10.02) Unless we indicate otherwise in a prospectus supplement, all debt securities will be issued only in fully registered form without coupons in denominations of $1,000 and any integral multiples of $1,000. Neither FDX nor the trustee will impose any service charge for any transfer or exchange of a debt security; however, we may ask you to pay any taxes or other governmental charges in connection with a transfer or exchange of debt securities. (Indenture, Section 3.05) We may issue some of the debt securities at a substantial discount below their stated principal amount because they bear no interest or bear interest at below market rates. We will describe the United States federal income tax consequences and any other special considerations relating to an investment in discount securities in the prospectus supplement. Guarantees We may direct our subsidiary, FedEx, at our sole option, to issue guarantees of the debt securities. The guarantees may be on a senior or unsubordinated basis, and FedEx would guarantee the due and punctual payment of principal of, premium, if any, and interest on such debt securities, and the due and punctual payment of any sinking fund payments, when and as the same shall become due and payable whether at a maturity date, by declaration of acceleration, by call for redemption or otherwise. The applicability and terms of any such guarantee relating to a series of debt securities will be set forth in the prospectus supplement relating to such debt securities. Book-Entry Procedures Unless debt securities in certificated form are issued, each series of debt securities will be represented by one or more fully registered global certificates. We will deposit each global note with, or on behalf of, the Depository Trust Company, and register in its name or in the name of Cede & Co., its nominee. No holder of a debt security initially issued as a global certificate will be entitled to receive a note in certificated form, except as set forth below. 6 DTC has advised us as follows: o DTC is o a limited purpose trust company organized under the laws of the State of New York o a member of the Federal Reserve System o a "clearing corporation" within the meaning of the New York Uniform Commercial Code o a "clearing agency" registered pursuant to Section 17A of the Securities Exchange Act. o DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entries, eliminating the need for physical movement of certificates o DTC participants include securities brokers and dealers, banks, trust companies, clearing corporations and others, some of who own DTC o Access to DTC's book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Holders that are not DTC participants but desire to purchase, sell or otherwise transfer ownership of, or other interests in, debt securities may do so only through DTC participants. In addition, holders will receive all distributions of principal and interest from the trustee through the DTC participants. Under the rules, regulations and procedures creating and affecting DTC and its operation, DTC is required to make book-entry transfers of debt securities among DTC participants on whose behalf it acts and to receive and transmit distributions of principal of, and interest on, the debt securities. Under the book-entry system, holders may experience some delay in receipt of payments, since such payments will be forwarded by the trustee to Cede, as nominee for DTC, and DTC in turn will forward the payments to the appropriate DTC participants. Distributions by DTC participants to holders will be the responsibility of such DTC participants and will be made in accordance with customary industry practices. Accordingly, although holders will not have possession of the debt securities, the rules of DTC provide a mechanism by which participants will receive payments and will be able to transfer their interests. Although the DTC participants are expected to convey the rights represented by their interests in any global security to the related holders, because DTC can only act on behalf of DTC participants, the ability of holders to pledge debt securities to persons or entities that are not DTC participants or to otherwise act with respect to such debt securities, may be limited due to the lack of physical certificates for such debt securities. FDX, the trustee or any other agent of FDX or the trustee will not be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the debt securities or for supervising or reviewing any records relating to such beneficial ownership interests. Since Cede, as nominee of DTC, will be the only "holder", holders will not be recognized by the trustee as holders, as that term is used in the indenture, and holders will be permitted to exercise the rights of holders only indirectly through DTC and DTC participants. DTC has advised us that it will take any action permitted to be taken by a holder under the indenture and any prospectus supplement only at the direction of one or more DTC participants to whose accounts with DTC the related debt securities are credited. Same-Day Settlement and Payment. All payments we make to the trustee under each debt security will be in immediately available funds and will be passed through to DTC in immediately available funds. 7 The debt securities will trade in DTC's same-day funds settlement system until maturity, and secondary market trading activity in the debt securities will be required by DTC to settle in immediately available funds. We can not assure you as to the effect, if any, of settlement in immediately available funds on trading activity in the debt securities. Certificated Form. We will issue physical certificates to holders of a global security, or their nominees, if: o DTC notifies us that it is unwilling or unable to continue as depositary and we are unable to locate a qualified successor o We decide in our sole discretion to terminate the book-entry system through DTC In such event, the trustee will notify all holders through DTC participants of the availability of such certificated debt securities. Upon surrender by DTC of the definitive global note representing the series of debt securities and receipt of instructions for reregistration, the trustee will reissue the debt securities in certificated form to holders or their nominees. (Indenture, Section 3.05) Merger and Consolidation We have agreed not to consolidate or merge with or into any other person or convey or transfer substantially all of our properties and assets as an entirety, to any person, unless: o the successor is a corporation organized and existing under the laws of the United States of America, any state or the District of Columbia and shall expressly assume, by a supplemental indenture, the due and punctual payment of the principal of and any premium and interest on all the debt securities and the performance of every covenant in the indenture that we would otherwise have to perform o immediately after giving effect to the merger, there will not be any defaults under the applicable indenture o we shall have delivered to the trustee an officers' certificate or an opinion of counsel, each stating that the merger and the supplemental indenture comply with the indenture (Indenture, Section 8.01) Modification, Amendment and Waiver FDX and the trustee may modify and amend the indenture with the consent of the holders of a majority in principal amount of each series of debt securities to be affected if less than all series are to be affected by such modification. However, no modification or amendment may, without the consent of the holder of each debt security affected thereby: o change the stated maturity of the principal of, or any installment of interest on, any debt security o reduce the principal amount of, rate of interest on, or premium payable upon the redemption of, any debt security o change any place of payment where, or the currency in which, any debt security or the interest or any premium is payable o impair the right to institute suit for the enforcement of any payment on or with respect to any debt security on or after the stated maturity, or, in the case of redemption, on or after the redemption date 8 o reduce the percentage in principal amount of outstanding debt securities the consent of whose holders is required for modification or amendment of the indenture, for waiver of compliance with certain provisions of the indenture or for waiver of certain defaults. (Indenture, Section 9.02) The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive any past default under the indenture and its consequences, except a default in the payment of the principal, premium, if any, or interest on any debt securities or in respect of a covenant or provision which under the indenture cannot be modified or amended without the consent of the holder of each outstanding debt security affected. (Indenture, Section 5.13) Events of Default When we use the term "event of default" in the indenture, here are some examples of what we mean. Unless we indicate otherwise in a prospectus supplement, an event of default with respect to a series of debt securities occurs if: o we fail to pay interest when due on any debt security of that series for 30 days o we fail to pay the principal or any premium on any debt security of that series when due o we fail to perform any covenant in the indenture and this failure continues for 60 days after we receive written notice as provided in the indenture o we fail to deposit any sinking fund payment when and as due by the terms of a debt security of that series o we or a court take certain actions relating to the bankruptcy, insolvency or reorganization of our company for the benefit of our creditors (Indenture, Section 5.01). If an event of default with respect to all debt securities of any series occurs and continues, the trustee or the holders of at least 50% in aggregate principal amount of the outstanding debt securities of that series may require us to repay immediately the principal amount of all debt securities of that series. The holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul such acceleration if all events of default with respect to the debt securities of that series, other than the nonpayment of accelerated principal, have been cured or waived as provided in the indenture. (Indenture, Section 5.02) For information as to waiver of defaults, see "Modification, Amendment and Waiver" above. Other than its duties in case of a default, the trustee is not obligated to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders offer to the trustee reasonable indemnity. (Indenture, Sections 6.01 and 6.03) If they provide this reasonable indemnity, the holders of a majority in principal amount of the outstanding debt securities of such series will have the right to, subject to certain limitations, direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to any series of debt securities. (Indenture, Section 5.12) No holder of any debt security of any series will have any right to institute any proceeding with respect to the indenture or for any remedy under the indenture unless: o the holder has previously given to the trustee written notice of a continuing event of default 9 o the holders of not less than 50% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute a proceeding as trustee o the trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with the request and the trustee has failed to institute such proceeding within 60 days. (Indenture, Section 5.07) However, the holder of any debt security will have an absolute right to receive payment of the principal of and any premium on, and interest on the debt security as expressed in the debt security, or, in the case of redemption, on the redemption date, and to institute suit for the enforcement of any payment. (Indenture, Section 5.08) We are required to furnish to the trustee annually a statement as to the absence of certain defaults under the indenture. (Indenture, Section 10.05) The trustee may withhold notice to the holders of debt securities of any default, except as to payment of principal or interest with respect to debt securities, if it considers such withholding to be in the interest of the holders of the debt securities. (Indenture, Section 6.02) Defeasance and Covenant Defeasance When we use the term defeasance, we mean discharge from some or all of our obligations under the indenture. If we deposit with the trustee sufficient cash or government securities to pay the principal, interest, any premium and any other sums due to the stated maturity date or a redemption date of the debt securities of a particular series, then at our option: o we will be discharged from our obligations with respect to the debt securities of that series or o we will no longer be under any obligation to comply with certain restrictive covenants under the indenture, and certain events of default will no longer apply to us. If this happens, the holders of the debt securities of the affected series will not be entitled to the benefits of the indenture except for registration of transfer and exchange of debt securities and replacement of lost, stolen or mutilated debt securities. Such holders may look only to such deposited funds or obligations for payment. We must deliver to the trustee an opinion of counsel to the effect that the deposit and related defeasance would not cause the holders of the debt securities to recognize income, gain or loss for Federal income tax purposes. We must also deliver a ruling to such effect received from or published by the United States Internal Revenue Service if we are discharged from our obligations with respect to the debt securities. PLAN OF DISTRIBUTION We may sell the debt securities through underwriters or dealers, agents or directly to one or more purchasers, through a specific bidding or auction process or otherwise. We may distribute the debt securities from time to time in one or more transactions either: o at a fixed price or prices, which may be changed 10 o at market prices prevailing at the time of sale o at prices related to such prevailing market prices o at negotiated prices. In connection with the sale of debt securities, underwriters or agents may receive compensation from us or from purchasers of debt securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters may sell debt securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agents. If a dealer is utilized to sell the debt securities, we will sell such debt securities to the dealer as principal. The dealer may then resell such debt securities to the public at varying prices to be determined by such dealer at any time of resale. Underwriters, dealers and agents that participate in the distribution of debt securities may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of debt securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act. We will identify any underwriters, dealers or agents, and describe their compensation, in a prospectus supplement. We may solicit directly offers to purchase our securities, and we may directly sell our securities to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale. We will describe the terms of our direct sales in a prospectus supplement. We may authorize underwriters, dealers or agents to solicit offers by institutional investors to purchase debt securities from us at the public offering price under delayed delivery contracts providing for payment and delivery on a specified date in the future. If we use delayed delivery contracts, they will be subject only to those conditions that we set forth in the prospectus supplement and the prospectus supplement will indicate the commission payable for the solicitation of these contracts. We may indemnify underwriters, dealers and agents who participate in the distribution of debt securities against certain liabilities, including liabilities under the Securities Act. Underwriters, dealers or agents and their associates may be customers of, engage in transactions with, and perform services for, us in the ordinary course of business. Unless we indicate otherwise in a prospectus supplement, we do not intend to apply for the listing of any series of debt securities on a national securities exchange. If the debt securities of any series are sold to or through underwriters, the underwriters may make a market in such debt securities, as permitted by applicable laws and regulations. No underwriter would be obligated, however, to make a market in the debt securities, and any market-making could be discontinued at any time at the sole discretion of the underwriters. Accordingly, we cannot assure you as to the liquidity of, or trading markets for, the debt securities of any series. LEGAL MATTERS George W. Hearn, our Corporate Vice President and Corporate Counsel, will issue an opinion about the legality of debt securities and the guarantees, if any. At February 28, 1999, Mr. Hearn owned 11,982 shares of the Corporation's common stock and had been granted options to purchase 31,768 shares of the Corporation's common stock. Of the options granted, 4,768 were vested at such date. Any underwriters, dealers or agents will be advised about other issues relating to any offering by their own legal counsel. 11 EXPERTS The consolidated financial statements and schedules of FDX and FedEx included or incorporated by reference in each company's Annual Report on Form 10-K for the year ended May 31, 1998 and incorporated by reference herein, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto. These documents are incorporated by reference herein in reliance upon the authority of Arthur Andersen LLP as experts in giving such reports. With respect to the unaudited interim financial information for the quarters ended August 31, 1998 and November 30, 1998 included in FedEx's Quarterly Reports on Form 10-Q for such periods, and the unaudited interim financial information for the quarters ended August 31, 1998 and November 30, 1998 included in our Quarterly Report on Form 10-Q for such period, all of which are incorporated by reference in this prospectus, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports thereon state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on that information should be restricted in light of the limited nature of the review procedures applied. In addition, the accountants are not subject to the liability provisions of Section 11 of the Securities Act for their reports on the unaudited interim financial information because those reports are not "reports" or a "part" of the registration statement, of which this prospectus is a part, prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Securities Act. 12 ========================================= ==================================== No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained in this prospectus in connection with the offering covered by this prospectus. If given or made, such information or representation must not be relied upon $1,000,000,000 as having been authorized by FDX Corporation or the Underwriters. This prospectus does not constitute an offer [FDX LOGO] to sell, or the solicitation of an offer to buy, the debt securities in any jurisdiction where, or to any person to whom, it is unlawful to make such offer $1,000,000,000 or solicitation. Neither the delivery of this prospectus nor any sale made hereunder shall, under any circumstances, create an implication that there has not been any change in Debt Securities the facts set forth in this prospectus or in the affairs of FDX Corporation since the date hereof. ----------------- TABLE OF CONTENTS --------------- PROSPECTUS Page --------------- ---- About Our Company.....................2 Where You Can Find More Information...2 Risk Factors..........................3 Ratio of Earnings to Fixed Charges....4 Use of Proceeds.......................5 Description of Debt Securities and the Guarantees..................5 Plan of Distribution.................10 Legal Matters.................... ...11 __________, 1999 Experts........................... ..12 ========================================= ==================================== The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION PRELIMINARY PROSPECTUS DATED __________, 1999 PROSPECTUS [FDX LOGO] FDX CORPORATION PREFERRED STOCK COMMON STOCK ----------------------- We may offer and sell from time to time up to $1,000,000,000 aggregate initial public offering price, together or separately, of our preferred stock or our common stock. We will provide specific terms of these securities in supplements to this prospectus. We will not use this prospectus to confirm sales of any securities unless it is attached to a prospectus supplement. We do not intend to apply for the listing of any series of preferred stock on a national securities exchange. Our common stock is listed on the New York Stock Exchange under the symbol "FDX". Investing in our securities involves certain risks. See "Risk Factors" beginning on page 3. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. ----------------------- The date of this prospectus is _______, 1999. ABOUT OUR COMPANY FDX Corporation provides a broad portfolio of transportation, logistics and supply chain management services through its principal operating subsidiaries: Federal Express Corporation, for fast, reliable and time-definite express delivery; RPS, Inc., for business-to-business ground small package delivery; Roberts Express, Inc., for expedited surface delivery of critical freight shipments requiring special handling; Viking Freight, Inc., for regional less-than-truckload freight service in the western United States; and FDX Global Logistics, Inc., for contract information and logistics solutions. Our corporate headquarters are located at 6075 Poplar Avenue, Memphis, Tennessee 38119, telephone (901) 369-3600. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http: //www.sec.gov. You may also read and copy any document we file at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on its Public Reference Room. This prospectus constitutes a part of a registration statement on Form S-3 filed by us under the Securities Act. This prospectus does not contain all of the information which we are required to include in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC. For further information with respect to FDX and the securities we are offering, we refer you to the registration statement and the exhibits and schedules filed as part of the registration statement. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act until we sell all of the debt securities. FDX SEC Filings Period -------------------------- --------------------------------------------- Annual Report on Form 10-K Fiscal Year ended May 31, 1998 Quarterly Reports on Form 10-Q Quarters ended August 31 and November 30, 1998 Current Reports on Form 8-K Filed on February 22, 1999 We filed a registration statement on Form S-4 (File No. 333-39483) to register with the SEC our common stock issued to FedEx stockholders and Caliber shareholders in connection with the acquisition of Caliber and the establishment of FDX as a holding company. The description of common stock contained in the registration statement of FedEx (as predecessor registrant) on Form 8-A filed with the SEC on December 15, 1978 under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description, is incorporated herein by reference. You may request a copy of these filings at no cost, by writing or telephoning us at: FDX Corporation Attention: Elizabeth R. Allen, Investor Relations Box 727 Memphis, Tennessee 38194-1854 (901) 395-3478 2 RISK FACTORS In addition to the information set forth elsewhere in this prospectus, you should consider carefully the factors set forth below in connection with an investment in the Securities. Our Business Is Subject to Numerous Risks We provide a broad portfolio of transportation, logistics and supply chain management services through our principal operating subsidiaries. Our results of operations and financial condition are subject to certain risks and uncertainties, including: o economic conditions in the markets in which we operate which can affect demand for our services o competition from other providers of express services o our ability to compete with new or improved services offered by our competitors o changes in customer demand patterns o increases in aviation and motor fuel prices o our ability to match aircraft, vehicle and sort capacity with customer volume levels o work stoppages, strikes or slowdowns by our employees o our ability to obtain aviation rights in important international markets o contributions to financial results from the sale of engine noise reduction kits o changes in government regulation, weather and technological change o availability of financing on terms acceptable to us. An Active Trading Market For Our Preferred Stock May Not Develop There is no established trading market for the preferred stock of any series since they are a new issue of securities. We do not intend to apply for the listing of any series of preferred stock on a national securities exchange. There can be no assurance as to the liquidity of the public market for the preferred stock or that any active public market for the preferred stock will develop or continue. If an active public market does not develop or continue, the market price and liquidity of the preferred stock may be adversely affected. 3 RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS FDX Corporation (Unaudited) Six Months Ended Year Ended May 31, November 30, -------------------------------- ------------ 1994 1995 1996 1997 1998 1997 1998 ---- ---- ---- ---- ---- ---- ---- Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends................ 2.1 2.3 2.2 1.6 2.3 2.6 2.5 Earnings included in the calculation of the ratio of earnings to combined fixed charges and preferred stock dividends represent income before income taxes plus fixed charges, other than capitalized interest and preferred stock dividend requirements. Fixed charges include interest expense, capitalized interest, amortization of debt issuance costs, a portion of rent expense representative of interest and preferred stock dividend requirements. We accounted for the transaction between us, FedEx and Caliber as a "pooling of interests." Accordingly, the ratios of earnings to combined fixed charges and preferred stock dividends have been restated to include the results of operations for both FedEx and Caliber for all periods presented. Caliber operated on a 13 four-week period calendar ending December 31 with 12 weeks in each of the first three quarters and 16 weeks in the fourth quarter. FedEx's fiscal year ending May 31 consists of four, three-month quarters. Our consolidated results of operations for the year ended May 31, 1998 combine Caliber's 53-week period from May 25, 1997 to May 31, 1998 with FedEx's year ended May 31, 1998. Our consolidated results of operations for each of the four years in the period ended May 31, 1997 comprise Caliber's calendar years 1996- 1993 consolidated with FedEx's fiscal years 1997-1994. Due to the different fiscal year ends, Caliber's results for the 20-week period from January 1, 1997 to May 24, 1997 are not included in the restated results of operations for 1998 or 1997; for this period Caliber had a net loss of $40,912,000. USE OF PROCEEDS We intend to use the net proceeds from the sale of the securities for our general corporate purposes. If we decide to use the net proceeds from a particular offering of securities for a specific purpose, we will describe that in a prospectus supplement. DESCRIPTION OF PREFERRED STOCK Under our certificate of incorporation, we are authorized to adopt resolutions providing for the issuance, in one or more series, of up to 4,000,000 shares of our preferred stock, no par value, with such powers, preferences and relative rights and qualifications, limitations or restrictions as shall be adopted by our board of directors and permitted by Delaware law and our certificate of incorporation. On February 28, 1999, there were no shares of preferred stock outstanding. 4 This prospectus describes the general terms and provisions of our preferred stock. When we offer to sell a particular series of preferred stock, we will describe the specific terms of the preferred stock in a prospectus supplement. You should read our certificate of incorporation and the applicable resolution of our board of directors authorizing a particular series of preferred stock for provisions that may be important to you. Terms Under our certificate of incorporation, each series of our preferred stock ranks prior to our common stock with respect to both dividends and distribution of assets on liquidation, dissolution or winding up. The preferred stock will, when issued, be fully paid and non-assessable and the holders will have no preemptive rights. The prospectus supplement will include some or all of the following terms: o the designation of the series of preferred stock o the number of shares of preferred stock offered, the liquidation preference per share and the offering price of the preferred stock o the dividend rate or rates of the shares, the date at which dividends, if declared, will be payable, and whether or not the dividends are to be cumulative and, if cumulative, the date or dates from which dividends shall be cumulative o the amounts payable on shares of the preferred stock in the event of voluntary or involuntary liquidation, dissolution or winding up o the redemption rights and price or prices, if any, for the shares of the preferred stock o any terms and amount of any sinking fund or analogous fund providing for the purchase or redemption of the shares of the preferred stock o any voting rights granted to the holders of the shares of the preferred stock in addition to those required by Delaware law or our certificate of incorporation o whether the shares of preferred stock shall be convertible into shares of our common stock or any other class of our capital stock, and if convertible, the conversion price or prices, any adjustment and any other terms and conditions upon which the conversion shall be made o any other rights, preferences, restrictions, limitations or conditions relative to the shares of preferred stock permitted by Delaware law or our certificate of incorporation o any listing of the preferred stock on any securities exchange o the federal income tax considerations applicable to the preferred stock. Subject to our certificate of incorporation and to any limitations contained in any outstanding preferred stock, we may issue additional series of preferred stock, at any time or from time to time, with such powers, preferences, rights and qualifications, limitations or restrictions, as the board of directors shall determine, all without further action of the stockholders, including holders of our then outstanding preferred stock, if any. 5 Restrictions As long as we have any preferred stock outstanding, we cannot: o declare or pay a dividend upon, or make a distribution upon, our common stock, other than a dividend or distribution payable in shares of such common stock o purchase or redeem shares of common stock without consent of a certain number of holders of the outstanding preferred stock established by the board of directors when authorizing the issuance of the outstanding preferred stock o pay any money into, or make any money available for, a sinking fund for the purchase or redemption of any common stock, unless in each instance all dividends on all outstanding shares of preferred stock for all past dividend periods shall have been paid, all dividends for the current dividend period shall have been declared or paid and sufficient funds for the payment of such dividends set apart and any arrears in the mandatory redemption of the preferred stock shall have been made good. Voting Rights Holders of the preferred stock will have no right to vote for the election of our directors or on any other matter unless a vote of such class is required by Delaware law, our certificate of incorporation or the resolution of the board of directors authorizing such series of preferred stock. DESCRIPTION OF COMMON STOCK Under our certificate of incorporation, we are authorized to issue up to 400,000,000 shares of our common stock, $.10 par value per share. On February 28, 1999, there were outstanding (a) 148,595,078 shares of common stock and (b) employee stock options to purchase an aggregate of 7,108,841 shares of common stock, of which options to purchase an aggregate of 2,515,788 shares of common stock were currently exercisable. You should read our bylaws and certificate of incorporation for provisions that may be important to you. The prospectus supplement relating to an offering of our common stock will describe the of the offering, including the number of shares offered, the initial offering price and updated market price and dividend information. Each holder of common stock is entitled to one vote for each share held on all matters voted upon by our stockholders, including the election of directors. The common stock does not have cumulative voting rights. The election of each class of the board of directors is decided by the holders of a plurality of the shares entitled to vote in person or by proxy at a meeting for the election of directors. See "Description of Preferred Stock-Voting Rights" for a discussion of the voting rights of any preferred stock that may be issued in the future. In the event of any liquidation, dissolution or winding up of FDX, after the payment or provision for payment of the debts and other liabilities of the corporation and the preferential amounts to which holders of our preferred stock are entitled, if any shares of preferred stock are then outstanding, the holders of common stock are entitled to share equally in the remaining assets of FDX. The outstanding shares of common stock are, and any shares of common stock offered hereby upon issuance and payment therefor will be, fully paid and non-assessable. The common stock has no preemptive or conversion rights. Our common stock is listed on the New York Stock Exchange under the symbol "FDX". 6 Dividends We currently do not pay dividends on our common stock, but rather reinvest earnings in our business. However, if we change our current policy and decide to pay dividends on our common stock, holders of common stock are entitled to receive dividends when, as and if declared by the board of directors out of funds legally available for payments of dividends, subject to the rights of the holders of any outstanding shares of preferred stock. The holders of the common stock will share equally, share for share, in such dividends. Anti-Takeover Provisions Classification of board of directors. Our board of directors is divided into three classes, having staggered terms of office of three years each. A classified board of directors may make it more difficult to acquire control of our company. Change in Control. Our certificate of incorporation includes provisions designed to prevent the use of certain tactics in connection with a potential takeover of our company. Article Five of our certificate of incorporation requires the affirmative vote of 80% of the outstanding shares of capital stock of our company entitled to vote generally in the election of directors to approve certain business combinations, including certain mergers, consolidations, security issuances, reclassifications, recapitalizations, liquidations, dissolutions, sales, leases, exchanges, mortgages, pledges, transfers of a substantial portion of assets, involving us or any subsidiary and the beneficial owner of more than 10% of the voting power of the outstanding shares of capital stock, a "related person", unless either: o the business combination is approved by a majority of the directors who are not affiliated with the related person and who were directors before the related person became a related person, or o the stockholders receive a "fair price" for their holdings and other procedural requirements are met. Our certificate of incorporation also requires all stockholder action be taken at a duly called meeting of the stockholders and prohibits taking action by written consent of stockholders. Supermajority Voting. The classified board, fair price and stockholder consent provisions, as well as certain other provisions of our certificate of incorporation, may be altered, amended or repealed only by the affirmative vote of 80% or more of our outstanding capital stock entitled to vote on such action. Transfer Agent and Registrar The transfer agent and registrar for our common stock is First Chicago Trust Company of New York, Shareholder Services, P.O. Box 2500, Jersey City, NJ 07303-2500. PLAN OF DISTRIBUTION We may sell the securities through underwriters or dealers, agents or directly to one or more purchasers, through a specific bidding or auction process or otherwise. We may distribute the securities from time to time in one or more transactions either: o at a fixed price or prices, which may be changed o at market prices prevailing at the time of sale 7 o at prices related to such prevailing market prices o at negotiated prices. In connection with the sale of securities, underwriters or agents may receive compensation from us or from purchasers of securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agents. If a dealer is utilized to sell the securities, we will sell such securities to the dealer as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at any time of resale. Underwriters, dealers and agents that participate in the distribution of securities may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act. We will identify any underwriters, dealers or agents, and describe their compensation, in a prospectus supplement. We may solicit directly offers to purchase our securities and we may directly sell our securities to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of our securities. We will describe the terms of our direct sales in a prospectus supplement. We may authorize underwriters, dealers or agents to solicit offers by institutional investors to purchase securities from us at the public offering price under delayed delivery contracts providing for payment and delivery on a specified date in the future. If we use delayed delivery contracts, they will be subject only to those conditions that we set forth in the prospectus supplement and the prospectus supplement will indicate the commission payable for the solicitation of these contracts. We may indemnify underwriters, dealers and agents who participate in the distribution of securities against certain liabilities, including liabilities under the Securities Act. Underwriters, dealers or agents and their associates may be customers of, engage in transactions with, and perform services for, us in the ordinary course of business. Unless we indicate otherwise in a prospectus supplement, we do not intend to apply for the listing of any series of preferred stock on a national securities exchange. If the preferred stock is sold to or through underwriters, the underwriters may make a market in the stock, as permitted by applicable laws and regulations. No underwriter would be obligated, however, to make a market in the stock, and any such market-making could be discontinued at any time at the sole discretion of the underwriters. Accordingly, we cannot assure you as to the liquidity of, or trading markets for, the preferred stock. LEGAL MATTERS George W. Hearn, our Corporate Vice President and Corporate Counsel, will issue an opinion about the legality of the securities. At February 28, 1999, Mr. Hearn owned 11,982 shares of the Corporation's common stock and had been granted options to purchase 31,768 shares of the Corporation's common stock. Of the options granted, 4,768 were vested at such date. Any underwriters, dealers or agents will be advised about other issues relating to any offering by their own legal counsel. 8 EXPERTS The consolidated financial statements and schedules of FDX included or incorporated by reference in FDX's Annual Report on Form 10-K for the year ended May 31, 1998 and incorporated by reference herein, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto. These documents are incorporated by reference herein in reliance upon the authority of Arthur Andersen LLP as experts in giving such reports. With respect to the unaudited interim financial information for the quarters ended August 31, 1998 and November 30, 1998 included in FDX's Quarterly Reports on Form 10-Q for such periods, all of which are incorporated by reference in this prospectus, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports thereon state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on that information should be restricted in light of the limited nature of the review procedures applied. In addition, the accountants are not subject to the liability provisions of Section 11 of the Securities Act for their reports on the unaudited interim financial information because those reports are not "reports" or a "part" of the registration statement, of which this prospectus is a part, prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Securities Act. ========================================= ==================================== No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained in this prospectus in connection with the offering covered by this prospectus. If given or made, such information or representation must not be relied upon $1,000,000,000 as having been authorized by FDX Corporation or the Underwriters. This prospectus does not constitute an offer [FDX LOGO] to sell, or the solicitation of an offer to buy, the debt securities in any jurisdiction where, or to any person to whom, it is unlawful to make such offer $1,000,000,000 or solicitation. Neither the delivery of this prospectus nor any sale made hereunder shall, under any circumstances, create an implication Preferred Stock that there has not been any change in Common Stock the facts set forth in this prospectus or in the affairs of FDX Corporation since the date hereof. ----------------- TABLE OF CONTENTS --------------- PROSPECTUS Page --------------- ---- About Our Company......................2 Where You Can Find More Information....2 Risk Factors...........................3 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends......................4 Use of Proceeds........................4 Description of Preferred Stock.........4 Description of Common Stock............6 Plan of Distribution...................7 ________, 1999 Legal Matters..........................8 Experts................................9 ========================================= ==================================== PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The following are the estimated expenses of the issuance and distribution of the securities (other than underwriting discounts and commissions) being registered, all of which will be paid by FDX Corporation: SEC Registration Fee......................................$ 278,000 Printing and Engraving.................................... 25,000 Fees of Transfer Agent and Registrar...................... 10,000 Attorneys' Fees and Expenses.............................. 75,000 Trustees' Fees............................................ 20,000 Accounting Fees and Expenses.............................. 20,000 Blue Sky Fees and Expenses................................ 5,000 Rating Agency Fees........................................ 125,000 Miscellaneous............................................. 50,000 --------- Total................................................$ 608,000 ========= All of the above amounts, other than the SEC Registration Fee, are estimated. Item 15. Indemnification of Directors and Officers (a) Reference is made to Section 145 of the Delaware General Corporation Law ("DGCL") as to indemnification by the Registrant of officers and directors. (b) Section 13 of Article III of the by-laws of the Registrant provides for indemnification of directors as follows: Section 13. The corporation shall indemnify to the full extent authorized or permitted by the General Corporation Law of the State of Delaware any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director of the corporation or serves or served as a director, officer, employee or agent of any other enterprise at the request of the corporation. Section 18 of Article V of the by-laws of the Registrant provides for indemnification of officers as follows: Section 18. The corporation shall indemnify to the full extent authorized or permitted by the General Corporation Law of the State of Delaware any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was an officer or Managing Director of the corporation or serves or served as a director, officer, employee or agent of any other enterprise at the request of the corporation. (c) The Underwriting Agreements filed as Exhibits 1(a), 1(b) and 1(c) to this registration statement provide, under certain circumstances, for indemnification for the Registrant and certain other persons against certain liabilities. II-1 (d) The Registrant has purchased insurance designed to protect the Registrant and its directors and officers against losses arising from certain claims, including claims under the Securities Act of 1933, as amended. Item 16. Exhibits 1(a) Form of Underwriting Agreement relating to debt securities. 1(b) Form of Underwriting Agreement relating to preferred stock. 1(c) Form of Underwriting Agreement relating to common stock. 4(a) Form of Indenture between the Registrant and The First National Bank of Chicago, as Trustee. 4(b) Form of debt security (included in Exhibit 4(a)). 4(c) Form of Guarantee (included in Exhibit 4(a)). 5 Opinion of George W. Hearn, Corporate Vice President and Corporate Counsel of the Registrant, relating to the debt securities, common stock and preferred stock. 12(a) Computation of Ratio of Earnings to Fixed Charges (Filed as Exhibit 12 to FDX's FY99 Second Quarter Report on Form 10-Q, Commission File No. 333-39483, and incorporated herein by reference). 12(b) Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends (Filed as Exhibit 12 to FDX's FY99 Second Quarter Report on Form 10-Q, Commission File No. 333-39483, and incorporated herein by reference). 15 Letter of Arthur Andersen LLP, independent public accountants. 23(a) Consent of George W. Hearn (included in Exhibit 5). 23(b) Consent of Arthur Andersen LLP, independent public accountants. 23(c) Consent of Ernst & Young LLP, independent auditors. 24 Power of Attorney (included in the signature page to the registration statement). 25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First National Bank of Chicago, as Trustee. Item 17. Undertakings The undersigned Registrant hereby undertakes: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, II-2 represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, the paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 15 of this registration statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on this 19th day of March, 1999. FDX CORPORATION By: /s/ James S. Hudson --------------------------------- Name: James S. Hudson Title: Corporate Vice President -- Strategic Financial Planning and Control (Principal Accounting Officer) POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Alan B. Graf, Jr. and James S. Hudson, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Capacity Date - ----------------------- ------------------------------------ -------------- /s/ Frederick W. Smith Chairman of the Board, President and March 19, 1999 - ----------------------- Chief Executive Officer (Principal Frederick W. Smith Executive Officer) and Director /s/ Alan B. Graf, Jr. Executive Vice President and Chief March 19, 1999 - ----------------------- Financial Officer (Principal Alan B. Graf, Jr. Financial Officer) /s/ James S. Hudson Corporate Vice President-- Strategic March 19, 1999 - ----------------------- Financial Planning and Control James S. Hudson (Principal Accounting Officer) II-4 Signature Capacity Date - ----------------------- ------------------------------------ -------------- /s/ Robert H. Allen Director March 19, 1999 - ----------------------- Robert H. Allen /s/ Robert L. Cox Director March 19, 1999 - ----------------------- Robert L. Cox /s/ Ralph D. DeNunzio Director March 19, 1999 - ----------------------- Ralph D. DeNunzio /s/ Judith L. Estrin Director March 19, 1999 - ----------------------- Judith L. Estrin /s/ Philip Greer Director March 19, 1999 - ----------------------- Philip Greer /s/ J.R. Hyde, III Director March 19, 1999 - ----------------------- J.R. Hyde, III /s/ Charles T. Manatt Director March 19, 1999 - ----------------------- Charles T. Manatt /s/ George J. Mitchell Director March 19, 1999 - ----------------------- George J. Mitchell /s/ Jackson W. Smart, Jr. Director March 19, 1999 - ----------------------- Jackson W. Smart, Jr. /s/ Joshua I. Smith Director March 19, 1999 - ----------------------- Joshua I. Smith /s/ Paul S. Walsh Director March 19, 1999 - ----------------------- Paul S. Walsh /s/ Peter S. Willmott Director March 19, 1999 - ----------------------- Peter S. Willmott II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on this 19th day of March, 1999. FEDERAL EXPRESS CORPORATION By: /s/ Michael W. Hillard ------------------------------------ Name: Michael W. Hillard Title: Vice President and Controller POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Alan B. Graf, Jr. and Michael W. Hillard, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Capacity Date - ----------------------- ------------------------------------ -------------- /s/ Frederick W. Smith Chairman of the Board and Director March 19, 1999 - ----------------------- Frederick W. Smith /s/ Alan B. Graf, Jr. Director March 19, 1999 - ----------------------- Alan B. Graf, Jr. /s/ Theodore L. Weise President, Chief Executive Officer March 19, 1999 - ----------------------- and Director (Principal Executive Theodore L. Weise Officer) /s/ Kenneth R. Masterson Director March 19, 1999 - ----------------------- Kenneth R. Masterson /s/ T. Michael Glenn Director March 19, 1999 - ----------------------- T. Michael Glenn Signature Capacity Date - ----------------------- ------------------------------------ -------------- /s/ Dennis H. Jones Director March 19, 1999 - ----------------------- Dennis H. Jones /s/ David J. Bronczek Executive Vice President, Chief March 19, 1999 - ----------------------- Operating Officer and Director David J. Bronczek /s/ George W. Hearn Director March 19, 1999 - ----------------------- George W. Hearn /s/ Scott E. Hansen Director March 19, 1999 - ----------------------- Scott E. Hansen /s/ Michael W. Hillard Vice President and Controller March 19, 1999 - ----------------------- (Principal Accounting Officer) Michael W. Hillard /s/ Tracy G. Schmidt Senior Vice President and Chief March 19, 1999 - ---------------------- Financial Officer (Principal Tracy G. Schmidt Financial Officer) EXHIBIT INDEX Exhibits Exhibit Description - -------- ------------------- 1(a) Form of Underwriting Agreement relating to debt securities. 1(b) Form of Underwriting Agreement relating to preferred stock. 1(c) Form of Underwriting Agreement relating to common stock. 4(a) Form of Indenture between the Registrant and The First National Bank of Chicago, as Trustee. 4(b) Form of Debt Security (included in Exhibit 4(a)). 4(c) Form of Guarantee (included in Exhibit 4(a)). 5 Opinion of George W. Hearn, Corporate Vice President and Corporate Counsel of the Registrant, relating to the debt securities, common stock and preferred stock. 12(a) Computation of Ratio of Earnings to Fixed Charges (Filed as Exhibit 12 to FDX's FY99 Second Quarter Report on Form 10-Q, Commission File No. 333-39483, and incorporated herein by reference). 12(b) Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends (Filed as Exhibit 12 to FDX's FY99 Second Quarter Report on Form 10-Q, Commission File No. 333-39483, and incorporated herein by reference). 15 Letter of Arthur Andersen LLP, independent public accountants. 23(a) Consent of George W. Hearn (included in Exhibit 5). 23(b) Consent of Arthur Andersen LLP, independent public accountants. 23(c) Consent of Ernst & Young LLP, independent auditors. 24 Power of Attorney (included in the signature page to the registration statement). 25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First National Bank of Chicago, as Trustee. EX-1.A 2 EXHIBIT 1(A) UNDERWRITING AGREEMENT Dated as of ______________, 199__ between FDX CORPORATION and [UNDERWRITERS] DEBT SECURITIES TABLE OF CONTENTS ---------------------- PAGE SECTION 1. Representations and Warranties of the Company.....................2 SECTION 2. Purchase and Sale.................................................7 SECTION 3. Covenants of the Company..........................................8 SECTION 4. Payment of Expenses..............................................10 SECTION 5. Conditions of Underwriters' Obligations..........................11 SECTION 6. Indemnification..................................................15 SECTION 7. Contribution.....................................................16 SECTION 8. Representations, Warranties and Agreements to Survive Delivery.........................................................17 SECTION 9. Termination of Agreement.........................................17 SECTION 10. Default by One Underwriter.......................................18 SECTION 11. Notices..........................................................18 SECTION 12. Parties..........................................................19 SECTION 13. Governing Law....................................................19 Exhibit A Pricing Information Exhibit B Opinion of the Company Schedule I Underwriters' Commitments Schedule II Terms and Conditions FDX CORPORATION Debt Securities UNDERWRITING AGREEMENT ____________, 199__ [UNDERWRITERS] [ADDRESS] Ladies and Gentlemen: FDX Corporation, a Delaware corporation (the "Company"), proposes to issue and sell to the underwriters named in Schedule I hereto up to $___________ aggregate principal amount of its debt securities (the "Debt Securities") in one or more offerings on the terms and conditions stated herein and in Schedule II hereto (the "Offered Securities"). The Company may, at its option, direct its wholly-owned, direct subsidiary, Federal Express Corporation, a Delaware corporation (the "Guarantor"), to issue guarantees of the Debt Securities (the "Guarantees"). The Debt Securities and the Guarantees, if any, will be issued under an indenture dated as of______, 1998 (the "Indenture") between the Company, the Guarantor and The First National Bank of Chicago, acting not in its individual capacity, but solely as trustee (the "Trustee"). Each issue of Debt Securities may vary as to aggregate principal amount, maturity date, currency, interest rate or formula and timing of payments thereof, any redemption or sinking fund requirements and any other variable terms as the Indenture contemplates and as may be set forth in the Debt Securities issued from time to time. As used herein, unless the context otherwise requires, the term "Underwriters" shall mean the firm or firms named as Underwriter or Underwriters in Schedule I and the term "you" shall mean the Underwriter or Underwriters, if no underwriting syndicate is purchasing the Offered Securities, or the representative or representatives of the Underwriters, if an underwriting syndicate is purchasing the Offered Securities, as indicated in Schedule I. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. ________) for the registration of certain debt securities and other securities, including the Offered Securities, under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the Commission and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Company has, pursuant to Rule 424 under the 1933 Act, filed with, or transmitted for filing to, or shall within the required period of time hereafter file with or transmit for filing to, the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Offered Securities, together with a revised and restated prospectus relating to debt securities covered by the above-referenced registration statement. The term "Registration Statement" refers to such registration statement in the form in which it became effective, including the exhibits thereto and the documents incorporated by reference therein, as amended to the date hereof. The term "Basic Prospectus" means the above-referenced revised and restated prospectus relating to debt securities. The term "Prospectus" means the Basic Prospectus supplemented by the Prospectus Supplement. The term "Preliminary Prospectus" means a preliminary prospectus supplement specifically relating to the Offered Securities together with the Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each case the documents, if any, incorporated by reference therein. The terms "supplement" and "amendment" or "amend" as used herein shall include all documents deemed to be incorporated by reference in the Prospectus that have been filed subsequent to the date of the Basic Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"). If the Company has filed an abbreviated registration statement to register additional shares of Debt Securities pursuant to Rule 462(b) under the 1933 Act, then any reference herein to the term "Registration Statement" shall include such Rule 462(b) registration statement. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings specified in or pursuant to the Indenture. SECTION 1. Representations and Warranties of the Company. (a) The Company represents and warrants to you and to each Underwriter named in Schedule I, as of the date hereof, as follows: 2 (i) Due Incorporation and Qualification. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; and is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (ii) Subsidiaries. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors' qualifying shares (except as otherwise stated in the Registration Statement), is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (iii) Registration Statement and Prospectus. At the time the Registration Statement became effective, the Registration Statement complied, and as of the date hereof does comply, in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission promulgated thereunder. The Registration Statement, at the time it became effective, did not, and at each time thereafter at which any amendment to the Registration Statement becomes effective, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 3 The Prospectus, as of the date hereof, does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by an Underwriter expressly for use in the Registration Statement or Prospectus or to those parts of the Registration Statement which constitute Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (iv) Incorporated Documents. The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations promulgated thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were or are made, not misleading. (v) Accountants. The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (vi) Financial Statements. The financial statements of the Company included or incorporated by reference in the Prospectus and the Registration Statement present fairly the financial position of the Company as of the dates thereof and the results of operations, changes in common stockholders' investment and cash flows of the Company, for the respective periods covered thereby, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the entire period involved; and the financial schedules included or incorporated by reference in the Registration Statement meet the requirements of the 1933 Act Regulations or the 1934 Act Regulations, as applicable. 4 (vii) Material Changes or Material Transactions. Except as stated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions which are material to the Company, and there has not been any material adverse change in the capital stock or short-term debt, or any material increase in long-term debt of the Company, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company. (viii) No Defaults; Regulatory Approvals. Neither the Company nor any of its subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them or their properties may be bound. The execution and delivery of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action and executed by the Company and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any such subsidiary is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any such subsidiary is subject, which conflict, breach or default would have, individually or in the aggregate with any other such instances, a material adverse effect on the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries considered as one entity, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any law, administrative regulation or administrative or court order or decree currently in effect or in effect at the time of execution and delivery of this Agreement and the Indenture and applicable to the Company or any of its subsidiaries. No consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the 5 Company of the transactions contemplated by this Agreement or the Indenture, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or Blue Sky laws, and the Uniform Commercial Code as in effect in Delaware and Tennessee. (ix) Legal Proceedings; Contracts. Except for matters described in the Prospectus (as to which the Company can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to the best knowledge of any financial officer of the Company, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company or the ability of the Company to perform its obligations under the Indenture. (x) Compliance with Laws. The Company's business and operations comply in all material respects with all laws and regulations applicable thereto and there are no known, proposed or threatened changes in any laws or regulations which would have a material adverse effect on the Company or the manner in which it conducts its business. The Company possesses all valid and effective certificates, licenses and permits required to conduct its business as now conducted, except for instances which individually or in the aggregate do not, or will not, have a material adverse effect on the condition (financial or other), business, prospects or results of operations of the Company. (xi) Enforceability. The Indenture has been duly authorized by the Company, will be substantially in the form heretofore supplied to you and, when duly executed and delivered by the Company and the other parties thereto, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. (xii) Validity of the Offered Securities. When executed, issued, authenticated and delivered pursuant to the provisions of the Indenture and sold and paid for as provided in this Agreement, each thereof Offered Securities will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms; and the Holders of such Offered Securities will be entitled to the benefits provided by such Indenture. 6 (xiii) Validity of the Guarantees. When executed, issued, authenticated and delivered pursuant to the provisions of the Indenture and sold and paid for as provided in this Agreement, each thereof Guarantees will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms; and the Holders of such Guarantees will be entitled to the benefits provided by such Indenture. The representations and warranties made by the Company as to the enforceability of the Indenture, the Offered Securities and the Guarantees, if any, set forth in subparagraphs (xi), (xii) and (xiii) above are limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles, and the enforceability of the Indenture is also limited by applicable laws which may affect the remedies provided therein but which do not affect the validity of such Indenture or make such remedies inadequate for the practical realization of the benefits intended to be provided thereby. (b) Additional Certifications. Any certificate signed by any officer of the Company and delivered to you or your counsel in connection with an offering of the Offered Securities shall be deemed a representation and warranty by the Company to each Underwriter participating in such offering as to the matters covered thereby on the date of such certificate unless subsequently amended or supplemented subsequent thereto. SECTION 2. Purchase and Sale. (a) Subject to the terms and conditions set forth herein and in Schedule II, if any, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price specified in Exhibit A hereto, the amount of Offered Securities set forth opposite the name of such Underwriter in Schedule I. It is understood that you propose to offer the Offered Securities for sale to the public as set forth in the Prospectus. (b) Subject to the terms and conditions herein set forth, the Company may grant, if so provided in Schedule II hereto, an option to the Underwriters, severally and not jointly, to purchase additional Debt Securities to cover over-allotments, if any (the "Option Securities"). If Schedule II so provides, the Underwriters may purchase up to the amount of Option Securities set forth therein at the same price per share as is applicable to the Offered Securities. As used herein, the term "Offered Securities" shall include Option Securities. Such option, if granted, will expire 30 days after the date of this Agreement, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Offered Securities upon notice by you to the Company setting 7 forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery shall be determined by you, but shall not be later than four business days and not be earlier that two business days after the exercise of said option, nor in any event prior to Closing Time, unless otherwise agreed upon by you and the Company. If the option is exercised as to all or any portion of the Option Securities, each Underwriter, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Offered Securities each such Underwriter has agreed to purchase as set forth in Schedule II bears to the total number of Offered Securities, subject to such adjustments as you shall make to eliminate any sales or purchases of fractional Debt Securities. (c) Payment of the purchase price for any Offered Securities to be purchased by the Underwriters shall be made to the Company at either the Company's offices in Memphis, Tennessee or the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by you and the Company, at 9:00 A.M., New York City time, on the third business day (unless postponed in accordance with the provisions of Section 10) following the date hereof or at such other date, time or location specified in Schedule II, or as otherwise shall be agreed upon by you and the Company (such time and date being referred to as a "Closing Time"). Delivery of the Offered Securities shall be made for your account as specified in Schedule II against payment by you of the purchase price thereof to the Company (or such other person as the Company may direct) by wire transfer of immediately available funds. Unless otherwise indicated on Schedule II, such Offered Securities shall be registered in the name of Cede & Co., as nominee for The Depository Trust Company, and in such denominations, as you may request in writing at least two business days prior to the Closing Time. Such Offered Securities will be made available for examination and packaging by you in New York, New York, on or before the first business day prior to the Closing Time or at such other time and place specified in Schedule II. (d) As compensation to you for your commitments and obligations hereunder in respect of the Offered Securities, including your undertakings to distribute Offered Securities, the Company will pay to you an amount equal to that percentage of the aggregate principal amount of Offered Securities purchased by you as set forth in Exhibit A as the underwriting discounts and commissions. 8 Such payment shall be made simultaneously with the payment by you of the purchase price of the Offered Securities as specified in Section 2(b) hereof. Payment of such compensation shall be made by wire transfer of immediately available funds. SECTION 3. Covenants of the Company. The Company covenants with each of you, and with each Underwriter participating in the offering as follows: (a) Prospectus Supplement. The Company has prepared a Preliminary Prospectus, and immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations. (b) Notice of Certain Events. The Company will notify you promptly (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the transmittal to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement relating in any way to the offer and sale of the Offered Securities, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. (c) Notice of Certain Proposed Filings. The Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the case may be. (d) Copies of the Registration Statement and the Prospectus. The Company will deliver to you as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as you may reasonably request. The Company will furnish to you as many copies of the Prospectus (as amended or supplemented) as you shall reasonably request so long as you are 9 required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Offered Securities. (e) Revisions of Prospectus--Material Changes. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. (f) Earnings Statements. The Company will make generally available to its security holders as soon as practicable after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Offered Securities. (g) Blue Sky Qualifications. The Company will endeavor, in cooperation with you, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, and will maintain such qualifications in effect for so long as may be required for the distribution of the Offered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or to subject itself to taxation as doing business in any jurisdiction in which it is not otherwise required to be so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as provided above. (h) 1934 Act Filings. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act. 10 (i) Stand-Off Agreement. The Company will not, between the date of this Agreement and the Closing Time, without your consent, offer or sell, or enter into any agreement to sell, any debt securities of the Company pursuant to a public offering of securities registered under the 1933 Act (other than the Offered Securities which are to be sold pursuant hereto and commercial paper in the ordinary course of business). SECTION 4. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing of the Registration Statement and all amendments thereto, the Preliminary Prospectus, if any, and the Prospectus and any amendments or supplements thereto; (ii) the filing of this Agreement; (iii) the preparation, issuance and delivery of the Offered Securities; (iv) the reasonable fees and disbursements of the Company's accountants and counsel, of the Trustee and its counsel, and of any registrar, paying agent and authenticating agent; (v) the qualification of the Offered Securities under securities laws in accordance with the provisions of Section 3(g), including filing fees and the reasonable fees and disbursements of counsel to the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; (vi) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto, and the delivery by the Underwriters of the Prospectus and any amendments or supplements thereto in connection with solicitations or confirmations of sales of the Offered Securities; (vii) the preparation and delivery to the Underwriters of copies of the Indenture; and (viii) any fees charged by rating agencies for the rating of the Offered Securities. 11 If this Agreement is terminated by you in accordance with the provisions of Section 5 or clause (i) of Section 9 hereof, the Company shall reimburse upon demand the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters that shall have been incurred by you in connection with the proposed purchase and sale of the Offered Securities. SECTION 5. Conditions of Underwriters' Obligations. The several obligations of the Underwriters to purchase the Offered Securities pursuant to this Agreement will be subject at all times to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein, or in Schedule II hereto, on its part to be performed and observed and to the following additional conditions precedent: (a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned as of the date of this Agreement by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g) under the 1933 Act Regulations, to any debt securities of the Company (including for purposes of this Section 5(a)(ii) any rating indicated by the Company as of the date of this Agreement as the rating orally confirmed to the Company by any such rating organization as the rating to be assigned to the Offered Securities) shall not have been lowered since the execution of this Agreement nor shall any such rating organization have publicly announced that it has placed any debt securities of the Company on what is commonly termed a "watch list" for possible downgrading, and (iii) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, including the Prospectus Supplement, at the time it was required to be delivered to a purchaser of the Offered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. (b) Legal Opinions. At the Closing Time, you shall have received the following documents: (i) Opinion of Company Counsel. The opinion of the [Executive Vice President, General Counsel and Secretary of the Company or any Vice President in the Legal and Regulatory Division of the Company,] dated as of such date, in form and substance reasonably satisfactory to you, to the effect as set forth in Exhibit B. 12 (ii) Opinion of Counsel to the Underwriters. The opinion of __________________________________, counsel to the Underwriters, with respect to such matters as you may reasonably request. (c) Officer Certificate. At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition (financial or otherwise) of the Company, or in the earnings or business affairs of the Company; and you shall have received a certificate of any Vice President of the Company, dated as of the Closing Time, to the effect (i) that there has been no such material adverse change, (ii) that the other representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, except to the extent that such representations and warranties expressly relate to an earlier date or later date (in which case such representations and warranties are true and correct on and as of such earlier date or will be true and correct on and as of such later date, as the case may be), (iii) that the Company has made or caused to be made any required filing of the Prospectus pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b), and (iv) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate. The officer signing and delivering this certificate may rely upon the best of his or her knowledge as to proceedings threatened. (d) Comfort Letter. At the Closing Time, you shall have received a letter from Arthur Andersen LLP or their successors as the Company's independent accountants (the "Independent Accountants"), dated as of the Closing Time, in form and substance satisfactory to you to the effect that: (i) they are independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations; (ii) in their opinion the Company's financial statements and schedules included or incorporated by reference in the Registration Statement and Prospectus and covered by their reports included or incorporated therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations, as the case may be; (iii) they have conducted reviews of the unaudited interim consolidated financial information of the Company included in the 13 Company's Quarterly Reports on Form 10-Q incorporated in the Registration Statement and Prospectus in compliance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants; (iv) on the basis of a reading of the financial statements and schedules of the Company included or incorporated in the Prospectus and the Registration Statement, and the latest available unaudited interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters, and other specified procedures and inquiries, nothing has come to their attention that caused them to believe that: (A) the unaudited financial statements of the Company included or incorporated in the Prospectus and the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations thereunder, as the case may be, or that such unaudited financial statements are not presented fairly in conformity with generally accepted accounting principles; (B) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, as of a specified date not more than five business days prior to the date of delivery of such letter, there has been any change in the common or preferred stock or long-term debt of the Company or, as of such date, there has been any decrease in assets or common stockholders' investment, in each case as compared with amounts shown in the most recent consolidated balance sheet of the Company included or incorporated in the Registration Statement and the Prospectus, except in each case for changes or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (C) for the period from the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus to such specified date, there was any decrease in operating revenues, operating income, income before taxes or net income of the Company in each case as compared with the comparable period of the preceding year, except in each case for 14 decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (v) in addition to their audit referred to in their reports included or incorporated by reference in the Registration Statement and the Prospectus and the reviews, inquiries and procedures referred to in clauses (iii) and (iv) above, such letter shall state that Arthur Andersen LLP has performed other specified procedures, with respect to certain numerical data and information included or incorporated in the Registration Statement and the Prospectus, as are requested by an Underwriter and specified in such letter and have found such data and information to be in agreement with the accounting records of or analyses prepared by the Company. (e) Other Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as such counsel may reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of Offered Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of Offered Securities as herein contemplated shall be satisfactory in form and substance to you. SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or the omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever arising out 15 of or based upon any such untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever arising out of or based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or made in reliance upon the Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration Statement; and provided, further, that the foregoing indemnity agreement, with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Offered Securities, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriters through you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which 16 indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. SECTION 7. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 6 is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company and the Underwriters of each offering of Offered Securities shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and one or more of the Underwriters in respect of such offering, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus in respect of such offering bears to the initial public offering price appearing thereon and the Company is responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive each delivery of and payment for any of the Offered Securities. SECTION 9. Termination of Agreement. You may terminate this Agreement, immediately upon notice to the Company, at any time prior to the 17 Closing Time if: (i) there has been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the Company, (ii) there shall have occurred any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other national or international calamity or crisis, the effect of which shall be such as to make it, in your judgment, impracticable to market the Offered Securities or enforce contracts for the sale of the Offered Securities, or (iii) trading in any securities of the Company shall have been suspended by the Commission or a national securities exchange, or if trading generally on either the American Stock Exchange or the New York Stock Exchange shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium shall have been declared by either federal or New York authorities. In the event of any termination of this Agreement, the covenant set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect. SECTION 10. Default by One Underwriter. If any Underwriter shall fail at the Closing Time to purchase the Offered Securities which it is obligated to purchase hereunder (the "Defaulted Securities"), and the aggregate amount of Defaulted Securities is not more than one-tenth of the aggregate amount of the Offered Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of the Offered Securities set forth opposite their respective names in Schedule I hereto bears to the aggregate amount of Offered Securities set forth opposite the names of all such non-defaulting underwriters to purchase the Defaulted Securities; provided that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased by an amount in excess of one-ninth of such amount of Offered Securities without the written consent of such Underwriter. If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Offered Securities to be purchased on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters or the Company. No action taken pursuant to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement. 18 In the event of any such default which does not result in a termination of this Agreement, either the non-defaulting Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, delivered by Federal Express service or transmitted by any facsimile communication. Notices to the Underwriters shall be directed to _____________________________, with copies thereof directed to _____________________________. Notices to the Company shall be directed to it at 2005 Corporate Avenue, Memphis, Tennessee 38132 (if by Federal Express service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Vice President and Treasurer, with copies thereof directed to the Legal Department of the Company at 1980 Nonconnah Drive, Memphis, Tennessee 38132 (if by Federal Express Service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Managing Director--Securities and Corporate Law. SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon you and the Company and any Underwriter who becomes a party hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Offered Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. SECTION 13. Governing Law. This Agreement and the rights and obligations of the parties created hereby and thereby shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state. Any suit, action or proceeding brought by the Company against an Underwriter in connection with or arising under this Agreement shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York. 19 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between you and the Company in accordance with its terms. Very truly yours, FDX CORPORATION By:________________________________ Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: [UNDERWRITERS] By:____________________________ Name: Title: Acting on behalf of themselves and the other named Underwriters 20 EXHIBIT A FDX CORPORATION Debt Securities Designation: Purchase Price: Interest Rate: Final Distribution Date: Aggregate Principal Amount: Underwriting Discounts and Commissions A-1 EXHIBIT B Form of Opinion of Company Counsel ------------, ------ [UNDERWRITERS] Re: FDX Corporation Debt Securities (the "Offered Securities") Ladies and Gentlemen: This opinion is directed to the Underwriters pursuant to Section 5(b)(1) of the Underwriting Agreement dated ________________, ______ (the "Underwriting Agreement"), among the Company and you, with respect to the offer and sale of the Offered Securities and the Guarantees, if any. All terms defined or used in the Underwriting Agreement have the same meaning when used herein, unless otherwise noted. I am Vice President ________ of the Company and have acted as such in connection with the Offered Securities, the Guarantees, if any, and the Underwriting Agreement. I or attorneys under my supervision have made such examination and investigation as we have deemed necessary in order to give the following opinion. Based on the foregoing, it is my opinion that: 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority under such laws to own its properties and to conduct its business as described in the Prospectus; the Company is duly qualified to do business and is in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except for such instances which in the aggregate will not have a material adverse effect on the Company; 2. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its B-1 properties and conduct its business as described in the Registration Statement, and, to the best of my knowledge, is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and all of such capital stock, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; 3. Except for matters described in the Prospectus (as to which I can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to my knowledge, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company or the ability of the Company to perform its obligations under the Indenture; 4. The Indenture has been duly qualified under the 1939 Act and duly and validly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms; 5. The Offered Securities and Guarantees, if any, are in due and proper form and have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the Indenture and delivered against payment of the consideration therefor determined in accordance with the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, and each holder of the Offered Securities and Guarantees, if any, will be entitled to the benefits of the Indenture; 6. The Company possesses all permits, approvals, franchises and other rights from federal aviation, aeronautical, communications, transportation and shipping authorities which are requisite for the conduct of its business as described in the Prospectus or for the actions contemplated by the Underwriting Agreement and the offering contemplated by the Prospectus; and the actions contemplated by the Underwriting Agreement, the Indenture and the offering contemplated by the Prospectus, are not in violation of any federal statute or B-2 regulation relating to aviation, aeronautics, communications, transportation or shipping; 7. I have reviewed or caused to be reviewed by attorneys under my supervision the Registration Statement, the Prospectus and each amendment and supplement thereto (including the documents incorporated by reference) and have no reason to believe that, as of their respective effective or issue dates, or as of the Closing Time, either the Registration Statement or the Prospectus or any such amendment or supplement (or any such documents incorporated by reference) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; 8. I do not know of any statute or regulation or legal or governmental proceeding required to be described in the Prospectus which is not described as required, nor of any contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which is not described and filed as required; and the descriptions in the Registration Statement and the Prospectus of the contracts and other documents therein described are accurate and fairly present the information required to be shown; 9. The execution and delivery by the Company of the Underwriting Agreement and the consummation by the Company of the transactions herein and therein contemplated and compliance with the terms of the Underwriting Agreement do not and will not conflict with or result in a breach of any of the terms of the Certificate of Incorporation or By-laws of the Company, and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan, credit or note agreement, lease or other agreement or instrument material to the Company to which the Company is a party or by which it or any or its properties are bound, or any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, having jurisdiction over the Company or any of its properties; 10. No authorization, approval, consent or license of any regulatory body or authority (other than under the 1933 Act, the 1939 Act and the securities or Blue Sky laws of the various states) is required for the valid authorization, issuance, sale and delivery of the Offered Securities and the Guarantees, if any, as herein contemplated or the valid authorization, execution, delivery and performance by the Company of the Underwriting Agreement and the Indenture or the consummation by the Company of the transactions contemplated herein or B-3 therein, or, if so required, all such authorizations, approvals, consents and licenses, specifying the sale, have been obtained and are in full force and effect; 11. The Registration Statement has become effective under the 1933 Act and, to the best of my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act; the Registration Statement and the Prospectus, and each amendment or supplement thereto (except for the financial statements and schedules included therein, as to which I express no opinion), comply as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations and, as to documents incorporated therein, to the requirements of the 1934 Act and the 1934 Act Regulations in effect at the time such documents were filed with the Commission; and 12. The Underwriting Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms. My opinions as to the enforceability of the Indenture, the Offered Securities, the Guarantees, if any, and Underwriting Agreement set forth in subparagraphs (iv), (v) and (xii) above, are limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles and subject to any principles of public policy limiting the right to enforce the indemnification and contribution provisions contained in Sections 6 and 7 of the Underwriting Agreement. In rendering the foregoing opinion, we have assumed that (i) all signatures on all documents examined by us are genuine and that where any such signature (other than a signature purporting to have been made on behalf of the Company) purports to have been made in a corporate, governmental, fiduciary or other capacity, the person who affixed such signature had the due authority to do so, (ii) certain factual matters contained in certificates of public officials are accurate, true and correct, and (iii) photostat copies of such documents, records and certificates conform to the originals. This opinion is intended solely for the benefit of the Underwriters and is not to be relied on by, and no copies of it are to be delivered to, any other person without my prior written consent, except that Underwriters' counsel may rely upon this opinion as to all matters of Tennessee law or Delaware corporate law in rendering its opinion of even date herewith. I am not assuming any professional responsibility to any other person by rendering this opinion. It is understood that B-4 this opinion speaks as of the date given, notwithstanding any delivery as contemplated above on any other date. Very truly yours, B-5 SCHEDULE I TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION Debt Securities Total Aggregate Principal Underwriters Amount to be Purchased ------------ ------------------------- $ SCHEDULE II TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION [Title of Debt Securities] To: FDX Corporation 2005 Corporate Avenue Memphis, Tennessee 38132 Re: Underwriting Agreement dated ______________, _______ Title of Offered Securities: __ % Debt Securities due ____________, _______________ Current ratings: Interest rate: % Interest payable: ____________ and ____________ commencing ___________, _____ Public offering price: 100%, plus accrued interest from _______________, __________ Closing date, time and location: ____________, ______, 9:00 A.M., New York City time Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Location for checking Offered New York, New York Securities: Listing requirement: None II-1 Redemption or repayment provisions: Sinking fund requirements: Number of Option Securities, if any, that may be purchased by the Underwriters: Other terms and conditions: The Offered Securities will be issued in fully registered, book-entry only form through the facilities of The Depository Trust Company, and each issue of the Offered Securities shall be represented by a separate global note. Exceptions, if any, to Section 3(i) of the Underwriting Agreement: None [UNDERWRITERS] By:___________________________________ Name: Title: Acting on behalf of themselves and the other named Underwriters Accepted: FDX CORPORATION By:_______________________________ Name: Title: II-2 EX-1.B 3 EXHIBIT 1(B) UNDERWRITING AGREEMENT Dated as of ______________, 199__ between FDX CORPORATION and [UNDERWRITERS] PREFERRED STOCK TABLE OF CONTENTS -------------- Page ---- Section 1. Representations and Warranties of the Company..............2 Section 2. Purchase and Sale..........................................6 Section 3. Covenants of the Company...................................7 Section 4. Payment of Expenses........................................9 Section 5. Conditions of Underwriters' Obligations....................9 Section 6. Indemnification...........................................12 Section 7. Contribution..............................................13 Section 8. Representations, Warranties and Agreements to Survive Delivery..................................................13 Section 9. Termination of Agreement..................................14 Section 10. Default by One Underwriter................................14 Section 11. Notices...................................................15 Section 12. Parties...................................................15 Section 13. Governing Law.............................................15 FDX CORPORATION Preferred Stock UNDERWRITING AGREEMENT ____________, 199__ [UNDERWRITERS] [ADDRESS] Ladies and Gentlemen: FDX Corporation, a Delaware corporation (the "Company"), proposes to issue and sell to the underwriters named in Schedule I hereto ________________ shares of its Preferred Stock (the "Preferred Stock") in one or more offerings on the terms and conditions stated herein and in Schedule II hereto (the "Offered Preferred Stock"). As used herein, unless the context otherwise requires, the term "Underwriters" shall mean the firm or firms named as Underwriter or Underwriters in Schedule I and the term "you" shall mean the Underwriter or Underwriters, if no underwriting syndicate is purchasing the Offered Preferred Stock, or the representative or representatives of the Underwriters, if an underwriting syndicate is purchasing the Offered Preferred Stock, as indicated in Schedule I. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. ________) for the registration of certain preferred stock and other securities, including the Offered Preferred Stock, under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the Commission. The Company has, pursuant to Rule 424 under the 1933 Act, filed with, or transmitted for filing to, or shall within the required period of time hereafter file with or transmit for filing to, the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Offered Preferred Stock, together with a revised and restated prospectus relating to preferred stock covered by the above-referenced registration statement. The term "Registration Statement" refers to such registration statement in the form in which it became effective, including the exhibits thereto and the documents incorporated by reference therein, as amended to the date hereof. The term "Basic Prospectus" means the above-referenced revised and restated prospectus relating to Preferred Stock. The term "Prospectus" means the Basic Prospectus supplemented by the Prospectus Supplement. The term "Preliminary Prospectus" means a preliminary prospectus supplement specifically relating to the Offered Preferred Stock together with the Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each case the documents, if any, incorporated by reference therein. The terms "supplement" and "amendment" or "amend" as used herein shall include all documents deemed to be incorporated by reference in the Prospectus that have been filed subsequent to the date of the Basic Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"). If the Company has filed an abbreviated statement to register additional shares of Preferred Stock pursuant to Rule 462(b) under the 1933 Act, then any reference herein to the term "Registration Statement" shall include such Rule 462(b) registration statement. Section 1. Representations and Warranties of the Company. (a) The Company represents and warrants to you and to each Underwriter named in Schedule I, as of the date hereof, as follows: (i) Due Incorporation and Qualification. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; and is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (ii) Subsidiaries. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares (except as otherwise stated in the Registration Statement), is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (iii) Registration Statement and Prospectus. At the time the Registration Statement became effective, the Registration Statement complied, and as of the date hereof does comply, in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the rules and regulations of the Commission promulgated thereunder. The Registration Statement, at the time it became effective, did not, and at each time thereafter at which any amendment to the Registration Statement becomes effective, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of the date hereof, does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by an Underwriter expressly for use in the Registration Statement or Prospectus or to those parts of the Registration Statement which constitute Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (iv) Incorporated Documents. The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations promulgated thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were or are made, not misleading. (v) Accountants. The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (vi) Financial Statements. The financial statements of the Company included or incorporated by reference in the Prospectus and the Registration Statement present fairly the financial position of the Company as of the dates thereof and the results of operations, changes in common stockholders' investment and cash flows of the Company, for the respective periods covered thereby, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the entire period involved; and the financial schedules included or incorporated by reference in the Registration Statement meet the requirements of the 1933 Act Regulations or the 1934 Act Regulations, as applicable. (vii) Material Changes or Material Transactions. Except as stated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions which are material to the Company, and there has not been any material adverse change in the capital stock or short- term debt, or any material increase in long-term debt of the Company, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company. (viii) No Defaults; Regulatory Approvals. Neither the Company nor any of its subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them or their properties may be bound. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein and in the resolution of the Company's Board of Directors setting forth the terms of the Offered Preferred Stock (the "Series Resolution") have been duly authorized by all necessary corporate action and executed by the Company and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any such subsidiary is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any such subsidiary is subject, which conflict, breach or default would have, individually or in the aggregate with any other such instances, a material adverse effect on the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries considered as one entity, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any law, administrative regulation or administrative or court order or decree currently in effect or in effect at the time of execution and delivery of this Agreement and applicable to the Company or any of its subsidiaries. No consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, the 1933 Act Regulations or state securities or Blue Sky laws and the filing of the Series Resolution in Delaware. (ix) Legal Proceedings; Contracts. Except for matters described in the Prospectus (as to which the Company can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to the best knowledge of any financial officer of the Company, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company. (x) Compliance with Laws. The Company's business and operations comply in all material respects with all laws and regulations applicable thereto and there are no known, proposed or threatened changes in any laws or regulations which would have a material adverse effect on the Company or the manner in which it conducts its business. The Company possesses all valid and effective certificates, licenses and permits required to conduct its business as now conducted, except for instances which individually or in the aggregate do not, or will not, have a material adverse effect on the condition (financial or other), business, prospects or results of operations of the Company. (xi) Capital Stock. The authorized capital stock of the Company and the provisions of the Series Resolution conform as to legal matters to the descriptions thereof contained in the Prospectus. (xii) Validity of the Offered Preferred Stock. The Offered Preferred Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such shares will not be subject to any preemptive or similar rights. (xiii) Registration Rights. There are no contracts or agreements between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any equity securities of the Company or to require the Company to include such securities with the Preferred Stock registered pursuant to the Registration Statement. (b) Additional Certifications. Any certificate signed by any officer of the Company and delivered to you or your counsel in connection with an offering of the Offered Preferred Stock shall be deemed a representation and warranty by the Company to each Underwriter participating in such offering as to the matters covered thereby on the date of such certificate unless subsequently amended or supplemented subsequent thereto. Section 2. Purchase and Sale. (a) Subject to the terms and conditions set forth herein and in Schedule II, if any, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price specified in Exhibit A hereto, the respective numbers of shares of Offered Preferred Stock set forth opposite the name of such Underwriter in Schedule I. It is understood that you propose to offer the Offered Preferred Stock for sale to the public as set forth in the Prospectus. (b) Subject to the terms and conditions herein set forth, the Company may grant, if so provided in Schedule II hereto, an option to the Underwriters, severally and not jointly, to purchase additional shares of Preferred Stock to cover over-allotments, if any (the "Option Shares"). If Schedule II so provides, the Underwriters may purchase up to the amount of Option Shares set forth therein at the same price per share as is applicable to the Offered Preferred Stock. As used herein, the term "Offered Preferred Stock" shall include Option Shares. Such option, if granted, will expire 30 days after the date of this Agreement, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering of the Offered Preferred Stock upon notice by you to the Company setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Shares. Any such time and date of delivery shall be determined by you, but shall not be later than four business days and not be earlier that two business days after the exercise of said option, nor in any event prior to Closing Time, unless otherwise agreed upon by you and the Company. If the option is exercised as to all or any portion of the Option Shares, each Underwriter, acting severally and not jointly, will purchase that proportion of the total number of Option Shares then being purchased which the number of shares of Offered Preferred Stock each such Underwriter has agreed to purchase as set forth in Schedule II bears to the total number of shares of Offered Preferred Stock, subject to such adjustments as you shall make to eliminate any sales or purchases of fractional shares of Preferred Stock. (c) Payment of the purchase price for any Offered Preferred Stock to be purchased by the Underwriters shall be made to the Company at either the Company's offices in Memphis, Tennessee or the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by you and the Company, at 9:00 A.M., New York City time, on the third business day (unless postponed in accordance with the provisions of Section 10) following the date hereof or at such other date, time or location specified in Schedule II, or as otherwise shall be agreed upon by you and the Company (such time and date being referred to as a "Closing Time"). Certificates for the Offered Preferred Stock shall be in definitive form and registered in such names and in such denominations as you shall request in writing at least two business days prior to the Closing Time. Delivery of the Offered Preferred Stock shall be made to you as specified in Schedule II against payment by you of the purchase price thereof to the Company (or such other person as the Company may direct) by wire transfer of immediately available funds. Such Offered Preferred Stock will be made available for examination and packaging by you in New York, New York, on or before the first business day prior to the Closing Time or at such other time and place specified in Schedule II. (d) As compensation to you for your commitments and obligations hereunder in respect of the Offered Preferred Stock, including your undertakings to distribute Offered Preferred Stock, the Company will pay to you the amount set forth in Exhibit A as the underwriting discounts and commissions. Such payment shall be made simultaneously with the payment by you of the purchase price of the Offered Preferred Stock as specified in Section 2(b) hereof. Payment of such compensation shall be made by wire transfer of immediately available funds. Section 3. Covenants of the Company. The Company covenants with each of you, and with each Underwriter participating in the offering as follows: (a) Prospectus Supplement. The Company has prepared a Preliminary Prospectus, and immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement in connection with the offering of the Offered Preferred Stock. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations. (b) Notice of Certain Events. The Company will notify you promptly (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the transmittal to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement relating in any way to the offer and sale of the Offered Preferred Stock, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. (c) Notice of Certain Proposed Filings. The Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the case may be. (d) Copies of the Registration Statement and the Prospectus. The Company will deliver to you as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as you may reasonably request. The Company will furnish to you as many copies of the Prospectus (as amended or supplemented) as you shall reasonably request so long as you are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Offered Preferred Stock. (e) Revisions of Prospectus--Material Changes. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Preferred Stock any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. (f) Earnings Statements. The Company will make generally available to its security holders as soon as practicable after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Offered Preferred Stock. (g) Blue Sky Qualifications. The Company will endeavor, in cooperation with you, to qualify the Offered Preferred Stock for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, and will maintain such qualifications in effect for so long as may be required for the distribution of the Offered Preferred Stock; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or to subject itself to taxation as doing business in any jurisdiction in which it is not otherwise required to be so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the shares of Offered Preferred Stock have been qualified as provided above. (h) 1934 Act Filings. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act. Section 4. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing of the Registration Statement and all amendments thereto, the Preliminary Prospectus, if any, and the Prospectus and any amendments or supplements thereto; (ii) the filing of this Agreement; (iii) the preparation, issuance, printing and delivery of the Offered Preferred Stock; (iv) the reasonable fees and disbursements of the Company's accountants and counsel, and of the transfer agent; (v) the qualification of the Offered Preferred Stock under securities laws in accordance with the provisions of Section 3(g), including filing fees and the reasonable fees and disbursements of counsel to the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; and (vi) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto. If this Agreement is terminated by you in accordance with the provisions of Section 5 or clause (i) of Section 9 hereof, the Company shall reimburse upon demand the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters that shall have been incurred by you in connection with the proposed purchase and sale of the Offered Preferred Stock. Section 5. Conditions of Underwriters' Obligations. The several obligations of the Underwriters to purchase the Offered Preferred Stock pursuant to this Agreement will be subject at all times to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein, or in Schedule II hereto, on its part to be performed and observed and to the following additional conditions precedent: (a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned as of the date of this Agreement by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g) under the 1933 Act Regulations, to any debt securities of the Company shall not have been lowered since the execution of this Agreement nor shall any such rating organization have publicly announced that it has placed any debt securities of the Company on what is commonly termed a "watch list" for possible downgrading, and (iii) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, including the Prospectus Supplement, at the time it was required to be delivered to a purchaser of the Offered Preferred Stock, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. (b) Legal Opinions. At the Closing Time, you shall have received the following documents: (i) Opinion of Company Counsel. The opinion of [the Executive Vice President, General Counsel and Secretary of the Company or any Vice President in the Legal and Regulatory Division of the Company,] dated as of such date, in form and substance reasonably satisfactory to you, to the effect as set forth in Exhibit B. (ii) Opinion of Counsel to the Underwriters. The opinion of __________________________________, counsel to the Underwriters, with respect to such matters as you may reasonably request. (c) Officer Certificate. At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition (financial or otherwise) of the Company, or in the earnings or business affairs of the Company; and you shall have received a certificate of any Vice President of the Company, dated as of the Closing Time, to the effect (i) that there has been no such material adverse change, (ii) that the other representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, except to the extent that such representations and warranties expressly relate to an earlier date or later date (in which case such representations and warranties are true and correct on and as of such earlier date or will be true and correct on and as of such later date, as the case may be), (iii) that the Company has made or caused to be made any required filing of the Prospectus pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b), and (iv) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate. The officer signing and delivering this certificate may rely upon the best of his or her knowledge as to proceedings threatened. (d) Comfort Letter. At the Closing Time, you shall have received a letter from Arthur Andersen LLP or their successors as the Company's independent accountants (the "Independent Accountants"), dated as of the Closing Time, in form and substance satisfactory to you to the effect that: (i) they are independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations; (ii) in their opinion the Company's financial statements and schedules included or incorporated by reference in the Registration Statement and Prospectus and covered by their reports included or incorporated therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations, as the case may be; (iii) they have conducted reviews of the unaudited interim consolidated financial information of the Company included in the Company's Quarterly Reports on Form 10-Q incorporated in the Registration Statement and Prospectus in compliance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants; (iv) on the basis of a reading of the financial statements and schedules of the Company included or incorporated in the Prospectus and the Registration Statement, and the latest available unaudited interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters, and other specified procedures and inquiries, nothing has come to their attention that caused them to believe that: (A) the unaudited financial statements of the Company included or incorporated in the Prospectus and the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations thereunder, as the case may be, or that such unaudited financial statements are not presented fairly in conformity with generally accepted accounting principles; (B) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, as of a specified date not more than five business days prior to the date of delivery of such letter, there has been any change in the common or preferred stock or long-term debt of the Company or, as of such date, there has been any decrease in assets or common stockholders' investment, in each case as compared with amounts shown in the most recent consolidated balance sheet of the Company included or incorporated in the Registration Statement and the Prospectus, except in each case for changes or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (C) for the period from the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus to such specified date, there was any decrease in operating revenues, operating income, income before taxes or net income of the Company in each case as compared with the comparable period of the preceding year, except in each case for decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (D) in addition to their audit referred to in their reports included or incorporated by reference in the Registration Statement and the Prospectus and the reviews, inquiries and procedures referred to in clauses (iii) and (iv) above, such letter shall state that Arthur Andersen LLP has performed other specified procedures, with respect to certain numerical data and information included or incorporated in the Registration Statement and the Prospectus, as are requested by an Underwriter and specified in such letter and have found such data and information to be in agreement with the accounting records of or analyses prepared by the Company. (e) Other Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as such counsel may reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of Offered Preferred Stock as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of Offered Preferred Stock as herein contemplated shall be satisfactory in form and substance to you. Section 6. Indemnification. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or the omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever arising out of or based upon any such untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever arising out of or based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or made in reliance upon the Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration Statement; and provided, further, that the foregoing indemnity agreement, with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Offered Preferred Stock, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Preferred Stock to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriters through you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Section 7. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 6 is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company and the Underwriters of each offering of Offered Preferred Stock shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and one or more of the Underwriters in respect of such offering, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus in respect of such offering bears to the initial public offering price appearing thereon and the Company is responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. Section 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive each delivery of and payment for any of the Offered Preferred Stock. Section 9. Termination of Agreement. You may terminate this Agreement, immediately upon notice to the Company, at any time prior to the Closing Time if: (i) there has been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the Company, (ii) there shall have occurred any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other national or international calamity or crisis, the effect of which shall be such as to make it, in your judgment, impracticable to market the Offered Preferred Stock or enforce contracts for the sale of the Offered Preferred Stock, or (iii) trading in any securities of the Company shall have been suspended by the Commission or a national securities exchange, or if trading generally on either the American Stock Exchange or the New York Stock Exchange shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium shall have been declared by either federal or New York authorities. In the event of any termination of this Agreement, the covenant set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect. Section 10. Default by One Underwriter. If any Underwriter shall fail at the Closing Time to purchase the Offered Preferred Stock which it is obligated to purchase hereunder (the "Defaulted Securities"), and the aggregate amount of Defaulted Securities is not more than one-tenth of the aggregate amount of the Offered Preferred Stock to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of the Offered Preferred Stock set forth opposite their respective names in Schedule I hereto bears to the aggregate amount of Offered Preferred Stock set forth opposite the names of all such non-defaulting underwriters to purchase the Defaulted Securities; provided that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased by an amount in excess of one-ninth of such amount of Offered Preferred Stock without the written consent of such Underwriter. If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Offered Preferred Stock to be purchased on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters or the Company. No action taken pursuant to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement. In the event of any such default which does not result in a termination of this Agreement, either the non-defaulting Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. Section 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, delivered by Federal Express service or transmitted by any facsimile communication. Notices to the Underwriters shall be directed to _______________________________________, with copies thereof directed to ________________________________________________. Notices to the Company shall be directed to it at 2005 Corporate Avenue, Memphis, Tennessee 38132 (if by Federal Express service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Vice President and Treasurer, with copies thereof directed to the Legal Department of the Company at 1980 Nonconnah Drive, Memphis, Tennessee 38132 (if by Federal Express Service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Managing Director -- Securities and Corporate Law. Section 12. Parties. This Agreement shall inure to the benefit of and be binding upon you and the Company and any Underwriter who becomes a party hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Offered Preferred Stock from any Underwriter shall be deemed to be a successor by reason merely of such purchase. Section 13. Governing Law. This Agreement and the rights and obligations of the parties created hereby and thereby shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state. Any suit, action or proceeding brought by the Company against an Underwriter in connection with or arising under this Agreement shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between you and the Company in accordance with its terms. Very truly yours, FDX CORPORATION By: ------------------------------- Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: [UNDERWRITERS] By: --------------------------------- Name: Title: Acting on behalf of themselves and the other named Underwriters. EXHIBIT A FDX CORPORATION Preferred Stock Designation: Purchase Price: Number of Shares to be Purchased: Underwriting Discounts and Commissions: EXHIBIT B FORM OF OPINION OF COMPANY COUNSEL ____________, ______ [UNDERWRITERS] Re: FDX Corporation Preferred Stock (the "Offered Preferred Stock") Ladies and Gentlemen: This opinion is directed to the Underwriters pursuant to Section 5(b)(i) of the Underwriting Agreement dated ________________, ______ (the "Underwriting Agreement"), among the Company and you, with respect to the offer and sale of the Offered Preferred Stock. All terms defined or used in the Underwriting Agreement have the same meaning when used herein, unless otherwise noted. I am Vice President ________ of the Company and have acted as such in connection with the Offered Preferred Stock and the Underwriting Agreement. I or attorneys under my supervision have made such examination and investigation as we have deemed necessary in order to give the following opinion. Based on the foregoing, it is my opinion that: 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority under such laws to own its properties and to conduct its business as described in the Prospectus; the Company is duly qualified to do business and is in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except for such instances which in the aggregate will not have a material adverse effect on the Company; 2. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, and, to the best of my knowledge, is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and all of such capital stock, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; 3. Except for matters described in the Prospectus (as to which I can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to my knowledge, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company; 4. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus; 5. The Offered Preferred Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such shares will not be subject to any preemptive or similar rights; 6. The Company possesses all permits, approvals, franchises and other rights from federal aviation, aeronautical, communications, transportation and shipping authorities which are requisite for the conduct of its business as described in the Prospectus or for the actions contemplated by the Underwriting Agreement and the offering contemplated by the Prospectus; and the actions contemplated by the Underwriting Agreement and the offering contemplated by the Prospectus, are not in violation of any federal statute or regulation relating to aviation, aeronautics, communications, transportation or shipping; 7. I have reviewed or caused to be reviewed by attorneys under my supervision the Registration Statement, the Prospectus and each amendment and supplement thereto (including the documents incorporated by reference) and have no reason to believe that, as of their respective effective or issue dates, or as of the Closing Time, either the Registration Statement or the Prospectus or any such amendment or supplement (or any such documents incorporated by reference) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; 8. I do not know of any statute or regulation or legal or governmental proceeding required to be described in the Prospectus which is not described as required, nor of any contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which is not described and filed as required; and the descriptions in the Registration Statement and the Prospectus of the contracts and other documents therein described are accurate and fairly present the information required to be shown; 9. The execution and delivery by the Company of the Underwriting Agreement and the consummation by the Company of the transactions herein and therein contemplated and compliance with the terms of the Underwriting Agreement do not and will not conflict with or result in a breach of any of the terms of the Certificate of Incorporation or By-laws of the Company, and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan, credit or note agreement, lease or other agreement or instrument material to the Company to which the Company is a party or by which it or any or its properties are bound, or any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, having jurisdiction over the Company or any of its properties; 10. No authorization, approval, consent or license of any regulatory body or authority (other than under the 1933 Act and the securities or Blue Sky laws of the various states) is required for the valid authorization, issuance, sale and delivery of the Offered Preferred Stock as herein contemplated or the valid authorization, execution, delivery and performance by the Company of the Underwriting Agreement or the consummation by the Company of the transactions contemplated herein or therein, or, if so required, all such authorizations, approvals, consents and licenses, specifying the sale, have been obtained and are in full force and effect; 11. The Registration Statement has become effective under the 1933 Act and, to the best of my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act; the Registration Statement and the Prospectus, and each amendment or supplement thereto (except for the financial statements and schedules included therein, as to which I express no opinion), comply as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations and, as to documents incorporated therein, to the requirements of the 1934 Act and the 1934 Act Regulations in effect at the time such documents were filed with the Commission; and 12. The Underwriting Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles and subject to any principles of public policy limiting the right to enforce the indemnification and contribution provisions contained in Sections 6 and 7 of the Underwriting Agreement. In rendering the foregoing opinion, we have assumed that (i) all signatures on all documents examined by us are genuine and that where any such signature (other than a signature purporting to have been made on behalf of the Company) purports to have been made in a corporate, governmental, fiduciary or other capacity, the person who affixed such signature had the due authority to do so, (ii) certain factual matters contained in certificates of public officials are accurate, true and correct, and (iii) photostat copies of such documents, records and certificates conform to the originals. This opinion is intended solely for the benefit of the Underwriters and is not to be relied on by, and no copies of it are to be delivered to, any other person without my prior written consent, except that Underwriters' counsel may rely upon this opinion as to all matters of Tennessee law or Delaware corporate law in rendering its opinion of even date herewith. I am not assuming any professional responsibility to any other person by rendering this opinion. It is understood that this opinion speaks as of the date given, notwithstanding any delivery as contemplated above on any other date. Very truly yours, SCHEDULE I TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION Preferred Stock Underwriters Number of Shares to be Purchased - ------------ -------------------------------- SCHEDULE II TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION [Title of Preferred Stock] To: FDX Corporation 2005 Corporate Avenue Memphis, Tennessee 38132 Re: Underwriting Agreement dated ______________, _______ Title of Offered Preferred Stock: Current ratings: Public offering price: Closing date, time and location: ____________, ______, 9:00 A.M., New York City time Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Location for checking Offered New York, New York Preferred Stock: Redemption provisions: Liquidation Preference: Listing requirement: None Number of Option Shares, if any, that may be purchased by the Underwriters: Other terms and conditions: [UNDERWRITERS] By: ------------------------------------ Name: Title: Acting on behalf of themselves and the other named Underwriters Accepted: FDX CORPORATION By: ----------------------------- Name: Title: EX-1.C 4 EXHIBIT 1(C) UNDERWRITING AGREEMENT Dated as of ______________, 199__ between FDX CORPORATION and [UNDERWRITERS] COMMON STOCK, par value $.10 per share TABLE OF CONTENTS --------------- Page ---- Section 1. Representations and Warranties of the Company................ 3 Section 2. Purchase and Sale............................................ 6 Section 3. Covenants of the Company..................................... 7 Section 4. Payment of Expenses.......................................... 9 Section 5. Conditions of Underwriters' Obligations...................... 10 Section 6. Indemnification.............................................. 12 Section 7. Contribution................................................. 14 Section 8. Representations, Warranties and Agreements to Survive Delivery..................................................... 14 Section 9. Termination of Agreement..................................... 14 Section 10. Default by One Underwriter................................... 15 Section 11. Notices...................................................... 15 Section 12. Parties...................................................... 15 Section 13. Governing Law................................................ 16 Exhibit A Pricing Information Exhibit B Opinion of the Company Exhibit C Form of Lock-up Letter Schedule I Underwriters' Commitments Schedule II Terms and Conditions FDX CORPORATION Common Stock, par value $.10 per share UNDERWRITING AGREEMENT ____________, 199__ [UNDERWRITERS] [ADDRESS] Ladies and Gentlemen: FDX Corporation, a Delaware corporation (the "Company"), proposes to issue and sell to the underwriters named in Schedule I hereto ____________________ shares of its Common Stock, par value $.10 per share (the "Common Stock") in one or more offerings on the terms and conditions stated herein and in Schedule II hereto (the "Offered Common Stock"). As used herein, unless the context otherwise requires, the term "Underwriters" shall mean the firm or firms named as Underwriter or Underwriters in Schedule I and the term "you" shall mean the Underwriter or Underwriters, if no underwriting syndicate is purchasing the Offered Common Stock, or the representative or representatives of the Underwriters, if an underwriting syndicate is purchasing the Offered Common Stock, as indicated in Schedule I. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. _________) for the registration of certain common stock and other securities, including the Offered Common Stock, under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the Commission. The Company has, pursuant to Rule 424 under the 1933 Act, filed with, or transmitted for filing to, or shall within the required period of time hereafter file with or transmit for filing to, the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Offered Common Stock, together with a revised and restated prospectus relating to common stock covered by the above-referenced registration statement. The term "Registration Statement" refers to such registration statement in the form in which it became effective, including the exhibits thereto and the documents incorporated by reference therein, as amended to the date hereof. The term "Basic Prospectus" means the above-referenced revised and restated prospectus relating to Common Stock. The term "Prospectus" means the Basic Prospectus supplemented by the Prospectus Supplement. The term "Preliminary Prospectus" means a preliminary prospectus supplement specifically relating to the Offered Common Stock together with the Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each case the documents, if any, incorporated by reference therein. The terms "supplement" and "amendment" or "amend" as used herein shall include all documents deemed to be incorporated by reference in the Prospectus that have been filed subsequent to the date of the Basic Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"). If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the 1933 Act, then any reference herein to the term "Registration Statement" shall include such Rule 462(b) registration statement. Section 1. Representations and Warranties of the Company. (a) The Company represents and warrants to you and to each Underwriter named in Schedule I, as of the date hereof, as follows: (i) Due Incorporation and Qualification. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; and is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (ii) Subsidiaries. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares (except as otherwise stated in the Registration Statement), is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (iii) Registration Statement and Prospectus. At the time the Registration Statement became effective, the Registration Statement complied, and as of the date hereof does comply, in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the rules and regulations of the Commission promulgated thereunder. The Registration Statement, at the time it became effective, did not, and at each time thereafter at which any amendment to the Registration Statement becomes effective, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of the date hereof, does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by an Underwriter expressly for use in the Registration Statement or Prospectus or to those parts of the Registration Statement which constitute Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (iv) Incorporated Documents. The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations promulgated thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were or are made, not misleading. (v) Accountants. The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (vi) Financial Statements. The financial statements of the Company included or incorporated by reference in the Prospectus and the Registration Statement present fairly the financial position of the Company as of the dates thereof and the results of operations, changes in common stockholders' investment and cash flows of the Company, for the respective periods covered thereby, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the entire period involved; and the financial schedules included or incorporated by reference in the Registration Statement meet the requirements of the 1933 Act Regulations or the 1934 Act Regulations, as applicable. (vii) Material Changes or Material Transactions. Except as stated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions which are material to the Company, and there has not been any material adverse change in the capital stock or short- term debt, or any material increase in long-term debt of the Company, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company. (viii) No Defaults; Regulatory Approvals. Neither the Company nor any of its subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them or their properties may be bound. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action and executed by the Company and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any such subsidiary is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any such subsidiary is subject, which conflict, breach or default would have, individually or in the aggregate with any other such instances, a material adverse effect on the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries considered as one entity, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any law, administrative regulation or administrative or court order or decree currently in effect or in effect at the time of execution and delivery of this Agreement and applicable to the Company or any of its subsidiaries. No consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, the 1933 Act Regulations or state securities or Blue Sky laws. (ix) Legal Proceedings; Contracts. Except for matters described in the Prospectus (as to which the Company can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to the best knowledge of any financial officer of the Company, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company. (x) Compliance with Laws. The Company's business and operations comply in all material respects with all laws and regulations applicable thereto and there are no known, proposed or threatened changes in any laws or regulations which would have a material adverse effect on the Company or the manner in which it conducts its business. The Company possesses all valid and effective certificates, licenses and permits required to conduct its business as now conducted, except for instances which individually or in the aggregate do not, or will not, have a material adverse effect on the condition (financial or other), business, prospects or results of operations of the Company. (xi) Capital Stock. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. (xii) Validity of the Offered Common Stock. The Offered Common Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such shares will not be subject to any preemptive or similar rights. (xiii) Registration Rights. There are no contracts or agreements between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any equity securities of the Company or to require the Company to include such securities with the Common Stock registered pursuant to the Registration Statement. (b) Additional Certifications. Any certificate signed by any officer of the Company and delivered to you or your counsel in connection with an offering of the Offered Common Stock shall be deemed a representation and warranty by the Company to each Underwriter participating in such offering as to the matters covered thereby on the date of such certificate unless subsequently amended or supplemented subsequent thereto. Section 2. Purchase and Sale. (a) Subject to the terms and conditions set forth herein and in Schedule II, if any, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price specified in Exhibit A hereto, the respective numbers of shares of Offered Common Stock set forth opposite the name of such Underwriter in Schedule I. It is understood that you propose to offer the Offered Common Stock for sale to the public as set forth in the Prospectus. (b) Subject to the terms and conditions herein set forth, the Company may grant, if so provided in Schedule II hereto, an option to the Underwriters, severally and not jointly, to purchase additional shares of Common Stock to cover over-allotments, if any (the "Option Shares"). If Schedule II so provides, the Underwriters may purchase up to the amount of Option Shares set forth therein at the same price per share as is applicable to the Offered Common Stock. As used herein, the term "Offered Common Stock" shall include Option Shares. Such option, if granted, will expire 30 days after the date of this Agreement, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering of the Offered Common Stock upon notice by you to the Company setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Shares. Any such time and date of delivery shall be determined by you, but shall not be later than four business days and not be earlier that two business days after the exercise of said option, nor in any event prior to Closing Time, unless otherwise agreed upon by you and the Company. If the option is exercised as to all or any portion of the Option Shares, each Underwriter, acting severally and not jointly, will purchase that proportion of the total number of Option Shares then being purchased which the number of shares of Offered Common Stock each such Underwriter has agreed to purchase as set forth in Schedule II bears to the total number of shares of Offered Common Stock, subject to such adjustments as you shall make to eliminate any sales or purchases of fractional shares of Common Stock. (c) Payment of the purchase price for any Offered Common Stock to be purchased by the Underwriters shall be made to the Company at either the Company's offices in Memphis, Tennessee or the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by you and the Company, at 9:00 A.M., New York City time, on the third business day (unless postponed in accordance with the provisions of Section 10) following the date hereof or at such other date, time or location specified in Schedule II, or as otherwise shall be agreed upon by you and the Company (such time and date being referred to as a "Closing Time"). Certificates for the Offered Common Stock shall be in definitive form and registered in such names and in such denominations as you shall request in writing at least two business days prior to the Closing Time. Delivery of the Offered Common Stock shall be made to you as specified in Schedule II against payment by you of the purchase price thereof to the Company (or such other person as the Company may direct) by wire transfer of immediately available funds. Such Offered Common Stock will be made available for examination and packaging by you in New York, New York, on or before the first business day prior to the Closing Time or at such other time and place specified in Schedule II. (d) As compensation to you for your commitments and obligations hereunder in respect of the Offered Common Stock, including your undertakings to distribute Offered Common Stock, the Company will pay to you the amount set forth in Exhibit A as the underwriting discounts and commissions. Such payment shall be made simultaneously with the payment by you of the purchase price of the Offered Common Stock as specified in Section 2(b) hereof. Payment of such compensation shall be made by wire transfer of immediately available funds. (e) The Company hereby agrees that, without the prior consent of the Underwriters, it will not, during the period ending 30 days after the date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exerciseable or exchangeable for Common Stock, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) above or this (ii) is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Offered Common Stock to be sold hereunder, or (B) the issuance by the Company of shares of Common Stock, (i) upon the exercise of an employee stock option outstanding on the date hereof under any of the Company's stock incentive plans or (ii) in connection with any of the Company's employee benefit plans. Section 3. Covenants of the Company. The Company covenants with each of you, and with each Underwriter participating in the offering as follows: (a) Prospectus Supplement. The Company has prepared a Preliminary Prospectus, and immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement in connection with the offering of the Offered Common Stock. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations. (b) Notice of Certain Events. The Company will notify you promptly (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the transmittal to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement relating in any way to the offer and sale of the Offered Common Stock, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. (c) Notice of Certain Proposed Filings. The Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the case may be. (d) Copies of the Registration Statement and the Prospectus. The Company will deliver to you as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as you may reasonably request. The Company will furnish to you as many copies of the Prospectus (as amended or supplemented) as you shall reasonably request so long as you are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Offered Common Stock. (e) Revisions of Prospectus--Material Changes. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Common Stock any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. (f) Earnings Statements. The Company will make generally available to its security holders as soon as practicable after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Offered Common Stock. (g) Blue Sky Qualifications. The Company will endeavor, in cooperation with you, to qualify the Offered Common Stock for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, and will maintain such qualifications in effect for so long as may be required for the distribution of the Offered Common Stock; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or to subject itself to taxation as doing business in any jurisdiction in which it is not otherwise required to be so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the shares of Offered Common Stock have been qualified as provided above. (h) 1934 Act Filings. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act. Section 4. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing of the Registration Statement and all amendments thereto, the Preliminary Prospectus, if any, and the Prospectus and any amendments or supplements thereto; (ii) the filing of this Agreement; (iii) the preparation, issuance, printing and delivery of the Offered Common Stock; (iv) the reasonable fees and disbursements of the Company's accountants and counsel, and of the transfer agent; (v) the qualification of the Offered Common Stock under securities laws in accordance with the provisions of Section 3(g), including filing fees and the reasonable fees and disbursements of counsel to the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; (vi) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto; (vii) costs and expenses related to the issuance and delivery of the Offered Common Stock to the Underwriters; and (viii) fees and expenses incident to listing of the Offered Common Stock on the New York Stock Exchange. If this Agreement is terminated by you in accordance with the provisions of Section 5 or clause (i) of Section 9 hereof, the Company shall reimburse upon demand the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters that shall have been incurred by you in connection with the proposed purchase and sale of the Offered Common Stock. Section 5. Conditions of Underwriters' Obligations. The several obligations of the Underwriters to purchase the Offered Common Stock pursuant to this Agreement will be subject at all times to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein, or in Schedule II hereto, on its part to be performed and observed and to the following additional conditions precedent: (a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned as of the date of this Agreement by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g) under the 1933 Act Regulations, to any debt securities of the Company shall not have been lowered since the execution of this Agreement nor shall any such rating organization have publicly announced that it has placed any debt securities of the Company on what is commonly termed a "watch list" for possible downgrading, and (iii) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, including the Prospectus Supplement, at the time it was required to be delivered to a purchaser of the Offered Common Stock, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. (b) Legal Opinions. At the Closing Time, you shall have received the following documents: (i) Opinion of Company Counsel. The opinion of [the Executive Vice President, General Counsel and Secretary of the Company or any Vice President in the Legal and Regulatory Division of the Company,] dated as of such date, in form and substance reasonably satisfactory to you, to the effect as set forth in Exhibit B. (ii) Opinion of Counsel to the Underwriters. The opinion of __________________________________, counsel to the Underwriters, with respect to such matters as you may reasonably request. (c) Officer Certificate. At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition (financial or otherwise) of the Company, or in the earnings or business affairs of the Company; and you shall have received a certificate of any Vice President of the Company, dated as of the Closing Time, to the effect (i) that there has been no such material adverse change, (ii) that the other representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, except to the extent that such representations and warranties expressly relate to an earlier date or later date (in which case such representations and warranties are true and correct on and as of such earlier date or will be true and correct on and as of such later date, as the case may be), (iii) that the Company has made or caused to be made any required filing of the Prospectus pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b), and (iv) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate. The officer signing and delivering this certificate may rely upon the best of his or her knowledge as to proceedings threatened. (d) Comfort Letter. At the Closing Time, you shall have received a letter from Arthur Andersen LLP or their successors as the Company's independent accountants (the "Independent Accountants"), dated as of the Closing Time, in form and substance satisfactory to you to the effect that: (i) they are independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations; (ii) in their opinion the Company's financial statements and schedules included or incorporated by reference in the Registration Statement and Prospectus and covered by their reports included or incorporated therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations, as the case may be; (iii) they have conducted reviews of the unaudited interim consolidated financial information of the Company included in the Company's Quarterly Reports on Form 10-Q incorporated in the Registration Statement and Prospectus in compliance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants; (iv) on the basis of a reading of the financial statements and schedules of the Company included or incorporated in the Prospectus and the Registration Statement, and the latest available unaudited interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters, and other specified procedures and inquiries, nothing has come to their attention that caused them to believe that: (A) the unaudited financial statements of the Company included or incorporated in the Prospectus and the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations thereunder, as the case may be, or that such unaudited financial statements are not presented fairly in conformity with generally accepted accounting principles; (B) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, as of a specified date not more than five business days prior to the date of delivery of such letter, there has been any change in the common or preferred stock or long-term debt of the Company or, as of such date, there has been any decrease in assets or common stockholders' investment, in each case as compared with amounts shown in the most recent consolidated balance sheet of the Company included or incorporated in the Registration Statement and the Prospectus, except in each case for changes or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (C) for the period from the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus to such specified date, there was any decrease in operating revenues, operating income, income before taxes or net income of the Company in each case as compared with the comparable period of the preceding year, except in each case for decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (v) in addition to their audit referred to in their reports included or incorporated by reference in the Registration Statement and the Prospectus and the reviews, inquiries and procedures referred to in clauses (iii) and (iv) above, such letter shall state that Arthur Andersen LLP has performed other specified procedures, with respect to certain numerical data and information included or incorporated in the Registration Statement and the Prospectus, as are requested by an Underwriter and specified in such letter and have found such data and information to be in agreement with the accounting records of or analyses prepared by the Company. (e) Other Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as such counsel may reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of Offered Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of Offered Common Stock as herein contemplated shall be satisfactory in form and substance to you. (f) "Lock-up". The "lock-up" agreements, each substantially in the form of Exhibit C hereto, between you and certain stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. Section 6. Indemnification. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or the omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever arising out of or based upon any such untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever arising out of or based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or made in reliance upon the Statements of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration Statement; and provided, further, that the foregoing indemnity agreement, with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Offered Common Stock, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Common Stock to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriters through you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Section 7. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 6 is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company and the Underwriters of each offering of Offered Common Stock shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and one or more of the Underwriters in respect of such offering, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus in respect of such offering bears to the initial public offering price appearing thereon and the Company is responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. Section 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive each delivery of and payment for any of the Offered Common Stock. Section 9. Termination of Agreement. You may terminate this Agreement, immediately upon notice to the Company, at any time prior to the Closing Time if: (i) there has been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the Company, (ii) there shall have occurred any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other national or international calamity or crisis, the effect of which shall be such as to make it, in your judgment, impracticable to market the Offered Common Stock or enforce contracts for the sale of the Offered Common Stock, or (iii) trading in any securities of the Company shall have been suspended by the Commission or a national securities exchange, or if trading generally on either the American Stock Exchange or the New York Stock Exchange shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium shall have been declared by either federal or New York authorities. In the event of any termination of this Agreement, the covenant set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect. Section 10. Default by One Underwriter. If any Underwriter shall fail at the Closing Time to purchase the Offered Common Stock which it is obligated to purchase hereunder (the "Defaulted Securities"), and the aggregate amount of Defaulted Securities is not more than one-tenth of the aggregate amount of the Offered Common Stock to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of the Offered Common Stock set forth opposite their respective names in Schedule I hereto bears to the aggregate amount of Offered Common Stock set forth opposite the names of all such non-defaulting underwriters to purchase the Defaulted Securities; provided that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased by an amount in excess of one-ninth of such amount of Offered Common Stock without the written consent of such Underwriter. If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Offered Common Stock to be purchased on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters or the Company. No action taken pursuant to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement. In the event of any such default which does not result in a termination of this Agreement, either the non-defaulting Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. Section 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, delivered by Federal Express service or transmitted by any facsimile communication. Notices to the Underwriters shall be directed to _______________________________________, with copies thereof directed to ________________________________________________. Notices to the Company shall be directed to it at 2005 Corporate Avenue, Memphis, Tennessee 38132 (if by Federal Express service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Vice President and Treasurer, with copies thereof directed to the Legal Department of the Company at 1980 Nonconnah Drive, Memphis, Tennessee 38132 (if by Federal Express Service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention: Managing Director-- Securities and Corporate Law. Section 12. Parties. This Agreement shall inure to the benefit of and be binding upon you and the Company and any Underwriter who becomes a party hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Offered Common Stock from any Underwriter shall be deemed to be a successor by reason merely of such purchase. Section 13. Governing Law. This Agreement and the rights and obligations of the parties created hereby and thereby shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state. Any suit, action or proceeding brought by the Company against an Underwriter in connection with or arising under this Agreement shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between you and the Company in accordance with its terms. Very truly yours, FDX CORPORATION By: ------------------------- Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: [UNDERWRITERS] By: ---------------------------------- Name: Title: Acting on behalf of themselves and the other named Underwriters Exhibit A. EXHIBIT A FDX CORPORATION Common Stock, par value $.10 per share Designation: Purchase Price: Number of Shares to be Purchased: Underwriting Discounts and Commissions: EXHIBIT B Form of Opinion of Company Counsel ____________, ______ [UNDERWRITERS] Re: FDX Corporation Common Stock (the "Offered Common Stock") Ladies and Gentlemen: This opinion is directed to the Underwriters pursuant to Section 5(b)(1) of the Underwriting Agreement dated ________________, ______ (the "Underwriting Agreement"), among the Company and you, with respect to the offer and sale of the Offered Common Stock. All terms defined or used in the Underwriting Agreement have the same meaning when used herein, unless otherwise noted. I am Vice President ________ of the Company and have acted as such in connection with the Offered Common Stock and the Underwriting Agreement. I or attorneys under my supervision have made such examination and investigation as we have deemed necessary in order to give the following opinion. Based on the foregoing, it is my opinion that: 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority under such laws to own its properties and to conduct its business as described in the Prospectus; the Company is duly qualified to do business and is in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except for such instances which in the aggregate will not have a material adverse effect on the Company; 2. Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, and, to the best of my knowledge, is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and all of such capital stock, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; 3. Except for matters described in the Prospectus (as to which I can express no opinion at this time concerning the Company's liability (if any) or the effect of any adverse determination upon the business, condition (financial or otherwise) or operations of the Company), there is no pending, or to my knowledge, threatened action or proceeding before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Company; 4. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. 5. The Offered Common Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such shares will not be subject to any preemptive or similar rights. 6. The Company possesses all permits, approvals, franchises and other rights from federal aviation, aeronautical, communications, transportation and shipping authorities which are requisite for the conduct of its business as described in the Prospectus or for the actions contemplated by the Underwriting Agreement and the offering contemplated by the Prospectus; and the actions contemplated by the Underwriting Agreement and the offering contemplated by the Prospectus, are not in violation of any federal statute or regulation relating to aviation, aeronautics, communications, transportation or shipping; 7. I have reviewed or caused to be reviewed by attorneys under my supervision the Registration Statement, the Prospectus and each amendment and supplement thereto (including the documents incorporated by reference) and have no reason to believe that, as of their respective effective or issue dates, or as of the Closing Time, either the Registration Statement or the Prospectus or any such amendment or supplement (or any such documents incorporated by reference) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; 8. I do not know of any statute or regulation or legal or governmental proceeding required to be described in the Prospectus which is not described as required, nor of any contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which is not described and filed as required; and the descriptions in the Registration Statement and the Prospectus of the contracts and other documents therein described are accurate and fairly present the information required to be shown; 9. The execution and delivery by the Company of the Underwriting Agreement and the consummation by the Company of the transactions herein and therein contemplated and compliance with the terms of the Underwriting Agreement do not and will not conflict with or result in a breach of any of the terms of the Certificate of Incorporation or By-laws of the Company, and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan, credit or note agreement, lease or other agreement or instrument material to the Company to which the Company is a party or by which it or any or its properties are bound, or any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, having jurisdiction over the Company or any of its properties; 10. No authorization, approval, consent or license of any regulatory body or authority (other than under the 1933 Act and the securities or Blue Sky laws of the various states) is required for the valid authorization, issuance, sale and delivery of the Offered Common Stock as herein contemplated or the valid authorization, execution, delivery and performance by the Company of the Underwriting Agreement or the consummation by the Company of the transactions contemplated herein or therein, or, if so required, all such authorizations, approvals, consents and licenses, specifying the sale, have been obtained and are in full force and effect; 11. The Registration Statement has become effective under the 1933 Act and, to the best of my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act; the Registration Statement and the Prospectus, and each amendment or supplement thereto (except for the financial statements and schedules included therein, as to which I express no opinion), comply as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations and, as to documents incorporated therein, to the requirements of the 1934 Act and the 1934 Act Regulations in effect at the time such documents were filed with the Commission; and 12. The Underwriting Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles and subject to any principles of public policy limiting the right to enforce the indemnification and contribution provisions contained in Sections 6 and 7 of the Underwriting Agreement. In rendering the foregoing opinion, we have assumed that (i) all signatures on all documents examined by us are genuine and that where any such signature (other than a signature purporting to have been made on behalf of the Company) purports to have been made in a corporate, governmental, fiduciary or other capacity, the person who affixed such signature had the due authority to do so, (ii) certain factual matters contained in certificates of public officials are accurate, true and correct, and (iii) photostat copies of such documents, records and certificates conform to the originals. This opinion is intended solely for the benefit of the Underwriters and is not to be relied on by, and no copies of it are to be delivered to, any other person without my prior written consent, except that Underwriters' counsel may rely upon this opinion as to all matters of Tennessee law or Delaware corporate law in rendering its opinion of even date herewith. I am not assuming any professional responsibility to any other person by rendering this opinion. It is understood that this opinion speaks as of the date given, notwithstanding any delivery as contemplated above on any other date. Very truly yours, EXHIBIT C [Form of Lock-up Letter] _____________, 199__ [UNDERWRITERS] [ADDRESS] Ladies and Gentlemen: The undersigned understands that the Underwriters propose to enter into an underwriting agreement (the "Underwriting Agreement") with FDX Corporation, a Delaware corporation (the "Company"), providing for the public offering (the "Public Offering") by the several Underwriters, (the "Underwriters"), of ______ shares (the "Shares") of the Common Stock par value $.10 per share of the company (the "Common Stock"). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior consent of the Underwriters, it will not, during the period commencing on the date hereof and ending 30 days after the date of the Prospectus relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are now owned by the undersigned or are hereafter acquired), or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) above or in this (2) is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to: (i) the sale of any Shares to the Underwriters pursuant to the Underwriting Agreement, (ii) gifts, (iii) stock grants in connection with the Company's benefit plans or (iv) the exercise of a stock option under any of the Company's stock incentive plans. In addition, the undersigned agrees that, without the prior consent of the Underwriters, it will not, during the period commencing on the date hereof and ending 30 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. Very truly yours, --------------------------------- Name --------------------------------- Address SCHEDULE I TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION Common Stock, par value $.10 per share Underwriters Number of Shares to be Purchased - ------------ -------------------------------- SCHEDULE II TO UNDERWRITING AGREEMENT Dated: ________, ______ FDX CORPORATION Common Stock, par value $.10 per share To: FDX Corporation 2005 Corporate Avenue Memphis, Tennessee 38132 Re: Underwriting Agreement dated ______________, _______ Title of Offered Common Stock: Current ratings: Public offering price: Closing date, time and location: ____________, ______ 9:00 A.M., New York City time Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Location for checking Offered Common Stock: New York, New York Listing requirement: None Redemption provisions: Liquidation preference: Number of Option Shares, if any, that may be purchased by the Underwriters: Other terms and conditions: [UNDERWRITERS] By: ---------------------------------- Name: Title: Acting on behalf of themselves and the other named Underwriters Accepted: FDX CORPORATION By: --------------------------------- Name: Title: EX-4.A 5 EXHIBIT 4(A) TRUST INDENTURE --------------- Dated as of _________, 1998 between FDX CORPORATION, as Issuer, FEDERAL EXPRESS CORPORATION, as Guarantor and THE FIRST NATIONAL BANK OF CHICAGO, as Trustee DEBT SECURITIES RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 (THE "TRUST INDENTURE ACT") AND INDENTURE Trust Indenture Act Section Indenture Section section 310 (a)(1).......................................... 6.09 (a)(2).......................................... 6.09 (b)............................................. 6.10 section 311 (b)(4).......................................... 6.13 (b)(6).......................................... 6.13 section 312 (a)............................................. 7.01 (b)............................................. 7.02 (c)............................................. 7.02 section 313 (a)............................................. 7.03 (b)(2).......................................... 7.03 (c)............................................. 7.03 (d)............................................. 7.03 section 314 (a)............................................. 7.04 (c)(1).......................................... 1.02 (c)(2).......................................... 1.02 (e)............................................. 1.02 (f)............................................. 1.02 section 316 (a) (last sentence)............................. 1.01 (a)(1)(A)....................................... 5.02 and 5.12 (a)(1)(B)....................................... 5.13 (b)............................................. 5.08 section 317 (a)(1).......................................... 5.03 (a)(2).......................................... 5.04 (b)............................................. 10.03 section 318 (a)............................................. 1.07 - ------------------- This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions of Sections 310-317 are a part of and govern every qualified indenture, whether or not physically contained therein. TABLE OF CONTENTS* ---------------------- PAGE ---- ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions...................................................1 SECTION 1.02. Compliance Certificates and Opinions..........................9 SECTION 1.03. Form of Documents Delivered to Trustee.......................10 SECTION 1.04. Acts of Holders..............................................10 SECTION 1.05. Notices, Etc. to Trustee and Company.........................11 SECTION 1.06. Notice to Holders; Waiver....................................12 SECTION 1.07. Conflict with Trust Indenture Act............................12 SECTION 1.08. Effect of Headings and Table of Contents.....................12 SECTION 1.09. Successors and Assigns.......................................12 SECTION 1.10. Separability Clause..........................................13 SECTION 1.11. Benefits of Indenture........................................13 SECTION 1.12. Governing Law................................................13 SECTION 1.13. Legal Holidays...............................................13 SECTION 1.14. Language of Notices..........................................13 SECTION 1.15. Counterparts.................................................13 ARTICLE 2 SECURITY FORMS SECTION 2.01. Forms Generally..............................................13 SECTION 2.02. Form of Trustee's Certificate of Authentication..............14 SECTION 2.03. Global Securities............................................14 ARTICLE 3 THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series.........................16 SECTION 3.02. Denominations................................................19 SECTION 3.03. Execution, Authentication, Delivery and Dating...............19 SECTION 3.04. Temporary Securities.........................................21 SECTION 3.05. Registration, Transfer and Exchange..........................22 SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.............25 SECTION 3.07. Payment of Interest; Interest Rights Preserved...............25 SECTION 3.08. Persons Deemed Owners........................................27 SECTION 3.09. Cancellation.................................................27 SECTION 3.10. Computation of Interest......................................28 - -------- *This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. ARTICLE 4 SATISFACTION AND DISCHARGE SECTION 4.01. Satisfaction and Discharge of Indenture......................28 SECTION 4.02. Application of Trust Money...................................29 ARTICLE 5 REMEDIES SECTION 5.01. Events of Default............................................30 SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........31 SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee......................................................32 SECTION 5.04. Trustee May File Proofs of Claim.............................33 SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities...................................................34 SECTION 5.06. Application of Money Collected...............................34 SECTION 5.07. Limitation on Suits..........................................35 SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.........................................35 SECTION 5.09. Restoration of Rights and Remedies...........................36 SECTION 5.10. Rights and Remedies Cumulative...............................36 SECTION 5.11. Delay or Omission Not Waiver.................................36 SECTION 5.12. Control by Holders...........................................36 SECTION 5.13. Waiver of Past Defaults......................................37 SECTION 5.14. Undertaking for Costs........................................37 SECTION 5.15. Waiver of Stay or Extension Laws.............................37 ARTICLE 6 THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities..........................38 SECTION 6.02. Notice of Defaults...........................................39 SECTION 6.03. Certain Rights of Trustee................................... 39 SECTION 6.04. Not Responsible for Recitals or Issuance of Securities...... 40 SECTION 6.05. May Hold Securities......................................... 41 SECTION 6.06. Money Held in Trust......................................... 41 SECTION 6.07. Compensation and Reimbursement.............................. 41 SECTION 6.08. Intentionally Left Blank.................................... 42 SECTION 6.09. Corporate Trustee Required; Eligibility..................... 42 SECTION 6.10. Resignation and Removal; Appointment of Successor........... 42 SECTION 6.11. Acceptance of Appointment by Successor...................... 44 SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.................................................... 46 SECTION 6.13. Preferential Claims......................................... 46 SECTION 6.14. Appointment of Authenticating Agent......................... 46 ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders..................................................... 48 SECTION 7.02. Preservation of Information; Communications to Holders...... 49 SECTION 7.03. Reports by Trustee.......................................... 50 SECTION 7.04. Reports by Company.......................................... 50 ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc. on Certain Terms.............. 51 SECTION 8.02. Successor Corporation Substituted........................... 52 ARTICLE 9 SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders.......... 52 SECTION 9.02. Supplemental Indentures with Consent of Holders............. 54 SECTION 9.03. Execution of Supplemental Indentures........................ 55 SECTION 9.04. Effect of Supplemental Indentures........................... 55 SECTION 9.05. Conformity with Trust Indenture Act......................... 55 SECTION 9.06. Reference in Securities to Supplemental Indentures.......... 55 ARTICLE 10 COVENANTS SECTION 10.01. Payment of Principal, Any Premium, Interest and Additional Amounts.......................................... 56 SECTION 10.02. Maintenance of Office or Agency............................. 56 SECTION 10.03. Money for Securities Payments to Be Held in Trust........... 56 SECTION 10.04. Corporate Existence......................................... 58 SECTION 10.05. Statement as to Default..................................... 58 SECTION 10.06. Additional Amount........................................... 58 ARTICLE 11 REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article.................................... 59 SECTION 11.02. Election to Redeem; Notice to Trustee....................... 59 SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........... 60 SECTION 11.04. Notice of Redemption........................................ 60 SECTION 11.05. Deposit of Redemption Price................................. 61 SECTION 11.06. Securities Payable on Redemption Date....................... 61 SECTION 11.07. Securities Redeemed in Part................................. 62 ARTICLE 12 GUARANTEE OF NOTES SECTION 12.01. Unconditional Guarantee..................................... 62 SECTION 12.02. Execution and Delivery of Security Guarantee................ 64 SECTION 12.03. Additional Guarantors....................................... 64 SECTION 12.04. Release of a Guarantor...................................... 64 SECTION 12.05. Waiver of Subrogation....................................... 65 SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent Regarding Dissolution, etc. of Guarantors ............ 65 SECTION 12.07. Limitation of Subsidiary Guarantor's Liability ............. 66 SECTION 12.08. Contribution from Other Guarantors.......................... 66 SECTION 12.09. Obligations Reinstated...................................... 66 SECTION 12.10. No Obligation to Take Action Against the Company............ 67 ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE SECTION 13.01. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance........................... 68 SECTION 13.02. Defeasance and Discharge.................................... 68 SECTION 13.03. Covenant Defeasance......................................... 69 SECTION 13.04. Conditions to Defeasance or Covenant Defeasance............. 69 SECTION 13.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions............... 71 ARTICLE 14 SINKING FUNDS SECTION 14.01. Applicability of Article.................................... 72 SECTION 14.02. Satisfaction of Sinking Fund Payments with Securities....... 73 SECTION 14.03. Redemption of Securities for Sinking Fund................... 73 ARTICLE 15 SECURITIES IN FOREIGN CURRENCIES SECTION 15.01. Applicability of Article.................................... 73 SCHEDULE I Supplemental Indenture EXHIBIT A Form of Debt Security EXHIBIT B Form of Guarantee TRUST INDENTURE INDENTURE, dated as of ____________, 1998, between FDX Corporation, a Delaware Corporation (the "Company"), Federal Express Corporation, a Delaware Corporation (the Guarantor") and The First National Bank of Chicago, a national banking association organized under the laws of the United States of America, as trustee (the "Trustee"). RECITALS WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior unsecured debentures, bonds, notes or other evidences of indebtedness, unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided; WHEREAS, the Company, at its sole option, may direct the Guarantor to issue from time to time guarantees of the Securities and the Company's obligations under this Indenture (the "Guarantee"); WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Guarantees, if any; WHEREAS, the Company and the Guarantor have duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid agreement of the Company and the Guarantor, in accordance with its terms, have been done; and WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities (as defined herein) by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows: ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (ii) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (iii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" or "GAAP" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America as of the date of such computation; and (iv) the words "herein," "hereof," "hereto" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms used principally in certain Articles hereof are defined in those Articles. "Act" when used with respect to any Holder, has the meaning specified in Section 1.04. "Additional Amounts" means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which are owing to such Holders. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities of one or more series. "Board of Directors" means the board of directors of the Company or any duly authorized committee of the board of directors of the Company. "Board Resolution" means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, delivered to the Trustee. "Business Day" means any day other than Saturday, Sunday or other day on which banking institutions in New York, Illinois or Tennessee are authorized or obligated by law to close. "Capital Stock" of any Person means any and all shares, interests, participations or other equivalents (however designated) of corporate stock of such Person. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Company" means FDX Corporation or any successor Corporation which shall have become such under this Indenture. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its President or any Vice President and delivered to the Trustee. "Conversion Event" means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit or composite currency other than the ECU for the purposes for which it was established. "Corporate Trust Office" means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of original execution of this Indenture is located at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126. "Corporation" includes corporations and limited liability companies and, except for purposes of Article Eight, associations, companies and business trusts. "Currency," with respect to any payment, deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars. "CUSIP Number" means the alphanumeric designation assigned to a Security by Standard & Poor's Ratings Group, CUSIP Service Bureau. "Defaulted Interest" has the meaning specified in Section 3.07. "Depository" means, with respect to the Securities of any series issuable upon original issuance in whole or in part in the form of one or more Global Securities, the clearing agency registered under the Securities Exchange Act of 1934, as amended, specified for that purpose as contemplated by Section 3.01. "Dollars" means a dollar or other equivalent unit of legal tender for payment of debts in the United States of America. "ECU" means the European Currency Units as defined and revised from time to time by the Counsel of the European Community. "European Monetary System" means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Community. "European Union" means the European Community, the European Coal and Steel Community and the European Atomic Energy Community. "Event of Default" has the meaning specified in Section 5.01. "Foreign Currency" means any currency, currency unit or composite currency, including, without limitation, the ECU, issued by the government of one or more countries other than the United States or by any recognized confederation or association of such governments. "Global Security" means a Security bearing the legend specified in Section 2.03 evidencing all or part of a series of Securities, issued to the Depository with respect to such series or its nominee and registered in the name of such Depository or nominee. "Government Obligations" means securities which are (x) direct obligations of the United States of America or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or interest on any Security or any Additional Amounts in respect thereof shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments, or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other governments or governments, in each case where the payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other governments or governments, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect to the Government Obligation or the specific payment of principal of or interest on the Government Obligation evidenced by such depository receipt. "Guarantee" has the meaning stated in the second recital of this Indenture and more particularly means any Guarantee authenticated and delivered under this Indenture. "Guarantor" means Federal Express Corporation, a Delaware corporation and Subsidiary of the Company. "Holder" means a Person in whose name a Security is registered in the Security Register. "Indebtedness" of any person means indebtedness for borrowed money and indebtedness under purchases money Liens or other purchase money liens or conditional sales or similar title retention agreements, in each case where such indebtedness has been created, incurred, or assumed by such person to the extent such indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, guarantees by such Person of such indebtedness, and indebtedness for borrowed money secured by any Lien, pledge or other lien or encumbrance upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness. "Indenture" means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of each particular series of Securities established as contemplated by Section 3.01. "Indexed Security" means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance. "Interest," with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 10.06, includes such Additional Amounts. "Interest Payment Date," with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Lien" means any Lien, security interest, pledge, lien or other encumbrance. "Maturity," with respect to any Security, means the date on which the principal of such Security, or an installment of principal, becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repurchase or otherwise and includes the Redemption Date. "Officer's Certificate" means a certificate signed by the Chairman of the Board, the President or any Vice President, and attested by the Secretary or any Assistant Secretary of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or of counsel to the Company, or other counsel reasonably satisfactory to the Trustee. "Original Issue Discount Security" means any Security issued pursuant to this Indenture which provides for declaration of an amount less than the principal face amount thereof to be due and payable upon acceleration of the Maturity pursuant to Section 5.02. "Outstanding," when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (iii) Securities for whose payment or redemption money or Government Obligations as contemplated by Section 13.04 in the necessary amount have been theretofore deposited with the Trustee (or another trustee satisfying the requirements of Section 6.09) in trust for the Holders of such Securities in accordance with Section 13.05; and (iv) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be equal to the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in this Indenture, (iii) the principal amount of a Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iv) Securities owned by the Company or any other obligor or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company. "Person" means any individual, Corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment," with respect to the Securities of any series, means the place where the principal of (and premium, if any), interest on, and Additional Amounts with respect to, the Securities of that series are payable as provided in or pursuant to this Indenture or such Securities. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Redemption Date," with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security. "Redemption Price," with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture or such Security. "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified in or pursuant to this Indenture or such Security as the "Regular Record Date." "Responsible Officer" means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of knowledge of and familiarity with the particular subject. "Securities" means any debentures, bonds, notes or other evidences of indebtedness, as the case may be, of any series authenticated and delivered from time to time under this Indenture, provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, "Securities" with respect to any such Person shall mean securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee. "Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05. "Special Record Date" for the payment of any Defaulted Interest on any Security means a date fixed by the Trustee pursuant to Section 3.07. "Stated Maturity," with respect to any Security or any installment of principal thereof or interest thereon or any Additional Amounts, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable. "Subsidiary" means any Corporation of which at the time of determination the Company or one or more Subsidiaries owns or controls, directly or indirectly, more than 50% of the shares of voting stock. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Trustee" means the Person named as the "Trustee" in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder. If at any time there is more than one such Person, "Trustee" shall mean such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of such series. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided in Section 9.05. "Vice President," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." SECTION 1.02. Compliance Certificates and Opinions. Except as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with or an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Any Officer's Certificate will comply with Section 314(e) of the Trust Indenture Act. SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which the certificate or opinion is based are erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument. SECTION 1.04. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section. (c) The ownership of Securities shall be proved by the Security Register. (d) If the Company shall solicit from the Holders of Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent and waiver or other Act may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Securities of such series Outstanding shall be computed as of such record date. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 1.05. Notices, Etc. to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (i) the Trustee by any Holder or the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office; or (ii) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company at 2007 Corporate Avenue, Memphis, Tennessee 38132, attention Vice President and Treasurer, or at any other address previously furnished in writing to the Trustee by the Company. SECTION 1.06. Notice to Holders; Waiver. Where this Indenture or any Security provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein or in such Security expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder's address as it appears in the Security Register, not later than the latest date, or not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. Where this Indenture or any Security provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. SECTION 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 1.10. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.12. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of Tennessee. SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) or any Additional Amounts need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue with respect to such payments for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the next succeeding Business Day. SECTION 1.14. Language of Notices. Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication. SECTION 1.15. Counterparts. This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. ARTICLE 2 SECURITY FORMS SECTION 2.01. Forms Generally. The Securities of each series shall be in substantially the form attached hereto as Exhibit A as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If any form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities. The definitive Securities may be produced in any manner determined by the officers executing such Securities, as evidenced by their execution of such Securities. Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall be issuable in registered form without coupons and shall not be issuable upon the exercise of warrants. SECTION 2.02. Form of Trustee's Certificate of Authentication. This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. The First National Bank of Chicago, as Trustee By:________________________________ Authorized Officer SECTION 2.03. Global Securities. Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall be issued in global form. Any such Security may provide that it or any number of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lessor amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.03 or 3.04 with respect thereto. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing but need not be accompanied by or contained in an Officer's Certificate and need not be accompanied by an Opinion of Counsel. Notwithstanding the provisions of Section 3.07, unless otherwise specified in or pursuant to this Indenture or any Securities, payment of principal of, any premium and interest on, and any Additional Amounts in respect of, any Security in global form shall be made to the Person specified therein. Notwithstanding the provisions of Section 3.08 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder, the holder of such global Security in registered form. Any Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form: "This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in such limited circumstances." ARTICLE 3 THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and (subject to Section 3.03) set forth in an Officer's Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series (subject to the last paragraph of this Section 3.01): (i) the title of the Securities and the series in which such Securities shall be included (which shall distinguish the Securities of the series from all other Securities); (ii) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03 are deemed never to have been authenticated and delivered hereunder); (iii) the date or dates on which the principal of the Securities of the series is payable; (iv) the Person to whom any interest on any Security of the series shall be payable if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date; (v) the place or places where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable; (vi) the date or dates on which, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company; (vii) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the date or dates on which, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation and any provisions for the remarketing of such securities so redeemed or purchased; (viii) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (ix) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion is to be determined; (x) the application, if any, of either or both of Section 13.02 and Section 13.03 to the Securities of the series; (xi) if other than Dollars, the Foreign Currency in which payment of the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities shall be payable; (xii) if the principal of (and premium, if any) or interest, if any, on the Securities of that series are to be payable, at the election of the Company or a holder thereof, in a currency (including a composite currency) other than that in which the Securities are stated to be payable, the date or dates on which, the period or periods within which, and the terms and conditions upon which, such election may be made; (xiii) if the amount of payments of principal of (and premium if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method or methods based on a currency (including a composite currency) other than that in which the Securities are stated to be payable, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable; (xiv) if the amount of payments of principal of, any premium or interest on the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (xv) whether any Securities of the series are to be issuable upon original issuance in the form of one or more Global Securities and, if so, (i) the Depository with respect to such Global Security or Securities and (ii) the circumstances under which any such Global Security may be exchanged for Securities registered in the name of, and any transfer of such Global Security may be registered to, a Person other than such Depository or its nominee, if other than as set forth in Section 3.05; (xvi) whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable; (xvii) the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months; (xviii) intentionally left blank; (xix) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (xx) if any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions; (xxi) if there is more than one Trustee, the identify of the Trustee and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities; (xxii) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture) and any deletions from or modifications or additions to this Indenture in respect of such series; and (xxiii) the terms of any Guaranty, if any. All Securities of any one series shall be substantially identical except as to denomination, currency, rate of interest, or method of determining the rate of interest, if any, Maturity, and the date from which interest, if any, shall accrue and except as may otherwise be provided in or pursuant to such Board Resolution referred to above and (subject to Section 3.03) set forth in the Officer's Certificate referred to above or in any indenture supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of the Board Resolution shall be delivered to the Trustee at the same time as or prior to the delivery of the Officer's Certificate setting forth the terms of the series. Notwithstanding any contrary terms of this Section 3.01, the terms of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon telephonic or written order of Persons designated in the Officer's Certificate or supplemental indenture and that such Persons are authorized to determine, consistent with such Officer's Certificate or any supplemental indenture, such terms and conditions of the Securities of such series as are specified in such certificate or supplemental indenture. All Securities of any one series may be reopened for issuances of additional Securities of such series or to establish additional terms of such series of Securities. SECTION 3.02. Denominations. Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. The Securities of each series shall be issuable only in fully registered form without coupons in such denominations as shall be specified pursuant to Section 3.01. In the absence of any such provision with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture. SECTION 3.03. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its President or any Vice President, under its corporate seal reproduced thereon attested by its Secretary or any Assistant Secretary. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were the proper officers of the Company when their signatures were affixed to such Securities shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions or indentures supplemental hereto as permitted by Sections 2.01and 3.01, in authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon: (a) an Opinion of Counsel to the effect that: (i) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; (ii) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; (iii) this Indenture has been qualified under the Trust Indenture Act; and (iv) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles and will entitle the Holders thereof to the benefits of this Indenture; and (b) an Officer's Certificate stating that, to the best knowledge of the Person executing such certificate, no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Securities shall have occurred and be continuing. Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver an Opinion of Counsel, Officer's Certificate or the Company Order otherwise required at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by, or on behalf of, the Trustee or by the Authenticating Agent by manual signature. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture. The Trustee shall not be required to authenticate or to cause an Authentication Agent to authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. SECTION 3.04. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and deliver to the Trustee, and, upon Company Order, the Trustee shall authenticate and deliver in the manner provided in Section 3.03, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine, as evidenced by their execution of such Securities. Such temporary Securities may be in global form. If temporary Securities of any series are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor of authorized denomination containing terms and provisions that are identical to those of any temporary Securities. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series. SECTION 3.05. Registration, Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities. Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor containing identical terms and provisions. At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series containing identical terms and provisions in any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or the Holder's attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer. Except as otherwise provided herein, the Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 3.01, any Global Security of any series shall be exchangeable for definitive Securities only if: (a) such Depository is unwilling, unable or ineligible to continue as Depository with respect to such Global Security and a successor depository is not appointed by the Company within 90 days or if at any time the Depository with respect to such Global Security ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, or (b) the Company executes and delivers to the Trustee a Company Order providing that such Global Security shall be so exchangeable and the transfer thereof so registrable. If the beneficial owners of interests in a Global Security are entitled to exchange such interests for definitive Securities as the result of an event described in the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such Global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such Global Security shall be surrendered from time to time by the Depository and in accordance with instructions given to the Trustee and the Depository (which instructions shall be in writing but need not be contained in or accompanied by an Officers Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered Global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such Global Security to be exchanged, which shall be in the form of Securities, as shall be specified by the beneficial owner thereof, provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository in accordance with the instructions of the Company referred to above. If a Security is issued in exchange for any portion of a Global Security after the close of business at the office or agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such office or agency on the next Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such office or agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such Global Security shall be payable in accordance with the provisions of this Indenture. SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any mutilated Security is surrendered to the Trustee or if there shall be delivered to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) there shall be delivered to the Company and the Trustee such indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute a separate obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. The provisions of this Section, as amended or supplemented pursuant to this Indenture, are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on and any Additional Amounts with respect to any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on, and any Additional Amounts with respect to, any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: (i) The Company may elect to make payment of any Defaulted Interest to the Person in whose name the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment. Such money when deposited will be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at the Holder's address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii). (ii) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series pursuant to the provisions of this Indenture, at the option of the Company, interest on Securities may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.05 and 3.07) interest on and any Additional Amounts with respect to such Security and for all other purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. No Holder of any beneficial interest in any Global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such Global Security, and such Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. SECTION 3.09. Cancellation. All Securities surrendered for payment, redemption, registration of transfer, exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever and may deliver to the Trustee (or to an Authenticating Agent for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order. SECTION 3.10. Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE 4 SATISFACTION AND DISCHARGE SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to rights of registration of transfer or exchange of Securities), and the Trustee on receipt of the Company Request, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when: (a) either (i) all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation: (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) if redeemable at the option of the Company are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest and any Additional Amounts to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be. (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) the Company has delivered to the Trustee an Officer's Certificate or an Opinion of Counsel, stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with. In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any series, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations under Sections 3.04, 3.05, 3.06, 10.02 and 11.03, and the obligation to pay Additional Amounts, if any, with respect to such Securities as contemplated by Section 10.06 (but only to the extent that any Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.01(a)(ii), shall survive. SECTION 4.02. Application of Trust Money. Subject to the provisions of the penultimate paragraph of Section 10.03, all money and Government Obligations deposited with the Trustee pursuant to Section 4.01 and Article 13 shall be held in trust and applied by it, in accordance with the provisions of the Securities of the series for which such deposit was made and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any), interest and Additional Amounts for whose payment such money and Government Obligations has been deposited with the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law. ARTICLE 5 REMEDIES SECTION 5.01. Events of Default. "Event of Default," wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officer's Certificate establishing the terms of such series pursuant to this Indenture: (a) default in the payment of any interest upon any Security of such series when it becomes due and payable, and continuance of such default for a period of 30 days; (b) default in the payment of the principal of (or premium, if any, on) any Security of such series at its Maturity; (c) default in the performance, or breach, of any covenant, agreement or warranty of the Company or the Guarantor in this Indenture (other than a covenant, agreement or warranty a default in whose performance is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than such series) and continuance of such default for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 50% in principal amount of the Outstanding Securities of such series a written notice specifying such default and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; (d) default in the deposit of any sinking fund payment when and as due by the terms of a Security of such series; (e) the entry by a court having jurisdiction of a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under federal bankruptcy law or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; (f) the commencement by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under federal bankruptcy law or any other applicable federal or state law, or the consent by it to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of a general assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (g) any other Event of Default provided pursuant to Section 3.01 with respect to Securities of such series. SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 50% in principal amount of the Outstanding Securities of such series may declare the principal amount of all the Securities of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount shall become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before the Stated Maturity thereof, the Holders of a majority in principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay: (A) all overdue installments of interest on and any Additional Amounts with respect to all Securities of such series; (B) the principal of (and premium, if any on) any Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Securities of such series and any Additional Amounts; (C) to the extent that payment of such interest or Additional Amounts is lawful, interest upon overdue interest or Additional Amounts at the rate borne by the Securities of such series; and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (ii) all Events of Default with respect to the Securities of such series, other than the non-payment of the principal of Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if: (i) default is made in the payment of any interest on any Securities when such interest becomes due and payable and such default continues for a period of 30 days, or (ii) default is made in the payment of the principal of (or premium, if any, on) any Securities at the Maturity thereof, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate borne by the Securities and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sum so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 5.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal (and premium, if any) or interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest and Additional Amounts owing and unpaid in respect of the Securities and to file such other papers and documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. SECTION 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any), interest or Additional Amounts, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: To the payment of all amounts due the Trustee under Section 6.07; Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any), interest and Additional Amounts on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any), interest and Additional Amounts, respectively; and Third: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto. SECTION 5.07. Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (i) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series; (ii) the Holders of not less than 50% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (iii) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceedings; and (v) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such series. It being understood and intended that no one or more Holders of Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the right of any other such Holders of Securities of such series, or to obtain or to seek to obtain priority or preference over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of Securities. SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any, on) and (subject to Section 3.07) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment and such rights shall not be impaired without the consent of such Holder. SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceedings has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 5.12. Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that: (i) such direction shall not be in conflict with any rule of law or with this Indenture or with such Securities; (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and (iii) subject to Section 6.01, the Trustee need not take any action which might be prejudicial to the Holders of such series not consenting. SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default: (i) in the payment of the principal of (or premium, if any) or interest on any Security of such series, or (ii) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist with respect to such series, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date). SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE 6 THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default, (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct; except that: (i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. SECTION 6.02. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 5.01(c) with respect to the Securities of such series no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of Section 6.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assume no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 6.05. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 6.06. Money Held in Trust. Except as otherwise provided herein, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. SECTION 6.07. Compensation and Reimbursement. The Company agrees: (i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder; (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent that any such loss, liability or expense was due to the Trustee's negligence or bad faith. SECTION 6.08. Intentionally Left Blank. SECTION 6.09. Corporate Trustee Required; Eligibility. (a) There shall at all times be a Trustee hereunder which shall: (i) be a Corporation organized and doing business under thelaws of the United States of America, any State thereof or the District of Columbia authorized under such laws to exercise corporate trust powers; (ii) be eligible under Section 310(a) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act; and (iii) have a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority. If such Corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. (b) The following Indenture shall be considered specifically described herein for purposes of clause (i) of the proviso contained in Section 310(b)(1) of the Trust Indenture Act: [Any to include?]. SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. (b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (c) The Trustee may be removed at any time with respect to the Securities of any series by the Company or by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee, and to the Company in the case of an Act of the Holders. (d) If at any time: (i) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to the Securities after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months; (ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder; or (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of such Holder and all other similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of 75% in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. SECTION 6.11. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which, (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee. It being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such a acceptance such successor Trustee shall be qualified and eligible under this Article. SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 6.13. Preferential Claims. Reference is made to Section 311 of the Trust Indenture Act. For purposes of Section 311(b)(4) and (6) of such Act: (i) "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and (ii) "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation. SECTION 6.14. Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in the Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a Corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided that such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving 30 days' written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provision of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provision of this Section. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.07. If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE FIRST NATIONAL BANK OF CHICAGO, as Trustee By:___________________________________ As Authenticating Agent By:___________________________________ Authorized Officer ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee with respect to the Securities of each series: (i) semi-annually, not later than each Interest Payment Date for such series (or, in the case of any series not having semi-annual Interest Payment Dates, semi-annually, not later than the dates determined pursuant to Section 3.01 for such series) a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of the preceding Regular Record Date (or as of such other date determined pursuant to Section 3.01 for such series) therefor, and (ii) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished. SECTION 7.02. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of each series contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of such Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list of the Holders of Securities of any series furnished to it as provided in Section 7.01 upon receipt of a new list of such Holders. (b) If three or more Holders of Securities of any series (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series with respect to their rights under this Indenture or under the Securities of such series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either: (i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a) with respect to the Securities of such series, or (ii) inform such applicants as to the approximate number of Holders of Securities of such series whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) a copy of the form or proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b). SECTION 7.03. Reports by Trustee. (a) Within 60 days after May 1 of each year commencing with the year 1997, the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report dated as of such May 1, if any, as may be required by Section 313(a) of the Trust Indenture Act. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 7.04. Reports by Company. The Company shall: (a) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (b) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (c) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc. on Certain Terms. The Indenture prohibits any consolidation or merger of the Company with or into any other Person, or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any conveyance, transfer or lease of the property of the Company as an entirety or substantially as an entirety, to any Person, unless: (a) in case the Company shall consolidate with or merge into another Corporation or convey, transfer or lease its properties and assets as, or substantially as, an entirety to any Person, the Corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, or lease the properties and assets of the Company, as, or substantially as, an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any), interest on and any Additional Amounts with respect to all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, or event which after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officer's Certificate or an Opinion of Counsel, stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 8.02. Successor Corporation Substituted. Upon any consolidation by the Company with or merger by the Company into any other Corporation or any conveyance, transfer or lease of the properties and assets of the Company as, or substantially as, an entirety to any Person in accordance with Section 8.01, the successor Corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Corporation has been named as the Company herein, and thereafter, except in the case of a lease to another Person, the predecessor Corporation shall be relieved of all obligations and covenants under this Indenture and the Securities. ARTICLE 9 SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to evidence the succession of another Person to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor herein and in the Securities; (b) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (and, if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; (c) to add any additional Events of Default with respect to Securities of any or all series; (d) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; (e) to secure the Securities of any or all series; (f) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; (g) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; (h) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; (i) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); (j) to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; (k) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article 13, provided that no such supplement shall materially adversely affect the interest of the Holders of any Securities then Outstanding; or (l) to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall materially adversely affect the interest of the Holders of any Securities then Outstanding. SECTION 9.02. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than 51% in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (a) change the Stated Maturity of the principal of, or any installment of interest on, any such Security, or reduce the principal amount thereof or any interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the currency in which, any such Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); (b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of those Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or (c) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or the provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities or any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. ARTICLE 10 COVENANTS SECTION 10.01. Payment of Principal, Any Premium, Interest and Additional Amounts. The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on and any Additional Amounts with respect to the Securities of that series in accordance with the terms of the Securities and this Indenture. SECTION 10.02. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of such series may be presented or surrendered for registration or transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent. SECTION 10.03. Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or before each due date of the principal of or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay the principal (or premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (i) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (ii) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal (and premium, if any) or interest on the Securities of such series; and (iii) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or received by the Trustee (or another trustee satisfying the requirements of Section 6.09) in respect of Government Obligations deposited with the Trustee (or such other trustee) pursuant to Section 13.04, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust. The Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. The Trustee or such Paying Agent, before being required to make any such repayment, may publish, in the English language, in a newspaper customarily published on each Business Day and of general circulation in the City of New York, New York, or to be mailed to such Holder or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the earlier of the date of such publication or such mailing, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 10.04. Corporate Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the foregoing shall not obligate the Company to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof is not disadvantageous in any material respect to any Holder. SECTION 10.05. Statement as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, an Officer's Certificate, stating as to each signer thereof that he or she is familiar with the affairs of the Company and whether or not to such officer's knowledge the Company is in compliance (without regard to any period of grace or requirement of notice) with all conditions and covenants of this Indenture. The officer executing such certificate shall be the Company's principal executive, finance or accounting officer and such certificate need not comply with Section 1.02 of this Indenture. SECTION 10.06. Additional Amount. If any Securities of a series provide for the payment of Additional Amounts, the Company agrees to pay to the Holder of any such Security Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer's Certificate, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officer's Certificate instructing the Trustee and such Paying Agent whether such payment of principal of an premium, if any, or interest on the Securities of such series shall be made to Holders of Securities of such series who are United States aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such series. If any such withholding shall be required, then such Officer's Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. ARTICLE 11 REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified pursuant to Section 3.01 for Securities of any series) in accordance with this Article. SECTION 11.02. Election to Redeem; Notice to Trustee. In case of any redemption of less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer's Certificate evidencing compliance with such restriction. SECTION 11.03. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless all of the Securities of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series subject to such redemption and not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series and tenor or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. If less than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 11.04. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof. All notices of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price; (iii) if less than all the Outstanding Securities of any Series and tenor are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (iv) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest thereon will cease to accrue on and after said date; (v) the place or places where such Securities are to be surrendered for payment of the Redemption Price; (vi) that the redemption is for a sinking fund, if such is the case; (vii) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed; and (viii) the CUSIP Number or the Euroclear or the Cedel Bank reference numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities). Notice of redemption of Securities to be redeemed shall be given by the Company or, on Company Request, by the Trustee at the expense of the Company. SECTION 11.05. Deposit of Redemption Price. On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date. SECTION 11.06. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular or Special Record Dates according to their terms and the provisions of Section 3.07. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Security. SECTION 11.07. Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at an office or agency of the Company at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or the Holder's attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depository, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. ARTICLE 12 GUARANTEE OF NOTES The Company, at its sole option, may direct the Guarantor to issue from time to time Guarantees of the Securities. The Guarantee shall be executed and delivered under this Indenture and will form part of the Security only at the option and upon the direction of the Company. SECTION 12.01. Unconditional Guarantee. If directed by the Company, the Guarantor hereby fully and unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company to the Holders or the Trustee hereunder or thereunder, that: (a) the principal of, premium, if any, and interest on the Securities will be duly and punctually paid in full when due, whether at maturity, upon redemption, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities and all other obligations of the Company or the Guarantor to the Holders or the Trustee hereunder or thereunder (including fees, expenses or other) and all other obligations under the Indenture or the Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations under the Indenture or the Securities, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders, for whatever reason, the Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Guarantee, if any, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Security Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Guarantee, if any, shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee, if any. This Guarantee, if any, is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to the Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantor, any amount paid by the Company or the Guarantor to the Trustee or such Holder, this Guarantee, if any, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand (a) subject to this Article 12, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 5 hereof for the purposes of this Guarantee, if any, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article 5 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee, if any. SECTION 12.02. Execution and Delivery of Guarantee. To further evidence the Guarantee, if any, set forth in Section 12.01, the Guarantor hereby agrees that a notation of such Guarantee, if any, shall be endorsed on each Security authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an Officer of the Guarantor. The Guarantor hereby agrees that its Guarantee, if any, set forth in Section 12.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee, if any. If an Officer of the Guarantor whose signature is on this Indenture or a Guarantee, if any, no longer holds that office at the time the Trustee authenticates such Note or at any time thereafter, such Guarantor's Guarantee, if any, of such Security shall be valid nevertheless. The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee, if any, set forth in this Indenture on behalf of the Guarantor. SECTION 12.03. Release of the Guarantor. Upon the sale, exchange, transfer or other disposition (by merger or otherwise), other than a lease, of the Guarantor of all of the Capital Stock of the Guarantor or all, or substantially all, the assets of the Guarantor, to any person that is not an Affiliate of the Company, and which sale or other disposition is otherwise in compliance with the terms of this Indenture, the Guarantor shall be deemed automatically and unconditionally released and discharged from all obligations under this Article 12 without any further action required on the part of the Trustee or any Holder. The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request of the Company accompanied by an Officers' Certificate certifying as to the compliance with this Section and the Company's rights of redemption in accordance with the terms of the Securities in this Section 12.03. SECTION 12.04. Waiver of Subrogation. Until this Indenture is discharged and all of the Securities are discharged and paid in full, the Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company's obligations under the Securities or this Indenture and the Guarantor's obligations under this Guarantee, if any, and this Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of Securities under the Securities, this Indenture, or any other document or instrument delivered under or in connection with such agreements or instruments, shall not have been paid in full, such amount shall have been deemed to have been paid to the Guarantor for the benefit of, and held in the trust for the benefit of, the Holders of the Securities, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied to the Securities, whether matured or unmatured, in accordance with the terms of this Indenture. The Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in this Section 12.05 is knowingly made in contemplation of such benefits. SECTION 12.05. Reliance on Judicial Order or Certificate of Liquidating Agent Regarding Dissolution, etc. of Guarantors . Upon any payment or distribution of assets of the Guarantor referred to in this Article 12, the Trustee, subject to the provisions of Section 6.01, and the Holders, shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the amount thereof or payable thereon, the amounts or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 12. SECTION 12.06. Limitation of Guarantor's Liability . The Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee, if any, by such Guarantor pursuant to its Guarantee, if any, not constitute a fraudulent transfer or conveyance for purposes of title 11 of the United States Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of the Guarantor under this Guarantee, if any, shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of the Guarantor, and will result in the obligations of the Guarantor under its Guarantee, if any, not constituting such fraudulent transfer or conveyance. SECTION 12.07. Obligations Reinstated. The obligations of the Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced the obligations of the Guarantor hereunder (whether such payment shall have been made by or on behalf of the Company is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or the Guarantor or otherwise, all as though such payment had not been made. If demand for, or acceleration of the time for, payment by the Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization of the Company, all such Indebtedness otherwise subject to demand for payment or acceleration shall nonetheless be payable by each Guarantor as provided herein. SECTION 12.08. No Obligation to Take Action Against the Company. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the obligations under this Indenture or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by the Guarantor of its liabilities and obligations under its Guarantee, if any, or under this Indenture. ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE SECTION 13.01. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.01 provision is made for either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03 to apply to Securities of any series, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (if applicable) or Section 13.03 (if applicable) be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below in this Article Thirteen. SECTION 13.02. Defeasance and Discharge. Upon the Company's exercise of the above option applicable to this Section, the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on and Additional Amounts, if any, with respect to, such Securities when such payments are due; (b) the Company's obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 6.07, 10.02, 10.03 and 10.06 (but only to the extent that any Additional Amounts payable exceed the amount deposited in respect of such Additional Amounts pursuant to Section 13.04(a) below); (c) the rights, powers, trusts, duties and immunities and other provisions in respect of the Trustee hereunder; and (d) this Article Thirteen. Subject to compliance with this Article Thirteen, the Company may exercise its option under this Section 13.02 notwithstanding the prior exercise of its option under Section 13.03 with respect to the Securities of such series. SECTION 13.03. Covenant Defeasance. Upon the Company's exercise of the above option applicable to this Section, the Company shall be released from its obligations under Sections 8.01, 10.05, 5.01(c) (as to Sections 8.01 and 10.05, 5.01(e), 5.01(f) and 5.01(g) (if Section 5.01(g) is specified as applicable to the Securities of such series) with respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. Following a covenant defeasance, payment of the Securities of such series may not be accelerated because of an Event of Default specified above in this Section 13.03. SECTION 13.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 13.02 or Section 13.03 to the Outstanding Securities of such series. (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, within two weeks of the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any, on) and each installment of principal of (and premium, if an) and interest on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of any series of Securities at a future date in accordance with any redemption provisions contained in the Supplemental Indenture relating to such series, which shall be given effect in applying the foregoing. (b) No Event of Default or event with which notice of lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). (c) Such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company. (d) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound. (e) Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be deleted. (f) In the case of an election under Section 13.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. (g) In the case of an election under Section 13.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. (h) Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01. (i) The Company shall have delivered to the Trustee an Officer's Certificate or an Opinion of Counsel, stating that all conditions precedent provided for in the Indenture relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with. SECTION 13.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee -- collectively, for purposes of this Section, the "Trustee") pursuant to Section 13.04 in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (but not including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Security, if after a deposit referred in Section 13.02 has been made, (a) Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to 13.02 has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 13.02 has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series. Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance. ARTICLE 14 SINKING FUNDS SECTION 14.01. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 14.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series and this Indenture. SECTION 14.02. Satisfaction of Sinking Fund Payments with Securities. The Company may (a) deliver Outstanding Securities of a series (other than any of such Securities previously called for redemption) and (b) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities, or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment required to be made pursuant to the terms of such Securities, as provided by the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such required sinking fund payment shall be reduced accordingly. SECTION 14.03. Redemption of Securities for Sinking Fund. Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer's Certificate specifying the amount of the next ensuing mandatory sinking fund payment for such series pursuant to the terms of such series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 14.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, hereof and will also deliver to the Trustee any Securities to be so delivered. Not less than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07. ARTICLE 15 SECURITIES IN FOREIGN CURRENCIES SECTION 15.01. Applicability of Article. Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same Currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in this Indenture or the Securities, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of the record date with respect to Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such action, determination of rights or distribution) as the Company may specify in a written notice to the Trustee or, in the absence of such written notice, as the Trustee may determine. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written. FDX CORPORATION, Issuer Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: FEDERAL EXPRESS CORPORATION, as Guarantor Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: THE FIRST NATIONAL BANK OF CHICAGO, as Trustee Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: SCHEDULE I FDX CORPORATION, [FEDERAL EXPRESS CORPORATION] AND THE FIRST NATIONAL BANK OF CHICAGO, as Trustee Supplemental Indenture No. __ Dated as of _____________, ______ ___% Notes due __________________, ______ SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____ between FDX Corporation, a Delaware Corporation (the "Company") [, Federal Express Corporation, a Delaware Corporation (the "Guarantor")] and The First National Bank of Chicago, a national banking association organized under the laws of the United States of America (herein called the "Trustee") as Trustee (the "Trustee"). RECITALS OF THE COMPANY The Company, the Guarantor and the Trustee have executed and delivered an Indenture dated as of __________, 1998, as amended or supplemented (the "Indenture") to provide for the issuance from time to time of the Company's Securities. Sections 2.01 and 3.01 of the Indenture provide that the form and terms of Securities of any series may be established pursuant to an indenture supplemental to the Indenture. All things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and under the Indenture and duly issued by the Company and to make this Supplemental Indenture No. ___ a valid agreement of the Company, in accordance with their and its terms, have been done. NOW, THEREFORE, this Indenture witnesseth: For and in consideration of the premises and the purchase of the Securities by the holders hereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of the holders of the Securities of the series hereby established, as follows: ARTICLE 1 RELATION TO THE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Relation to the Indenture. This Supplemental Indenture No. ___ constitutes an integral part of the Indenture. SECTION 1.02. Definitions and Other Provisions of General Application. For all purposes of this Supplemental Indenture No. ___ unless otherwise specified herein: (a) all terms defined in this Indenture which are used and not otherwise defined herein shall have the meanings they are given in the Indenture; and (b) the provisions of general application stated in Section 1.01 of the Indenture shall apply to this Supplemental Indenture No. __, except that the words "herein," "hereof," "hereto" and "hereunder" and other words of similar import refer to this Supplemental Indenture as a whole and not to the Indenture or any particular Article, Section or other subdivision of the Indenture or this Supplemental Indenture No. ___. ARTICLE 2 THE SERIES OF NOTES SECTION 2.01. Title. There shall be a series of Securities designated the "___% Notes due __________, ____" (the "Notes"). SECTION 2.02. Principal Amount. The aggregate principal amount of the Notes which may be authenticated and delivered under this Supplemental Indenture shall not exceed $__________ (except for Notes which may be authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture). SECTION 2.03. Maturity. The date on which the principal of the Notes shall be payable shall be __________. SECTION 2.04. Interest. [The Notes shall bear interest at the rate of [ ]% per annum. Interest shall accrue from __________, _____ or from the most recent Interest Payment Date to which interest has been paid or provided for. Accrued interest shall be payable on _________, _____ and on each _____ and _____ thereafter, to the persons in whose names the Notes are registered at the close of business on the preceding _____ or _____, as the case may be.] [Insert other interest provisions if necessary] SECTION 2.05. Place of Payment. [The Place of Payment for the Notes shall be at the Corporate Trust office of the Trustee at ____________ or such other office of the Paying Agent as the Paying Agent may reasonably request by notice to the Company and the Trustee (if the Paying Agent is not the Trustee).] SECTION 2.06. Redemption. [Insert redemption terms] The provisions of Article Thirteen of the Indenture [shall/shall not] apply to the Notes. SECTION 2.07. Intentionally Left Blank. SECTION 2.08. Form of Notes. The Notes shall be in the form of Exhibit A attached hereto. SECTION 2.09. Currency. [Insert currency terms.] SECTION 2.10. Sinking Fund. [Insert sinking fund terms.] SECTION 2.11. Additional Amounts. The provisions of Section 10.06 of the Indenture [shall/shall not] apply to the Notes. SECTION 2.12. The Guaranty. [Insert guaranty terms] ARTICLE 3 MISCELLANEOUS PROVISIONS SECTION 3.01. Supplemental Indenture. The Indenture, as supplemented and amended by this Supplemental Indenture No. __, is in all respects hereby adopted, ratified and confirmed. SECTION 3.02. Counterparts. This Supplemental Indenture No. __ may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. __ to be duly executed, as of the day and year first written above. FDX CORPORATION Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: FEDERAL EXPRESS CORPORATION Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: THE FIRST NATIONAL BANK OF CHICAGO Attest: By:______________________________ By:______________________________ Name: Name: Title: Title: EXHIBIT A TO INDENTURE REGISTERED PRINCIPAL AMOUNT: No.___________________ $ __________________ CUSIP NO._____________ FDX CORPORATION __% Note due ________, ____ UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 WATER STREET, NEW YORK, NEW YORK), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY. FDX Corporation, a Delaware Corporation, (the "Company" which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay Cede & Co. C/O the Depository Trust Company 55 Water Street New York, New York 10041 or registered assigns, the principal sum of DOLLARS on __________________, _____________ the "Maturity Date") and to pay interest thereon from _______________, _______________________ or from the most recent "Interest Payment Date" to which interest has been paid or duly provided for, semi-annually on ______________ and ________________ of each year, commencing _____________, ___________, and on the Maturity Date, at the rate of % per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the "Regular Record Date" for such interest, which shall be the __________ or ___________ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee referred to on the reverse hereof, notice of which shall be given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The Company will at all times appoint and maintain a Paying Agent (which may be the Trustee) authorized by the Company to pay the principal of and interest on any Notes of this series on behalf of the Company and having an office or agency in Chicago, Illinois and in such other cities, if any, as the Company may designate in writing to the Trustee (the "Place of Payment") where Notes of this series may be presented or surrendered for payment and where notices, designations or requests in respect for payments with respect to Notes of this series may be served. The Company has initially appointed The First National Bank of Chicago as such Paying Agent. Interest payments on this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months. Interest payable on this Note on any Interest Payment Date and on the Maturity Date will include interest accrued from and including the most recent Interest Payment Date to which interest has been paid or duly provided for (or from and including __________, _______________, if no interest has been paid on this Note) to but excluding such Interest Payment Date or the Maturity Date, as the case may be. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day (as defined below), principal or interest payable with respect to such Interest Payment Date or Maturity Date, as the case may be, will be paid on the next succeeding Business Day with the same force and effect as if it were paid on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be. "Business Day" means any day other than Saturday, Sunday or other day on which banking institutions in New York, Illinois or Tennessee are obligated or authorized by law to close. The principal and interest payable on this Note will be made by wire transfer of immediately available funds to the Holder hereof in such currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the Certificate of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. FDX CORPORATION By:______________________________ Name: Title: Attest: By:______________________________ Name: Title: CERTIFICATE OF AUTHENTICATION This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture. THE FIRST NATIONAL BANK OF CHICAGO, as Trustee By:______________________________ Authorized Signatory Dated:___________________________ FDX CORPORATION ___% Note due _______, ____ This Note is one of a duly authorized issue of securities of the Company (herein called the "Notes"), limited in aggregate principal amount to $________ (except as otherwise provided in the Indenture), issued and to be issued as one series of debt securities of the Company under an Indenture, dated as of________, 1998, as amended and supplemented from time to time (the "Indenture"), between the Company and The First National Bank of Chicago, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. In addition to the Notes, the Company is authorized to issue an unlimited amount of debt securities in one or more series (herein collectively with the Notes called the "Debt Securities") under the Indenture. This Note is not redeemable at the option of the Company or at the option of the Holder prior to the Maturity Date [and is not subject to any sinking fund]. In case an Event of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions apply to the Notes. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Debt Securities or each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least 51% in principal amount of the Debt Securities at the time Outstanding or the consent of 51% in principal amount of each series of Debt Securities to be affected if less than all series are to be affected by such modification or amendment. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Debt Securities of each series at the time Outstanding, on behalf of the Holders of all Debt Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rate, and in the currency herein prescribed. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in the Place of Payment, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series issued in definitive registered form are exchangeable for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested by the Holder surrendering the same. The Notes of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000 in excess thereof. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. No recourse under or upon any obligation, covenant or agreement of the Corporation in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Corporation or of any successor Corporation, either directly or through the Corporation or any successor Corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof. At the option of the Corporation and upon satisfaction of certain conditions specified in the Indenture, either (a) the Corporation shall be deemed to have paid and discharged the entire indebtedness on the Notes or (b) the Corporation need not comply with certain covenants contained in the Indenture, in each case upon the deposit by the Corporation with the Trustee in trust for the Holders of the Notes of an amount of funds or obligations issued or guaranteed by the United States of America sufficient to pay and discharge upon the stated maturity thereof the entire indebtedness evidenced by the Notes, all as provided in the Indenture . This Note shall be governed by and construed in accordance with the laws of the State of Tennessee. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM as tenants in common TEN ENT as tenants by the entireties JT TEN as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT ____________________ Custodian _______________________ (Cust) (Minor) under Uniform Gifts to Minors Act ______________________________________________________ (State) Additional abbreviations may also be used though not in the above list. ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and transfer(s) unto _____________________________________________________________ ______________________________________________________________________________ PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:__________________________________________________________________ Please Print or Type Name and Address including Postal Zip Code of Assignee: ______________________________________________________________________________ ______________________________________________________________________________ the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ to transfer said Note on the books of the Company, with full power of substitution in the premises. Dated:_______________________________ Signature Guaranteed _____________________________________ NOTICE: Signature must be guaranteed NOTICE: The signature to this by a member firm of the New York assignment must correspond with the Stock Exchange or a commercial bank or name as written upon the face of the trust company. within Note in every particular, without alteration or enlargement or any change whatever EXHIBIT B TO INDENTURE GUARANTEE The Guarantor (as defined in the Indenture referred to in the Security upon which this notation is endorsed) hereby jointly and severally fully and unconditionally guarantees (such guarantee being referred to herein as the "Guarantee") the due and punctual payment of the principal of, premium, if any, and interest on the Securities, whether at maturity, upon redemption, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal, premium and interest, if any, on the Securities, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee, all in accordance with the terms set forth in Article Twelve of the Indenture. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth, to the extent and in the manner provided, in Article Twelve of the Indenture, and reference is hereby made to such Indenture for the precise terms of the Guarantee therein made. The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Securities upon which the Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. This Guarantee shall be governed by and construed in accordance with the laws of the State of Tennessee. This Guarantee is subject to release upon the terms set forth in the Indenture. FEDERAL EXPRESS CORPORATION, as Guarantor By:_____________________________ Name: Title: EX-5 6 EXHIBIT 5 [FDX letterhead] March 17, 1999 FDX Corporation 6075 Poplar Avenue Memphis, Tennessee 38119 Ladies and Gentlemen: I am Corporate Vice President and Corporate Counsel of FDX Corporation (the "Company") and have acted as such in connection with the preparation and filing of a Registration Statement on Form S-3, as amended (the "Registration Statement") and the two prospectuses contained therein (collectively, the "Prospectuses") with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"). The Registration Statement relates to: (i) Debt Securities, to be issued in one or more series in an aggregate principal amount of up to $1 billion pursuant to a Trust Indenture (the "Trust Indenture") to be entered into between the Company and The First National Bank of Chicago, as Trustee; or (ii) Preferred Stock and Common Stock of the Company, to be issued in an aggregate amount of up to $1 billion (collectively referred to herein as the "Shares"). In connection with the opinions expressed below, I or attorneys under my supervision have examined originals, or copies certified to my satisfaction, of such agreements, documents, certificates and statements of government officials and other papers as we have deemed necessary or advisable as a basis for such opinions. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity with the originals of all documents submitted to us as copies. I or attorneys under my supervision have also examined the form of Trust Indenture filed with the Securities and Exchange Commission. Based upon the foregoing, it is my opinion that: 1. The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware and is duly authorized to carry on the business in which it is engaged. 2. The execution and delivery by the Company of the Trust Indenture has been duly authorized by the Company. 3. Subject to (i) the determination of the terms of the Debt Securities in accordance with the Trust Indenture, (ii) the issuance, sale, authentication and delivery of the Debt Securities as contemplated by the Trust Indenture and the underwriting agreement for debt securities in substantially the form filed as Exhibit 1(a) to the Registration Statement, and (iii) the Registration Statement being declared effective, the Debt Securities, when issued and sold, will be legally issued and the valid and binding obligations of the Company enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principals relating to or limiting creditors rights generally. 4. The Shares will be legally issued, fully paid and non-assessable when issued and sold and paid for on the terms contemplated by the underwriting agreements for Preferred Stock and Common Stock in substantially the forms filed as Exhibits 1(b) and 1(c), respectively, to the Registration Statement. I do not find it necessary for purposes of this opinion and, accordingly, do not purport to cover herein the application of the "Blue Sky" or securities laws of the various states to the sales of the Debt Securities or the Shares. I am qualified to practice law in the State of Tennessee and I do not purport to be an expert on, or to express any opinion herein concerning, any laws other than the laws of the State of Tennessee, the corporate laws of the State of Delaware and the federal laws of the United States. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Legal Matters" in the Prospectuses and in any subsequently filed Prospectus Supplements. In giving such consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act. Sincerely, FDX CORPORATION /s/ George W. Hearn George W. Hearn Corporate Vice President and Corporate Counsel 2 EX-15 7 EXHIBIT 15 [ARTHUR ANDERSEN LETTERHEAD] March 17, 1999 FDX Corporation: We are aware that FDX Corporation and Federal Express Corporation have incorporated by reference in this Form S-3 Registration Statement their Form 10-Q's for the quarters ended August 31, 1998 and November 30, 1998, which include our reports dated September 23, 1998 and December 16, 1998, respectively, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, those reports are not considered a part of the registration statement prepared or certified by our firm or a report prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. Very truly yours, Arthur Andersen LLP /s/ Arthur Andersen LLP EX-23.B 8 EXHIBIT 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-3 registration statement to be filed with the Securities and Exchange Commission on March 19, 1999, of our reports dated July 8, 1998, included or incorporated by reference in the Form 10-K filings for the year ended May 31, 1998 of FDX Corporation and Federal Express Corporation, and to all references to our firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Memphis, Tennessee March 17, 1999 EX-23.C 9 EXHIBIT 23(c) Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-3) pertaining to FDX Corporation of our report dated January 23, 1997 (except for Note K as to which the date is March 27, 1997) with respect to the consolidated financial statements of Caliber System, Inc. as of December 31, 1996 and for the two years in the period then ended included in FDX Corporation's Annual Report (Form 10-K) for the year ended May 31, 1998. /s/ Ernst & Young LLP Ernst & Young LLP Akron, Ohio March 17, 1999 EX-25 10 EXHIBIT 25 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ---------------------------- THE FIRST NATIONAL BANK OF CHICAGO (Exact name of trustee as specified in its charter) A National Banking Association 36-0899825 (I.R.S. employer identification number) One First National Plaza, Chicago, Illinois 60670-0126 (Address of principal executive offices) (Zip Code) The First National Bank of Chicago One First National Plaza, Suite 0286 Chicago, Illinois 60670-0286 Attn: Lynn A. Goldstein, Law Department (312) 732-6919 (Name, address and telephone number of agent for service) ----------------------------- FDX Corporation (Exact name of obligor as specified in its charter) Delaware 62-1721435 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 6075 Poplar Avenue Memphis, Tennessee 38119 (Address of principal executive offices) (Zip Code) Debt Securities (Title of Indenture Securities) Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. No such affiliation exists with the trustee. Item 16. List of exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificates of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, The First National Bank of Chicago, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 17th day of March, 1999. The First National Bank of Chicago, Trustee By /s/ John R. Prendiville John R. Prendiville Vice President * Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of The First National Bank of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on May 6, 1998 (Registration No. 333-51907-01). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT March 17, 1999 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In connection with the qualification of an indenture between FDX Corporation and The First National Bank of Chicago, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, The First National Bank of Chicago By /s/ John R. Prendiville John R. Prendiville Vice President EXHIBIT 7 Legal Title of Bank: The First National Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031 Bank of Chicago Page RC-1 Address: One First National Plaza, Ste 0460 City, State Zip: Chicago, IL 60670 FDIC Certificate No.: 0/3/6/1/8 Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 1998 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter. Schedule RC--Balance Sheet Dollar Amounts in thousands C400 RCFD BIL MIL THOU ---- ---- ------------ ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD ---- a. Noninterest-bearing balances and currency and coin(1)................... 0081 5,585,982 1.a b. Interest-bearing balances(2)............................................ 0071 4,623,842 1.b 2. Securities a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 11,181,405 2.b 3. Federal funds sold and securities purchased under agreements to resell 1350 9,853,544 3. 4. Loans and lease financing receivables: RCFD a. Loans and leases, net of unearned income (from Schedule ---- RC-C)...................................................................... 2122 31,155,998 4.a b. LESS: Allowance for loan and lease losses............................... 3123 411,963 4.b c. LESS: Allocated transfer risk reserve................................... 3128 3,884 4.c d. Loans and leases, net of unearned income, allowance, and RCFD ---- reserve (item 4.a minus 4.b and 4.c)....................................... 2125 30,740,151 4.d 5. Trading assets (from Schedule RD-D)........................................ 3545 7,635,778 5. 6. Premises and fixed assets (including capitalized leases) .................. 2145 739,925 6. 7. Other real estate owned (from Schedule RC-M) .............................. 2150 4,827 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)............................................. 2130 202,359 8. 9. Customers' liability to this bank on acceptances outstanding .............. 2155 269,516 9. 10. Intangible assets (from Schedule RC-M) .................................... 2143 291,665 10. 11. Other assets (from Schedule RC-F) ......................................... 2160 3,071,912 11. 12. Total assets (sum of items 1 through 11) .................................. 2170 74,200,906 12.
(1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. Legal Title of Bank: The First National Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031 Bank of Chicago Page RC-2 Address: One First National Plaza, Ste 0460 City, State Zip: Chicago, IL 60670 FDIC Certificate No.: 0/3/6/1/8 Schedule RC-Continued Dollar Amounts in Thousands LIABILITIES ----------------- 13. Deposits: a. In domestic offices (sum of totals of columns A and C RCON ---- from Schedule RC-E, part 1) ............................................ 2200 22,524,140 13.a (1) Noninterest-bearing(1) ............................................. 6631 10,141,937 13.a1 (2) Interest-bearing ................................................... 6636 12,382,203 13.a2 b. In foreign offices, Edge and Agreement subsidiaries, and RCFN ---- IBFs (from Schedule RC-E, part II) ..................................... 2200 19,691,237 13.b (1) Noninterest bearing ................................................ 6631 408,126 13.b1 (2) Interest-bearing ................................................... 6636 19,283,111 13.b2 14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 9,113,686 14 15. a. Demand notes issued to the U.S. Treasury RCON 2840 120,599 15.a b. Trading Liabilities(from Sechedule RC-D) ............................... RCFD 3548 6,797,927 15.b 16. Other borrowed money: RCFD ---- a. With original maturity of one year or less ............................. 2332 5,385,355 16.a b. With original maturity of more than one year .......................... A547 327,126 16.b c. With original maturity of more than three years ....................... A548 316,411 16.c 17. Not applicable 18. Bank's liability on acceptance executed and outstanding ................... 2920 269,516 18. 19. Subordinated notes and debentures ......................................... 3200 2,400,000 19. 20. Other liabilities (from Schedule RC-G) .................................... 2930 2,137,443 20. 21. Total liabilities (sum of items 13 through 20) ............................ 2948 69,083,440 21. 22. Not applicable EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ............................. 3838 0 23. 24. Common stock .............................................................. 3230 200,858 24. 25. Surplus (exclude all surplus related to preferred stock) .................. 3839 3,201,435 25. 26. a. Undivided profits and capital reserves ................................. 3632 1,695,446 26.a b. Net unrealized holding gains (losses) on available-for-sale securities ............................................................. 8434 6,349 26.b 27. Cumulative foreign currency translation adjustments ....................... 3284 13,378 27. 28. Total equity capital (sum of items 23 through 27) ......................... 3210 5,117,466 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, and 28) ..................................... 3300 74,200,906 29. Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 1996 ...................................... RCFD 6724.......[N/A] M.1.
1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified chartering public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 4. = Directors' examination of the bank performed by other external auditors (may be required by state authority) 5 = Review of the bank's financial statements by external auditors 6 = Compilation of the bank's financial statements by external auditors 7 = Other audit procedures (excluding tax preparation work) 8 = No external audit work (1) Includes total demand deposits and noninterest-bearing time and savings -----END PRIVACY-ENHANCED MESSAGE-----