EXHIBIT 4.h
OWNER TRUSTEE PARENT GUARANTEE
OWNER TRUSTEE PARENT GUARANTEE, dated May 27, 1998, as amended and
restated on July 7, 1998, by State Street Bank and Trust Company, a
Massachusetts trust company (the "Guarantor") to and for the benefit of each
person listed on Schedule I hereto (collectively, together with their
permitted successors and assigns, the "Beneficiaries" and, individually, a
"Beneficiary").
WITNESSETH:
WHEREAS, State Street Bank and Trust Company of Connecticut, National
Association, a wholly-owned subsidiary of the Guarantor (the "Subsidiary")
wishes to act pursuant to the agreements listed on Schedule II hereto (as
amended, modified or supplemented from time to time, the "Agreements");
WHEREAS, the Beneficiaries are willing to have the Subsidiary act under
the Agreements provided that the Guarantor executes and delivers this
Guarantee;
WHEREAS, the Guarantor has determined that the execution and delivery by
it of this Guarantee is necessary in order to conduct, promote and attain the
business of the Subsidiary and the Guarantor;
NOW, THEREFORE, the Guarantor hereby agrees with and for the benefit of
the Beneficiaries as follows:
1. Guarantee.
(a) The Guarantor hereby guarantees to the Beneficiaries the
prompt and complete payment by the Subsidiary when due of, and the
faithful performance of, and compliance with, all payment obligations of
the Subsidiary under the Agreements and any other document relating
thereto to which the Subsidiary is or may hereafter become a party or by
which the Subsidiary is or may hereafter become bound (collectively, the
"Relevant Documents"), in accordance with the terms thereof and the
timely performance of all other obligations of the Subsidiary thereunder
(such payment and other obligations, the "Obligations"). In no event,
however, shall the agreement contained herein be construed to constitute
a guarantee of any amount due (i) under any note or other similar
instrument issued under the Relevant Documents or any other payment due
under any Relevant Document that constitute non-recourse obligations of
the Subsidiary, or (ii) with respect to acts or events occurring after
such time, if any, that the Subsidiary ceases to be a party to the
Relevant Documents. The agreement contained herein shall be enforceable
against the Guarantor, notwithstanding the fact that the Subsidiary has
ceased to be a party to the Relevant Documents, provided that the events
or acts which give rise to such claim against the Guarantor occurred at
such time as the Subsidiary was a party to the Relevant Documents.
(b) No payment or payments made by the Subsidiary, the Guarantor,
any other guarantor or any other person or received or collected by any
Beneficiary from the Subsidiary, the Guarantor, any other guarantor or
any other person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor
hereunder (except to the extent of such payment) until the Obligations
are paid and performed in full.
(c) If for any reason any Obligations to be performed or
observed by the Subsidiary shall not be observed or performed, or if any
amount payable by the Subsidiary referred to in Section 1(a) hereof
shall not be paid when due and payable, the Guarantor shall promptly
perform or observe or cause to be performed or observed each such
Obligation or undertaking and shall forthwith pay such amount or perform
such action at the place and to the person or entity entitled thereto
pursuant to the Relevant Documents.
2. Amendments, etc., with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor, any demand for payment or performance of
any of the Obligations made by any Beneficiary may be rescinded by such party
and any of the Obligations continued, and the Obligations, or the liability of
any other party upon or for any part thereof, or any collateral security or
guaranty therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any Beneficiary
and any Relevant Document and/or any collateral security document or other
guaranty or document in connection therewith, may be amended, modified,
supplemented or terminated, in whole or in part, as the parties thereto may
deem advisable from time to time, and any collateral security, guaranty or
right of offset at any time held by any Beneficiary for the payment or
performance of the Obligations may be sold, exchanged, waived, surrendered or
released.
3. Guarantee Absolute and Unconditional. The Guarantor understands
and agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment and performance (and not merely of
collection) without regard to (a) any defense, set-off or counterclaim (other
than a defense of payment or performance) that may at any time be available to
or be asserted by the Subsidiary against any Beneficiary, (b) the validity or
enforceability of any Relevant Document against the Subsidiary, or (c) any
other circumstances whatsoever (with or without notice to or knowledge of the
Subsidiary or the Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance (other than a discharge of such Obligations through payment or
performance). When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Subsidiary or any other
person or entity or against any collateral security or guaranty for the
Obligations or any right of offset with respect thereto, and any failure by
any Beneficiary to pursue such other rights or remedies or to collect any
payments from the Subsidiary or any such other person or entity or to realize
upon any such collateral security or guaranty or to exercise any such right of
offset, or any release of the Subsidiary or any such other person or entity
or any such collateral security, guaranty or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Beneficiary against the Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantor and the successors and assigns thereof,
and shall inure to the benefit of the Beneficiaries, and their respective
successors, transferees and assigns, until all of the Obligations and the
obligations of the Guarantor under this Agreement shall have been satisfied by
payment and performance in full. The Guarantor further agrees to pay all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) that may be paid or incurred by the Beneficiaries in enforcing any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Guarantor
under this Guarantee.
4. Representations and Warranties. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is a trust company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization;
(b) the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of the Guarantee and
compliance by the Guarantor with all of the provisions thereof do not
and will not contravene (i) any provision of any requirement of law or
any order known to us of any court or governmental authority or agency
applicable to or binding on the Guarantor, (ii) any contractual
obligations of the Guarantor, or (iii) any of the provisions of its
charter documents or By-laws;
(e) no consent or authorization of, filing with or other act by
or in respect of, any arbitrator or governmental authority and no
consent of any other person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection with
the execution, delivery, performance, validity or enforceability of this
Guarantee;
(f) the Guarantor is a bank with a combined capital and surplus
or corporation with a tangible net worth of at least $250,000,000, as
determined in accordance with generally accepted accounting principles;
(g) the Guarantor owns all of the capital stock of the
Subsidiary; and
(h) there are no proceedings pending or, to our knowledge,
threatened, and to our knowledge there is no existing basis for any such
proceedings, against or affecting the Guarantor in or before any court
or before any governmental authority or arbitration board or tribunal
which, if adversely determined, might restrict the Guarantor's corporate
power and authority to perform its obligations under the Guarantee.
5. Reinstatement. The Guarantor agrees that this Guarantee shall be
automatically reinstated with respect to any payment made prior to the
termination of this Guarantee by or on behalf of the Subsidiary pursuant to
any Relevant Document to which the Subsidiary is a party if and to the extent
that such payment is rescinded or must be otherwise restored, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise.
6. Miscellaneous. None of the terms or provisions of this Guarantee
may be waived, amended or supplemented or otherwise modified except by a
written instrument executed by the Guarantor and the Beneficiaries. This
Guarantee shall be binding upon the successors and assigns of the Guarantor
and shall inure to the benefit of the Beneficiaries and their respective
successors, transferees and assigns. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS. All notices, requests and demands to or upon the Guarantor or
any Beneficiary to be effective shall be in writing or by telecopy and, unless
otherwise expressly provided herein, shall be deemed to have been duly given
or made when delivered by hand, or, in the case of mail, three days after
deposit in the postal system, first class postage pre-paid, or, in the case of
telegraphic notice, when sent, answerback received, addressed to (a) in the
case of the Guarantor, Two International Place, Boston MA 02110; Telecopy No.
(617) 664-5371, and (b) in the case of any Beneficiary, the address provided
for such party in the Relevant Documents, or at such other address as such
person may provide to the Guarantor in writing.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and the
year first above written.
STATE STREET BANK AND TRUST COMPANY
By:_____________________________________________
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
----------
Federal Express Corporation, as Lessee
BMO Leasing (U.S.), Inc., as Owner Participant
First Security Bank, National Association, as Indenture Trustee and Pass
Through Trustee
SCHEDULE II
-----------
1. Participation Agreement (Federal Express Corporation Trust No.
N590FE), dated as of May 1, 1998, as amended and restated as of June 15, 1998
(the "Participation Agreement") among the Subsidiary, Federal Express
Corporation, as Lessee, BMO Leasing (U.S.), Inc., as Owner Participant, Morgan
Guaranty Trust Company of New York, as Original Loan Participant, and First
Security Bank, National Association, as Indenture Trustee, Pass Through
Trustee and Subordination Agent.
2. Trust Agreement (Federal Express Corporation Trust No. N590FE),
dated as of May 1, 1998, as amended and restated as of June 15, 1998 between
the Subsidiary and BMO Leasing (U.S.), Inc., as Owner Participant.
3. All other Operative Agreements as contemplated by the Participation
Agreement to which the Subsidiary is or will be a party.
OWNER TRUSTEE PARENT GUARANTEE
OWNER TRUSTEE PARENT GUARANTEE, dated June 18, 1998, as amended and
restated on July 7, 1998, by State Street Bank and Trust Company, a
Massachusetts trust company (the "Guarantor") to and for the benefit of each
person listed on Schedule I hereto (collectively, together with their
permitted successors and assigns, the "Beneficiaries" and, individually, a
"Beneficiary").
WITNESSETH:
WHEREAS, State Street Bank and Trust Company of Connecticut, National
Association, a wholly-owned subsidiary of the Guarantor (the "Subsidiary")
wishes to act pursuant to the agreements listed on Schedule II hereto (as
amended, modified or supplemented from time to time, the "Agreements");
WHEREAS, the Beneficiaries are willing to have the Subsidiary act under
the Agreements provided that the Guarantor executes and delivers this
Guarantee;
WHEREAS, the Guarantor has determined that the execution and delivery by
it of this Guarantee is necessary in order to conduct, promote and attain the
business of the Subsidiary and the Guarantor;
NOW, THEREFORE, the Guarantor hereby agrees with and for the benefit of
the Beneficiaries as follows:
1. Guarantee.
(a) The Guarantor hereby guarantees to the Beneficiaries the
prompt and complete payment by the Subsidiary when due of, and the
faithful performance of, and compliance with, all payment obligations of
the Subsidiary under the Agreements and any other document relating
thereto to which the Subsidiary is or may hereafter become a party or by
which the Subsidiary is or may hereafter become bound (collectively, the
"Relevant Documents"), in accordance with the terms thereof and the
timely performance of all other obligations of the Subsidiary thereunder
(such payment and other obligations, the "Obligations"). In no event,
however, shall the agreement contained herein be construed to constitute
a guarantee of any amount due (i) under any note or other similar
instrument issued under the Relevant Documents or any other payment due
under any Relevant Document that constitute non-recourse obligations of
the Subsidiary, or (ii) with respect to acts or events occurring after
such time, if any, that the Subsidiary ceases to be a party to the
Relevant Documents. The agreement contained herein shall be enforceable
against the Guarantor, notwithstanding the fact that the Subsidiary has
ceased to be a party to the Relevant Documents, provided that the events
or acts which give rise to such claim against the Guarantor occurred at
such time as the Subsidiary was a party to the Relevant Documents.
(b) No payment or payments made by the Subsidiary, the Guarantor,
any other guarantor or any other person or received or collected by any
Beneficiary from the Subsidiary, the Guarantor, any other guarantor or
any other person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor
hereunder (except to the extent of such payment) until the Obligations
are paid and performed in full.
(c) If for any reason any Obligations to be performed or
observed by the Subsidiary shall not be observed or performed, or if any
amount payable by the Subsidiary referred to in Section 1(a) hereof
shall not be paid when due and payable, the Guarantor shall promptly
perform or observe or cause to be performed or observed each such
Obligation or undertaking and shall forthwith pay such amount or perform
such action at the place and to the person or entity entitled thereto
pursuant to the Relevant Documents.
2. Amendments, etc., with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor, any demand for payment or performance of
any of the Obligations made by any Beneficiary may be rescinded by such party
and any of the Obligations continued, and the Obligations, or the liability of
any other party upon or for any part thereof, or any collateral security or
guaranty therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any Beneficiary
and any Relevant Document and/or any collateral security document or other
guaranty or document in connection therewith, may be amended, modified,
supplemented or terminated, in whole or in part, as the parties thereto may
deem advisable from time to time, and any collateral security, guaranty or
right of offset at any time held by any Beneficiary for the payment or
performance of the Obligations may be sold, exchanged, waived, surrendered or
released.
3. Guarantee Absolute and Unconditional. The Guarantor understands
and agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment and performance (and not merely of
collection) without regard to (a) any defense, set-off or counterclaim (other
than a defense of payment or performance) that may at any time be available to
or be asserted by the Subsidiary against any Beneficiary, (b) the validity or
enforceability of any Relevant Document against the Subsidiary, or (c) any
other circumstances whatsoever (with or without notice to or knowledge of the
Subsidiary or the Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance (other than a discharge of such Obligations through payment or
performance). When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Subsidiary or any other
person or entity or against any collateral security or guaranty for the
Obligations or any right of offset with respect thereto, and any failure by
any Beneficiary to pursue such other rights or remedies or to collect any
payments from the Subsidiary or any such other person or entity or to realize
upon any such collateral security or guaranty or to exercise any such right of
offset, or any release of the Subsidiary or any such other person or entity
or any such collateral security, guaranty or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Beneficiary against the Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantor and the successors and assigns thereof,
and shall inure to the benefit of the Beneficiaries, and their respective
successors, transferees and assigns, until all of the Obligations and the
obligations of the Guarantor under this Agreement shall have been satisfied by
payment and performance in full. The Guarantor further agrees to pay all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) that may be paid or incurred by the Beneficiaries in enforcing any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Guarantor
under this Guarantee.
4. Representations and Warranties. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is a trust company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization;
(b) the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of the Guarantee and
compliance by the Guarantor with all of the provisions thereof do not
and will not contravene (i) any provision of any requirement of law or
any order known to us of any court or governmental authority or agency
applicable to or binding on the Guarantor, (ii) any contractual
obligations of the Guarantor, or (iii) any of the provisions of its
charter documents or By-laws;
(e) no consent or authorization of, filing with or other act by
or in respect of, any arbitrator or governmental authority and no
consent of any other person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection with
the execution, delivery, performance, validity or enforceability of this
Guarantee;
(f) the Guarantor is a bank with a combined capital and surplus
or corporation with a tangible net worth of at least $250,000,000, as
determined in accordance with generally accepted accounting principles;
(g) the Guarantor owns all of the capital stock of the
Subsidiary; and
(h) there are no proceedings pending or, to our knowledge,
threatened, and to our knowledge there is no existing basis for any such
proceedings, against or affecting the Guarantor in or before any court
or before any governmental authority or arbitration board or tribunal
which, if adversely determined, might restrict the Guarantor's corporate
power and authority to perform its obligations under the Guarantee.
5. Reinstatement. The Guarantor agrees that this Guarantee shall be
automatically reinstated with respect to any payment made prior to the
termination of this Guarantee by or on behalf of the Subsidiary pursuant to
any Relevant Document to which the Subsidiary is a party if and to the extent
that such payment is rescinded or must be otherwise restored, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise.
6. Miscellaneous. None of the terms or provisions of this Guarantee
may be waived, amended or supplemented or otherwise modified except by a
written instrument executed by the Guarantor and the Beneficiaries. This
Guarantee shall be binding upon the successors and assigns of the Guarantor
and shall inure to the benefit of the Beneficiaries and their respective
successors, transferees and assigns. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS. All notices, requests and demands to or upon the Guarantor or
any Beneficiary to be effective shall be in writing or by telecopy and, unless
otherwise expressly provided herein, shall be deemed to have been duly given
or made when delivered by hand, or, in the case of mail, three days after
deposit in the postal system, first class postage pre-paid, or, in the case of
telegraphic notice, when sent, answerback received, addressed to (a) in the
case of the Guarantor, Two International Place, Boston MA 02110; Telecopy No.
(617) 664-5371, and (b) in the case of any Beneficiary, the address provided
for such party in the Relevant Documents, or at such other address as such
person may provide to the Guarantor in writing.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and the
year first above written.
STATE STREET BANK AND TRUST COMPANY
By:_____________________________________________
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
----------
Federal Express Corporation, as Lessee
PMCC Leasing Corporation, as Owner Participant
First Security Bank, National Association, as Indenture Trustee and Pass
Through Trustee
SCHEDULE II
-----------
1. Participation Agreement (Federal Express Corporation Trust No.
N675FE), dated as of June 1, 1998, as amended and restated as of June 15, 1998
(the "Participation Agreement") among the Subsidiary, Federal Express
Corporation, as Lessee, PMCC Leasing Corporation, as Owner Participant, Morgan
Guaranty Trust Company of New York, as Original Loan Participant, and First
Security Bank, National Association, as Indenture Trustee, Pass Through
Trustee and Subordination Agent.
2. Trust Agreement (Federal Express Corporation Trust No. N675FE),
dated as of June 1, 1998, as amended and restated as of June 15, 1998 between
the Subsidiary and PMCC Leasing Corporation, as Owner Participant.
3. All other Operative Agreements as contemplated by the Participation
Agreement to which the Subsidiary is or will be a party.