EXHIBIT 1
CONFORMED COPY
UNDERWRITING AGREEMENT
June 30, 1998
between
FEDERAL EXPRESS CORPORATION
and
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
J. P. MORGAN SECURITIES INC.
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties of the Company............... 6
SECTION 2. Purchase and Sale........................................... 10
SECTION 3. Covenants of the Company.................................... 11
SECTION 4. Payment of Expenses......................................... 13
SECTION 5. Conditions of Underwriters' Obligations..................... 14
SECTION 6. Indemnification............................................. 17
SECTION 7. Contribution................................................ 18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................... 19
SECTION 9. Termination of Agreement.................................... 19
SECTION 10. Default by One of the Underwriters.......................... 20
SECTION 11. Notices..................................................... 20
SECTION 12. Parties..................................................... 20
SECTION 13. Governing Law............................................... 21
Exhibit A Pricing Information
Exhibit B Opinion of Davis Polk & Wardwell
Exhibit C-1 Opinion of Davis Polk & Wardwell pursuant to
Participation Agreement - Refinancing
Exhibit C-2 Opinion of Davis Polk & Wardwell pursuant to
Participation Agreement - Prefunding
Exhibit D Opinion of the Company
Schedule I Underwriters' Commitments
Schedule II Terms and Conditions
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
UNDERWRITING AGREEMENT
June 30, 1998
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
J. P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Federal Express Corporation, a Delaware corporation (the "Company"),
proposes that First Security Bank, National Association, acting not in its
individual capacity but solely as pass through trustee (the "Pass Through
Trustee") under the Pass Through Trust Agreement dated as of May 1, 1997 (the
"Basic Agreement"), as supplemented for each class of pass through
certificates (the "Pass Through Certificates") to be purchased hereunder
(each, a "Class") by a Series Supplement (each, a "Series Supplement"), in
each case between the Company and the Pass Through Trustee (for each Class,
the Basic Agreement, as supplemented by the related Series Supplement, being
referred to herein as the "Pass Through Agreement"), issue and sell to the
underwriters named in Schedule I hereto its Pass Through Certificates in the
aggregate amounts and with the applicable interest rates and final expected
distribution dates set forth on Exhibit A hereto (the "Offered Certificates")
on the terms and conditions stated herein and in Schedule II.
Each Class of Pass Through Certificates will represent interests in a
separate trust (each, a "Pass Through Trust") established pursuant to the
related Pass Through Agreement to fund the purchase of equipment trust
certificates (the "Equipment Certificates") which are to be issued as
nonrecourse obligations by certain owner trustees, each acting not in its
individual capacity but solely as owner trustee (each, an "Owner Trustee"), in
connection with separate leveraged lease transactions relating to five
McDonnell Douglas MD-11F aircraft and eight Airbus A300F4-605R aircraft (each,
an "Aircraft" and, collectively, the "Aircraft"). The proceeds from the sale
of the Equipment Certificates will be used to (i) finance a portion of the
purchase price to be paid by the Owner Trustee on behalf of eleven Owner
Trusts (Trust Nos. N585FE, N620FE, N621FE, N623FE, N676FE, N677FE, N678FE,
N679FE, N680FE, N681FE and N682FE, and (ii) refinance the aggregate
outstanding principal amount of the Original Loan Certificates issued by the
related Owner Trust in connection with transactions relating to Trust Nos.
N675FE and N590FE. Each series of Equipment Certificates will be issued under
a separate Trust Indenture and Security Agreement between First Security Bank,
National Association, acting not in its individual capacity, but solely as
Indenture Trustee (the "Indenture Trustee"), and the related Owner Trustee
(each, an "Indenture" and, collectively, the "Indentures").
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
Certificates, or the representative or representatives of the Underwriters, if
an underwriting syndicate is purchasing the Offered Certificates, as indicated
in Schedule I.
Payments of interest on the Class A and Class B Pass Through
Certificates to be issued by the related Pass Through Trust will be entitled
to the benefits of a separate liquidity facility for each such Pass Through
Trust, Kreditanstalt fur Wiederaufbau (the "Liquidity Provider"), will enter
into a separate revolving credit agreement (a "Liquidity Facility") to be
dated as of June 15, 1998, for the benefit of the holders of the Class A and
Class B Certificates issued by the related Pass Through Trust. The Liquidity
Provider and the holders of the Offered Certificates will be entitled to the
benefits of an Intercreditor Agreement to be dated as of June 15, 1998 (the
"Intercreditor Agreement") among each Pass Through Trust, First Security Bank,
National Association, as Subordination Agent (the "Subordination Agent"), and
the Liquidity Provider.
The Company has filed with the Securities and Exchange Commission (the
"Commission") two registration statements on Form S-3 (Nos. 333-07691 and
333-49411) for the registration of certain equipment trust certificates, pass
through certificates and other securities, including the Offered Certificates,
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 statements have been declared effective by
the Commission and the Basic Agreement 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 combined
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Certificates, together with a combined basis prospectus relating
to pass through certificates covered by the above-referenced registration
statements, in each case, in accordance with Rule 429 of the 1933 Act
Regulations.
The term "Registration Statement" refers to each 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 combined
basis prospectus relating to pass through certificates. The term "Prospectus"
means the Basic Prospectus supplemented by the Prospectus Supplement. The term
"Preliminary Prospectus" means a preliminary combined prospectus supplement
specifically relating to the Offered Certificates 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 equipment trust certificates or pass through certificates
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 Pass Through Agreement or
the Indenture relating to each related series of Equipment Certificates.
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, is a "citizen of the United States"
within the meaning of Title 49 of the United States Code, as amended (the
"Transportation Code"), holding an air operating certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of the Transportation Code
for aircraft capable of carrying 10 or more individuals or 6,000 or more
pounds of cargo, 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 Statements), 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 Statements and Prospectus. At the time each
Registration Statement became effective, such 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.
Each 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 either Registration Statement or the
Prospectus made in reliance upon and in conformity with information furnished
to the Company in writing by an Underwriter expressly for use in the either
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 either 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 Statements 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 Statements 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 Statements 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, each Pass Through
Agreement and the other Operative Agreements to which the Company is or is to
be a party and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action and duly
executed and delivered 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 (other than as permitted under the Leases), 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, each Pass Through Agreement and the other Operative Agreements 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, any Pass Through Agreement or
any other Operative Agreement to which the Company is or is to be a party,
except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities or Blue Sky laws, the Transportation Code, and
the Uniform Commercial Code as in effect in Delaware and Tennessee.
(ix) Legal Proceedings. 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 Pass Through Agreements and the
other Operative Agreements to which the Company is a party.
(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 of Operative Agreements. Each of the Pass
Through Agreements and the other Operative Agreements to which the Company is
or is to be a party have been duly authorized by the Company, will each be
substantially in the form heretofore supplied to you and, when duly executed
and delivered by the Company and the other parties thereto, will each
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms. The Basic Agreement as executed is
substantially in the form filed as an exhibit to the Registration Statements
and has been duly qualified under the 1939 Act.
(xii) Validity of the Offered Certificates. When executed,
issued, authenticated and delivered pursuant to the provisions of the
applicable Pass Through Agreement and sold and paid for as provided in this
Agreement, each Class of Offered Certificates will constitute valid and
legally binding obligations of the Pass Through Trustee enforceable in
accordance with their terms; and the Certificateholders of such Offered
Certificates will be entitled to the benefits provided by such Pass Through
Agreement.
(xiii) Validity of the Equipment Certificates. The Equipment
Certificates to be issued under each applicable Indenture, when duly executed
and delivered by the related Owner Trustee and duly authenticated by the
Indenture Trustee in accordance with the terms of such Indenture, will be duly
issued under such Indenture and will constitute the valid and binding
obligations of such Owner Trustee, and the Holders thereof will be entitled to
the benefits of such Indenture.
The representations and warranties made by the Company as to the
enforceability of the Pass Through Agreements, the Indentures, the Offered
Certificates, the Equipment Certificates and the other Operative Agreements
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 any Pass Through Agreement, Lease and
Indenture is also limited by applicable laws which may affect the remedies
provided therein but which do not affect the validity of such Pass Through
Agreement, Lease or 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 Certificates 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 cause the Pass Through Trustee to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Pass Through Trustee, at the purchase price
specified in Exhibit A hereto, the respective amounts of each Class of Offered
Certificates set forth opposite the name of such Underwriter in Schedule I.
It is understood that you propose to offer the Offered Certificates for sale
to the public as set forth in the Prospectus.
(b) Payment of the purchase price for any Offered Certificates to be
purchased by the Underwriters shall be made 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 Certificates shall be made for your account as
specified in Schedule II against payment by you of the purchase price thereof
to, or upon the order of, the Pass Through Trustee (or such other person as
the Company may direct) by wire transfer of immediately available funds.
Unless otherwise indicated on Schedule II, such Offered Certificates 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 Certificates, which may
be in temporary form, 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.
(c) As compensation to you for your commitments and obligations
hereunder in respect of the Offered Certificates, including your undertakings
to distribute Offered Certificates, the Company will pay (or cause to be paid)
to you an amount equal to that percentage of the aggregate amount of each
class of Offered Certificates purchased by you as set forth in Exhibit A as
the underwriting discounts and commissions. Such payment shall be made
simultaneously with the payment by you to the Pass Through Trustee of the
purchase price of the Offered Certificates 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 Certificates. 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 either 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 either Registration Statement, the
Prospectus or the Prospectus Supplement relating in any way to the offer and
sale of the Offered Certificates, (iv) of any request by the Commission for
any amendment to either 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 either
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 either
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 Statements and the Prospectus. The
Company will deliver to you as many signed and conformed copies of the
Registration Statements (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 Certificates.
(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 Certificates 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 Statements 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, subject to Section 3(c) hereof, 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 Statements 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 (No. 333-49411) with respect to each sale of Offered
Certificates.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with you, to qualify the Offered Certificates 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 Certificates; 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 Certificates
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.
(i) Stand-Off Agreement. The Company will not, between the date of
this Agreement and the Closing Time, offer or sell, or enter into any
agreement to sell, any equipment notes, pass through certificates, equipment
trust certificates or equipment purchase certificates secured by aircraft
owned or leased by the Company (or rights relating thereto) unless the Company
has provided the Underwriters at least two business days' notice thereof.
SECTION 4. Payment of Expenses.
The Company will pay (or cause to be paid) all expenses incident to the
performance of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statements
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
Certificates;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Pass Through Trustee, the Subordination Agent,
each Liquidity Provider, the related Owner Trustees and the Indenture Trustee
and their respective counsel, and of any registrar, paying agent and
authenticating agent;
(v) the qualification of the Offered Certificates 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 Statements 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 Certificates;
(vii) the preparation and delivery to the Underwriters of copies
of the Pass Through Agreements and the other Operative Agreements, including
all expenses incident to the performance of the Company's obligations under
the Pass Through Agreements, Participation Agreements, Indentures, Leases and
each of the other agreements and instruments referred to in the Indentures and
Participation Agreements;
(viii) any fees charged by rating agencies for the rating of the
Offered Certificates; and
(ix) all fees and disbursements of your counsel, as heretofore
agreed.
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 Certificates.
SECTION 5. Conditions of Underwriters' Obligations.
The several obligations of the Underwriters to purchase the Offered
Certificates 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 either 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 Certificates) 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 Certificates, 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:
(1) Opinion of Special Counsel to the Company. The opinion of
Davis Polk & Wardwell, special counsel to the Company, dated as of such date,
in form and substance satisfactory to you, to the effect set forth in Exhibit
B and the opinions of such counsel required to be delivered pursuant to each
Participation Agreement, dated as of such date, in form and substance
satisfactory to you, to the effect set forth in Exhibits C-1 and C-2.
(2) Opinion of Company Counsel. The opinion of the Senior Vice
President, General Counsel 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 D.
(3) Opinion of Counsel to the Underwriters. The opinion of
Shearman & Sterling, counsel to the Underwriters, with respect to such matters
as you may reasonably request.
(c) Officer's Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statements 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 time of the execution of this Agreement
and 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 date hereof and of the Closing
Time, as the case may be, 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 Statements
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 Statements 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 Statements, 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
Statements 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
Statements 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 Statements 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 Statements 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 Statements 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 Statements 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) Satisfaction of Conditions Precedent in Participation Agreements.
At the Closing Time, all conditions precedent specified in each Participation
Agreement with respect to the refunding or funding of the related Equipment
Certificates, as the case may be, shall have been satisfied; the
representations and warranties of the Company, the Owner Trustee, the Pass
Through Trustee, the Subordination Agent and the Indenture Trustee contained
in each of the Participation Agreements shall be accurate as of the Closing
Time (except to the extent that they relate solely to an earlier date in which
case they shall be accurate as of such earlier date) and you shall have
received certificates of the Company and appropriate officers of the respective
Owner Trustees, Pass Through Trustees and Indenture Trustees, dated as of the
Closing Time, to such effect; and you shall have received a copy of each
opinion required to be delivered under each of the Participation Agreements
dated as of the Closing Time, and addressed to you, and of such other
documents furnished in connection with the fulfillment of such conditions as
you may reasonably request.
(f) 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 Certificates 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 Certificates 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 Statements (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
either 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 Statements; 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
Certificates, 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 Certificates 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 either 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 such 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 the offering
of Offered Certificates 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 each
Underwriter is responsible, severally and not jointly, 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 a 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 Certificates.
SECTION 9. Termination of Agreement.
You may terminate this Agreement, immediately upon notice to the
Company, at any time prior to the Closing Time (i) if there has been, since
the date hereof or since the respective dates as of which information is given
in either Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Company, or (ii) if 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 Certificates or enforce contracts for the sale of the
Offered Certificates, or (iii) if trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange,
or if trading generally on any of the American Stock Exchange, the New York
Stock Exchange or the Nasdaq National Market 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 of the Underwriters.
If any Underwriter shall fail at the Closing Time to purchase the
Offered Certificates which it is obligated to purchase hereunder (the
"Defaulted Certificates"), and the aggregate amount of Defaulted Certificates
is not more than one-tenth of the aggregate amount of the Offered Certificates
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the amount of the Offered Certificates set
forth opposite their respective names in Schedule I hereto bears to the
aggregate amount of Offered Certificates set forth opposite the names of all
such non-defaulting underwriters to purchase the Defaulted Certificates;
provided that in no event shall the amount of Defaulted Certificates 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 Certificates
without the written consent of such Underwriter. If the aggregate amount of
Defaulted Certificates is more than one-tenth of the aggregate amount of the
Offered Certificates to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such
Defaulted Certificates 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 Statements 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, on behalf of all of the Underwriters, to
Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036,
Attention: Equipment Finance Group, with copies thereof directed to Joel S.
Klaperman, Shearman & Sterling, 599 Lexington Avenue, New York, New York
10022. Notices to the Company shall be directed to it at 2007 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 Certificates 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,
FEDERAL EXPRESS CORPORATION
By: /s/ Robert D. Henning
----------------------------------
Name: Robert D. Henning
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
J. P. MORGAN SECURITIES INC.
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Morgan Stanley & Co. Incorporated
---------------------------------------
Acting on behalf of themselves and the
other named Underwriters
Exhibit A
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
Aggregate
1998 Pass Underwriting
Through Final Discounts
Certificates Purchase Interest Expected Principal and
Designation Price Rate Distribution Date Amount Commissions
- ------------------ ---------- ---------- ------------------- -------------- --------------
1998-1-A 100% 6.720% January 15, 2022 $458,077,000 $2,977,501
1998-1-B 100% 6.845% January 15, 2019 $178,606,000 $1,160,939
1998-1-C 100% 7.020% January 15,2016 $196,795,000 $1,279,168
------------ -----------
TOTAL $833,478,000 $5,417,607
============ ===========
Exhibit B
Opinion of Davis Polk & Wardwell,
Special Counsel for the Company
-------------------------------
The opinion of Davis Polk & Wardwell, special counsel for the Company,
to be delivered pursuant to Section 5(b)(1) of the Underwriting Agreement
shall be to the effect that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Registration Statements have become effective under the
1933 Act and the Basic Agreement has been duly qualified under the 1939
Act.
3. None of the Pass Through Trusts is required to be registered
under the Investment Company Act of 1940, as amended.
4. The Pass Through Trusts will not themselves be subject to
federal income tax. With respect to all other matters addressed in the Basic
Prospectus under the caption "Federal Income Tax Consequences," we are also of
the opinions ascribed to us therein.
We have considered the matters required to be included in the
Registration Statements and the Prospectus and the information contained
therein. In our opinion (i) the statements in the Basic Prospectus under the
captions "Description of the Pass Through Certificates" and "Description of
the Equipment Certificates" and in the Prospectus Supplement under the
captions "Description of the Pass Through Certificates", "Description of the
Equipment Trust Certificates", "Description of the Liquidity Facilities",
"Description of the Intercreditor Agreement" and "ERISA Considerations"
insofar as such statements constitute a summary of the Pass Through Agreement,
the Leases, the Liquidity Facilities, the Intercreditor Agreement, the
Participation Agreements and the Indentures, fairly present the information
called for by the 1933 Act and the rules and regulations under the 1933 Act
(the "1933 Act Regulations") with respect thereto and fairly summarize the
material provisions thereof and (ii) the statements in the Basic Prospectus in
the sixth and seventh paragraphs under the caption "Description of the
Equipment Certificates--Security" and in the Prospectus Supplement in the
ninth and tenth paragraphs under the caption "Description of the Equipment
Trust Certificates--Remedies," insofar as such statements constitute a
description of Section 1110 of the Bankruptcy Code as such Section would be
applicable to the Equipment Certificates, fairly summarize the material
provisions of such Section as such Section would be applicable to the
Equipment Certificates. The Pass Through Certificates conform in all material
respects to the summary descriptions thereof contained in the Prospectus. We
have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to other matters in the
Registration Statements or the Prospectus. We have generally reviewed and
discussed with certain officers and employees of the Company, its independent
public accountants and your representatives and counsel the information
furnished, whether or not subject to our check and verification. On the basis
of such consideration, review and discussion, but without independent check or
verification, except as stated, (i) we are of the opinion that the
Registration Statements and the Prospectus (except for the financial
statements and other financial information set forth or incorporated by
reference therein, as to which we are not called upon to express any opinion)
comply as to form in all material respects with the 1933 Act and the
applicable 1933 Act Regulations and (ii) we have no reason to believe that the
Registration Statements and the Prospectus included therein (except for the
financial statements and other financial information set forth or incorporated
by reference therein and the Statement of Eligibility and Qualification (Form
T-1) under the 1939 Act of First Security Bank, National Association, as to
all of which we are not called upon to express a belief) at the time the
Registration Statements became effective contained any 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, or that,
at the time the Prospectus was first filed with the Commission and as of the
Closing Time, either of the Registration Statements or the Prospectus (except
for the financial statements and other financial information set forth or
incorporated by reference therein, as to which we are not called upon to
express a belief), contained or contains, as the case may be, an untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
The foregoing opinions are subject to the following qualifications:
(a) We are members of the Bar of the State of New York and the
foregoing opinions are limited to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law
of the State of Delaware.
(b) We express no opinion as to the scope, effect or other
matters arising under the Transportation Code, or the rules and regulations
thereunder or as to matters involving filing and recording with the Federal
Aviation Administration.
(c) This opinion is issued solely to you in connection with the
above matter and may not be relied upon by you for any other purpose or relied
upon by or furnished to any other person without our prior written consent.
Exhibit C-1
[Letterhead of Davis Polk & Wardwell]
July 7, 1998
To each of the Parties
named on the Schedule hereto
Re: Federal Express Corporation Trust No. [N590FE] [N675FE]
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Federal Express Corporation,
a Delaware corporation ("Federal Express"), in connection with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. [N590FE] [N675FE]), dated as of [May 1, 1998][June 1,
1998], as amended and restated as of June 15, 1998 (the "Participation
Agreement"), among Federal Express, as Lessee, [BMO Leasing (U.S.), Inc.]
[PMCC Leasing Corporation], as Owner Participant, Morgan Guaranty Trust
Company of New York, as Original Loan Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and as
Subordination Agent, relating to the Aircraft. This opinion is being
delivered pursuant to Section 4.01(l)(ii) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
Pursuant to the Original Participation Agreement, the Owner
Participant and the Original Loan Participant participated in the payment of
the Purchase Price of one [McDonnell Douglas MD-11F] [Airbus A 300 F4-605R]
Aircraft which was purchased by the Owner Trustee pursuant to the [Bills of
Sale] [AVSA's FAA Bill of Sale and AVSA's Warranty Bill of Sale], subjected to
the Lien of the Original Indenture and leased to Federal Express under the
Original Lease. The Participation Agreement provides, among other things, for
the refinancing of the Original Loan Certificates using the proceeds from the
public offering of the Pass Through Certificates. Three Classes of Pass
Through Certificates will be issued by three separate Pass Through Trusts,
each formed to acquire, among other securities, the Certificates bearing a
particular interest rate and having a particular Maturity that will be issued
under the Indenture.
In connection with the opinions expressed below, we have examined
executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
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.
As to any facts material to our opinions expressed below, we have,
with your consent, relied on the representations and warranties made in or
pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by
the recording system established by the FAA pursuant to Section 44107 of the
Transportation Code, no filing or recording of any document or other action
was or is necessary in order to establish the Owner Trustee's title thereto
and interest therein as against Federal Express and any third parties.
2. The Lease creates a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the Lease (with the Indenture attached as an
exhibit), (B) the Indenture and (C) the Trust Agreement.
3. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) each such party has full power and legal
right to enter into and perform its respective obligations under the
Transaction Agreements, (iii) that the execution, delivery and performance by
each of the Transaction Agreements by each of the parties thereto will not
violate the respective parties' constituent documents, (iv) the due
authorization, execution, issuance and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates to be issued
under the Indenture in accordance with the terms of the Indenture, (v) that
the Original Loan Certificate is delivered by the Original Loan Participant
to the Indenture Trustee for cancellation and is canceled, (vi) the due
authorization, execution, issuance, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vii) that the form of each
Transaction Agreement is in compliance with all applicable laws and
governmental rules and regulations (other than the laws of the United States
and the State of New York), then: (A) to the extent governed by New York law,
each Transaction Agreement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Original Indenture created, and the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that they purport to create; (C) the Certificates,
when issued to and acquired by the Pass Through Trustee, will be legal, valid
and binding obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with their terms and the terms of the Indenture and will
be entitled to the benefits of the Indenture, including the benefit of the
security interest created thereby; (D) the Pass Through Certificates, when
issued to and acquired by the Underwriters in accordance with the Underwriting
Agreement, will be legal, valid and binding obligations of the Pass Through
Trustee enforceable against the Pass Through Trustee in accordance with their
terms and will be entitled to the benefits of the Pass Through Agreement and
the Series Supplement relating thereto; and (E) the beneficial interest of the
Owner Participant under the Trust Agreement in and to the properties which are
part of the Trust Indenture Estate is subject, to the extent provided in the
Indenture, to the Lien of the Indenture in favor of the Holders. The opinions
set forth in this paragraph 3 are subject to the due filing and, where
appropriate, recording with the FAA of the documents referred to in paragraph
2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the Participation
Agreement, the Trust Agreement, the Indenture and the Lease by the Owner
Trustee in its individual or trust capacity, as the case may be, and the
issuance, execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 5 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Transaction Agreements. We have assumed that
State Street Bank and Trust Company of Connecticut, National Association has
made the filings necessary to comply with Section 131.3 of the Banking Law of
the State of New York, however we express no opinion as to whether State
Street Bank and Trust Company of Connecticut, National Association is required
to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the financing
statements referred to in Section 4.01(f) of the Participation Agreement), and
the beneficial interest of the Owner Participant under the Trust Agreement in
and to such properties is subject, to the extent provided in the Indenture, to
the Lien of the Indenture in favor of the Holders of the Certificates issued
and to be issued under the Indenture.
7. The Indenture creates, as security for the Certificates duly
issued and to be issued under the Indenture, the first priority security
interest in the Aircraft it purports to create, the perfection and rank
thereof being subject to the registration with the FAA of the Aircraft in the
name of the Owner Trustee and the due filing and, where appropriate, recording
in accordance with the Transportation Code of the documents referred to in
paragraph 2 above. We express no opinion with respect to the status of any
security interest in any portion of the Aircraft which does not constitute an
"aircraft" or "aircraft engine", as defined in paragraphs (6) and (7) of
Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act and (iii) compliance with the
securities laws of each applicable state, neither the execution and delivery
by Federal Express of the Participation Agreement or any other Operative
Agreement to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the taking
of any other action in respect of, the Department of Transportation, the FAA,
the Securities and Exchange Commission or any other Federal or New York State
governmental authority.
9. It is not necessary, in connection with the creation of the
beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement or the Indenture under the Trust
Indenture Act of 1939, as amended.
10. The Indenture Trustee on behalf of the holders of the
Certificates will be entitled to the benefits of Section 1110 of the United
States Bankruptcy Code with respect to the Aircraft in the event of a case
under Chapter 11 of the United States Bankruptcy Code in which Federal Express
is a debtor. We note that a recent decision by the United States District
Court for the District of Colorado in connection with the Western Pacific
Airlines, Inc. bankruptcy suggests that the protections of Section 1110 become
unavailable to the lessor or security interest holder once the bankruptcy
trustee or debtor-in-possession, within the 60 day period following the date
of commencement of the reorganization proceedings, agrees to perform the
debtor's obligations that become due on or after such date and cures
outstanding defaults, with the result, among others, that the ability of a
lessor or security interest holder to exercise remedies based on a subsequent
default would be subject to the automatic stay. We believe that this holding
is erroneous because it is inconsistent with the overriding purpose of Section
1110 to protect lessors of, and creditors secured by, qualifying aircraft
against being stayed from exercising their rights while defaults under their
leases or financing agreements remain uncured.
The foregoing opinions are subject to the following qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty, Fowler
& Peregrin and Karen M. Clayborne, Senior Vice President and General
Counsel of Federal Express to be delivered to you and dated the date
hereof, for purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
laws of the United States and the General Corporation Law of the State
of Delaware. We express no opinion as to any matters involving aviation
law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity which
may affect the remedies provided in the agreements referred to in said
opinions, which laws and principles, however, do not in our opinion make
the remedies provided in said agreements inadequate for the practical
realization of the benefits of the security intended to be provided
thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
(e) We rendered an opinion dated [May 27, 1998] [June 18, 1998]
(the "Delivery Date Opinion"), a copy of which is attached hereto, in
connection with the financing and acquisition of the Aircraft on such
date. We hereby consent and agree that the addressees hereto who were
not addressees to the Delivery Date Opinion may rely on the Delivery
Date Opinion as fully and with the same force and effect as if such
addressees were originally named therein on the date of the Delivery
Date Opinion.
Very truly yours,
SCHEDULE A
----------
Lessee
- ------
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
- -------------
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
- -------------------------------------------------------------
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
- --------------------------
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Agent and Original Loan Participant
- -----------------------------------
Morgan Guaranty Trust Company of New York
60 Wall Street
22(nd) Floor
New York, New York 10260
Owner Participant
- -----------------
[BMO Leasing (U.S.), Inc.
c/o Bank of Montreal
115 South LaSalle Street
Chicago, Illinois 60603]
[PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902]
Underwriters
- ------------
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Liquidity Provider
- ------------------
Kreditanstalt fur Wiederaufbau
Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Germany
Exhibit C-2
[Form of Opinion of Davis Polk & Wardwell]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. [N585FE] [N620FE] [N621FE]
[N623FE] [N676FE] [N677FE] [N678FE] [N679FE] [N680FE] [N681FE] [N682FE]
Ladies and Gentlemen:
We have acted as special counsel for Federal Express Corporation,
a Delaware corporation ("Federal Express"), in connection with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. ([N585FE] [N620FE] [N621FE] [N623FE] [N676FE] [N677FE]
[N678FE] [N679FE] [N680FE] [N681FE] [N682FE]), dated as of June 15, 1998 (the
"Participation Agreement"), among Federal Express, as Lessee and Initial Owner
Participant], State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Owner Trustee, and First Security Bank, National Association, not in
its individual capacity, except as otherwise stated, but solely as Indenture
Trustee, Pass Through Trustee and Subordination Agent, relating to the
Aircraft. This opinion is being delivered pursuant to Section 4.01(j)(iv) of
the Participation Agreement. Capitalized terms not otherwise defined herein
have the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for the
financing on the Delivery Date of the Owner Trustee's payment of a portion of
the Purchase Price of one [Airbus A300F4-605R] [McDonnell Douglas MD-11F]
Aircraft (the "Aircraft") using the proceeds from the public offering of the
Pass Through Certificates. On the Certificate Closing Date, three Classes of
Pass Through Certificates will be issued by separate Pass Through Trusts, each
formed to acquire, among other securities, the Certificates bearing a
particular interest rate and having a particular Maturity that will be issued
under the Indenture.
In connection with the opinions expressed below, we have examined
executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers 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.
As to any facts material to our opinions expressed below, we have,
with your consent, relied on the representations and warranties made in or
pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power and
legal right to enter into and perform its respective obligations under the
Certificate Closing Date Documents, (iii) that the execution, delivery and
performance by each of the Certificate Closing Date Documents by each of the
parties thereto will not violate the respective parties' constituent
documents, (iv) the due authorization, execution, issuance and delivery by the
Owner Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms of
the Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates to
be issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the terms
of the Pass Through Agreement and such Series Supplement, and (vi) that the
form of each Certificate Closing Date Document is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Certificate Closing Date Document in form
constitutes a legal, valid and binding agreement of each party thereto
enforceable against each such party in accordance with its terms; (B) the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that it purports to create, except that no opinion
is given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass Through
Trustee, will be legal, valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms and the
terms of the Indenture and will be entitled to the benefits of the Indenture,
including the benefit of the security interest created thereby, except that no
opinion is given with respect to perfection of such security interest on the
date hereof; (D) the Pass Through Certificates, when issued to and acquired by
the Underwriters in accordance with the Underwriting Agreement, will be legal,
valid and binding obligations of the Pass Through Trustee enforceable against
the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Initial Owner
Participant under the Trust Agreement in and to the properties which are part
of the Trust Indenture Estate is subject, to the extent provided in the
Indenture, to the Lien of the Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to which
Federal Express is a party has been duly authorized, executed and delivered by
Federal Express. Each of the Operative Agreements to which Federal Express is
to be a party and which are to be delivered on the Delivery Date has been
authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Certificate Closing Date Documents to which Federal Express is
a party do not, or did not on the date of execution thereof, violate, and
fully comply, or did fully comply on the date of execution thereof, with, any
laws and governmental rules and regulations of the State of New York that may
be applicable to Federal Express. The opinion set forth in this paragraph 2(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. The execution, delivery and performance of the Certificate
Closing Date Documents (other than the Certificates) by the Owner Trustee in
its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner Trustee
in its trust capacity do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 3 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Certificate Closing Date Documents. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of the
Banking Law of the State of New York, however we express no opinion as to
whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
4. It is not necessary, in connection with the creation of the
beneficial interest of the Initial Owner Participant in the Trust Indenture
Estate under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement or the Indenture under the Trust
Indenture Act of 1939, as amended.
The foregoing opinions are subject to the following qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of Karen M.
Clayborne, Senior Vice President and General Counsel of Federal Express
to be delivered to you and dated the date hereof, for purposes of the
matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
laws of the United States and the General Corporation Law of the State
of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity which
may affect the remedies provided in the agreements referred to in said
opinions, which laws and principles, however, do not in our opinion make
the remedies provided in said agreements inadequate for the practical
realization of the benefits of the security intended to be provided
thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
----------
Lessee and Initial Owner Pariticpant
- ------------------------------------
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
- -------------
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
- -------------------------------------------------------------
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Initial Owner Participant
- -------------------------
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Underwriters
- ------------
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Chase Securities Inc.
2670 Park Avenue
New York, New York 10017
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Liquidity Provider
- ------------------
Kreditanstalt fur Wiederaufbau
Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Germany
Exhibit D
Form of Opinion of Company Counsel
----------------------------------
July 7, 1998
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
J. P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Re: Federal Express Corporation 1998 Pass Through Certificates, 1998-1-A,
1998-1-B and 1998-1-C (the "Offered Certificates")
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to Section 5(b)(2)
of the Underwriting Agreement dated June 30, 1997 (the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Certificates. All terms defined or used in the Underwriting
Agreement have the same meaning when used herein, unless otherwise noted.
I am Senior Vice President and General Counsel of the Company and have
acted as such in connection with the Offered Certificates 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:
(i) 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 a "citizen
of the United States" within the meaning of Section 40102(a)(15) of Title 49
of the United States Code, as amended, holding an air operating certificate
issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49
of the United States Code, as amended, for aircraft capable of carrying 10 or
more individuals or 6,000 or more pounds of cargo; 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;
(ii) 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
Statements, and, to the best of my knowledge, 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; 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;
(iii) 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 Pass Through Agreements and the other
Operative Agreements to which the Company is a party;
(iv) The Pass Through Agreements and the other Operative Agreements to
which the Company is a party have been duly and validly authorized, executed
and delivered by the Company;
(v) The Equipment Certificates are in due and proper form and have
been duly and validly authorized by all necessary corporate action;
(vi) 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 Pass Through
Agreements, the Participation Agreements and the other Operative Agreements,
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;
(vii) The Basic Agreement is qualified under the 1939 Act; I have
reviewed or caused to be reviewed by attorneys under my supervision the
Registration Statements, 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 of the Registration Statements 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;
(viii) 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 Statements or the Prospectus or
to be filed as an exhibit to the Registration Statements which is not described
and filed as required; and the descriptions in the Registration Statements and
the Prospectus of the contracts and other documents therein described are
accurate and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement, the Pass Through Agreements and the Operative Agreements to which
the Company is a party, the consummation by the Company of the transactions
herein and therein contemplated and compliance with the terms of the
Underwriting Agreement, the Pass Through Agreements and such Operative
Agreements 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;
(x) 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 Certificates as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement, the Pass Through
Agreements and the other Operative Agreements to which the Company is a party
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;
(xi) The Registration Statements have become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of either 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 Statements 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
(xii) 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
enforcement thereof is 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, I 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) photostatic 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.
____________________
Karen M. Clayborne
Schedule I
to
Underwriting
Agreement
Dated: June 30, 1998
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
Aggregate Aggregate Aggregate
Amount of Amount of Amount of
1998-1-A 1998-1-B 1998-1-C Total
Pass Pass Pass Aggregate
Through Through Through Amount to be
Underwriters Certificates Certificates Certificates Purchased
- --------------------------------------- -------------- -------------- -------------- --------------
MORGAN STANLEY & CO. $91,617,000 $35,722,000 $39,359,000 $166,698,000
INCORPORATED
CHASE SECURITIES INC. 91,615,000 35,721,000 39,359,000 166,695,000
CITICORP SECURITIES, INC. 91,615,000 35,721,000 39,359,000 166,695,000
CREDIT SUISSE FIRST BOSTON 91,615,000 35,721,000 39,359,000 166,695,000
CORPORATION
J. P. MORGAN SECURITIES INC. 91,615,000 35,721,000 39,359,000 166,695,000
Schedule II
to
Underwriting
Agreement
Dated: June 30, 1998
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
To: Federal Express Corporation
2005 Corporate Avenue
Memphis, Tennessee 38132
Re: Underwriting Agreement dated June 30, 1998
Title of Offered Certificates:
Pass Through Certificates, 1998-1-A
Pass Through Certificates, 1998-1-B
Pass Through Certificates, 1998-1-C
Current ratings:
Moody's S&P
------- ---
Class A Aa2 AAA
Class B A1 AA-
Class C Baa1 BBB+
Interest rate:
Class A ........ 6.720%
Class B ........ 6.845%
Class C ........ 7.020%
Interest payable:
each January 15 and July 15 commencing on January 15, 1998
Public offering price:
100%, plus accrued interest from July 7, 1998
Closing date, time and location:
July 7, 1998, 9:00 A.M., New York City time
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Location for checking Offered Certificates:
New York, New York
Listing requirement:
None
Other terms and conditions:
The Offered Certificates will be issued in fully registered, book-entry
only form through the facilities of The Depository Trust Company, and each
Class of the Offered Certificates shall be represented by a separate
global certificate.
Exceptions, if any, to Section 3(i) of the Underwriting Agreement:
None
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES, INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
J. P. MORGAN SECURITIES INC.
By: Morgan Stanley & Co. Incorporated
By:/s/ Morgan Stanley & Co. Incorporated
-----------------------------------------
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
FEDERAL EXPRESS CORPORATION
By: /s/ Robert D. Henning
-----------------------------------
Name: Robert D. Henning
Title: Vice President and Treasurer