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EXHIBIT 1.1
FEDEX CORPORATION
(a Delaware corporation)
AND THE GUARANTORS NAMED HEREIN
$600,000,000 Floating Rate Notes due 2005
$500,000,000 2.65% Notes due 2007
$500,000,000 3.50% Notes due 2009
PURCHASE AGREEMENT
March 22, 2004
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Utendahl Capital Group, LLC
KBC Financial Products USA Inc.
McDonald Investments Inc.
Morgan Keegan & Company, Inc.
The Royal Bank of Scotland plc
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Vining - Sparks IBG, L.P.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
FedEx Corporation, a Delaware corporation
(the "COMPANY"), and Federal Express
Corporation ("FEDEX EXPRESS"), FedEx Ground
Package System, Inc., FedEx Freight
Corporation, FedEx Freight East, Inc. and
Kinko's, Inc. (collectively, the
"INITIAL GUARANTORS" and, together with
each subsidiary of the Company that
pursuant to the terms of the Indenture
referred to below hereafter guarantees
the Company's obligations under such
Indenture, the "GUARANTORS"), hereby
confirm their agreement with J.P. Morgan
Securities Inc. ("JPMORGAN"), Banc of
America Securities LLC, Banc One Capital
Markets, Inc., Citigroup Global Markets
Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Utendahl Capital
Group, LLC, KBC Financial
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Products USA Inc., McDonald Investments
Inc., Morgan Keegan & Company, Inc., The
Royal Bank of Scotland plc, Scotia Capital
(USA) Inc., SunTrust Capital Markets,
Inc. and Vining - Sparks IBG, L.P.
(collectively, the "INITIAL PURCHASERS") for
whom JPMorgan is acting as representative
(in such capacity, the
"REPRESENTATIVE"), with respect to the
issue and sale by the Company and the
purchase, severally and not jointly, by the
Initial Purchasers of the respective
principal amounts set forth in SCHEDULE A
hereto, of $600,000,000 aggregate
principal amount of the Company's Floating
Rate Notes due 2005 (the "FLOATING
RATE NOTES"), $500,000,000 aggregate
principal amount of the Company's 2.65%
Notes due 2007 (the "2007 NOTES") and
$500,000,000 aggregate principal amount of
the Company's 3.50% Notes due 2009 (the
"2009 NOTES" and, together with the
Floating Rate Notes and the 2007 Notes, the
"OFFERED SECURITIES"). The Offered
Securities are to be issued pursuant to an
indenture (the "INDENTURE"), to be
dated as of March 25, 2004, among the
Company, as issuer, the Initial
Guarantors, as guarantors, and Wachovia
Bank, National Association, as trustee
(the "TRUSTEE"). The Offered Securities
will be guaranteed as to principal and
interest pursuant to the Indenture by the
Guarantors (each such guarantee, a
"SECURITIES GUARANTEE").
The
Company understands that the Initial Purchasers propose to make
an
offering of the Offered Securities on the
terms and in the manner set forth
herein and agrees that the Initial
Purchasers may resell, subject to the
conditions set forth herein, all or a
portion of the Offered Securities to
purchasers ("SUBSEQUENT PURCHASERS") at any
time after the date of this
Agreement. The Offered Securities are to be
offered and sold through the Initial
Purchasers without being registered under
the Securities Act of 1933, as amended
(the "1933 ACT"), in reliance upon
exemptions therefrom. Pursuant to the terms
of the Offered Securities and the
Indenture, investors that acquire Offered
Securities may only resell or otherwise
transfer such Offered Securities if such
Offered Securities are hereafter registered
under the 1933 Act or if an
exemption from the registration
requirements of the 1933 Act is available
(including the exemptions afforded by Rule
144A ("RULE 144A") or Regulation S
("REGULATION S") of the rules and
regulations promulgated under the 1933 Act
(the "1933 ACT REGULATIONS") by the
Securities and Exchange Commission (the
"COMMISSION")).
The
Company has prepared and delivered to each Initial Purchaser copies
of
a preliminary offering memorandum dated
March 22, 2004 (the "PRELIMINARY
OFFERING MEMORANDUM") and has prepared and
will deliver to each Initial
Purchaser, on the date hereof or the next
succeeding day, copies of a final
offering memorandum dated March 22, 2004
(the "FINAL OFFERING MEMORANDUM"), each
for use by such Initial Purchaser in
connection with its solicitation of
purchases of, or offering of, the Offered
Securities. "OFFERING MEMORANDUM"
means, with respect to any date or time
referred to in this Agreement, the most
recent offering memorandum (whether the
Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment
or supplement to either such
document), including exhibits thereto and
any documents incorporated therein by
reference, which has been prepared and
delivered by the Company to the Initial
Purchasers in connection with their
solicitation of purchases of, or offering
of, the Offered Securities.
All
references in this Agreement to financial statements and schedules
and
other information which are "contained,"
"included" or "stated" in the Offering
Memorandum (or other references of like
import) shall be deemed to mean and
include all such financial statements and
schedules and other information which
are incorporated by reference in the
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Offering Memorandum; and all references in
this Agreement to amendments or
supplements to the Offering Memorandum
shall be deemed to mean and include the
filing of any document under the Securities
Exchange Act of 1934, as amended
(the "1934 ACT"), which is incorporated by
reference in the Offering Memorandum.
The
holders of Offered Securities will be entitled to the benefits of
a
Registration Rights Agreement, in
substantially the form attached hereto as
EXHIBIT D with such changes as shall be
agreed to by the parties hereto (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant
to which the Company will file a
registration statement (the "REGISTRATION
STATEMENT") with the Commission
registering the Offered Securities or the
Exchange Notes referred to in the
Registration Rights Agreement under the
1933 Act.
Section 1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Each Initial
Guarantor, as to itself, and the Company
represents and warrants to each Initial
Purchaser, as of the date hereof and as of
the Closing Time (as defined below),
and agrees with each Initial Purchaser as
follows:
(i) DUE
INCORPORATION AND QUALIFICATION. Each of the
Company and the Initial Guarantors has been duly incorporated
and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate
power and authority to own, lease and operate its properties and
to
conduct its business as described in the Offering Memorandum,
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 the corporate power and authority to own,
lease
and operate its properties and to conduct its business as
described
in the Offering Memorandum 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 Offering Memorandum), is owned by the Company,
directly or through subsidiaries, free and clear of any
security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
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(iii) OFFERING
MEMORANDUM. The Offering Memorandum does not,
and at the Closing Time will not, contain an untrue statement of
a
material fact or omit to state a material fact necessary in
order
to make the statements therein, in light of the circumstances
under
which they were made, not misleading; PROVIDED, however, that
the
representations and warranties in this subsection shall not
apply
to statements in or omissions from the Offering Memorandum made
in
reliance upon and in conformity with information furnished to
the
Company in writing by the Representative on behalf of an
Initial
Purchaser expressly for use in the Offering Memorandum.
(iv)
INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Offering Memorandum, 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 Offering Memorandum, 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.
Ernst & Young LLP are, and Arthur Andersen
LLP were, when serving as the Company's independent auditors,
independent public accountants as required by the 1933 Act and
the
1933 Act Regulations.
(vi) FINANCIAL
STATEMENTS. The financial statements and the
related notes thereto of the Company and FedEx Express included
or
incorporated by reference in the Offering Memorandum comply in
all
material respects with the applicable requirements of the 1933
Act
Regulations and the 1934 Act Regulations, as applicable, and
present fairly the consolidated financial positions of the
Company
and its subsidiaries and of FedEx Express and its subsidiaries,
respectively, as of the dates indicated and the results of
their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied
on
a consistent basis throughout the periods covered thereby; and
the
other financial information included or incorporated by
reference
in the Offering Memorandum has been derived from the accounting
records of the Company and its subsidiaries and of FedEx
Express
and its subsidiaries, respectively, and presents fairly the
information shown thereby; and the financial schedules included
or
incorporated by reference in the Offering Memorandum meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable. The Company is not required to file
historical financial statements of Kinko's, Inc. pursuant to
Rule
3-05 of Regulation S-X promulgated by the Commission or to file
pro
forma financial information relating to the acquisition of
Kinko's,
Inc. by the Company pursuant to Rule 11-01 of Regulation S-X.
(vii) MATERIAL
CHANGES OR MATERIAL TRANSACTIONS. Except as
stated in the Offering Memorandum, subsequent to the respective
dates as of which
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information is given in the Offering Memorandum, neither the
Company nor any of its subsidiaries has incurred any liabilities
or
obligations, direct or contingent, or entered into any
transactions
which are material to the Company and its subsidiaries
considered
as one enterprise, 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 and its subsidiaries
considered as one enterprise, 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 and its subsidiaries
considered as one enterprise.
(viii) NO
DEFAULTS; REGULATORY APPROVALS. None of the Company
or any of its subsidiaries is in violation of its charter (or
similar organizational documents) 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,
except, in the case of the subsidiaries of the Company which
are
not Initial Guarantors, for such violations or defaults 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 and
its
subsidiaries considered as one enterprise.
The execution and delivery of this Agreement, the Indenture,
the
Registration Rights Agreement, the Securities Guarantees and
the
consummation of the transactions contemplated herein and
therein
have been duly authorized by all necessary corporate action and
executed by the Company and each Initial Guarantor and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of
its subsidiaries pursuant to, any contract, indenture,
mortgage,
loan agreement, note, lease or other instrument to which the
Company or any such subsidiary is a party or by which it or any
of
them may be bound or to which any of the property or assets of
the
Company or any such subsidiary is subject, which conflict,
breach
or default would have, individually or in the aggregate with
any
other such instances, a material adverse effect on the
condition
(financial or other), business, prospects, net worth or results
of
operations of the Company and its subsidiaries considered as
one
enterprise or reasonably be expected to adversely affect the
enforceability of this Agreement, the Indenture, the
Registration
Rights Agreement or the Securities Guarantees, nor will such
action
result in any violation of the provisions of the charter or
by-laws
(or
similar organizational documents) of the Company or any Initial
Guarantor 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, the
Indenture,
the Registration Rights Agreement or the Securities Guarantees
and
applicable to the Company or any of its subsidiaries, except,
in
the case of subsidiaries of the Company that are not Initial
Guarantors, such violations which individually or in the
aggregate
would not have
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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 enterprise or
reasonably be expected to adversely affect the enforceability
of
this Agreement, the Indenture, the Registration Rights Agreement
or
the Securities Guarantees.
No consent, approval, authorization, order or decree of any
court
or governmental agency or body is required for the consummation
by
the Company and the Initial Guarantors of the transactions
contemplated by this Agreement, the Indenture, the Registration
Rights Agreement or the Securities Guarantees, except such as
may
be required under state securities or Blue Sky laws.
(ix) LEGAL
PROCEEDINGS; CONTRACTS. Except for matters
described in the Offering Memorandum, there is no pending or,
to
the best knowledge of any financial officer of the Company or
any
Initial Guarantor, 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
and its subsidiaries considered as one enterprise, or the
ability
of the Company and the Initial Guarantors to perform their
respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities Guarantees.
(x) COMPLIANCE
WITH LAWS. The business and operations of
the Company and of each of the Initial Guarantors comply in all
material respects with all laws and regulations applicable
thereto
and, except as described in the Offering Memorandum, there are
no
known, proposed or threatened changes in any laws or
regulations
which would have a material adverse effect on the Company and
its
subsidiaries considered as one enterprise or the manner in which
it
conducts its business. Each of the Company and the Initial
Guarantors 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 and its subsidiaries considered as one
enterprise.
(xi)
ENFORCEABILITY. Each of the Indenture and the
Registration Rights Agreement has been duly authorized by the
Company and the Initial Guarantors, will be substantially in
the
form heretofore supplied to you and, when duly executed and
delivered by the Company and the Initial Guarantors and the
other
parties thereto, will constitute a valid and binding agreement
of
the Company and the Initial Guarantors, enforceable against the
Company and the Initial Guarantors in accordance with its
terms.
(xii) VALIDITY
OF THE OFFERED SECURITIES AND THE SECURITIES
GUARANTEES. When the Offered Securities have been executed,
issued,
authenticated and delivered pursuant to the provisions of the
Indenture and sold and paid for as provided in this Agreement,
and
the Securities Guarantees have been executed,
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issued and delivered pursuant to the provisions of the
Indenture,
the Offered Securities and the Securities Guarantees will
constitute valid and legally binding obligations of the Company
and
the respective Initial Guarantors enforceable in accordance
with
their respective terms; and the holders of such Offered
Securities
and Securities Guarantees will be entitled to the benefits
provided
by such Indenture.
(xiii) SIMILAR
OFFERINGS. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the
1933
Act (each, an "AFFILIATE"), has, directly or indirectly,
solicited
any offer to buy, sold or offered to sell or otherwise
negotiated
in respect of, or will solicit any offer to buy, sell or offer
to
sell or otherwise negotiate in respect of, in the United States
or
to any United States citizen or resident, any security which is
or
would be
integrated with the sale of the Offered Securities in a
manner that would require the Offered Securities to be
registered
under the 1933 Act.
(xiv) RULE 144A
ELIGIBILITY. The Offered Securities are
eligible for resale pursuant to Rule 144A and will not be, at
the
Closing Time, of the same class as securities listed on a
national
securities exchange registered under Section 6 of the 1934 Act,
or
quoted in a U.S. automated interdealer quotation system.
(xv) NO GENERAL
SOLICITATION. None of the Company, its
Affiliates or any person acting on its or any of their behalf
(other than the Initial Purchasers, as to whom the Company makes
no
representation) has engaged or will engage, in connection with
the
offering of the Offered Securities, in any form of general
solicitation or general advertising within the meaning of Rule
502(c) under the 1933 Act.
(xvi) NO
REGISTRATION REQUIRED. Subject to compliance by the
Initial Purchasers with the representations and warranties set
forth in Section 2 and the procedures set forth in Section 6
hereof, it is not necessary in connection with the offer, sale
and
delivery of the Offered Securities to the Initial Purchasers and
to
each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Offered
Securities under the 1933 Act or to qualify the Indenture under
the
Trust Indenture Act of 1939, as amended (the "1939 ACT").
(xvii) NO
DIRECTED SELLING EFFORTS. With respect to those
Offered Securities sold in reliance on Regulation S, (A) none
of
the Company, its Affiliates or any person acting on its or
their
behalf (other than the Initial Purchasers, as to whom the
Company
makes no representation) has engaged or will engage in any
directed
selling efforts within the meaning of Regulation S and (B) each
of
the Company and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) has complied and will comply
with
the offering restrictions requirement of Regulation S.
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(xviii)
SARBANES-OXLEY ACT OF 2002. The Company has complied in
all material respects with the currently applicable requirements
of
the Sarbanes-Oxley Act of 2002.
The
representations and warranties made by the Company and the
Initial
Guarantors as to the enforceability of the
Indenture, the Registration Rights
Agreement, the Offered Securities and the
Securities Guarantees set forth in
subparagraphs (xi) and (xii) above are
limited by bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to or affecting
the enforcement of creditors' rights or by
general equity principles, and the
enforceability of the Indenture is also
limited by applicable laws which may
affect the remedies provided therein but
which do not affect the validity of
such Indenture or make such remedies
inadequate for the practical realization of
the benefits intended to be provided
thereby.
(b)
ADDITIONAL
CERTIFICATIONS. Any certificate signed by any officer of
the Company or any Initial Guarantor and
delivered to you or your counsel in
connection with an offering of the Offered
Securities shall be deemed a
representation and warranty by the Company
or such Initial Guarantor to each
Initial Purchaser 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) On the basis of the representations and
warranties herein contained and subject to
the terms and conditions herein set
forth, the Company agrees to sell to each
Initial Purchaser, and each Initial
Purchaser agrees, severally and not
jointly, to purchase from the Company, at
the purchase price specified in SCHEDULE B
hereto, the amount of Offered
Securities set forth opposite the name of
such Initial Purchaser in SCHEDULE A
plus any additional principal amount of
Offered Securities which such Initial
Purchaser may become obligated to purchase
pursuant to the provisions of Section
11 hereof. It is understood that you
propose to offer the Offered Securities for
sale as set forth in the Offering
Memorandum.
(b)
Payment of
the purchase price for, and delivery of the certificates
for, the Offered Securities to be purchased
by the Initial Purchasers shall be
made at the office of Simpson Thacher &
Bartlett LLP, 425 Lexington Avenue, New
York, New York 10017, or at such other
place as shall be agreed upon by the
Representative and the Company, at 9:00
A.M., Eastern time, on the third
business day after the date hereof (unless
postponed in accordance with the
provisions of Section 11), or such other
time not later than ten business days
after such date as shall be agreed upon by
the Representative and the Company
(such time and date of payment and delivery
being herein called the "CLOSING
TIME").
Payment
shall be made to the Company by wire transfer of immediately
available funds to a bank account
designated by the Company, against book-entry
delivery through the facilities of The
Depository Trust Company to the
Representative for the respective accounts
of the Initial Purchasers of the
Offered Securities to be purchased by them.
It is understood that each Initial
Purchaser has authorized the
Representative, for its account, to accept delivery
of, receipt for, and make payment of the
purchase price for, the Offered
Securities which it has agreed to purchase.
JPMorgan, individually and not as
representative of the Initial Purchasers,
may (but shall not be obligated to)
make payment of the purchase price for the
Offered Securities to be
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purchased by any Initial Purchaser whose
funds have not been received by the
Closing Time, but such payment shall not
relieve such Initial Purchaser from its
obligations hereunder.
(c)
Each
Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company
that it is a "qualified institutional
buyer" within the meaning of Rule 144A
under the 1933 Act (a "QUALIFIED
INSTITUTIONAL BUYER").
(d)
Certificates for the Offered Securities shall be in such
denominations and registered in such names
as the Initial Purchasers may request
in writing at least one full business day
before the Closing Time.
Section 3.
COVENANTS OF THE COMPANY AND THE INITIAL GUARANTORS. The
Company and, to the extent applicable, each
of the Initial Guarantors covenants
with each Initial Purchaser participating
in the offering as follows:
(a)
NOTICE OF
CERTAIN PROPOSED FILINGS. At any time when the Offering
Memorandum is required to be delivered
pursuant to Section 6(a)(vi) hereof, the
Company will give you notice of its
intention to prepare any amendment to the
Offering Memorandum, whether by the filing
of documents pursuant to the 1934 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.
(b)
COPIES OF
THE OFFERING MEMORANDUM. The Company will deliver to you
as many copies of the Offering Memorandum
and of each amendment thereto
(including documents incorporated by
reference in the Offering Memorandum) as
you may reasonably request.
(c)
REVISIONS
OF OFFERING MEMORANDUM--MATERIAL CHANGES. If at any time
when the Offering Memorandum is required to
be delivered pursuant to Section
6(a)(vi) hereof any event shall occur or
condition exist as a result of which it
is necessary, in the reasonable opinion of
counsel for the Company or the
Initial Purchasers, to further amend or
supplement the Offering Memorandum in
order that the Offering Memorandum 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 Subsequent
Purchaser, the Company will promptly
prepare such amendment or supplement,
whether by filing documents pursuant to
the 1934 Act or otherwise, as may be
necessary to correct such untrue statement
or omission.
(d)
BLUE SKY
QUALIFICATIONS. The Company and the Initial Guarantors
will endeavor, in cooperation with you, to
qualify the Offered Securities for
offering and sale under the applicable
securities laws of such states and other
jurisdictions of the United States as the
Initial Purchasers may designate, and
will maintain such qualifications in effect
for so long as may be required for
the distribution of the Offered Securities;
PROVIDED, however, that neither the
Company nor the Initial Guarantors shall 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 and the Initial
Guarantors will file such statements and
reports as may be required by the laws
of each jurisdiction in which the Offered
Securities have been qualified as
provided above.
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(e)
1934 ACT
FILINGS. The Company and FedEx Express, during the period
when the Offering Memorandum is required to
be delivered pursuant to Section
6(a)(vi) hereof, will file, within the
required time periods, all documents
required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act.
(f)
STAND-OFF
AGREEMENT. The Company will not, between the date of this
Agreement and the Closing Time, without
your consent, offer or sell, or enter
into any agreement to sell, any debt
securities of the Company (other than the
Offered Securities which are to be sold
pursuant hereto and commercial paper in
the ordinary course of business).
SECTION 4.
PAYMENT OF EXPENSES.
(a)
The
Company will pay all expenses incident to the performance of
its obligations under this Agreement,
including:
(i) the
preparation of the Offering Memorandum and all
amendments thereto and the Preliminary Offering Memorandum;
(ii) the
preparation, issuance and delivery of the Offered
Securities;
(iii) the
reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of
any
registrar, paying agent and authenticating agent;
(iv) the
qualification of the Offered Securities under
securities laws in accordance with the provisions of Section
3(d),
including filing fees and the reasonable fees and disbursements
of
counsel to the Initial Purchasers in connection therewith and
in
connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(v) the printing
and delivery to the Initial Purchasers in
quantities as may be reasonably requested of copies of the
Offering
Memorandum and any amendments or supplements thereto, and the
delivery by the Initial Purchasers of the Offering Memorandum
and
any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Offered
Securities;
(vi) the
preparation and delivery to the Initial Purchasers
of copies of the Indenture; and
(vii) any fees
charged by rating agencies for the rating of
the Offered Securities.
(b)
If this
Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 5
or clause (i) of Section 10 hereof,
the Company shall reimburse upon demand the
Initial Purchasers for all of their
out-of-pocket expenses, including the
reasonable fees and disbursements of
counsel for the Initial Purchasers, that
shall have been incurred by them in
connection with the proposed purchase and
sale of the Offered Securities.
10
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Section 5.
CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to
purchase the Offered Securities
pursuant to this Agreement will be subject
at all times to the accuracy of the
representations and warranties on the part
of the Company and the Initial
Guarantors herein, to the accuracy of the
statements of the officers of the
Company or of any of the Initial Guarantors
made in any certificate furnished
pursuant to the provisions hereof, to the
performance and observance by the
Company and the Initial Guarantors of their
respective covenants and agreements
contained herein to be performed and
observed on their respective parts and to
the following additional conditions
precedent:
(a) RATINGS
CHANGE; ETC. At the Closing Time, (i) 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)(i) any rating
indicated
by the Company as of the date of this Agreement as the rating
orally
confirmed to the Company by any such rating organization as the
rating to
be assigned to the Offered Securities) shall not have been
lowered
since the execution of this Agreement nor shall any such rating
organization have publicly announced since the execution of this
Agreement
that it
has placed any debt securities of the Company on what is
commonly
termed a
"WATCH LIST" for possible downgrading, and (ii) there shall not
have come
to the attention of any of the Initial Purchasers any facts
that
would
cause them to reasonably believe that the Offering Memorandum,
at
the time
it was required to be delivered to a purchaser of the Offered
Securities
pursuant to Section 6(a)(vi) hereof, contained an untrue
statement
of a material fact or omitted to state a material fact
necessary
in order
to make the statements therein, in light of the circumstances
existing
at such time, not misleading.
(b) LEGAL
OPINIONS. At the Closing Time, you shall have received
the
following documents:
(i) OPINION OF
THE EXECUTIVE VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY OF THE COMPANY. The opinion of Kenneth R.
Masterson, Executive Vice President and General Counsel of the
Company, dated as of the Closing Time, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect
as
set forth in EXHIBIT A.
(ii) OPINION OF
THE VICE PRESIDENT AND GENERAL COUNSEL OF
FEDEX FREIGHT EAST, INC. The opinion of Kenneth R. Reeves, Vice
President and General Counsel of FedEx Freight East, Inc., dated
as
of the Closing Time, in form and substance reasonably
satisfactory
to the Initial Purchasers, to the effect as set forth in EXHIBIT
B.
(iii) OPINION OF
DAVIS POLK & WARDWELL. The opinion of Davis
Polk & Wardwell, special counsel to the Company, dated as of
the
Closing Time, in
form and substance reasonably satisfactory to the
Initial Purchasers, to the effect as set forth in EXHIBIT C.
11
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(iv) OPINION OF
SIMPSON THACHER & BARTLETT LLP. The opinion
of Simpson Thacher & Bartlett LLP, counsel to the Initial
Purchasers, dated as of the Closing Time, with respect to such
matters as the Initial Purchasers may reasonably request.
(c) OFFICERS'
CERTIFICATE. At the Closing Time, there shall not
have been,
since the respective dates as of which information is given in
the
Offering Memorandum, any material adverse change in the
condition
(financial
or other), business, prospects or results of operations of the
Company
and its subsidiaries considered as one enterprise; and you
shall
have
received a certificate of the President or any Vice President of
the
Company
and of each Initial Guarantor, dated as of the Closing Time, to
the effect
(i) in the case of the certificate to be provided by the
President
or a Vice President of the Company, that there has been no such
material
adverse change, (ii) that the other representations and
warranties
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), and (iii) that the Company or such Initial Guarantor,
as
the case
may be, has complied with all agreements and satisfied all
conditions
on their respective parts to be performed or satisfied at or
prior to
the date of such certificate. The officer signing and
delivering
each such
certificate may rely upon the best of his or her knowledge as
to
proceedings threatened.
(d) ACCOUNTANTS'
COMFORT LETTER. At the time of the execution of
this
Agreement, the Representative shall have received from Ernst &
Young
LLP a
letter dated such date, in form and substance satisfactory to
the
Representative, together with signed or reproduced copies of such
letter
for each
of the other Initial Purchasers containing statements and
information of the type ordinarily included in accountants'
"comfort
letters"
to Initial Purchasers with respect to the financial statements
and
certain financial information contained in the Offering
Memorandum.
(e) BRING-DOWN
COMFORT LETTER. At the Closing Time, the
Representative shall have received from Ernst & Young LLP a
letter, dated
as of the
Closing Time, to the effect that they reaffirm the statements
made in
the letter furnished pursuant to subsection (d) of this
Section,
except
that the specified date referred to shall be a date not more
than
three
business days prior to the Closing Time.
(f) REGISTRATION
RIGHTS AGREEMENT. At
the Closing Time, the
Registration Rights Agreement shall have been fully executed and
delivered
by the
Company.
(g) OTHER
DOCUMENTS. At the Closing Time, counsel for the Initial
Purchasers
shall have been furnished with such documents and opinions as
such
counsel may reasonably require for the purpose of enabling such
counsel to
pass upon the issuance and sale of Offered Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy
and
completeness of any of the representations and warranties, or
the
fulfillment of any of the conditions, her
