FedEx完成约34亿美元等值投资级债券发行（20亿欧元+11亿美元），属S-3存量货架下常规融资交割备案

----- tm2625313d1_8k.htm -----
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 9, 2026
FedEx
Corporation
(Exact Name of Registrant as Specified in its
Charter)
Delaware
(State or other Jurisdiction
of Incorporation)
1-15829
(Commission File Number)
62-1721435
(IRS
Employer
Identification No.)
942
South Shady Grove Road
Memphis
,
Tennessee
(Address of principal executive offices)
38120
(Zip Code)
Registrant’s telephone number, including
area code:
(
901
)
818-7500
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock, par value $0.10 per share
FDX
New
York Stock Exchange
1.625%
Notes due 2027
FDX
27
New
York Stock Exchange
0.450%
Notes due 2029
FDX
29A
New
York Stock Exchange
0.450%
Notes due 2029
FDX
29B
New
York Stock Exchange
1.300%
Notes due 2031
FDX
31B
New
York Stock Exchange
3.500%
Notes due 2032
FDX
32
New
York Stock Exchange
0.950%
Notes due 2033
FDX
33
New
York Stock Exchange
0.950%
Notes due 2033
FDX
33A
New
York Stock Exchange
4.125%
Notes due 2037
FDX
37
New
York Stock Exchange
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
¨
Item 8.01. Other Events.
On
September 9, 2026, FedEx Corporation (the “Company”) and the Company’s wholly owned subsidiaries Federal
Express Corporation, Federal Express International, Inc. and Federal Express Europe, Inc. entered into (i) an
underwriting agreement (the “Euro Notes Underwriting Agreement”) with Citigroup Global Markets Limited, Merrill Lynch
International, Wells Fargo Securities International Limited, BNP PARIBAS and ING Bank N.V., on behalf of themselves and as
representatives of the several underwriters named on Schedule B to the Euro Notes Underwriting Agreement, in connection with the
issuance and sale by the Company of €1,100,000,000 aggregate principal amount of the Company’s 4.000% Notes due 2030 and
€900,000,000 aggregate principal amount of the Company’s 4.625% Notes due 2034 (collectively, the “Euro
Notes”) (the “Euro Notes Offering”) and (ii) an underwriting agreement (the “USD Notes Underwriting
Agreement”) with
BofA Securities, Inc., Citigroup Global Markets Inc., Wells Fargo Securities, LLC and Scotia
Capital (USA) Inc., on behalf of themselves and as representatives of the several underwriters named on Schedule A to the USD Notes
Underwriting Agreement, in connection with the issuance and sale by the Company of $1,100,000,000 aggregate principal amount of the
Company’s 5.750% Notes due 2036 (the “USD Notes,” and together with the Euro Notes, the “Notes”) (the “USD
Notes Offering”). Each of the Euro Notes Offering and the USD Notes Offering was consummated on September 14, 2026.
The Company is filing this Current Report on Form 8-K
for the purpose of incorporating by reference the exhibits filed herewith into the Registration Statement on Form S-3 (Registration
No. 333-297595) by which the Notes and related guarantees were registered.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Exhibit
1.1
Underwriting Agreement, dated September 9, 2026, among FedEx Corporation, the Significant Guarantors named therein and Citigroup Global Markets Limited, Merrill Lynch International, Wells Fargo Securities International Limited, BNP PARIBAS and ING Bank N.V., on behalf of themselves and as representatives of the several underwriters named therein.
1.2
Underwriting Agreement, dated September 9, 2026, among FedEx Corporation, the Significant Guarantors named therein and BofA Securities, Inc., Citigroup Global Markets Inc., Wells Fargo Securities, LLC and Scotia Capital (USA) Inc., on behalf of themselves and as representatives of the several underwriters named therein.
4.1
Indenture,
dated as of September 14, 2026, among FedEx Corporation, the Guarantors named therein and U.S. Bank Trust Company, National Association,
as trustee.
4.2
Supplemental Indenture No. 1, dated as of September 14, 2026, among FedEx Corporation, the Guarantors named therein, U.S. Bank Trust Company, National Association, as trustee, and U.S. Bank Europe DAC, UK Branch, as paying agent.
4.3
Form of 4.000% Note due 2030 (included in Exhibit 4.2).
4.4
Form of 4.625% Note due 2034 (included in Exhibit 4.2).
4.5
Supplemental Indenture No. 2, dated as of September 14, 2026, among FedEx Corporation, the Guarantors named therein and U.S. Bank Trust Company, National Association, as trustee.
4.6
Form of 5.750% Note due 2036 (included in Exhibit 4.5).
5.1
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the Euro Notes and related guarantees.
5.2
Opinion of Tiffany H. Brunson, Vice President—General Counsel and Assistant Secretary of FedEx Office and Print Services, Inc., regarding certain matters relating to FedEx Office and Print Services, Inc. with respect to the Euro Notes Offering.
5.3
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the USD Notes and related guarantees.
5.4
Opinion of Tiffany H. Brunson, Vice President—General Counsel and Assistant Secretary of FedEx Office and Print Services, Inc., regarding certain matters relating to FedEx Office and Print Services, Inc. with respect to the USD Notes Offering.
23.1
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).
23.2
Consent of Tiffany H. Brunson, Vice President—General Counsel and Assistant Secretary of FedEx Office and Print Services, Inc. (included in Exhibit 5.2).
23.3
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.3).
23.4
Consent of Tiffany H. Brunson, Vice President—General Counsel and Assistant Secretary of FedEx Office and Print Services, Inc. (included in Exhibit 5.4).
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
FEDEX CORPORATION
Date: September 14, 2026
By:
/s/ Trampas T. Gunter
Trampas T. Gunter
Corporate Vice President, Corporate Development and Treasurer

----- tm2625313d1_ex1-1.htm -----
EX-1.1
2
tm2625313d1_ex1-1.htm
EXHIBIT 1.1
Exhibit 1.1
Execution Version
FEDEX CORPORATION
(a Delaware corporation)
AND
THE GUARANTORS NAMED HEREIN
€1,100,000,000 4.000% Notes due 2030
€900,000,000 4.625% Notes due 2034
UNDERWRITING AGREEMENT
September 9, 2026
To the Representatives named in
Schedule A
hereto
of the several Underwriters named in
Schedule
B
hereto
Ladies and Gentlemen:
FedEx Corporation, a Delaware
corporation (the “
Company
”), and Federal Express Corporation, Federal Express International, Inc. and Federal
Express Europe, Inc., which each are Significant Subsidiaries (as defined below) of the Company (collectively, the “
Significant
Guarantors
” and, together with each subsidiary of the Company that pursuant to the terms of the Indenture referred to below
guarantees the Company’s obligations under such Indenture, the “
Guarantors
”), hereby confirm their agreement
with Citigroup Global Markets Limited, Merrill Lynch International, Wells Fargo Securities International Limited, BNP PARIBAS and ING
Bank N.V. (collectively, the “
Bookrunners
”) and the other underwriters named in
Schedule B
hereto (collectively,
the “
Underwriters
”) for whom the Bookrunners are acting as representatives (in such capacity, the “
Representatives
”),
with respect to the issue and sale by the Company and the purchase, severally and not jointly, by the Underwriters of the respective
principal amounts set forth in
Schedule B
hereto, of €1,100,000,000 aggregate principal amount of the Company’s 4.000%
Notes due 2030 (the “
Notes due 2030
”) and €900,000,000 aggregate principal amount of the Company’s 4.625%
Notes due 2034 (the “
Notes due 2034
” and, together with the Notes due 2030, the “
Securities
”).
The Securities will be issued pursuant to a base indenture (the “
Base Indenture
”), to be dated as of the Closing Time
(as defined below), among the Company, as issuer, the Guarantors party thereto, and U.S. Bank Trust Company, National Association, as
trustee (the “
Trustee
”), as supplemented by a supplemental indenture (the “
Supplemental Indenture
”
and, together with the Base Indenture, the “
Indenture
”), to be dated as of the Closing Time, among the Company, as
issuer, the Guarantors party thereto, the Trustee, as trustee, transfer agent and registrar, and U.S. Bank Europe DAC, UK Branch, as
paying agent (the “
Paying Agent
”). In connection with the issuance of the Securities, the Company will enter into
an agency agreement (the “
Agency Agreement
”), to be dated as of the Closing Time, between the Company and the Paying
Agent. The 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 Underwriters propose to make a public offering of the
Securities on the terms and in the manner set forth herein as soon as the Representatives deem advisable after this Agreement has been
executed and delivered.
The Company has prepared
and filed with the Securities and Exchange Commission (the “
Commission
”) a registration statement on Form S-3
(File No. 333-297595), which contains a base prospectus (the “
Base Prospectus
”), to be used in connection with
the public offering and sale of the Securities. Such registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at the time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “
Securities Act
”), including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A or 430B under the Securities Act, is called the “
Registration
Statement
.” The Base Prospectus, together with the preliminary prospectus supplement dated September 9, 2026 related to
the Securities and as used prior to filing the Prospectus is referred to herein as the “
Preliminary Prospectus
.” The
term “
Prospectus
” shall mean the final prospectus supplement relating to the Securities, together with the Base Prospectus,
that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed
and delivered by the parties hereto. Any reference herein to the Registration Statement, the Base Prospectus, the Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “
Exchange Act
”), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by reference in the Registration Statement. All references in this
Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System.
Section 1.
Representations
and Warranties of the Company
. (a) Each of the Significant Guarantors, solely with respect to matters relative to it, and the
Company represents and warrants to each Underwriter, as of the date hereof and as of the Closing Time, and agrees with each Underwriter
as follows:
(i)
Compliance
with Registration Requirements
. The Registration Statement has become effective under the Securities Act. No order suspending the
effectiveness of the Registration Statement or any part thereof has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge
of the Company, threatened by the Commission; each of the Registration Statement and any amendment thereto, as of the applicable effective
date or dates, complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended,
and the rules and regulations promulgated thereunder (collectively, the “
Trust Indenture Act
”), and did not and
will not contain any 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 not misleading; and as of the date of the Prospectus and any amendment or supplement thereto
and as of the Closing Time, the Prospectus will not contain any 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 the light of the circumstances under which they
were made, not misleading;
provided
,
however
, that the Company makes no representation and warranty with respect to (A) that
part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act or (B) any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by the Representatives expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and agreed that the only such information consists of the information described
as such in Section 7(b) hereof.
-
2
-
(ii)
Due
Incorporation and Qualification.
Each of the Company and the Significant 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 Disclosure Package (as defined below) and 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business,
property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
(iii)
Subsidiaries.
Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the Securities Act (each,
a “
Significant Subsidiary
”) has been duly incorporated or formed, is validly existing as a corporation or other organization
and is in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or organizational
power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect
on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole;
and all of the issued and outstanding capital stock or other ownership interest of each Significant Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares or other minimum share or interest
ownership as may be required by local law (except as otherwise stated in the Disclosure Package and the Prospectus), is owned by the
Company, directly or indirectly through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
adverse claim of any third party.
(iv)
Disclosure
Package.
The term “
Disclosure Package
” shall mean (A) the Preliminary Prospectus, as amended or supplemented,
(B) the issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an “
Issuer Free Writing
Prospectus
”) identified in
Schedule D
hereto, (C) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package and (D) the Final Term Sheet (as defined below),
in the form filed pursuant to Rule 433 under the Securities Act, which also is identified in
Schedule D
hereto. As of 6:10
p.m. (London time) on the date of this Agreement (the “
Applicable Time
”), the Disclosure Package did not contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with written information furnished to the Company by the Representatives specifically
for use therein, it being understood and agreed that the only such information consists of the information described as such in Section 7(b) hereof.
-
3
-
(v)
Issuer
Free Writing Prospectuses.
Neither any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its issue date and at all subsequent
times through the Closing Time or until any earlier date that the Company notified or notifies the Representatives as described in the
next sentence, included, includes or will include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement as of such date and times, including any document incorporated by reference therein that has not been superseded
or modified. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Representatives specifically for use therein, it being understood and agreed
that the only such information consists of the information described as such in Section 7(b) hereof.
(vi)
Distribution
of Offering Material By the Company and the Significant Guarantors
. Each of the Company and the Significant Guarantors has not prepared,
made, used, distributed, authorized, approved or referred to and will not prepare, make, use, distribute, authorize, approve or refer
to, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Securities and Securities
Guarantees, any offering material in connection with the offering and sale of the Securities and Securities Guarantees other than the
Registration Statement, the Preliminary Prospectus, the Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus included
in
Schedule D
hereto and any other free writing prospectus that the parties hereto expressly agreed in writing to treat as part
of the Disclosure Package.
(vii)
Well-Known
Seasoned Issuers.
(A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the
time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act and (D) at
the date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this clause
(D)), the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, and the Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic
shelf registration statement form or has otherwise ceased to be eligible to use the automatic shelf registration statement form.
-
4
-
(viii)
Not
Ineligible Issuers.
(A) At the earliest time after the filing of the Registration Statement relating to the Securities that
the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities Act
and (B) as of the date of the execution and delivery of this Agreement (with such date being used as the determination date for
purposes of this clause (B)), the Company was or is an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without
taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the
Company be considered an Ineligible Issuer.
(ix)
Company
Not Investment Company
. The Company is not, and after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure Package will not be required to register as, an “investment
company,” as such term is defined in the Investment Company Act of 1940, as amended.
(x)
Internal
Controls and Procedures
. The Company maintains effective “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) in compliance with the requirements of the Exchange Act.
(xi)
No
Material Weakness in Internal Controls.
Except as disclosed in the Disclosure Package and the Prospectus, including any document
incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material
weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting.
(xii)
Incorporated
Documents.
The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when
they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents
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, in the light of the circumstances under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus during the Prospectus Delivery
Period (as defined in Section 4(a) below), when such documents are so filed with the Commission, will conform in all material
respects to the applicable requirements of the Exchange Act and will not contain any 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, in the light of the circumstances under which
they were made, not misleading.
-
5
-
(xiii)
Accountants.
Ernst & Young LLP, who have expressed their opinion on certain consolidated financial statements of the Company and its subsidiaries,
is an independent registered public accounting firm with respect to the Company and its consolidated subsidiaries as required by the
Securities Act and the Exchange Act.
(xiv)
Financial
Statements.
The consolidated financial statements and the related notes thereto of the Company included or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, and present fairly, in all material respects, the consolidated financial position
of the Company and its subsidiaries as of the dates indicated, and its consolidated results of operations and change in cash flows for
the periods specified; such financial statements have been prepared in conformity with accounting principles generally accepted in the
United States applied on a consistent basis throughout the periods involved; and the other financial information included or incorporated
by reference in the Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents in all material respects the information
called for by, and has been prepared in all material respects in accordance with, the Commission’s rules and guidelines applicable
thereto.
(xv)
No
Material Adverse Changes.
Except as stated in the Disclosure Package and the Prospectus, subsequent to the date of the latest audited
financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, there has been no material adverse
change, or any development directly involving the Company that would reasonably be expected to result in a material adverse change, in
the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
(xvi)
No
Violations or Defaults.
Neither the Company nor any of the Significant Guarantors is (a) in violation of its charter or bylaws;
(b) in default of any term, covenant or condition contained in any indenture, contract, mortgage, loan agreement, note, lease or
other instrument or agreement to which the Company or any Significant Guarantor is a party or binding upon the Company or any Significant
Guarantor or their respective properties; or (c) in violation of any applicable law or regulation or any judgment or order of any
court binding upon the Company or any Significant Guarantor, except in the case of each of clauses (b) and (c) above, for any
such default or violation that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect
on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
-
6
-
The execution and
delivery of this Agreement, the Indenture, the Agency Agreement and the Securities and the consummation of the transactions contemplated
herein and therein by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and
the consummation of the transactions contemplated herein and therein by each of the Significant Guarantors, have been duly authorized
by all necessary corporate action. This Agreement has been duly executed by the Company and by each of the Significant Guarantors.
The execution and
delivery of this Agreement, the Indenture, the Agency Agreement and the Securities and the consummation of the transactions contemplated
herein and therein by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and
the consummation of the transactions contemplated herein and therein by each of the Significant Guarantors:
(1)
will
not violate the charter or bylaws of the Company or any Significant Guarantor;
(2)
will
not result in a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties
or assets of the Company or any Significant Guarantor pursuant to, any indenture, contract, mortgage or other contract or instrument
to which the Company or any Significant Guarantor is a party or by which any of their respective properties is bound, except for any
breach, default, lien, charge or encumbrance that would not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries
taken as a whole; or
(3)
will
not result in the violation of any applicable law or regulation or any order, judgment or decree of any court or governmental agency
binding upon the Company or any Significant Guarantor, except any such violations that would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business, property, financial condition or results of operations of the Company
and its consolidated subsidiaries taken as a whole.
No consent, approval,
authorization, order, registration or qualification of or with any court or governmental or regulatory authority is required to be obtained
or made by the Company or any Significant Guarantor for the consummation by the Company and each of the Significant Guarantors of the
transactions contemplated by this Agreement, the Indenture, the Agency Agreement, the Securities or the Securities Guarantees, except
for the registration of the Securities and Securities Guarantees under the Securities Act, the qualification of the Indenture under the
Trust Indenture Act (such registration and qualification having been completed prior to the date of this Agreement), such consents, approvals,
authorizations, orders, registrations and qualifications under applicable securities or Blue Sky laws of the states and other jurisdictions
of the United States, such approvals or authorizations as may be required in connection with the listing of the Securities on the New
York Stock Exchange (the “
NYSE
”) and such consents, approvals, authorizations, orders, registrations and qualifications
the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on (1) the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries
taken as a whole or (2) the ability of the Company or any Significant Guarantor to perform its respective obligations under this
Agreement, the Indenture, the Securities or the Securities Guarantees.
-
7
-
(xvii)
Legal
Proceedings; Contracts.
Except for matters described in the Disclosure Package and the Prospectus, there is no pending or, to the
knowledge of any financial officer or the Executive Vice President and General Counsel of the Company, threatened action or proceeding
against the Company or any Significant Guarantor before any court or administrative agency which individually (or in the aggregate in
the case of any group of related lawsuits) is expected by the Company to have a material adverse effect on (a) the financial condition
of the Company and its consolidated subsidiaries taken as a whole or (b) the ability of the Company and the Significant Guarantors
to perform their respective obligations under this Agreement, the Indenture, the Securities or the Securities Guarantees.
(xviii)
Licenses
and Permits.
Each of the Company and the Significant 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 business, property, financial condition or results of operations of the Company and its consolidated
subsidiaries taken as a whole.
(xix)
Enforceability.
The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by the Company and the Significant
Guarantors, and when the Indenture is duly executed and delivered by the Company and the Significant Guarantors and the other parties
thereto, the Indenture will constitute, a valid and binding agreement of the Company and the Significant Guarantors, enforceable against
the Company and the Significant Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights
generally or by general equity principles, regardless of whether considered in a proceeding of law or in equity.
(xx)
Validity
of the Securities and the Securities Guarantees.
The Securities have been duly authorized by the Company and the Securities Guarantees
included in the Indenture have been duly authorized by the Significant Guarantors, and when the 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, the Securities
and the Securities Guarantees will constitute valid and legally binding obligations of the Company and the Significant Guarantors, respectively,
entitled to the benefits provided by such Indenture and enforceable against the Company and the Significant Guarantors, respectively,
in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the enforcement of creditors’ rights generally or by general equity
principles, regardless of whether considered in a proceeding of law or in equity.
-
8
-
(xxi)
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.
(xxii)
Cyber
Security; Data Protection.
The Company has taken all commercially reasonable actions to protect and maintain the security, integrity
and continuous operation of the information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications and databases used in connection with its business (and the data stored therein or processed thereby), and, except as disclosed
in the Disclosure Package and the Prospectus, including any document incorporated by reference therein, there have been no breaches,
violations, outages or unauthorized uses of or accesses to same, other than those which, individually or in the aggregate, did not, or
are not expected to, have a material adverse effect on the business, property, financial condition or results of operations of the Company
and its consolidated subsidiaries taken as a whole; and the Company is in compliance with all currently applicable (and has taken all
commercially reasonable actions to prepare to comply with all pending) laws and regulations and all orders, judgments or decrees of any
court or governmental agency and its own posted policies and contractual obligations relating to data privacy and security, other than
those which, individually or in the aggregate, did not, or are not expected to, have a material adverse effect on the business, property,
financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
(b)
Additional
Certifications
. Any certificate signed by an officer of the Company or any Significant Guarantor and delivered to you or your counsel
pursuant to the terms of this Agreement in connection with the offering of the Securities contemplated hereby shall be deemed a representation
and warranty by the Company or such Significant Guarantor, as applicable, to each Underwriter participating in such offering as to the
matters covered thereby on the date of such certificate unless amended or supplemented subsequent thereto.
Section 2.
Sale and
Delivery to Underwriters; Closing
. (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 Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price specified in
Schedule C
hereto, the amount of Securities set forth
opposite the name of such Underwriter in
Schedule B
plus any additional principal amount of Securities such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof. The Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as provided herein. It is understood that you propose to offer the Securities
for sale as set forth in the Disclosure Package and the Prospectus.
-
9
-
(b)
The
closing of the purchase of the Securities by the Underwriters shall occur 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 Representatives and the Company, at
9:30 a.m. (London 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 Representatives and the Company (such
time and date of payment and delivery being herein called the “
Closing Time
”).
(c)
Payment
for the Securities shall be made by the Settlement Lead Manager (as defined below) on behalf of the Underwriters in immediately available
funds to U.S. Bank Europe DAC, UK Branch, as common depositary (the “
Common Depositary
”) for Clearstream Banking,
société anonyme
(“
Clearstream
”) and Euroclear Bank S.A./N.V. (“
Euroclear
”)
against delivery to the Common Depositary, for the respective accounts of the Underwriters, of one or more global notes representing
the Securities to be purchased by them (collectively, the “
Global Notes
”), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The Global Notes will be made available for inspection by the Underwriters
not later than 1:00 p.m. (New York City time) on the business day prior to the Closing Time. It is understood that each Underwriter
has authorized the Settlement Lead Manager, for its account, to accept delivery of, receipt for, and make payment of the purchase price
for, the Securities which it has agreed to purchase. Each of Citigroup Global Markets Limited, Merrill Lynch International, Wells Fargo
Securities International Limited, BNP PARIBAS and ING Bank N.V., individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(d)
The
Settlement Lead Manager acknowledges that the Securities will initially be credited to an account (the “
Commissionaire Account
”)
for the benefit of the Settlement Lead Manager, the terms of which includes a third-party beneficiary clause, with the Company as the
third-party beneficiary and provide that such Securities are to be delivered to others only against payment of the purchase price of
the Securities into the Commissionaire Account on a delivery against payment basis.
(e)
The
Settlement Lead Manager acknowledges that (i) the Securities shall be held to the order of the Company as set out above and (ii) the
purchase price for the Securities received in the Commissionaire account will be held on behalf of the Company until such time as it
is transferred to the Company’s order. The Settlement Lead Manager undertakes that the purchase price for the Securities will be
transferred to the Company’s order promptly following receipt of such purchase price in the Commissionaire Account.
(f)
The
Company acknowledges and accepts the benefit of the third-party beneficiary clause in respect of the Commissionaire Account.
-
10
-
Section 3.
No Advisory
or Fiduciary Responsibility.
Each of the Company and the Significant Guarantors acknowledges and agrees that: (i) the purchase
and sale of the Securities and Securities Guarantees pursuant to this Agreement, including the determination of the public offering price
of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and
the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the Company and the Guarantors are capable of evaluating
and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors or their respective affiliates,
stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Company or the Guarantors with respect to any of the transactions contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantors
on other matters) and neither the Company nor the Guarantors shall make any claim relating thereto; (iv) no Underwriter has any
obligation to the Company or the Guarantors with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (v) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company and the Guarantors and that the several Underwriters have no obligation
pursuant to this Agreement to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship in connection
with the transactions contemplated hereby; and (vi) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting,
regulatory and tax advisors to the extent they deemed appropriate.
Section 4.
Covenants
of the Company and the Significant Guarantors
. The Company and, to the extent specified below, each of the Significant Guarantors
covenants with each Underwriter participating in the offering as follows:
(a)
Representatives’
Review of Proposed Amendments and Supplements.
During the period beginning on the Applicable Time and ending on the later of the
Closing Time or such date, as in the opinion of counsel for the Underwriters and communicated in writing to the Company, the Prospectus
is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “
Prospectus Delivery Period
”), prior
to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for
review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement
to which the Representatives reasonably object (unless such filing or use is necessary to comply with law).
(b)
Amendments
and Supplements to the Registration Statement, Prospectus and Other Securities Act Matters.
If, during the Prospectus Delivery Period,
any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document to be incorporated by reference
in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if in the opinion of counsel for the Representatives it is otherwise necessary to amend or supplement the
Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference
in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with
law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such
event or condition and (ii) promptly prepare (subject to Section 4(a) and 4(d) hereof), file with the Commission
(and use its reasonable best efforts to have any amendment to the Registration Statement or any new registration statement to be declared
effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement,
the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure
Package or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, not misleading
or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
-
11
-
(c)
Final
Term Sheet.
The Company will prepare a final term sheet for the Notes due 2030 and the Notes due 2034 containing only a description
of the applicable Securities, in a form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under
the Securities Act within the time required by such rule (the “
Final Term Sheet
”).
(d)
Permitted
Free Writing Prospectuses.
The Company represents that it has not made, and agrees that, unless it obtains the prior written consent
of the Representatives, it will not make, any offer relating to the Securities that would constitute a “free writing prospectus”
(as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company
under Rule 433 of the Securities Act;
provided
, that the prior written consent of the Representatives hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectuses included in
Schedule D
hereto. Any such free writing prospectus
consented to by the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Company
agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities
Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record
keeping. Each of the Company and the Significant Guarantors consents to the use by any Underwriter of a free writing prospectus that
(a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information
describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities
Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term
Sheet of the Company contemplated in Section 4(c) hereof. The Company will furnish to each Underwriter, without charge, during
the Prospectus Delivery Period, such number of copies of any Permitted Free Writing Prospectus (as amended or supplemented) as such Underwriter
may reasonably request.
(e)
Notice
of Inability to Use Automatic Shelf Registration Statement Form.
If at any time when the Company has been notified the Securities
remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a
form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective
amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all
other reasonable action necessary or appropriate to permit the public offering and sale of the Securities and Securities Guarantees to
continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company
has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
-
12
-
(f)
Filing
Fees.
The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of
the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the
Securities Act.
(g)
Blue
Sky Qualifications
. The Company and the Significant Guarantors will endeavor, in cooperation with you, to qualify the Securities
for offering and sale under, or obtain exemptions from, the applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may reasonably request, and will maintain such qualifications in effect for so long as may be required
for the distribution of the Securities;
provided
, that neither the Company nor the Significant Guarantors shall be obligated to
file any general consent to service of process or to qualify as a foreign corporation or as a dealer, or to subject itself to taxation
as doing business in any jurisdiction in which it is not otherwise required to be so qualified or subject to taxation.
(h)
Stand-Off
Agreement
. The Company and the Significant Guarantors 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 unsecured debt securities of the Company having a tenor of more
than one year (other than the Securities which are to be sold pursuant hereto and unsecured U.S. dollar-denominated debt securities up
to an aggregate principal amount of €1,100,000,000).
(i)
Earnings
Statement
. The Company will make generally available to its securityholders as soon as practicable, but in any event not later than
16 months after the date hereof, an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter
of the Company occurring after the “Effective Date” (as defined in Rule 158 of the Securities Act) of the Registration
Statement and otherwise satisfying Section 11(a) of the Securities Act and Rule 158 of the Securities Act.
(j)
No
Stabilization.
The Company and the Significant Guarantors will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(k)
Clearance
and Settlement.
The Company will cooperate with the Representatives and use its reasonable best efforts in arranging for the Securities
to be eligible for clearance and settlement through Clearstream and Euroclear and to maintain such eligibility for so long as the Securities
remain outstanding.
-
13
-
(l)
Exchange
Listing.
The Company will use its reasonable best efforts to list, subject to the notice of issuance if applicable, the Securities
on the NYSE.
Section 5.
Payment
of Expenses.
(a)
The
Company will pay all expenses incident to the performance of its obligations under this Agreement, including:
(i)
the
preparation and filing of the Registration Statement (including financial statements and exhibits), the Preliminary Prospectus, the Prospectus,
and any Issuer Free Writing Prospectuses, each as originally filed and of each amendment and supplement thereto;
(ii)
the
preparation, issuance and delivery of certificates for the Securities;
(iii)
the
reasonable fees and disbursements of the Company’s accountants and counsel, of the Trustee and its counsel, of the Paying Agent
and its counsel, and of any registrar and authenticating agent;
(iv)
the
qualification of the Securities under securities laws in accordance with the provisions of Section 4(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel to the Underwriters (in an amount not to exceed $12,500) in connection therewith
and in connection with the preparation of any Blue Sky Survey;
(v)
the
printing and delivery to the Underwriters in quantities as may be reasonably requested of copies of the Preliminary Prospectus, the Final
Term Sheet and the Prospectus and any amendments or supplements thereto;
(vi)
the
preparation and delivery to the Underwriters of copies of this Agreement and the Indenture;
(vii)
any
fees charged by rating agencies for the rating of the Securities;
(viii)
all
expenses and application fees related to the listing of the Securities on the NYSE; and
(ix)
all
expenses and application fees in connection with the approval of the Securities for eligibility for clearance and settlement through
Clearstream and Euroclear.
(b)
If
this Agreement is terminated by the Underwriters in accordance with the provisions of Section 6 (other than the provisions of Section 6(c)(iii))
or clause (i) of Section 10 hereof, the Company shall reimburse upon demand the Underwriters for all of their documented out-of-pocket
expenses, including the fees and disbursements of counsel for the Underwriters, that shall have been reasonably incurred by them in connection
with the proposed purchase and sale of the Securities and Securities Guarantees.
-
14
-
(c)
Each
Underwriter agrees to pay the portion of such expenses represented by such Underwriter’s pro rata share (based on the proportion
that the principal amount of Securities set forth opposite each Underwriter’s name in
Schedule B
bears to the aggregate
principal amount of Securities set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter,
the “
Pro Rata Expenses
”). Notwithstanding anything contained in the International Capital Market Association Primary
Market Handbook, each Underwriter hereby agrees that the Settlement Lead Manager may allocate the Pro Rata Expenses to the account of
such Underwriter for settlement of accounts (including payment of such Underwriter’s fees by the Settlement Lead Manager) as soon
as practicable, but in any case no later than 90 days following the date of the Closing Time.
Section 6.
Conditions
of Underwriters’ Obligations
. The several obligations of the Underwriters to purchase the 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 Significant Guarantors
herein as of the date hereof and as of the Closing Time, to the accuracy of the statements of the officers of the Company or of any of
the Significant Guarantors made in any certificate furnished pursuant to the provisions hereof as of the Closing Time, to the performance
and observance in all material respects by the Company and the Significant 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)
Compliance
with Filing Requirements; No Stop Order.
For the period from and after the date hereof and prior to the Closing Time:
(i)
the
Company shall have timely filed the Preliminary Prospectus and the Prospectus (including the information required by Rule 430B under
the Securities Act) with the Commission in the manner and within the time period required by the Securities Act; or, in the case of the
Prospectus, the Company shall have filed a post-effective amendment to the Registration Statement containing the information required
by such Rule 430B, and such post-effective amendment shall have become effective;
(ii)
the
Final Term Sheet, each other Issuer Free Writing Prospectus, if any, and any other material required to be filed by the Company pursuant
to Rule 433 under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for
such filings under such Rule 433; and
(iii)
no
order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of
the Securities Act objecting to use of the automatic shelf registration statement form.
(b)
No
Ratings Change
. At the Closing Time, the rating assigned as of the Applicable Time by any “nationally recognized statistical
rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, to any debt securities of the Company
(including for purposes of this Section 6(b) 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 Securities) shall not have been lowered
since the Applicable Time nor shall any such rating organization have publicly announced since the Applicable Time that it has placed
any debt securities of the Company on what is commonly termed a “
watch list
” for possible downgrading.
-
15
-
(c)
Legal
Opinions
. At the Closing Time, you shall have received the following documents:
(i)
Opinion
and Negative Assurance Letter of the Staff Vice President
—
Securities & Corporate of the Company.
The opinion
and negative assurance letter of Alana Griffin, Esq., Staff Vice President—Securities & Corporate Law, dated as of
the date of the Closing Time, to the effect as set forth in
Exhibit A
.
(ii)
Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP
. The opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel
to the Company, dated as of the date of the Closing Time, to the effect as set forth in
Exhibit B
.
(iii)
Opinion
of Simpson Thacher & Bartlett LLP
. The opinion and negative assurance letter of Simpson Thacher & Bartlett LLP,
counsel to the Underwriters, each dated as of the date of the Closing Time, with respect to such matters as the Underwriters may reasonably
request.
(d)
Officers’
Certificate
. At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Disclosure
Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations of the
Company and its consolidated subsidiaries taken as a whole; and you shall have received a certificate of the President, a Vice President
or Treasurer of the Company and of each Significant Guarantor, dated as of the date of the Closing Time, to the effect (i) in the
case of the certificate to be provided by the President, a Vice President or Treasurer of the Company, that there has been no such material
adverse change, (ii) that the other representations and warranties of the Company or such Significant Guarantor contained in Section 1
hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, 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 or such Significant Guarantor, as the case may be, has complied in all material respects with all agreements and satisfied
all conditions on their respective parts to be performed or satisfied at or prior to the Closing Time and (iv) no order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened
by the Commission. The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to the
proceedings threatened.
(e)
Accountants’
Comfort Letter.
At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young
LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated in the Registration Statement, Disclosure Package and the Prospectus.
-
16
-
(f)
Bring-down
Comfort Letter.
At the Closing Time, the Representatives shall have received from Ernst & Young LLP a letter, dated as of
the date of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to therein for the carrying out of procedures shall be a date not more than three
business days prior to the Closing Time.
(g)
Other
Documents
. At the Closing Time, counsel for the Underwriters shall have been furnished with such opinions and documents (including,
without limitation, evidence of good standing in relevant jurisdictions), as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Securities and the Securities Guarantees 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.
(h)
Clearance
and Settlement
. The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(i)
Agency
Agreement
. The Representatives shall have received an executed copy of the Agency Agreement.
If any condition specified
in this Section shall not have been fulfilled when and as required to be fulfilled in accordance with this Agreement, this Agreement
may be terminated by the Underwriters by notice to the Company at any time at or prior to the Closing Time, and such termination shall
be without liability of any party except as provided in Section 5 hereof.
Section 7.
Indemnification
.
(a)
Indemnification
of the Underwriters.
Each of the Company and the Significant Guarantors, jointly and severally, agrees to indemnify and hold harmless
each Underwriter, its affiliates, its directors, officers and each person, if any, who controls any Underwriter within the meaning of
the Securities Act and the Exchange Act against any loss, claim, damage, liability or reasonable expense, as incurred, to which such
Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant
to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Base Prospectus, the Preliminary Prospectus, each Issuer Free Writing Prospectus listed on
Schedule D
hereto,
any other free writing prospectus that the parties hereto agree in writing to treat as part of the Disclosure Package, the Final Term
Sheet or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities,
or the omission or alleged 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, and to reimburse each Underwriter, its affiliates, officers, directors and
each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Representatives)
as such expenses are reasonably incurred by such Underwriter, or its affiliates, officers, directors or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided
,
however
, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to the Company and the Significant Guarantors by the Representatives
expressly for use in the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto) or any road show in connection with the marketing of the Securities, it being understood and agreed that the only
such information consists of the information described as such in Section 7(b) hereof. The indemnification agreement set forth
in this Section 7(a) shall be in addition to any liabilities that the Company and the Significant Guarantors may otherwise
have.
-
17
-
(b)
Indemnification
of the Company, its Directors and Officers and the Guarantors
. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Significant Guarantors, each of their respective directors, each of their respective officers who signed
the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or reasonable expense, as incurred, to which the Company, each Significant
Guarantor or any such director, officer or controlling person may become subject, insofar as such loss, claim, damage, liability or reasonable
expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any
untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, the Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, or the omission or alleged
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, in each case to the extent, and only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, in reliance upon and in
conformity with written information furnished to the Company and the Significant Guarantors by the Representatives expressly for use
therein it being understood and agreed that the only such information consists of the information described as such in this Section 7(b);
and to reimburse the Company, each Significant Guarantor or any such director, officer or controlling person for any legal and other
expense reasonably incurred by the Company, each Significant Guarantor or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each of the
Company and the Significant Guarantors hereby acknowledges that the only information that the Underwriters have furnished to the Company
and the Significant Guarantors expressly for use in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment
or supplement thereto) or any road show in connection with the marketing of the Securities is as follows: the statements set forth in
the third (first, second and third sentences only), fifth (sixth sentence only), sixth and seventh paragraphs under the caption “Underwriting.”
The indemnification agreement set forth in this Section 7(b) shall be in addition to any liabilities that such Underwriter
may otherwise have.
-
18
-
(c)
Notifications
and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any liability other than the indemnification obligation provided in paragraph
(a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory
to such indemnified party;
provided
,
however
, if the defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of
the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available
to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (other than local counsel), representing all the indemnified parties who
are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases
the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party or (iii) the indemnified party and
the indemnifying party shall otherwise agree.
(d)
Settlements.
The indemnifying party under this Section 7 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or reasonable expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for reasonable fees and expenses of counsel as contemplated by Section 7(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending
or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
-
19
-
Section 8.
Contribution.
If the indemnification provided for in Section 7 hereof is for any reason unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party as provided in Section 7, contribute to the aggregate amount paid or payable
by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company and the Significant Guarantors, on the one
hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company and the Significant Guarantors, on the one hand,
and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the
Significant Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant
to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company and the Significant Guarantors, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Significant
Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7(c) hereof, any reasonable legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim. The Company, the Significant Guarantors and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 8.
-
20
-
Notwithstanding the provisions
of this Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts received by
such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 8 are several,
and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule B
hereto.
For purposes of this Section 8, each affiliate, director and officer of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company and of each Significant Guarantor, each officer of the Company and of each Significant Guarantor who
signed the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of
the Securities Act and the Exchange Act shall have the same rights to contribution as the Company or such Significant Guarantor.
The remedies provided for
in Sections 7 and 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
Section 9.
Representations,
Warranties, Indemnities and Agreements to Survive Delivery
. All representations, warranties, indemnities and other agreements
contained in this Agreement, or contained in certificates of officers of the Company or any Significant Guarantor 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 or any Significant Guarantor, and shall survive each delivery of and payment
for any of the Securities.
Section 10.
Termination
of Agreement
. The Representatives may terminate this Agreement, immediately upon notice to the Company, at any time prior to the
Closing Time if: (i) there has been, since the date hereof or since the respective dates as of which information is given in the
Disclosure Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations
of the Company and its consolidated subsidiaries taken as a whole, (ii) there shall have occurred any material adverse change in
the financial markets in the United States or the European Union or any outbreak or escalation of hostilities or other national or international
calamity or crisis, the effect of which would, in your judgment, materially and adversely affect the ability of the Underwriters to market
the Securities on the terms and in the manner contemplated by this Agreement, (iii) trading in any securities of the Company shall
have been suspended by the Commission or a national securities exchange, or if trading generally on the NYSE 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 said exchange or by order of the Commission or any other governmental authority or (iv) if a banking moratorium shall have been
declared by federal, New York or European authorities.
-
21
-
In the event of any termination
of this Agreement pursuant to this Section 10, the provisions of Section 5 hereof, the indemnity and contribution agreements
set forth in Sections 7 and 8 hereof and the provisions of Sections 9 and 15 hereof shall remain in effect.
Section 11.
Default
by One or More Underwriters
. If any Underwriter shall fail at the Closing Time to purchase the Securities which it is obligated to
purchase hereunder (the “
Defaulted Securities
”), and the aggregate amount of Defaulted Securities is not more than
one-tenth of the aggregate amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of the Securities set forth opposite their respective names in
Schedule B
hereto bears to the
aggregate amount of Securities set forth opposite the names of all such non-defaulting Underwriters to purchase the Defaulted Securities;
provided
, that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased by an amount in excess of one-tenth of such amount of Securities without the written consent of such Underwriter.
If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Securities to be purchased at the
Closing Time, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not
made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters
or the Company.
No action taken pursuant
to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement.
In the event of any such
default which does not result in a termination of this Agreement, either the non-defaulting Underwriters or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Prospectus or
in any other documents or arrangements.
For the avoidance of doubt,
to the extent an Underwriter’s obligation to purchase Securities hereunder constitutes a BRRD Liability (as defined below) and
such Underwriter does not, at the Closing Time, purchase the full amount of the Securities that it has agreed to purchase hereunder due
to the exercise by the Relevant Resolution Authority (as defined below) of its powers under the relevant Bail-in Legislation as set forth
in Section 18 below with respect to such BRRD Liability, such Underwriter shall be deemed, for all purposes of this Section 11,
to have defaulted on its obligation to purchase such Securities that it has agreed to purchase hereunder but has not purchased, and this
Section 11 shall remain in full force and effect with respect to the obligations of the other Underwriters.
Section 12.
Notices
. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if mailed, delivered by FedEx Express service or transmitted
by any facsimile communication. Notices to the Underwriters shall be directed to Citigroup Global Markets Limited, Citigroup Centre, Canada
Square, Canary Wharf, London E14 5LB, United Kingdom, Attention: Syndicate Desk, Fax No.: +44 20 7986 1927; Merrill Lynch International,
2 King Edward Street, London EC1A 1HQ, United Kingdom, Attention: Syndicate Desk, Email: dcm_london@bofa.com, Telephone: +44 (0)20 7995
3966; Wells Fargo Securities International Limited, 33 King William Street, London EC4R 9AT, Attention: DCM & Syndicate, Email:
Bradley.J.Cooper@wellsfargo.com, Damon.Mahon@wellsfargo.com; BNP PARIBAS, 16, boulevard des Italiens, 75009 Paris, France, Email: dl.syndsupportbonds@uk.bnpparibas.com;
richard.f.murphy@us.bnpparibas.com, Telephone: +1 (800) 854-5674; and ING Bank N.V., Bijlmerdreef 109, 1102 BW Amsterdam, The Netherlands,
Attention: DCM Origination, AME A.04.018, Email: fm.documentation@ing.nl, Telephone: +31 20 563 8185. Notices to the Company shall be
directed to it at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or FedEx Express service), Attention: Corporate Vice
President, Corporate Development and Treasurer, facsimile: [* * * *] with copies thereof directed to the Legal Department of the Company
at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or FedEx Express service), Attention: Staff Vice President—Securities &
Corporate Law, facsimile: [* * * *].
-
22
-
Section 13.
Patriot
Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters
to properly identify their respective clients.
Section 14.
Parties
.
This Agreement shall inure to the benefit of and be binding upon the Company, the Significant Guarantors 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 7 and 8 hereof 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 Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 15.
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 or any Significant Guarantor against any Underwriter or, any suit action or proceeding brought by any
Underwriter against the Company or any Significant Guarantor, 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.
Section 16.
Judgment
Currency
. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other
currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with
respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling
person of such Underwriter of any sum in such other currency, and only to the extent that such Underwriter or controlling person of such
Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States
dollars so purchased are less than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, the
Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person of
such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter
or controlling person of such Underwriter hereunder, such Underwriter or controlling person of such Underwriter agrees to pay to the
Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person
of such Underwriter hereunder. Any amounts payable by the Company or any Underwriter under this Section 16 shall be paid to the
applicable Underwriter(s) or the Company (as applicable) as promptly as reasonably practicable.
-
23
-
Section 17.
Agreement Among Underwriters
.
The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association
Agreement Among Managers Version 1/New York Law Schedule (the “
Agreement Among Managers
”) as amended in the manner
set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager”
means the Representatives, “Settlement Lead Manager” means Wells Fargo Securities International Limited, “Stabilizing
Manager” means Wells Fargo Securities International Limited, and “Subscription Agreement” means this Agreement. Clause
3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 11 of this Agreement.
Section 18.
Contractual
Recognition of Bail-In (EEA)
.
(a)
Notwithstanding
and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding among the parties to
this Agreement, each of the parties to this Agreement acknowledges and accepts that a BRRD Liability arising under this Agreement may
be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority and acknowledges, accepts and agrees to be bound by:
(i)
the
effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to
each of the Company and the Significant Guarantors under this Agreement, which (without limitation) may include and result in any of
the following or some combination thereof: (w) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts
due thereon; (x) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of
the Underwriters or another person (and the issue to or conferral on each of the Company and the Significant Guarantors of such shares,
securities or obligations); (y) the cancellation of the BRRD Liability; and/or (z) the amendment or alteration of any interest,
if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
and
-
24
-
(ii)
the
variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of
Bail-in Powers by the Relevant Resolution Authority.
(b)
As
used in this Section 18,
“
Bail-in
Legislation
” means in relation to a member state of the European Economic Area which has implemented, or which at any time
implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation
Schedule from time to time.
“
Bail-in
Powers
” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule in relation to the relevant
Bail-in Legislation.
“
BRRD
”
means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“
BRRD
Liability
” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable
Bail-in Legislation.
“
EU Bail-in
Legislation Schedule
” means the document described as such, then in effect, and published by the Loan Market Association (or
any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
“
Relevant
Resolution Authority
” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters.
Section 19.
Contractual
Recognition of Bail-In (UK).
(a)
Notwithstanding
and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding among the parties to
this Agreement, each of the parties to this Agreement acknowledges and accepts that a UK Bail-in Liability arising under this Agreement
may be subject to the exercise of UK Bail-in Powers by the relevant United Kingdom (“
UK
”) resolution authority, and
acknowledges, accepts and agrees to be bound by:
(i)
effect
of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of the Underwriters
to each of the Company and the Significant Guarantors under this Agreement, which (without limitation) may include and result in any
of the following or some combination thereof: (w) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding
amounts due thereon; (x) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other
obligations of the Underwriters or another person (and the issue to or conferral on each of the Company and the Significant Guarantors
of such shares, securities or obligations); (y) the cancellation of the UK Bail-in Liability; and/or (z) the amendment or alteration
of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for
a temporary period; and
-
25
-
(ii)
the
variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise
of UK Bail-in Powers by the relevant UK resolution authority.
(b)
As
used in this Section 19:
“
UK Bail-in
Legislation
” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to
the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through
liquidation, administration or other insolvency proceedings).
“
UK Bail-in
Liability
” means a liability in respect of which the UK Bail-in Powers may be exercised.
“
UK Bail-in
Powers
” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a
bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such
a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities
or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had
been exercised under it or to suspend any obligation in respect of that liability.
Section 20.
Recognition
of U.S. Special Resolution Regimes
.
(a)
In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation,
were governed by the laws of the United States or a state of the United States.
(b)
In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
“
BHC Act Affiliate
” has the
meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“
Covered Entity
” means any
of the following:
(i)
a “covered entity” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or
-
26
-
(iii)
a “covered FSI” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 382.2(b).
“
Default Right
” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“
U.S. Special Resolution Regime
”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank
Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 21.
Manufacturer Acknowledgement
.
(a)
Solely
for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “
UK
MiFIR Product Governance Rules
”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance
Rules:
(i)
each
of Citigroup Global Markets Limited, Merrill Lynch International, Wells Fargo Securities International Limited and BNP PARIBAS (each
a “
UK Manufacturer
” and together, the “
UK Manufacturers
”) acknowledges to each other UK Manufacturer
that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product
approval process, the target market and the proposed distribution channels as applying to the Securities and the related information
set out in the Prospectus and announcements in connection with the Securities; and
(ii)
the
other Underwriters, the Company and the Guarantors note the application of the UK MiFIR Product Governance Rules and acknowledge
the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information
set out in the Prospectus in connection with the Securities.
(b)
Solely
for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated Directive
2017/593 (the “
Product Governance Rules
”) regarding the mutual responsibilities of manufacturers under the Product
Governance Rules:
(i)
ING
Bank N.V. (the “
EU Manufacturer
”) understands the responsibilities conferred upon it under the Product Governance
Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to
the Securities and the related information set out in the Prospectus in connection with the Securities; and
(ii)
the
other Underwriters, the Company and the Guarantors note the application of the Product Governance Rules and acknowledge the target
market and distribution channels identified as applying to the Securities by the EU Manufacturer and the related information set out
in the Prospectus in connection with the Securities.
-
27
-
Section 22.
Stabilization
.
The Company hereby authorizes the Stabilizing Manager to make adequate public disclosure regarding stabilization of the information required
in relation to such stabilization by Regulation (EU) 596/2014 and Commission Delegated Regulation (EU) 2016/1052, and by the price stabilizing
rules of the UK Financial Conduct Authority. The Stabilizing Manager for its own account may, to the extent permitted by applicable
laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher
than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company
and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained,
by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing
Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company
to issue in excess of the aggregate principal amount of Securities specified in
Schedule B
hereto. Such stabilization, if commenced,
may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.
Section 23.
Headings
.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Section 24.
Counterparts
.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. The words “execution,” “signed,” “signature,” “delivery,”
and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed
to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 25.
Effect
on Prior Agreements and Understandings
. This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the several Underwriters, or any of them, with respect to the subject matter hereof.
-
28
-
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, the Company and the Significant Guarantors in accordance with its
terms.
Very truly yours,
FEDEX CORPORATION
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Corporate Vice President,
Corporate Development and Treasurer
FEDERAL EXPRESS CORPORATION
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
Federal Express International, Inc.
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
Federal Express Europe, Inc.
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
[
Signature Page to
Underwriting Agreement
]
CONFIRMED AND ACCEPTED, as of the date first above written:
citigroup
global markets limited
By:
/s/ Paula Clarke
Name:
Paula Clarke
Title:
Delegated Signatory
merrill
lynch international
By:
/s/ Mark Kitchen
Name:
Mark Kitchen
Title:
Managing Director
wells
fargo securities international limited
By:
/s/ Bradley Cooper
Name:
Bradley Cooper
Title:
Executive Director
BNP
PARIBAS
By:
/s/ Richard Murphy
Name:
Richard Murphy
Title:
Managing Director
By:
/s/ Pasquale A. Perraglia IV
Name:
Pasquale A. Perraglia IV
Title:
Managing Director
[
Signature Page to Underwriting Agreement
]
ING Bank N.V.
By:
/s/ Romke van der Weerdt
Name:
Romke van der Weerdt
Title:
Managing Director
By:
/s/ William de Vreede
Name:
William de Vreede
Title:
Global Head Legal Wholesale Banking
Deutsche Bank AG, London Branch
By:
/s/ Ritu Ketkar
Name:
Ritu Ketkar
Title:
Managing Director
By:
/s/ John Han
Name:
John Han
Title:
Managing Director
J.P. Morgan Securities plc
By:
/s/ Robert Chambers
Name:
Robert Chambers
Title:
Managing Director
Morgan Stanley & Co. International plc
By:
/s/ Kathryn McArdle
Name:
Kathryn McArdle
Title:
Executive Director
HSBC Bank plc
By:
/s/ Paul Phelps
Name:
Paul Phelps
Title:
Authorised Signatory
Mizuho International plc
By:
/s/ Manabu Shibuya
Name:
Manabu Shibuya
Title:
Authorised Signatory
[
Signature Page to Underwriting Agreement
]
PNC Capital Markets LLC
By:
/s/ Dylan Haas
Name:
Dylan Haas
Title:
Director
Scotiabank (Ireland) Designated Activity Company
By:
/s/ Matthew O’Connor
Name:
Matthew O’Connor
Title:
Director, DCM
By:
/s/ James Walter
Name:
James Walter
Title:
Head of Legal, Europe
SMBC Bank International plc
By:
/s/ Marko Milos
Name:
Marko Milos
Title:
Managing Director
Standard Chartered Bank
By:
/s/ Patrick Dupont-Liot
Name:
Patrick Dupont-Liot
Title:
Managing Director, Debt Capital Markets
TD Global Finance unlimited company
By:
/s/ Frances Watson
Name:
Frances Watson
Title:
Managing Director
[
Signature Page to Underwriting Agreement
]
EXHIBIT A
Form of Opinion of
the Staff Vice President—Securities & Corporate Law of the Company
Exhibit A-1
EXHIBIT B
Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP
Exhibit B-1
SCHEDULE A
Representatives of the Several Underwriters
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Merrill Lynch International
2 King Edward Street
London EC1A 1HQ
United Kingdom
Wells Fargo Securities International Limited
33 King William Street
London EC4R 9AT
BNP PARIBAS
16, boulevard des Italiens
75009 Paris, France
ING Bank N.V.
Bijlmerdreef 109
1102 BW Amsterdam
The Netherlands
Schedule A-1
SCHEDULE B
Name of Underwriter
Principal
Amount of
Notes due 2030
Principal
Amount of
Notes due 2034
Citigroup Global Markets Limited
€
137,500,000
€
112,500,000
Merrill Lynch International
€
137,500,000
€
112,500,000
Wells Fargo Securities International Limited
€
137,500,000
€
112,500,000
BNP PARIBAS
€
137,500,000
€
112,500,000
ING Bank N.V.
€
137,500,000
€
112,500,000
Deutsche Bank AG, London Branch
€
60,500,000
€
49,500,000
J.P. Morgan Securities plc
€
60,500,000
€
49,500,000
Morgan Stanley & Co. International plc
€
60,500,000
€
49,500,000
HSBC Bank plc
€
33,000,000
€
27,000,000
Mizuho International plc
€
33,000,000
€
27,000,000
PNC Capital Markets LLC
€
33,000,000
€
27,000,000
Scotiabank (Ireland) Designated Activity Company
€
33,000,000
€
27,000,000
SMBC Bank International plc
€
33,000,000
€
27,000,000
Standard Chartered Bank
€
33,000,000
€
27,000,000
TD Global Finance unlimited company
€
33,000,000
€
27,000,000
Total
€
1,100,000,000
€
900,000,000
Schedule B-1
SCHEDULE C
€1,100,000,000 4.000% Notes due 2030
1.
The
initial public offering price of the 4.000% Notes due 2030 shall be 99.714% of the principal amount thereof, plus accrued interest, if
any, from the date of issuance.
2.
The
purchase price to be paid by the Underwriters for the 4.000% Notes due 2030 shall be 99.314% of the principal amount thereof.
€900,000,000 4.625% Notes due 2034
1.
The
initial public offering price of the 4.625% Notes due 2034 shall be 99.807% of the principal amount thereof, plus accrued interest, if
any, from the date of issuance.
2.
The
purchase price to be paid by the Underwriters for the 4.625% Notes due 2034 shall be 99.257% of the principal amount thereof.
Schedule C-1
SCHEDULE D
ISSUER FREE WRITING PROSPECTUSES
1.
Final term sheet, dated September 9, 2026, relating to the Notes due
2030 and the Notes due 2034, as filed pursuant to Rule 433 under the Securities Act
Schedule D-1

----- tm2625313d1_ex1-2.htm -----
EX-1.2
3
tm2625313d1_ex1-2.htm
EXHIBIT 1.2
Exhibit 1.2
Execution Version
FEDEX CORPORATION
(a Delaware corporation)
AND
THE GUARANTORS NAMED HEREIN
$1,100,000,000 5.750% Notes due 2036
UNDERWRITING AGREEMENT
September 9, 2026
BOfA
sECURITIES, INC.
CITIGROUP
GLOBAL MARKETS INC.
WELLS
FARGO SECURITIES, LLC
Scotia
Capital (USA) Inc.
as Representatives of the several
Underwriters
named in
Schedule A
hereto
c/o BofA Securities, Inc.
One Bryant Park, Floor 11
New York, New York 10036
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Scotia Capital (USA) Inc.
250 Vesey Street, 23rd Floor
New York, New York 10281
Ladies and Gentlemen:
FedEx
Corporation, a Delaware corporation (the “
Company
”), and Federal Express Corporation, Federal Express International, Inc.
and Federal Express Europe, Inc., which each are Significant Subsidiaries (as defined below) of the Company (collectively, the “
Significant
Guarantors
” and, together with each subsidiary of the Company that pursuant to the terms of the Indenture referred to below
guarantees the Company’s obligations under such Indenture, the “
Guarantors
”), hereby confirm their agreement
with
BofA Securities, Inc., Citigroup Global Markets Inc., Wells Fargo Securities, LLC and Scotia Capital (USA) Inc. (collectively,
the “
Bookrunners
”) and the other underwriters named in
Schedule A
hereto (collectively, the “
Underwriters
”)
for whom the Bookrunners are acting as representatives (in such capacity, the “
Representatives
”), with respect to
the issue and sale by the Company and the purchase, severally and not jointly, by the Underwriters of the respective principal amounts
set forth in
Schedule A
hereto, of $1,100,000,000 aggregate principal amount of the Company’s 5.750% Notes due 2036 (the
“
Securities
”). The Securities will be issued pursuant to a base indenture (the “
Base Indenture
”),
to be dated as of the Closing Time (as defined below), among the Company, as issuer, the Guarantors party thereto, and U.S. Bank Trust
Company, National Association, as trustee (the “
Trustee
”), as supplemented by a supplemental indenture (the “
Supplemental
Indenture
” and, together with the Base Indenture, the “
Indenture
”), to be dated as of the Closing Time,
among the Company, as issuer, the Guarantors party thereto and the Trustee. The 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 Underwriters propose to make a public offering of the Securities on the terms and in the manner set forth herein as soon as
the Representatives deem advisable after this Agreement has been executed and delivered.
The Company has prepared
and filed with the Securities and Exchange Commission (the “
Commission
”) a registration statement on Form S-3
(File No. 333-297595), which contains a base prospectus (the “
Base Prospectus
”), to be used in connection with
the public offering and sale of the Securities. Such registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at the time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “
Securities Act
”), including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A or 430B under the Securities Act, is called the “
Registration
Statement
.” The Base Prospectus, together with the preliminary prospectus supplement dated September 9, 2026 related to
the Securities and as used prior to filing the Prospectus is referred to herein as the “
Preliminary Prospectus
.” The
term “
Prospectus
” shall mean the final prospectus supplement relating to the Securities, together with the Base Prospectus,
that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed
and delivered by the parties hereto. Any reference herein to the Registration Statement, the Base Prospectus, the Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “
Exchange Act
”), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by reference in the Registration Statement. All references in this
Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System.
-
2
-
Section 1.
Representations
and Warranties of the Company
. (a) Each of the Significant Guarantors, solely with respect to matters relative to it, and the
Company represents and warrants to each Underwriter, as of the date hereof and as of the Closing Time, and agrees with each Underwriter
as follows:
(i)
Compliance
with Registration Requirements
. The Registration Statement has become effective under the Securities Act. No order suspending the
effectiveness of the Registration Statement or any part thereof has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge
of the Company, threatened by the Commission; each of the Registration Statement and any amendment thereto, as of the applicable effective
date or dates, complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended,
and the rules and regulations promulgated thereunder (collectively, the “
Trust Indenture Act
”), and did not and
will not contain any 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 not misleading; and as of the date of the Prospectus and any amendment or supplement thereto
and as of the Closing Time, the Prospectus will not contain any 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 the light of the circumstances under which they
were made, not misleading;
provided
,
however
, that the Company makes no representation and warranty with respect to (A) that
part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act or (B) any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by the Representatives expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and agreed that the only such information consists of the information described
as such in Section 7(b) hereof.
(ii)
Due
Incorporation and Qualification.
Each of the Company and the Significant 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 Disclosure Package (as defined below) and 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business,
property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
(iii)
Subsidiaries.
Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the Securities Act (each,
a “
Significant Subsidiary
”) has been duly incorporated or formed, is validly existing as a corporation or other organization
and is in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or organizational
power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect
on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole;
and all of the issued and outstanding capital stock or other ownership interest of each Significant Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares or other minimum share or interest
ownership as may be required by local law (except as otherwise stated in the Disclosure Package and the Prospectus), is owned by the
Company, directly or indirectly through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
adverse claim of any third party.
-
3
-
(iv)
Disclosure
Package.
The term “
Disclosure Package
” shall mean (A) the Preliminary Prospectus, as amended or supplemented,
(B) the issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an “
Issuer Free Writing
Prospectus
”) identified in
Schedule C
hereto, (C) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package and (D) the Final Term Sheet (as defined below),
in the form filed pursuant to Rule 433 under the Securities Act, which also is identified in
Schedule C
hereto. As of 3:30
p.m. (New York City time) on the date of this Agreement (the “
Applicable Time
”), the Disclosure Package did not
contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by the Representatives
specifically for use therein, it being understood and agreed that the only such information consists of the information described as
such in Section 7(b) hereof.
(v)
Issuer
Free Writing Prospectuses.
Neither any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its issue date and at all subsequent
times through the Closing Time or until any earlier date that the Company notified or notifies the Representatives as described in the
next sentence, included, includes or will include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement as of such date and times, including any document incorporated by reference therein that has not been superseded
or modified. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Representatives specifically for use therein, it being understood and agreed
that the only such information consists of the information described as such in Section 7(b) hereof.
(vi)
Distribution
of Offering Material By the Company and the Significant Guarantors
. Each of the Company and the Significant Guarantors has not prepared,
made, used, distributed, authorized, approved or referred to and will not prepare, make, use, distribute, authorize, approve or refer
to, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Securities and Securities
Guarantees, any offering material in connection with the offering and sale of the Securities and Securities Guarantees other than the
Registration Statement, the Preliminary Prospectus, the Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus included
in
Schedule C
hereto and any other free writing prospectus that the parties hereto expressly agreed in writing to treat as part
of the Disclosure Package.
-
4
-
(vii)
Well-Known
Seasoned Issuers.
(A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the
time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act and (D) at
the date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this clause
(D)), the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, and the Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic
shelf registration statement form or has otherwise ceased to be eligible to use the automatic shelf registration statement form.
(viii)
Not
Ineligible Issuers.
(A) At the earliest time after the filing of the Registration Statement relating to the Securities that
the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities Act
and (B) as of the date of the execution and delivery of this Agreement (with such date being used as the determination date for
purposes of this clause (B)), the Company was or is an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without
taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the
Company be considered an Ineligible Issuer.
(ix)
Company
Not Investment Company
.
The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package will not be required to
register as, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(x)
Internal
Controls and Procedures
. The Company maintains effective “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) in compliance with the requirements of the Exchange Act.
(xi)
No
Material Weakness in Internal Controls.
Except as disclosed in the Disclosure Package and the Prospectus, including any document
incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material
weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting.
-
5
-
(xii)
Incorporated
Documents.
The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when
they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents
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, in the light of the circumstances under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus during the Prospectus Delivery
Period (as defined in Section 4(a) below), when such documents are so filed with the Commission, will conform in all material
respects to the applicable requirements of the Exchange Act and will not contain any 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, in the light of the circumstances under which
they were made, not misleading.
(xiii)
Accountants.
Ernst & Young LLP, who have expressed their opinion on certain consolidated financial statements of the Company and its subsidiaries,
is an independent registered public accounting firm with respect to the Company and its consolidated subsidiaries as required by the
Securities Act and the Exchange Act.
(xiv)
Financial
Statements.
The consolidated financial statements and the related notes thereto of the Company included or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, and present fairly, in all material respects, the consolidated financial position
of the Company and its subsidiaries as of the dates indicated, and its consolidated results of operations and change in cash flows for
the periods specified; such financial statements have been prepared in conformity with accounting principles generally accepted in the
United States applied on a consistent basis throughout the periods involved; and the other financial information included or incorporated
by reference in the Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents in all material respects the information
called for by, and has been prepared in all material respects in accordance with, the Commission’s rules and guidelines applicable
thereto.
(xv)
No
Material Adverse Changes.
Except as stated in the Disclosure Package and the Prospectus, subsequent to the date of the latest audited
financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, there has been no material adverse
change, or any development directly involving the Company that would reasonably be expected to result in a material adverse change, in
the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
-
6
-
(xvi)
No
Violations or Defaults.
Neither the Company nor any of the Significant Guarantors is (a) in violation of its charter or bylaws;
(b) in default of any term, covenant or condition contained in any indenture, contract, mortgage, loan agreement, note, lease or
other instrument or agreement to which the Company or any Significant Guarantor is a party or binding upon the Company or any Significant
Guarantor or their respective properties; or (c) in violation of any applicable law or regulation or any judgment or order of any
court binding upon the Company or any Significant Guarantor, except in the case of each of clauses (b) and (c) above, for any
such default or violation that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect
on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
The execution and
delivery of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and therein
by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and the consummation of
the transactions contemplated herein and therein by each of the Significant Guarantors, have been duly authorized by all necessary corporate
action. This Agreement has been duly executed by the Company and by each of the Significant Guarantors.
The execution and
delivery of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and therein
by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and the consummation of
the transactions contemplated herein and therein by each of the Significant Guarantors:
(1)
will
not violate the charter or bylaws of the Company or any Significant Guarantor;
(2)
will
not result in a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties
or assets of the Company or any Significant Guarantor pursuant to, any indenture, contract, mortgage or other contract or instrument
to which the Company or any Significant Guarantor is a party or by which any of their respective properties is bound, except for any
breach, default, lien, charge or encumbrance that would not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries
taken as a whole; or
(3)
will
not result in the violation of any applicable law or regulation or any order, judgment or decree of any court or governmental agency
binding upon the Company or any Significant Guarantor, except any such violations that would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business, property, financial condition or results of operations of the Company
and its consolidated subsidiaries taken as a whole.
-
7
-
No consent, approval,
authorization, order, registration or qualification of or with any court or governmental or regulatory authority is required to be obtained
or made by the Company or any Significant Guarantor for the consummation by the Company and each of the Significant Guarantors of the
transactions contemplated by this Agreement, the Indenture, the Securities or the Securities Guarantees, except for the registration
of the Securities and Securities Guarantees under the Securities Act, the qualification of the Indenture under the Trust Indenture Act
(such registration and qualification having been completed prior to the date of this Agreement), such consents, approvals, authorizations,
orders, registrations and qualifications under applicable securities or Blue Sky laws of the states and other jurisdictions of the United
States and such consents, approvals, authorizations, orders, registrations and qualifications the failure of which to obtain or make
would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the business, property,
financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole or (2) the ability
of the Company or any Significant Guarantor to perform its respective obligations under this Agreement, the Indenture, the Securities
or the Securities Guarantees.
(xvii)
Legal
Proceedings; Contracts.
Except for matters described in the Disclosure Package and the Prospectus, there is no pending or, to the
knowledge of any financial officer or the Executive Vice President and General Counsel of the Company, threatened action or proceeding
against the Company or any Significant Guarantor before any court or administrative agency which individually (or in the aggregate in
the case of any group of related lawsuits) is expected by the Company to have a material adverse effect on (a) the financial condition
of the Company and its consolidated subsidiaries taken as a whole or (b) the ability of the Company and the Significant Guarantors
to perform their respective obligations under this Agreement, the Indenture, the Securities or the Securities Guarantees.
(xviii)
Licenses
and Permits.
Each of the Company and the Significant 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 business, property, financial condition or results of operations of the Company and its consolidated
subsidiaries taken as a whole.
(xix)
Enforceability.
The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by the Company and the Significant
Guarantors, and when the Indenture is duly executed and delivered by the Company and the Significant Guarantors and the other parties
thereto, the Indenture will constitute, a valid and binding agreement of the Company and the Significant Guarantors, enforceable against
the Company and the Significant Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights
generally or by general equity principles, regardless of whether considered in a proceeding of law or in equity.
-
8
-
(xx)
Validity
of the Securities and the Securities Guarantees.
The Securities have been duly authorized by the Company and the Securities Guarantees
included in the Indenture have been duly authorized by the Significant Guarantors, and when the 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, the Securities
and the Securities Guarantees will constitute valid and legally binding obligations of the Company and the Significant Guarantors, respectively,
entitled to the benefits provided by such Indenture and enforceable against the Company and the Significant Guarantors, respectively,
in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the enforcement of creditors’ rights generally or by general equity
principles, regardless of whether considered in a proceeding of law or in equity.
(xxi)
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.
(xxii)
Cyber
Security; Data Protection.
The Company has taken all commercially reasonable actions to protect and maintain the security, integrity
and continuous operation of the information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications and databases used in connection with its business (and the data stored therein or processed thereby), and, except as disclosed
in the Disclosure Package and the Prospectus, including any document incorporated by reference therein, there have been no breaches,
violations, outages or unauthorized uses of or accesses to same, other than those which, individually or in the aggregate, did not, or
are not expected to, have a material adverse effect on the business, property, financial condition or results of operations of the Company
and its consolidated subsidiaries taken as a whole; and the Company is in compliance with all currently applicable (and has taken all
commercially reasonable actions to prepare to comply with all pending) laws and regulations and all orders, judgments or decrees of any
court or governmental agency and its own posted policies and contractual obligations relating to data privacy and security, other than
those which, individually or in the aggregate, did not, or are not expected to, have a material adverse effect on the business, property,
financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.
(b)
Additional
Certifications
. Any certificate signed by an officer of the Company or any Significant Guarantor and delivered to you or your counsel
pursuant to the terms of this Agreement in connection with the offering of the Securities contemplated hereby shall be deemed a representation
and warranty by the Company or such Significant Guarantor, as applicable, to each Underwriter participating in such offering as to the
matters covered thereby on the date of such certificate unless amended or supplemented subsequent thereto.
-
9
-
Section 2.
Sale and Delivery to Underwriters; Closing
. (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 Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price specified in
Schedule B
hereto, the amount of Securities
set forth opposite the name of such Underwriter in
Schedule A
plus any additional principal amount of Securities such Underwriter
may become obligated to purchase pursuant to the provisions of Section 11 hereof. The Company will not be obligated to deliver any
of the Securities except upon payment for all the Securities to be purchased as provided herein. It is understood that you propose to
offer the Securities for sale as set forth in the Disclosure Package and the Prospectus.
(b)
Payment
of the purchase price for, and delivery of the certificates for, the Securities to be purchased by the Underwriters 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 Representatives and the Company, at 9:30 a.m. (New York City 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 Representatives and the Company (such time and date of payment and delivery being herein called
the “
Closing Time
”).
(c)
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 (“
DTC
”) to the Representatives for the respective
accounts of the Underwriters of the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to
purchase. Each of BofA Securities, Inc., Citigroup Global Markets Inc., Wells Fargo Securities, LLC, and Scotia Capital (USA) Inc.
individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for
the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d)
The
Securities to be so delivered pursuant to this Agreement shall be issued in the form of one or more global securities which shall be
deposited with, or in accordance with the instructions of, DTC and registered in the name of its nominee, Cede & Co.
Section 3.
No Advisory or Fiduciary Responsibility.
Each of the Company and the Significant Guarantors acknowledges and agrees that:
(i) the purchase and sale of the Securities and Securities Guarantees pursuant to this Agreement, including the determination of
the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the Company and the Guarantors
are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated
by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, each
Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors
or their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Company or the Guarantors with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the
Company or the Guarantors on other matters) and neither the Company nor the Guarantors shall make any claim relating thereto; (iv) no
Underwriter has any obligation to the Company or the Guarantors with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (v) the several Underwriters and their respective affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Company and the Guarantors and that the several Underwriters have
no obligation pursuant to this Agreement to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship
in connection with the transactions contemplated hereby; and (vi) the Underwriters have not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting,
regulatory and tax advisors to the extent they deemed appropriate.
-
10
-
Section 4.
Covenants of the Company and the Significant Guarantors
. The Company and, to the extent specified below, each of the Significant
Guarantors covenants with each Underwriter participating in the offering as follows:
(a)
Representatives’
Review of Proposed Amendments and Supplements.
During the period beginning on the Applicable Time and ending on the later of the
Closing Time or such date, as in the opinion of counsel for the Underwriters and communicated in writing to the Company, the Prospectus
is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “
Prospectus Delivery Period
”), prior
to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for
review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement
to which the Representatives reasonably object (unless such filing or use is necessary to comply with law).
(b)
Amendments
and Supplements to the Registration Statement, Prospectus and Other Securities Act Matters.
If, during the Prospectus Delivery Period,
any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document to be incorporated by reference
in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if in the opinion of counsel for the Representatives it is otherwise necessary to amend or supplement the
Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference
in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with
law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such
event or condition and (ii) promptly prepare (subject to Section 4(a) and 4(d) hereof), file with the Commission
(and use its reasonable best efforts to have any amendment to the Registration Statement or any new registration statement to be declared
effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement,
the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure
Package or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, not misleading
or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
-
11
-
(c)
Final
Term Sheet.
The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in a
form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within
the time required by such rule (the “
Final Term Sheet
”).
(d)
Permitted
Free Writing Prospectuses.
The Company represents that it has not made, and agrees that, unless it obtains the prior written consent
of the Representatives, it will not make, any offer relating to the Securities that would constitute a “free writing prospectus”
(as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company
under Rule 433 of the Securities Act;
provided
, that the prior written consent of the Representatives hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectuses included in
Schedule C
hereto. Any such free writing prospectus
consented to by the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Company
agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities
Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record
keeping. Each of the Company and the Significant Guarantors consents to the use by any Underwriter of a free writing prospectus that
(a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information
describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities
Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term
Sheet of the Company contemplated in Section 4(c) hereof. The Company will furnish to each Underwriter, without charge, during
the Prospectus Delivery Period, such number of copies of any Permitted Free Writing Prospectus (as amended or supplemented) as such Underwriter
may reasonably request.
(e)
Notice
of Inability to Use Automatic Shelf Registration Statement Form.
If at any time when the Company has been notified the Securities
remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a
form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective
amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all
other reasonable action necessary or appropriate to permit the public offering and sale of the Securities and Securities Guarantees to
continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company
has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
-
12
-
(f)
Filing
Fees.
The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of
the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the
Securities Act.
(g)
Blue
Sky Qualifications
. The Company and the Significant Guarantors will endeavor, in cooperation with you, to qualify the Securities
for offering and sale under, or obtain exemptions from, the applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may reasonably request, and will maintain such qualifications in effect for so long as may be required
for the distribution of the Securities;
provided
, that neither the Company nor the Significant Guarantors shall be obligated to
file any general consent to service of process or to qualify as a foreign corporation or as a dealer, or to subject itself to taxation
as doing business in any jurisdiction in which it is not otherwise required to be so qualified or subject to taxation.
(h)
Stand-Off
Agreement
. The Company and the Significant Guarantors 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 unsecured debt securities of the Company having a tenor of more
than one year (other than the Securities which are to be sold pursuant hereto and unsecured Euro-denominated debt securities up to an
aggregate principal amount of €2,000,000,000).
(i)
Earnings
Statement
. The Company will make generally available to its securityholders as soon as practicable, but in any event not later than
16 months after the date hereof, an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter
of the Company occurring after the “Effective Date” (as defined in Rule 158 of the Securities Act) of the Registration
Statement and otherwise satisfying Section 11(a) of the Securities Act and Rule 158 of the Securities Act.
(j)
No
Stabilization.
The Company and the Significant Guarantors will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(k)
Clearance
and Settlement
. The Company will cooperate with the Representatives and use its reasonable best efforts in arranging for the Securities
to be eligible for clearance and settlement through DTC and to maintain such eligibility for so long as the Securities remain outstanding.
Section 5.
Payment of Expenses.
(a)
The
Company will pay all expenses incident to the performance of its obligations under this Agreement, including:
(i)
the
preparation and filing of the Registration Statement (including financial statements and exhibits), the Preliminary Prospectus, the Prospectus,
and any Issuer Free Writing Prospectuses, each as originally filed and of each amendment and supplement thereto;
-
13
-
(ii)
the
preparation, issuance and delivery of certificates for the 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 Securities under securities laws in accordance with the provisions of Section 4(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel to the Underwriters (in an amount not to exceed $12,500) in connection therewith
and in connection with the preparation of any Blue Sky Survey;
(v)
the
printing and delivery to the Underwriters in quantities as may be reasonably requested of copies of the Preliminary Prospectus, the Final
Term Sheet and the Prospectus and any amendments or supplements thereto;
(vi)
the
preparation and delivery to the Underwriters of copies of this Agreement and the Indenture;
(vii)
any
fees charged by rating agencies for the rating of the Securities; and
(viii)
all
expenses and application fees in connection with the approval of the Securities for eligibility for clearance and settlement through
DTC.
(b)
If
this Agreement is terminated by the Underwriters in accordance with the provisions of Section 6 (other than the provisions of Section 6(c)(iii))
or clause (i) of Section 10 hereof, the Company shall reimburse upon demand the Underwriters for all of their documented out-of-pocket
expenses, including the fees and disbursements of counsel for the Underwriters, that shall have been reasonably incurred by them in connection
with the proposed purchase and sale of the Securities and Securities Guarantees.
Section 6.
Conditions of Underwriters’ Obligations
. The several obligations of the Underwriters to purchase the 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
Significant Guarantors herein as of the date hereof and as of the Closing Time, to the accuracy of the statements of the officers of
the Company or of any of the Significant Guarantors made in any certificate furnished pursuant to the provisions hereof as of the Closing
Time, to the performance and observance in all material respects by the Company and the Significant 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)
Compliance
with Filing Requirements; No Stop Order.
For the period from and after the date hereof and prior to the Closing Time:
(i)
the
Company shall have timely filed the Preliminary Prospectus and the Prospectus (including the information required by Rule 430B under
the Securities Act) with the Commission in the manner and within the time period required by the Securities Act; or, in the case of the
Prospectus, the Company shall have filed a post-effective amendment to the Registration Statement containing the information required
by such Rule 430B, and such post-effective amendment shall have become effective;
-
14
-
(ii)
the
Final Term Sheet, each other Issuer Free Writing Prospectus, if any, and any other material required to be filed by the Company pursuant
to Rule 433 under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for
such filings under such Rule 433; and
(iii)
no
order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of
the Securities Act objecting to use of the automatic shelf registration statement form.
(b)
No
Ratings Change
. At the Closing Time, the rating assigned as of the Applicable Time by any “nationally recognized statistical
rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, to any debt securities of the Company
(including for purposes of this Section 6(b) 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 Securities) shall not have been lowered
since the Applicable Time nor shall any such rating organization have publicly announced since the Applicable Time that it has placed
any debt securities of the Company on what is commonly termed a “
watch list
” for possible downgrading.
(c)
Legal
Opinions
. At the Closing Time, you shall have received the following documents:
(i)
Opinion
and Negative Assurance Letter of the Staff Vice President—Securities & Corporate Law of the Company.
The opinion and
negative assurance letter of Alana Griffin, Esq., Staff Vice President—Securities & Corporate Law, dated as of the
date of the Closing Time, to the effect as set forth in
Exhibit A
.
(ii)
Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP
. The opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel
to the Company, dated as of the date of the Closing Time, to the effect as set forth in
Exhibit B
.
(iii)
Opinion
of Simpson Thacher & Bartlett LLP
. The opinion and negative assurance letter of Simpson Thacher & Bartlett LLP,
counsel to the Underwriters, each dated as of the date of the Closing Time, with respect to such matters as the Underwriters may reasonably
request.
(d)
Officers’
Certificate
. At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Disclosure
Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations of the
Company and its consolidated subsidiaries taken as a whole; and you shall have received a certificate of the President, a Vice President
or Treasurer of the Company and of each Significant Guarantor, dated as of the date of the Closing Time, to the effect (i) in the
case of the certificate to be provided by the President, a Vice President or Treasurer of the Company, that there has been no such material
adverse change, (ii) that the other representations and warranties of the Company or such Significant Guarantor contained in Section 1
hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, 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 or such Significant Guarantor, as the case may be, has complied in all material respects with all agreements and satisfied
all conditions on their respective parts to be performed or satisfied at or prior to the Closing Time and (iv) no order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened
by the Commission. The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to the
proceedings threatened.
-
15
-
(e)
Accountants’
Comfort Letter.
At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young
LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated in the Registration Statement, Disclosure Package and the Prospectus.
(f)
Bring-down
Comfort Letter.
At the Closing Time, the Representatives shall have received from Ernst & Young LLP a letter, dated as of
the date of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to therein for the carrying out of procedures shall be a date not more than three
business days prior to the Closing Time.
(g)
Other
Documents
. At the Closing Time, counsel for the Underwriters shall have been furnished with such opinions and documents (including,
without limitation, evidence of good standing in relevant jurisdictions), as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Securities and the Securities Guarantees 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.
(h)
Clearance
and Settlement
. The Securities shall be eligible for clearance and settlement through DTC.
If any condition specified
in this Section shall not have been fulfilled when and as required to be fulfilled in accordance with this Agreement, this Agreement
may be terminated by the Underwriters by notice to the Company at any time at or prior to the Closing Time, and such termination shall
be without liability of any party except as provided in Section 5 hereof.
-
16
-
Section 7.
Indemnification
.
(a)
Indemnification
of the Underwriters.
Each of the Company and the Significant Guarantors, jointly and severally, agrees to indemnify and hold harmless
each Underwriter, its affiliates, its directors, officers and each person, if any, who controls any Underwriter within the meaning of
the Securities Act and the Exchange Act against any loss, claim, damage, liability or reasonable expense, as incurred, to which such
Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant
to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Base Prospectus, the Preliminary Prospectus, each Issuer Free Writing Prospectus listed on
Schedule C
hereto,
any other free writing prospectus that the parties hereto agree in writing to treat as part of the Disclosure Package, the Final Term
Sheet or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities,
or the omission or alleged 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, and to reimburse each Underwriter, its affiliates, officers, directors and
each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Representatives)
as such expenses are reasonably incurred by such Underwriter, or its affiliates, officers, directors or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided
,
however
, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to the Company and the Significant Guarantors by the Representatives
expressly for use in the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto) or any road show in connection with the marketing of the Securities, it being understood and agreed that the only
such information consists of the information described as such in Section 7(b) hereof. The indemnification agreement set forth
in this Section 7(a) shall be in addition to any liabilities that the Company and the Significant Guarantors may otherwise
have.
-
17
-
(b)
Indemnification
of the Company, its Directors and Officers and the Guarantors
. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Significant Guarantors, each of their respective directors, each of their respective officers who signed
the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or reasonable expense, as incurred, to which the Company, each Significant
Guarantor or any such director, officer or controlling person may become subject, insofar as such loss, claim, damage, liability or reasonable
expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any
untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, the Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, or the omission or alleged
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, in each case to the extent, and only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, in reliance upon and in
conformity with written information furnished to the Company and the Significant Guarantors by the Representatives expressly for use
therein it being understood and agreed that the only such information consists of the information described as such in this Section 7(b);
and to reimburse the Company, each Significant Guarantor or any such director, officer or controlling person for any legal and other
expense reasonably incurred by the Company, each Significant Guarantor or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each of the
Company and the Significant Guarantors hereby acknowledges that the only information that the Underwriters have furnished to the Company
and the Significant Guarantors expressly for use in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment
or supplement thereto) or any road show in connection with the marketing of the Securities is as follows: the statements set forth in
the third (first, second and third sentences only), fifth (third sentence only), sixth, seventh and eighth paragraphs under the caption
“Underwriting.” The indemnification agreement set forth in this Section 7(b) shall be in addition to any liabilities
that such Underwriter may otherwise have.
(c)
Notifications
and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any liability other than the indemnification obligation provided in paragraph
(a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory
to such indemnified party;
provided
,
however
, if the defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of
the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available
to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (other than local counsel), representing all the indemnified parties who
are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases
the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party or (iii) the indemnified party and
the indemnifying party shall otherwise agree.
-
18
-
(d)
Settlements.
The indemnifying party under this Section 7 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or reasonable expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for reasonable fees and expenses of counsel as contemplated by Section 7(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending
or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
-
19
-
Section 8.
Contribution.
If the indemnification provided for in Section 7 hereof is for any reason unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified party as provided in Section 7, contribute to the aggregate
amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred
to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Significant
Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Significant
Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Significant Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting
discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover. The relative fault of the Company and the Significant Guarantors,
on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied
by the Company or the Significant Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7(c) hereof, any reasonable legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim. The Company, the Significant Guarantors and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 8.
Notwithstanding the provisions
of this Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts received by
such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 8 are several,
and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A
hereto.
For purposes of this Section 8, each affiliate, director and officer of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company and of each Significant Guarantor, each officer of the Company and of each Significant Guarantor who
signed the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of
the Securities Act and the Exchange Act shall have the same rights to contribution as the Company or such Significant Guarantor.
The remedies provided for
in Sections 7 and 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
-
20
-
Section 9.
Representations, Warranties, Indemnities and Agreements to Survive Delivery
. All representations, warranties, indemnities
and other agreements contained in this Agreement, or contained in certificates of officers of the Company or any Significant Guarantor
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 or any Significant Guarantor, and shall survive each delivery
of and payment for any of the Securities.
Section 10.
Termination of Agreement
. The Representatives may terminate this Agreement, immediately upon notice to the Company, at
any time prior to the Closing Time if: (i) there has been, since the date hereof or since the respective dates as of which information
is given in the Disclosure Package and the Prospectus, any material adverse change in the business, property, financial condition or
results of operations of the Company and its consolidated subsidiaries taken as a whole, (ii) there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other national or international
calamity or crisis, the effect of which would, in your judgment, materially and adversely affect the ability of the Underwriters to market
the Securities on the terms and in the manner contemplated by this Agreement, (iii) trading in any securities of the Company shall
have been suspended by the Commission or a national securities exchange, or if trading generally on the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall
have been required, by said exchange or by order of the Commission or any other governmental authority or (iv) if a banking moratorium
shall have been declared by either federal or New York authorities.
In the event of any termination
of this Agreement pursuant to this Section 10, the provisions of Section 5 hereof, the indemnity and contribution agreements
set forth in Sections 7 and 8 hereof and the provisions of Sections 9 and 15 hereof shall remain in effect.
Section 11.
Default by One or More Underwriters
. If any Underwriter shall fail at the Closing Time to purchase the Securities which
it is obligated to purchase hereunder (the “
Defaulted Securities
”), and the aggregate amount of Defaulted Securities
is not more than one-tenth of the aggregate amount of the Securities to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the amount of the Securities set forth opposite their respective names in
Schedule A
hereto
bears to the aggregate amount of Securities set forth opposite the names of all such non-defaulting Underwriters to purchase the Defaulted
Securities;
provided
, that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant
to this Agreement be increased by an amount in excess of one-tenth of such amount of Securities without the written consent of such Underwriter.
If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Securities to be purchased at the
Closing Time, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not
made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters
or the Company.
No action taken pursuant
to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement.
-
21
-
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 Prospectus or
in any other documents or arrangements.
Section 12.
Notices
.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, delivered by
FedEx Express service or transmitted by any facsimile communication. Notices to the Underwriters shall be directed to BofA Securities, Inc.,
One Bryant Park, New York, New York 10036, Attention: Capital Markets Legal, Email: dg.capital_markets_legal@bofa.com; Citigroup Global
Markets Inc., 388 Greenwich Street, New York, New York 10013 Attention: General Counsel; Wells Fargo Securities, LLC, 550 South Tryon
Street, 5th Floor, Charlotte, North Carolina 28202, Attention: Transaction Management, Email: tmgcapitalmarkets@wellsfargo.com; and Scotia
Capital (USA) Inc., 250 Vesey Street, 23rd Floor, New York, New York 10281; Attention: US Debt Capital Markets, Email: US.Legal@scotiabank.com;
TAG@scotiabank.com. Notices to the Company shall be directed to it at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail
or FedEx Express service), Attention: Corporate Vice President, Corporate Development and Treasurer, facsimile: [* * * *] with copies
thereof directed to the Legal Department of the Company at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or FedEx Express
service), Attention: Staff Vice President—Securities & Corporate Law, facsimile: [* * * *].
Section 13.
Patriot Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the
Company, which information may include the name and address of their respective clients, as well as other information that will allow
the Underwriters to properly identify their respective clients.
Section 14.
Parties
. This Agreement shall inure to the benefit of and be binding upon the Company, the Significant Guarantors 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 7 and 8 hereof 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 Securities from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
Section 15.
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 or any Significant Guarantor against any Underwriter or, any suit action or proceeding
brought by any Underwriter against the Company or any Significant Guarantor, 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.
-
22
-
Section 16.
Recognition of U.S. Special Resolution Regimes
.
(a)
In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation,
were governed by the laws of the United States or a state of the United States.
(b)
In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
“
BHC Act Affiliate
” has the
meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“
Covered Entity
” means any
of the following:
(i)
a “covered entity” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 382.2(b).
“
Default Right
” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“
U.S. Special Resolution Regime
”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank
Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 17.
Headings
. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall
not be deemed a part of this Agreement.
Section 18.
Counterparts
. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same instrument. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed
in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery
thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions
contemplated hereunder by electronic means.
-
23
-
Section 19.
Effect on Prior Agreements and Understandings
. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Guarantors and the several Underwriters, or any of them, with respect to the subject matter
hereof.
-
24
-
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, the Company and the Significant Guarantors in accordance with its
terms.
Very truly yours,
FEDEX CORPORATION
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Corporate Vice President, Corporate Development and Treasurer
FEDERAL EXPRESS CORPORATION
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
Federal Express International, Inc.
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
Federal Express Europe, Inc.
By:
/s/ Trampas T. Gunter
Name:
Trampas T. Gunter
Title:
Treasurer
[
Signature Page to
Underwriting Agreement
]
CONFIRMED AND ACCEPTED, as of the date first above written:
BOFA SECURITIES, INC.
By:
/s/ Shawn Cepeda
Name:
Shawn Cepeda
Title:
Managing Director
CITIGROUP GLOBAL MARKETS INC.
By:
/s/ Adam D. Bordner
Name:
Adam D. Bordner
Title:
Managing Director
WELLS FARGO SECURITIES, LLC
By:
/s/ Carolyn Hurley
Name:
Carolyn Hurley
Title:
Managing Director
SCOTIA CAPITAL (USA) INC.
By:
/s/ Michael Ravanesi
Name:
Michael Ravanesi
Title:
Managing Director
Acting on behalf of themselves and the other several Underwriters named in Schedule A to the foregoing Agreement
[
Signature Page to Underwriting Agreement
]
EXHIBIT A
Form of Opinion of
the Staff Vice President—Securities & Corporate Law of the Company
Exhibit A-1
EXHIBIT B
Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP
Exhibit B-1
SCHEDULE A
Name of Underwriter
Principal
Amount of
Securities
BofA Securities, Inc.
$
159,500,000
Citigroup Global Markets Inc.
$
159,500,000
Wells Fargo Securities, LLC
$
159,500,000
Scotia Capital (USA) Inc.
$
159,500,000
Goldman Sachs & Co. LLC
$
66,000,000
Morgan Stanley & Co. LLC
$
66,000,000
BNP Paribas Securities Corp.
$
33,000,000
Deutsche Bank Securities Inc.
$
33,000,000
FHN Financial Securities Corp.
$
33,000,000
ING Financial Markets LLC
$
33,000,000
Mizuho Securities USA LLC
$
33,000,000
PNC Capital Markets LLC
$
33,000,000
Regions Securities LLC
$
33,000,000
SMBC Nikko Securities America, Inc.
$
33,000,000
Truist Securities, Inc.
$
33,000,000
U.S. Bancorp Investments, Inc.
$
33,000,000
Total
$
1,100,000,000
Schedule A-1
SCHEDULE B
1.
The
initial public offering price of the Securities shall be 99.777% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2.
The
purchase price to be paid by the Underwriters for the Securities shall be 99.127% of the principal amount thereof.
Schedule B-1
SCHEDULE C
ISSUER FREE WRITING PROSPECTUSES
1.
Final term sheet, dated September 9, 2026, relating to the Securities,
as filed pursuant to Rule 433 under the Securities Act
Schedule C-1

----- tm2625313d1_ex4-1.htm -----
EX-4.1
4
tm2625313d1_ex4-1.htm
EXHIBIT 4.1
Exhibit 4.1
Execution Version
FEDEX CORPORATION,
as Issuer,
each of the Guarantors named herein,
and
U.S. BANK TRUST
COMPANY, NATIONAL ASSOCIATION,
as
Trustee
INDENTURE
Dated as of
September 14, 2026
DEBT SECURITIES
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture*
Trust Indenture
Act Section
Indenture Section
§ 310 (a)
12.04(a), 18.02
(b)
12.01(f), 12.04(b), 12.05(1), 18.02
(b)(1)
12.04(b), 18.02
§ 311
12.01(f), 18.02
§ 312
15.02(d), 18.02
(b)
12.10, 18.02
(c)
12.10, 18.02
§ 313 (a)
11.01(a), 18.02
§ 314
18.02
§ 315 (e)
12.05, 18.02
§ 316
18.02
§ 317
18.02
§ 318
18.02
*This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
i
TABLE OF CONTENTS
*
PAGE
ARTICLE I
DEFINITIONS
Section 1.01
Definitions
2
ARTICLE II
FORMS OF SECURITIES
Section 2.01
Terms of the Securities
13
Section 2.02
Form of Trustee’s Certificate of Authentication
13
Section 2.03
Form of Trustee’s Certificate of Authentication
by an Authenticating Agent
14
ARTICLE III
THE DEBT SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
14
Section 3.02
Denominations
17
Section 3.03
Execution, Authentication, Delivery and Dating
17
Section 3.04
Temporary Securities
20
Section 3.05
Registrar
20
Section 3.06
Transfer and Exchange
21
Section 3.07
Mutilated, Destroyed, Lost and Stolen Securities
25
Section 3.08
Payment of Interest; Interest Rights Preserved
26
Section 3.09
Cancellation
27
Section 3.10
Computation of Interest
27
Section 3.11
Currency of Payments in Respect of Securities
27
Section 3.12
Judgments
28
Section 3.13
CUSIP Numbers
28
ARTICLE IV
REDEMPTION OF
SECURITIES
Section 4.01
Applicability of Right of Redemption
28
Section 4.02
Selection of Securities to be Redeemed
29
*
The
Table of Contents is not a part of the Indenture.
ii
Section 4.03
Notice of Redemption
29
Section 4.04
Deposit of Redemption Price
30
Section 4.05
Securities Payable on Redemption Date
30
Section 4.06
Securities Redeemed in Part
31
ARTICLE V
SINKING FUNDS
Section 5.01
Applicability of Sinking Fund
31
Section 5.02
Mandatory Sinking Fund Obligation
31
Section 5.03
Optional Redemption at Sinking Fund Redemption Price
32
Section 5.04
Application of Sinking Fund Payment
32
ARTICLE VI
PARTICULAR COVENANTS
OF THE COMPANY
Section 6.01
Payments of Securities
33
Section 6.02
Maintenance of Office or Agency
33
Section 6.03
Money for Securities Payments to Be Held in Trust
34
Section 6.04
Compliance Certificate
35
Section 6.05
Waiver by Holders of Securities
36
Section 6.06
Corporate Existence
36
Section 6.07
Additional Amounts
36
ARTICLE VII
Merger, Consolidation
or Sale of Assets
Section 7.01
Company May Consolidate, Etc. on Certain Terms
37
Section 7.02
Successor Person Substituted
37
ARTICLE VIII
REMEDIES OF
TRUSTEE AND SECURITYHOLDERS
Section 8.01
Events of Default
38
Section 8.02
Acceleration; Rescission and Annulment
39
Section 8.03
Collection of Indebtedness and Suits for Enforcement
by Trustee
40
Section 8.04
Trustee May File Proofs of Claim
41
Section 8.05
Trustee May Enforce Claims Without Possession
of Securities
42
Section 8.06
Application of Money Collected
42
Section 8.07
Limitation on Suits
42
Section 8.08
Unconditional Right of Holders to Receive Principal,
Premium and Interest
43
Section 8.09
Restoration of Rights and Remedies
43
iii
Section 8.10
Rights and Remedies Cumulative
43
Section 8.11
Delay or Omission Not Waiver
43
Section 8.12
Control by Holders
43
Section 8.13
Waiver of Past Defaults
44
Section 8.14
Undertaking for Costs
44
ARTICLE IX
CONCERNING THE
SECURITYHOLDERS
Section 9.01
Evidence of Action of Securityholders
44
Section 9.02
Proof of Execution or Holding of Securities
45
Section 9.03
Persons Deemed Owners
45
Section 9.04
Effect of Consents
46
ARTICLE X
SECURITYHOLDERS’
MEETINGS
Section 10.01
Purposes of Meetings
46
Section 10.02
Call of Meetings by Trustee
46
Section 10.03
Call of Meetings by Company or Securityholders
47
Section 10.04
Qualifications for Voting
47
Section 10.05
Regulation of Meetings
47
Section 10.06
Voting
48
Section 10.07
No Delay of Rights by Meeting
48
ARTICLE XI
REPORTS BY THE
COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’
LISTS
Section 11.01
Reports by Trustee
48
Section 11.02
Reports by the Company
49
Section 11.03
Securityholders’ Lists
49
ARTICLE XII
CONCERNING THE
TRUSTEE
Section 12.01
Rights of Trustees; Compensation and Indemnity
49
Section 12.02
Duties of Trustee
52
Section 12.03
Notice of Defaults
53
Section 12.04
Eligibility; Disqualification
54
Section 12.05
Resignation and Notice; Removal
54
Section 12.06
Successor Trustee by Appointment
55
Section 12.07
Successor Trustee by Merger
56
Section 12.08
Right to Rely on Officer’s Certificate
57
iv
Section 12.09
Appointment of Authenticating Agent
57
Section 12.10
Communications by Securityholders with Other Securityholders
58
ARTICLE XIII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section 13.01
Applicability of Article
58
Section 13.02
Satisfaction and Discharge of Indenture
58
Section 13.03
Defeasance and Covenant Defeasance upon Deposit of
Moneys or U.S. Government Obligations
60
Section 13.04
Repayment to Company
62
Section 13.05
Indemnity for U.S. Government Obligations
62
Section 13.06
[Reserved]
62
Section 13.07
Application of Trust Money
62
Section 13.08
Deposits of Foreign Currencies
63
Section 13.09
Return of Unclaimed Moneys
63
ARTICLE XIV
IMMUNITY OF
CERTAIN PERSONS
Section 14.01
No Personal Liability
63
ARTICLE XV
SUPPLEMENTAL
INDENTURES
Section 15.01
Without Consent of Securityholders
64
Section 15.02
With Consent of Securityholders; Limitations
66
Section 15.03
Trustee Protected
67
Section 15.04
Effect of Execution of Supplemental Indenture
67
Section 15.05
Notation on or Exchange of Securities
68
Section 15.06
Conformity with TIA
68
ARTICLE XVI
SUBORDINATION
OF SECURITIES
Section 16.01
Agreement to Subordinate
68
Section 16.02
Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities
68
Section 16.03
No Payment on Securities in Event of Default on Senior
Indebtedness
70
Section 16.04
Payments on Securities Permitted
70
Section 16.05
Authorization of Securityholders to Trustee to Effect
Subordination
70
Section 16.06
Notices to Trustee
71
Section 16.07
Trustee as Holder of Senior Indebtedness
71
Section 16.08
Modifications of Terms of Senior Indebtedness
72
v
Section 16.09
Reliance on Judicial Order or Certificate
of Liquidating Agent
72
Section 16.10
Satisfaction and Discharge; Defeasance and Covenant
Defeasance
72
Section 16.11
Trustee Not Fiduciary for Holders of Senior Indebtedness
72
ARTICLE XVII
Guarantee of
Securities
Section 17.01
Unconditional Guarantee
73
Section 17.02
[Reserved]
74
Section 17.03
Future Guarantors
74
Section 17.04
Release of a Guarantor
74
Section 17.05
Waiver of Subrogation
75
Section 17.06
Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, Etc. of Guarantors
75
Section 17.07
Limitation of Guarantor’s Liability
75
Section 17.08
Obligations Reinstated
76
Section 17.09
No Obligation to Take Action Against the Company
76
ARTICLE XVIII
MISCELLANEOUS
PROVISIONS
Section 18.01
Certificates and Opinions as to Conditions Precedent
76
Section 18.02
Trust Indenture Act Controls
77
Section 18.03
Notices to the Company, Guarantors and Trustee
77
Section 18.04
Notices to Securityholders; Waiver
78
Section 18.05
Legal Holiday
78
Section 18.06
Effects of Headings and Table of Contents
78
Section 18.07
Successors and Assigns
79
Section 18.08
Separability Clause
79
Section 18.09
Benefits of Indenture
79
Section 18.10
Counterparts Originals
79
Section 18.11
Governing Law; Waiver of Trial by Jury; Submission
to Jurisdiction
79
Section 18.12
Electronic Signatures
80
SCHEDULE I
Subsidiary Guarantors
SCHEDULE II
Form of Supplemental Indenture
to Add Additional Guarantor
vi
IN
DENTURE
dated as of September 14, 2026, among FedEx Corporation, a Delaware corporation (the “Company”), the Guarantors (as
defined herein) and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance of unsecured debentures, notes, bonds or other evidences of indebtedness (the
“Securities”) in an unlimited aggregate principal amount to be issued from time to time in one or more series as provided
in this Indenture;
WHEREAS, the Guarantors named herein have duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of guarantees of the Securities
and the Company’s obligations under this Indenture; and
WHEREAS, all things necessary to make this Indenture
a valid and legally binding agreement of the Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and the
purchase of the Securities by the Holders thereof for the equal and proportionate benefit of all of the present and future Holders of
the Securities, each party agrees and covenants as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a)
the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)
unless
otherwise defined in this Indenture or the context otherwise requires, all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c)
the
words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(d)
references
to “Article” or “Section” or other subdivision herein are references to an Article, Section or other subdivision
of this Indenture, unless the context otherwise requires;
(e)
words
importing any gender include the other genders;
1
(f)
the
words “including,” “includes” and “include” shall be deemed to be followed by the words “without
limitation”; and
(g)
references
to agreements and other instruments include all amendments and other modifications to such agreements and instruments.
Section 1.01
Definitions.
Unless the context otherwise requires, the terms
defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:
Additional Amounts:
The term “Additional Amounts” means
any additional amounts that are required by this Indenture or by any Security, under circumstances specified herein or therein, to be
paid by the Company in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which
are owing to such Holders.
Affiliate:
The term “Affiliate,” with respect
to any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Authenticating Agent:
The term “Authenticating Agent” shall
have the meaning assigned to it in Section 12.09.
Board of Directors:
The term “Board of Directors” shall
mean the board of directors of the Company or any duly authorized committee of the board of directors or any directors and/or officers
of the Company to whom such board of directors or such committee shall have duly delegated its authority to act hereunder.
Board Resolution:
The term “Board Resolution” shall
mean a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors (or by a committee of the Board of Directors to the extent that any such other committee has been authorized
by the Board of Directors to establish or approve the matters contemplated) and to be in full force and effect on the date of such certification
and delivered to the Trustee.
2
Business Day:
The term “Business Day,” shall mean
any day other than a Saturday, Sunday or other day on which banking institutions in the City of New York, the Place of Payment or the
State of Tennessee are authorized or obligated by law, regulation or executive order to close.
Capital Stock:
The term “Capital Stock” shall mean:
(a)
in
the case of a corporation, corporate stock;
(b)
in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(c)
in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(d)
any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether
or not such debt securities include any right of participation with Capital Stock.
Code:
The term “Code” shall mean the Internal
Revenue Code of 1986, as amended.
Company:
The term “Company” shall mean the
Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
Company Order:
The term “Company Order” shall mean
a written order signed in the name of the Company by any Officer and delivered to the Trustee.
Consolidated Total Assets:
The term “Consolidated Total Assets”
shall mean, as of any date, the consolidated total assets of a Person and its Subsidiaries as of such date determined on a consolidated
basis in accordance with generally accepted accounting principles in the United States.
Corporate Trust Office:
The term “Corporate Trust Office,”
or other similar term, shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date hereof is located at One Federal Street, Boston, MA 02110, Attention: FedEx Corporation Trust
Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust officer of any successor Trustee (or such other address as such successor Trustee may designate from time to
time by notice to the Holders and the Company).
3
covenant defeasance:
The term “covenant defeasance” shall
have the meaning assigned to it in Section 13.03.
Currency:
The term “Currency” shall mean U.S.
Dollars or Foreign Currency.
Default:
The term “Default” shall have the
meaning assigned to it in Section 12.03.
Defaulted Interest:
The term “Defaulted Interest” shall
have the same meaning assigned to it in Section 3.08(b).
defeasance:
The term “defeasance” shall have the
meaning assigned to it in Section 13.03.
Depositary:
The term “Depositary” shall mean,
with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, each
Person designated as Depositary for such series by the Company pursuant to Section 3.01 until one or more successor Depositaries
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or
include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated Currency:
The term “Designated Currency” shall
have the same meaning assigned to it in Section 3.12.
Discharged:
The term “Discharged” shall have the
meaning assigned to it in Section 13.03.
4
DTC:
The term “DTC” shall mean The Depository
Trust Company, Inc. and its successors.
Event of Default:
The term “Event of Default” shall
have the meaning specified in Section 8.01.
Exchange Act:
The term “Exchange Act” shall mean
the United States Securities Exchange Act of 1934, and the rules and regulations promulgated by the SEC thereunder and any statute
successor thereto, in each case as amended from time to time.
Exchange Rate:
The term “Exchange Rate” shall have
the meaning assigned to it in Section 8.01.
Floating Rate Security:
The term “Floating Rate Security”
shall mean a Security that provides for the payment of interest at a variable rate determined periodically by reference to an interest
rate index specified pursuant to Section 3.01.
Foreign Currency:
The term “Foreign Currency” shall
mean any currency, currency unit or composite currency, including the euro, issued by the government of one or more countries other than
the United States or by any recognized confederation or association of such governments.
GAAP:
The term “GAAP,” with respect to any
computations required or permitted hereunder, shall mean generally accepted accounting principles in effect in the United States as in
effect as of the date of such computation; provided, however if the Company is required by the SEC to adopt (or is permitted to adopt
and so adopts) a different accounting framework, including but not limited to the International Financial Reporting Standards, “GAAP”
shall mean such new accounting framework as in effect from time to time, including, without limitation, in each case, those accounting
principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity
as approved by a significant segment of the accounting profession.
Global Security:
The term “Global Security” shall mean
any Security that evidences all or part of a series of Securities, issued to the Depositary or its nominee for such series in accordance
with Section 3.03 and bearing the legend prescribed in Section 3.03(g).
5
Guarantee:
The term “Guarantee” shall mean the
Guarantee made by each of the Guarantors as set forth in Article XVII hereof.
Guarantor:
The term “Guarantor” shall mean (i) each
of the Persons listed on Schedule I attached hereto, each a Subsidiary of the Company, and (ii) each Person who becomes a Guarantor
hereunder upon the execution of an indenture supplemental hereto, substantially in the form of Schedule II attached hereto, pursuant
to Section 17.03, subject, however, in each case to the provisions of Section 17.04.
Holder; Holder of Securities:
The terms “Holder” and “Holder
of Securities” are defined under “Securityholder; Holder of Securities; Holder.”
Indebtedness:
The term “Indebtedness” shall mean
any and all obligations of a Person for money borrowed which, in accordance with GAAP, would be reflected on the balance sheet of such
Person as a liability on the date as of which Indebtedness is to be determined.
Indenture:
The term “Indenture” or “this
Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series
of Securities established as contemplated by Section 3.01; provided, however, that if at any time more than one Person is acting
as Trustee under this Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities,
“Indenture” shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as
it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such person had become such Trustee, but to which such
person, as such Trustee, was not a party; provided, further, that in the event that this Indenture is supplemented or amended by one
or more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture” for
a particular series of Securities shall only include the supplemental indentures applicable thereto.
6
Individual Securities:
The term “Individual Securities” shall
have the meaning specified in Section 3.01(p).
Interest:
The term “interest” shall mean, unless
the context otherwise requires, interest payable on any Securities, and with respect to an Original Issue Discount Security that by its
terms bears interest only after Maturity, interest payable after Maturity.
Interest Payment Date:
The term “Interest Payment Date” shall
mean, with respect to any Security, the Stated Maturity of an installment of interest on such Security.
Mandatory Sinking Fund Payment:
The term “Mandatory Sinking Fund Payment”
shall have the meaning assigned to it in Section 5.01(b).
Maturity:
The term “Maturity,” with respect
to any Security, shall mean the date on which the principal of such Security shall become due and payable as therein and herein provided,
whether by declaration, call for redemption or otherwise.
Members:
The term “Members” shall have the
meaning assigned to it in Section 3.03(i).
Officer:
The term “Officer” shall mean the
Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the Company, any Assistant Treasurer or Assistant Secretary of the
Company, or, in the event that the Company is a partnership or a limited liability company that has no such officers, a person duly authorized
under applicable law by the general partner, managers, members or a similar body to act on behalf of the Company. The term “Officer”
of any Guarantor shall have a correlative meaning.
Officer’s Cert
i
ficate:
The term “Officer’s Certificate”
shall mean a certificate signed by any Officer and delivered to the Trustee. Each such certificate shall include the statements provided
for in Section 18.01 if and to the extent required by the provisions of such Section.
7
Opinion of Counsel:
The term “Opinion of Counsel” shall
mean an opinion in writing signed by one or more legal counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee, and which meets the requirements provided for in Section 18.01 or is otherwise acceptable
to the Trustee.
Optional Sinking Fund Payment:
The term “Optional Sinking Fund Payment”
shall have the meaning assigned to it in Section 5.01(b).
Original Issue Discount Security:
The term “Original Issue Discount Security”
shall mean any Security that is issued with “original issue discount” within the meaning of Section 1273(a) of
the Code and the regulations thereunder, or any successor provision, and any other Security designated by the Company as issued with
original issue discount for United States federal income tax purposes.
Outstanding:
The term “Outstanding,” when used
with respect to Securities of any series means, as of the date of determination, all Securities of such series theretofore authenticated
and delivered under this Indenture, except:
(a)
Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities
or portions thereof for which payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities or Securities as to which the Company’s obligations have been Discharged;
provided, however, that if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c)
Securities
that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to a Responsible
Officer of the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities
are valid obligations of the Company;
provided
, however, that in determining
whether the Holders of the requisite principal amount of Securities of a series Outstanding have performed any action hereunder, Securities
owned by the Company or any other obligor upon the Securities of such series or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such action, only Securities of such series that a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In determining whether the Holders
of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder, the principal amount of
an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant
to Section 8.02 and the principal amount of a Security denominated in a Foreign Currency that shall be deemed to be Outstanding
for such purpose shall be the amount calculated pursuant to Section 3.11(b).
8
Paying Agent:
The term “Paying Agent” shall have
the meaning assigned to it in Section 6.02.
Person:
The term “Person” shall mean any individual,
a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, an unincorporated organization
or a government or an agency or political subdivision thereof or other entity.
Place of Payment:
The term “Place of Payment” shall
mean, when used with respect to the Securities of any series, the place or places where the principal of and premium, if any, and interest
on, and any Additional Amounts with respect to, the Securities of that series are payable as specified pursuant to Section 3.01.
Predecessor Security:
The term “Predecessor Security” shall
mean, with respect to any Security, every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by
such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07
in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Security.
Record Date:
The term “Record Date” shall mean,
with respect to any interest payable on any Security on any Interest Payment Date, any date specified in such Security or pursuant to
Section 3.01 with respect to such Security as the record date for the payment of interest.
Redemption Date:
The term “Redemption Date” shall mean,
when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this
Indenture and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.
9
Redemption Price:
The term “Redemption Price,” when
used with respect to any Security to be redeemed, in whole or in part, shall mean the price at which it is to be redeemed pursuant to
the terms of the applicable Security and this Indenture.
Register:
The term “Register” shall have the
meaning assigned to it in Section 3.05(a).
Registrar:
The term “Registrar” shall have the
meaning assigned to it in Section 3.05(a).
Required SEC Filing:
The term “Required SEC Filing” shall
have the meaning specified in Section 11.02.
Responsible Officers:
The term “Responsible Officers” of
the Trustee hereunder shall mean any vice president, any assistant vice president, any trust officer, any assistant trust officer, secretary,
associate or any other officer associated with the corporate trust department of the Trustee customarily performing functions similar
to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter relating
to this Indenture, any other officer of the Trustee to whom such matter is referred because of such person’s knowledge of and familiarity
with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
60% Subsidiary Guarantor:
The term “60% Subsidiary Guarantor”
shall mean any Guarantor whose Consolidated Total Assets as of any determination date constitute more than 60% of the Consolidated Total
Assets of the Company, determined as of the date of the most recent interim or fiscal year-end balance sheet of the Company filed with
the SEC prior to such determination date.
SEC:
The term “SEC” shall mean the United
States Securities and Exchange Commission, as constituted from time to time.
Security:
The term “Security” or “Securities”
shall have the meaning stated in the recitals and shall more particularly mean one or more of the Securities duly authenticated by the
Trustee and delivered pursuant to the provisions of this Indenture.
10
Security Custodian:
The term “Security Custodian” shall
mean the custodian with respect to any Global Security appointed by the Depositary, or any successor Person thereto, and shall initially
be the Trustee.
Securityholder; Holder of Securities; Holder:
The term “Securityholder” or “Holder
of Securities” or “Holder,” shall mean the Person in whose name Securities shall be registered in the Register kept
for that purpose hereunder.
Senior Indebtedness:
The term “Senior Indebtedness” means
the principal of (and premium, if any) and unpaid interest on (x) Indebtedness of the Company, whether outstanding on the date hereof
or thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any Indebtedness of the Company which
when incurred, and without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse
to the Company, (b) any Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to any employee of the Company,
(d) any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate
in right of payment to any other Indebtedness of the Company, and (y) renewals, extensions, modifications and refundings of any
such Indebtedness. For purposes of the foregoing and the definition of “Senior Indebtedness,” the phrase “subordinated
in right of payment” means debt subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness
shall not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue of the fact that it is unsecured,
and (ii) junior liens, second liens and other contractual arrangements that provide for priorities among Holders of the same or
different issues of indebtedness with respect to any collateral or the proceeds of collateral shall not constitute subordination in right
of payment. This definition may be modified or superseded by a supplemental indenture.
Special Record Date:
The term “Special Record Date” shall
have the meaning assigned to it in Section 3.08(b)(i).
Stated Maturity:
The term “Stated Maturity” when used
with respect to any Security or any installment of interest thereon, shall mean the date specified in such Security or pursuant to Section 3.01
with respect to such Security as the fixed date on which the principal (or any portion thereof) of or premium, if any, on such Security
or such installment of interest is due and payable.
Subsidiary:
The term “Subsidiary,” when used with
respect to any Person, any corporation, partnership, trust, limited liability company or other business entity of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers, trustees, or equivalent body thereof is at the time owned or controlled, directly or indirectly, by such person
or one or more of the other Subsidiaries of that person or a combination thereof.
11
Successor Company:
The term “Successor Company” shall
have the meaning assigned to it in Section 3.06(h).
Trade Payables:
The term “Trade Payables” means accounts
payable or any other Indebtedness or monetary obligations to trade creditors created or assumed by the Company or any Subsidiary of the
Company in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities).
Trust Indenture Act; TIA:
The term “Trust Indenture Act” or
“TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect
on the date of this Indenture, except as provided in Section 15.06 and except to the extent any amendment to the Trust Indenture
Act expressly provides for application of the Trust Indenture Act as in effect on another date.
Trustee:
The term “Trustee” shall mean the
Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such with
respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Dollars:
The term “U.S. Dollars” shall mean
such currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.
U.S. Government Obligations:
The term “U.S. Government Obligations”
shall have the meaning assigned to it in Section 13.03.
United States:
The term “United States” shall mean
the United States of America, its territories and possessions, any State of the United States and the District of Columbia.
12
ARTICLE II
FORMS
OF SECURITIES
Section 2.01
Terms
of the Securities
.
(a)
The
Securities of each series shall be substantially in the form set forth in a Board Resolution, a Company Order or in one or more indentures
supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which any series of the Securities may be listed or of any automated quotation system on which any such series may be quoted,
or to conform to usage, all as determined by any of the officers executing such Securities as conclusively evidenced by their execution
of such Securities.
(b)
The
terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms
and provisions and to be bound thereby.
Section 2.02
Form of
Trustee’s Certificate of Authentication
.
(a)
Only
such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of authentication
hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose or entitle the
Holder thereof to any right or benefit under this Indenture.
(b)
Each
Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified as contemplated
in Section 3.01.
(c)
The
form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Date of authentication:
U.S. Bank Trust Company, National Association, as Trustee
By:
Authorized Signatory
13
Section 2.03
Form of
Trustee’s Certificate of Authentication by an Authenticating Agent
. If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be borne
by Securities of each such series shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Date of authentication:
U.S. Bank Trust Company, National Association, as Trustee
By:
[NAME OF AUTHENTICATING AGENT]
as Authenticating Agent
By:
Authorized Signatory
ARTICLE III
THE
DEBT SECURITIES
Section 3.01
Amount
Unlimited; Issuable in Series
. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more series. The title and terms on each series of Securities shall be as set forth
in a Board Resolution, Company Order or in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a)
the
title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all other series,
except to the extent that additional Securities of an existing series are being issued);
(b)
any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Section 3.04, 3.06, 3.07, 4.06, or 15.05);
(c)
the
dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates within, which
the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such date or dates
shall be determined or extended;
14
(d)
the
rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined,
whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase the aggregate
principal amount outstanding of such series (including if such Securities were originally issued at a discount), the date or dates from
which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which
any such interest shall be payable, and the Record Dates for the determination of Holders to whom interest is payable on such Interest
Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest payments
and the duration of such extension or deferral, and whether and under what circumstances Additional Amounts shall be payable with respect
to the Securities of the series;
(e)
if
other than U.S. Dollars, the Foreign Currency in which Securities of the series shall be denominated or in which payment of the principal
of, premium, if any, or interest on, and any Additional Amounts with respect to, the Securities of the series shall be payable and any
other terms concerning such payment;
(f)
if
the amount of payment of principal of, premium, if any, or interest on, and any Additional Amounts with respect to, the Securities of
the series may be determined with reference to an index, formula or other method including, but not limited to, an index based on a Currency
or Currencies other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g)
if
the principal of, premium, if any, or interest on, and any Additional Amounts with respect to, Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to
be payable without such election, the period or periods within which, and the terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate between the Currency in which the Securities are denominated or payable
without such election and the Currency in which the Securities are to be paid if such election is made;
(h)
the
place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium, if any,
and interest on, and any Additional Amounts with respect to, Securities of the series shall be payable, and where Securities of any series
may be presented for registration of transfer, exchange or conversion, and the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be made;
(i)
the
price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(j)
the
obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund, amortization
or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which or
the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
15
(k)
if
other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities
of the series shall be issuable;
(l)
if
other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 8.02;
(m)
the
guarantors (including the Guarantors), if any, of the Securities of the series, and the extent of the guarantees (including provisions
relating to seniority, subordination, and the release of the guarantors), if any, and any additions or changes to permit or facilitate
guarantees of such Securities;
(n)
whether
the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which such Securities
may be issued;
(o)
if
the provisions of Article XIII hereof shall not be applicable with respect to the Securities of such series; or any addition to
or change in the provisions of Article XIII and, if the Securities of any series are payable in a Currency other than U.S. Dollars,
the Currency or the nature of the government obligations to be deposited with the Trustee pursuant to Section 13.08;
(p)
whether
the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Global Securities, and the terms and conditions, if any, upon which interests in such Global Security
or Global Securities may be exchanged in whole or in part for the individual securities represented thereby in definitive form registered
in the name or names of Persons other than such Depositary or a nominee or nominees thereof (“Individual Securities”);
(q)
the
date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security of the series
to be issued;
(r)
the
form or forms of the Securities of the series including such legends as may be required by applicable law;
(s)
if
the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person (including the Company),
the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes, if any, to
permit or facilitate such conversion or exchange;
(t)
whether
the Securities of such series are subject to subordination and the terms of such subordination (for avoidance of doubt, Article XVI
shall not apply to the Securities of any series unless the terms of such series expressly state it applies);
16
(u)
whether
the Securities of such series are to be secured and the terms of such security;
(v)
any
restriction or condition on the transferability of the Securities of such series;
(w)
any
addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of such series;
(x)
any
addition or change in the provisions related to supplemental indentures set forth in Sections 15.01, 15.02 and 15.04 which applies to
Securities of such series;
(y)
provisions,
if any, granting special rights to Holders upon the occurrence of specified events;
(z)
any
addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 8.02 and
any addition or change in the provisions set forth in Article VIII which applies to Securities of the series;
(aa)
any
addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(bb)
any
other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend,
supplement or delete any of the terms of this Indenture with respect to such series).
All Securities of any one series shall be substantially
identical, except as to denomination and except as may otherwise be provided herein or set forth in a Board Resolution, a Company Order
or in one or more indentures supplemental hereto.
Unless otherwise specified with respect to the
Securities of any series pursuant to this Section 3.01, the Company may, at its option, at any time and from time to time, issue
additional Securities of any series of Securities previously issued under this Indenture which together shall constitute a single series
of Securities under this Indenture.
Section 3.02
Denominations
.
In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series
shall be issuable only as Securities in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, and shall
be payable only in U.S. Dollars.
Section 3.03
Execution,
Authentication, Delivery and Dating
.
(a)
The
Securities shall be executed in the name and on behalf of the Company by the manual or electronic signature of any Officer. If the Person
whose signature is on a Security no longer holds that office at the time the Security is authenticated and delivered, the Security shall
nevertheless be valid.
17
(b)
At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities
and, if required pursuant to Section 3.01, a supplemental indenture or Company Order setting forth the terms of the Securities of
a series. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the Company. The Company
Order shall specify the amount of Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.
(c)
In
authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation to such
Securities the Trustee shall receive, and (subject to Section 12.02) shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel, each prepared in accordance with Section 18.01 stating that the conditions precedent, if
any, provided for in the Indenture have been complied with.
(d)
The
Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of the Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
(e)
Each
Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect to the
Securities of such series.
(f)
Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be originally issued
at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered only once prior to
the authentication and delivery of the first Security of such series.
(g)
If
the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Securities, (ii) shall be registered, in the name of the Depositary for such Global
Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH SHALL
BE TREATED BY THE COMPANY, THE GUARANTORS, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN.
18
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
The aggregate principal amount of each Global
Security may from time to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided in
this Indenture.
(h)
Each
Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation and
at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute
or regulation.
(i)
Members
of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary shall be treated by
the Company, the Guarantors, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantors, the Trustee,
the Paying Agent or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary
governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The Holder of a Global Security may
grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any
action that a Holder is entitled to take under this Indenture or the Securities.
(j)
No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual signature of an authorized signatory of the Trustee or Authenticating Agent, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
19
Section 3.04
Temporary
Securities
.
(a)
Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, typewritten, photocopied or otherwise reproduced, in any authorized denominations,
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Any such temporary Security may be in the form of one or more Global Securities, representing
all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by the Company and shall
be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner, and with the same effect,
as the definitive Security or Securities in lieu of which it is issued.
(b)
If
temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of such temporary Securities at the office or agency of the Company in a Place of
Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations and of like tenor. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
(c)
Upon
any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities represented
thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect
the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed.
Section 3.05
Registrar
.
(a)
The
Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for registration
or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register for the
registration and the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Register”),
as in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall
be in written form or in any other form capable of being converted into written form within a reasonable time. The Company may have one
or more co-Registrars; the term “Registrar” includes any co-registrar.
20
(b)
The
Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address
of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 12.01. The Company or any Affiliate thereof may act as Registrar, co-Registrar
or transfer agent.
(c)
The
Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this Indenture,
until such time as another Person is appointed as such.
Section 3.06
Transfer
and Exchange
.
(a)
Transfer
.
(i)
Upon
surrender for registration of transfer of any Security of any series at the Registrar the Company shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same
series for like aggregate principal amount of any authorized denomination or denominations. The transfer of any Security shall not be
valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his,
her or its attorney duly authorized in writing.
(ii)
Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole or in part for the Individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
(b)
Exchange
.
(i)
At
the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged for other
Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender of
the Securities to be exchanged at the Registrar.
(ii)
Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee or Authenticating Agent shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to receive.
21
(c)
Exchange
of Global Securities for Individual Securities
. Except as provided below, owners of beneficial interests in Global Securities will
not be entitled to receive Individual Securities.
(i)
Individual
Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if: (A) at
any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under
Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Company within 90 days of such notice, or
(B) the Company executes and delivers to the Trustee and the Registrar a Company Order stating that such Global Security shall be
so exchangeable.
In connection with the exchange of an
entire Global Security for Individual Securities pursuant to this subsection (c), such Global Security shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of Individual Securities of such series, will authenticate and deliver to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Individual Securities of authorized
denominations.
(ii)
The
owner of a beneficial interest in a Global Security will be entitled to receive an Individual Security in exchange for such interest
if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from the
Holder of a Global Security directing the Security Custodian and Registrar to (x) issue one or more Individual Securities in the
amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent
amount of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:
(A)
the
Security Custodian and Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and amount of such
beneficial interest in such Global Security;
(B)
the
Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual Securities
of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such beneficial
interest in such Global Security; and
22
(C)
the
Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the event that
the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Holder
of a Global Security to issue such Individual Securities, the Company expressly acknowledges, with respect to the right of any Holder
to pursue a remedy pursuant to Section 8.07 hereof, the right of any beneficial Holder of Securities to pursue such remedy with
respect to the portion of the Global Security that represents such beneficial Holder’s Securities as if such Individual Securities
had been issued.
(iii)
If
specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of such series
on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(A)
to
each Person specified by such Depositary a new Individual Security or new Individual Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(B)
to
such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Individual Securities delivered to Holders thereof.
(iv)
In
any exchange provided for in clauses (i) through (iii), the Company will execute and the Trustee will authenticate and deliver Individual
Securities in registered form in authorized denominations.
(v)
Upon
the exchange in full of a Global Security for Individual Securities, such Global Security shall be canceled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
23
(d)
All
Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer or
exchange.
(e)
Every
Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its attorney duly authorized in
writing.
(f)
No
service charge will be made for any registration of transfer or exchange of Securities. The Company or the Trustee may require payment
of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Company’s own expense
or without expense or charge to the Holders.
(g)
The
Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for redemption
under Section 4.02 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange
any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h)
In
case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant to
Article VII, any of the Securities previously authenticated or delivered may, from time to time, at the request of the Successor
Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the Successor Company, shall authenticate and deliver Securities as specified in such order for the purpose of
such exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this
Section 3.06 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the
option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities
authenticated and delivered in such new name.
(i)
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by
the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
24
(j)
Neither
the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
(k)
Prior
to the due presentation for registration of transfer or exchange of any Security, the Company, the Guarantors, the Trustee, the Paying
Agent, the Registrar or any of their agents may deem and treat the Person in whose name a Security is registered as the absolute owner
of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon)
for all purposes whatsoever, and none of the Company, the Guarantors, the Trustee, the Paying Agent, the Registrar or any of their agents
shall be affected by any notice to the contrary.
(l)
The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in, the
Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depositary) of any notice (including any notice of redemption or purchase) or the payment of any
amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications
to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial
owners in any Global Security shall be exercised only through the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to
its members, participants and any beneficial owners.
Section 3.07
Mutilated,
Destroyed, Lost and Stolen Securities
.
(a)
If
(i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the
Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the Company nor the
Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security,
a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously outstanding,
such that neither gain nor loss in interest shall result from such exchange or substitution.
(b)
In
case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c)
Upon
the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
25
(d)
Every
new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
(e)
The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.08
Payment
of Interest; Interest Rights Preserved
.
(a)
Interest
on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such
interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date. Payment of interest
on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Register or, in accordance
with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the Holder.
(b)
Any
interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his, her
or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
clause (i) or (ii) below:
(i)
The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “Special
Record Date”), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 calendar days and not less
than 10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
to be given to each Holder of such Securities in the manner set forth in Section 18.04, not less than 10 calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following
clause (ii).
26
(ii)
The
Company may make payment of any Defaulted Interest on Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
(c)
Subject
to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
Section 3.09
Cancellation
.
Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered for payment, redemption,
registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered to the Trustee, shall
be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities held by it in accordance
with its then customary procedures and deliver a certificate of such disposal to the Company upon its request therefor. The acquisition
of any Securities by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and
until such Securities are surrendered to the Trustee for cancellation.
Section 3.10
Computation
of Interest
. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11
Currency
of Payments in Respect of Securities
.
(a)
Except
as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium, if any, and
interest on Securities of such series will be made in U.S. Dollars.
(b)
For
purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an action that requires that a specified
percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination by the Trustee
of amounts due and unpaid for the principal of and premium, if any, and interest on, and any Additional Amounts with respect to, the
Securities of all series in respect of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on,
and any Additional Amounts with respect to, the Outstanding Securities denominated in a Foreign Currency will be the amount in U.S. Dollars
based upon exchange rates as of the date for determining whether the Holders entitled to perform such action have performed it or as
of the date of such decision or determination by the Trustee, as the case may be.
27
Section 3.12
Judgments
.
The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation, if any, of the Company
to pay the principal of, premium, if any, and interest on, and any Additional Amounts with respect to, the Securities of any series in
a Foreign Currency or U.S. Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the
essence and agrees that, to the fullest extent possible under applicable law, judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of and
premium, if any, and interest on, and any Additional Amounts with respect to, such Securities shall, notwithstanding any payment in any
other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency
that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency
(after any premium and cost of exchange) on the business day in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following the day on which such Holder receives such payment; (c) if
the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall
pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of the Company not discharged
by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full
force and effect.
Section 3.13
CUSIP
Numbers
. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally in use, and thereafter
with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange or other notice to Holders with
respect to such series provided that any such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice to Holders and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP, ISIN or other similar numbers.
ARTICLE IV
REDEMPTION
OF SECURITIES
Section 4.01
Applicability
of Right of Redemption
. Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous provision) permitted
by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for Securities of
any series) in accordance with this Article; provided, however, that if any such terms of a series of Securities shall conflict with
any provision of this Article, the terms of such series shall govern.
28
Section 4.02
Selection
of Securities to be Redeemed.
(a)
If
the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at least five
days prior to the date that the notice of redemption is to be given pursuant to Section 4.03 (unless a shorter period shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as the Trustee shall deem appropriate and, in the case of Global Securities, in
accordance with the procedures of the Depositary, and which may provide for the selection for redemption of a portion of the principal
amount of any Security of such series; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination) for such Security. In any case where more than one Security
of such series is registered in the same name, the Trustee may treat the aggregate principal amount so registered as if it were represented
by one Security of such series. The Trustee shall, as soon as practicable, notify the Company in writing of the Securities and portions
of Securities so selected.
(b)
For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security
that has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company, any Affiliate or
any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 4.03
Notice
of Redemption
.
(a)
Notice
of redemption shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company, not less than 10 nor more than 60 days prior to the Redemption Date, to the Holders of Securities of any series to be redeemed
in whole or in part pursuant to this Article, in the manner provided in Section 18.04. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. Failure to give such notice, or any defect in such
notice to the Holder of any Security of a series designated for redemption, in whole or in part, shall not affect the sufficiency of
any notice of redemption with respect to the Holder of any other Security of such series.
(b)
All
notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available
along with the statement in Section 3.13) and shall state:
(i)
such
election by the Company to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms of the Securities
of such series or a supplemental indenture establishing such series, if such be the case;
29
(ii)
the
Redemption Date;
(iii)
the
Redemption Price;
(iv)
if
less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the Securities of such series to be redeemed;
(v)
that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that, if applicable,
interest thereon shall cease to accrue on and after said date;
(vi)
the
Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price;
(vii)
that
the redemption is for a sinking fund, if such is the case; and
(viii)
the
applicable conditions to such redemption, if any.
Any redemption notice may, at the Company’s
discretion, be subject to one or more conditions precedent, including completion of a corporate transaction. In such event, the related
notice of redemption shall describe each such condition and, if applicable, shall state that, at the Company’s discretion, the
date of redemption may be delayed until such time (including more than 60 days after the notice of redemption was given) as any
or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that
any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the date of redemption,
or by the date of redemption as so delayed.
Section 4.04
Deposit
of Redemption Price
. On or prior to 11:00 a.m., New York City time, on the Redemption Date for any Securities, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided pursuant
to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on that
date together with all other sums payable to the Trustee hereunder.
Section 4.05
Securities
Payable on Redemption Date
. Notice of redemption having been given as aforesaid, any Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall Default in the payment of
the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that (unless otherwise provided
pursuant to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities
shall be payable according to the terms of such Securities and the provisions of Section 3.08.
30
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate borne by or prescribed in such Securities.
Section 4.06
Securities
Redeemed in Part
. Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust Office or such other
office or agency of the Company as is specified in the notice of redemption with, if the Company, the Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed
by the Holder thereof or his, her or its attorney duly authorized in writing, and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of like tenor and
form, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered; except that if a Global Security is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security
in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. In the
case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.
ARTICLE V
SINKING
FUNDS
Section 5.01
Applicability
of Sinking Fund
.
(a)
Redemption
of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms of such series
of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise specified
pursuant to Article IV for Securities of such series, provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall govern.
(b)
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “Mandatory
Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any series, the cash
amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.
Section 5.02
Mandatory
Sinking Fund Obligation
. The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part,
with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable form
theretofore purchased or otherwise acquired by the Company or redeemed at the election of the Company pursuant to Article IV or
(b) receiving credit for Securities of such series (not previously so credited) acquired by the Company and theretofore delivered
to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to the Redemption Price
specified in such Securities for redemption through operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment
shall be reduced accordingly. If the Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver
to the Trustee not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate
the Securities (and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent
not theretofore delivered) in transferable form. In case of the failure of the Company, at or before the time so required, to give such
notice and deliver such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
31
Section 5.03
Optional
Redemption at Sinking Fund Redemption Price
. In addition to the sinking fund requirements of Section 5.02, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund Payment
with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that the right of the Company to make
such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent
year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities
of the same series. If the Company intends to exercise its right to make such optional payment in any year it shall deliver to the Trustee
not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate stating that the Company will exercise
such optional right, and specifying the amount which the Company will pay on or before the next succeeding sinking fund payment date.
Such Officer’s Certificate shall also state that no Event of Default has occurred and is continuing.
Section 5.04
Application
of Sinking Fund Payment
.
(a)
If
the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000
(or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than in U.S. Dollars), it shall
be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be applied on such sinking fund payment date, to the redemption of Securities
of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in
Section 4.02, for redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb
said funds, as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption, prepared
by the Company, of the Securities to be given in substantially the manner provided in Section 4.03(a) for the redemption of
Securities in part at the option of the Company, except that the notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption of Securities of such series shall
be added to the next sinking fund payment received in funds by the Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 5.04. Any and all sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall
be applied by the Trustee to the payment of the principal of the Securities of such series at Maturity.
32
(b)
On
or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but not including
the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
(c)
The
Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series
by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series or of any
Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which a Responsible Officer of the
Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have been mailed
in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose shall be deposited
with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund at the time any such
Default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such Default
or Event of Default, be held as security for the payment of all the Securities of such series; provided, however, that in case such Default
or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund
payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.
ARTICLE VI
PARTICULAR
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01
Payments
of Securities
. The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of, any premium and interest on, and any Additional Amounts with respect to, the Securities of that series
in accordance with the terms of the Securities and this Indenture.
Section 6.02
Maintenance
of Office or Agency
. The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities
of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or exchange, and
where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served (the “Paying
Agent”). Unless otherwise specified with respect to any Securities pursuant to Section 3.01, the Company hereby designates
as the Place of Payment for each series of Securities the Borough of Manhattan, the City of New York, and the Company initially appoints
the Trustee, acting through its Corporate Trust Office, as the Paying Agent hereunder. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its Paying
Agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency.
33
Unless otherwise specified with respect to any
Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent; provided,
however, that the requirement to maintain at least one exchange rate agent shall not apply when the Securities of any series are both
denominated in and payable in the same Foreign Currency.
Section 6.03
Money
for Securities Payments to Be Held in Trust
. If the Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of, any premium or interest on, any Additional Amounts with respect
to, any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, on or before each due date of the principal of, any premium or interest on, and any Additional
Amounts with respect, to any Securities of such series, deposit with a Paying Agent a sum sufficient to pay the principal or any premium,
interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a)
hold
all sums held by it for the payment of the principal of, any premium or interest on, and any Additional Amounts with respect to, Securities
of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as provided in or pursuant to this Indenture;
34
(b)
give
the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment
of principal of, any premium or interest on, and any Additional Amounts with respect to, the Securities of such series; and
(c)
at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee (or such other trustee) pursuant
to Section 13.02 or 13.03, or then held by the Company, in trust for the payment of the principal of, any premium or interest on
or Additional Amounts with respect to any Security of any series and remaining unclaimed for two years after such principal, premium,
interest or Additional Amounts has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust. The Holder of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however
,
that the Trustee or such Paying Agent,
before being required to make any such repayment, may publish, at the Company’s expense, in the English language, in a newspaper
customarily published on each Business Day and of general circulation in the City of New York, New York, or to be mailed to such Holder,
or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from
the earlier of the date of such publication or such mailing, any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.04
Compliance
Certificate
. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, the Company
shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate from an Officer as to his
or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture (which compliance shall be
determined without regard to any period of grace or requirement of notice provided under this Indenture). The officer executing such
certificate shall be the Company’s principal executive officer, principal financial officer or principal accounting officer and
such certificates need not comply with Section 18.01 of this Indenture.
35
Section 6.05
Waiver
by Holders of Securities
. Except as otherwise provided as contemplated by Section 3.01 for Securities of such series, the Company
may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set
forth in any covenant provided herein or pursuant to ‎Section 3.01(aa) or Section 15.01(a) and (p) for the benefit
of the Holders of such series if the Holders of at least a majority in principal amount of the Outstanding Securities of such series
shall, by an Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of such term,
provision or condition shall remain in full force and effect.
Section 6.06
Corporate
Existence
. Subject to Article VII, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company to preserve any such right or franchise if the Company shall determine that the preservation thereof is
no longer desirable in the conduct of its business.
Section 6.07
Additional
Amounts
.
If any Securities of a series provide for the payment of Additional Amounts, the Company agrees to pay to the
Holder of any such Security Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security
of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to
this Indenture or the Securities of the applicable series, if the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s
Certificate, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officer’s Certificate
instructing the Trustee and such Paying Agent whether such payment of principal of and any premium or interest on the Securities of such
series shall be made to Holders of Securities of such series who are United States aliens (as demonstrated by delivery of appropriate
tax forms) without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if
any, required to be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities.
36
ARTICLE VII
Merger,
Consolidation or Sale of Assets
Section 7.01
Company
May Consolidate, Etc. on Certain Terms
.
Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities:
(a)
The
Company will not consolidate with any other entity or permit a merger of any other entity into the Company or permit the Company to be
merged into any other entity, or sell, convey, transfer or lease all or substantially all its assets to another entity, unless:
(i)
either
the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall be organized
and existing under the laws of the United States or any State thereof or the District of Columbia and expressly assume, by indenture
supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale, conveyance,
transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on and any Additional Amounts with
respect to all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations
to the Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company;
(ii)
immediately
after such consolidation, merger, sale, conveyance, transfer or lease the Company or the successor, transferee or lessee entity (if other
than the Company) would not be in Default in the performance of any covenant or condition of this Indenture; and
(iii)
the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that such consolidation,
merger, sale, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 7.02
Successor
Person Substituted
. Upon any consolidation with or merger into any other entity, or any sale, conveyance or transfer lease of all
or substantially all of the assets of the Company in accordance with this Article VII, the successor entity formed by such consolidation
or into or with which the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect
as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company
shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise
each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding
by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any entity that shall at the time be the successor of the Company hereunder.
In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have
become such in the manner described in this Article VII) shall be discharged from all obligations and covenants under this Indenture
and the Securities and may thereupon be dissolved and liquidated.
37
ARTICLE VIII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
Section 8.01
Events
of Default
. Except where otherwise indicated by the context or where the term is otherwise defined for a specific purpose, the term
“Event of Default” as used in this Indenture with respect to Securities of any series shall mean any of the following described
events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the manner contemplated in
Section 3.01:
(a)
default
in the payment of any interest upon any Security of such series, or any Additional Amounts payable with respect thereto, when the interest
or Additional Amounts become due and payable, and continuance of such default for a period of 30 days;
(b)
default
in the payment of the principal of or premium, if any, on any Security of such series at its Maturity;
(c)
default
in the deposit of any sinking fund payment when and as due by the terms of a Security of such series, subject to any cure period specified
in any Security of such series;
(d)
default
in the performance, or breach, in any material respect, of any covenant, agreement or warranty of the Company or any Guarantor, subject
to the provisions of Section 6.05, in this Indenture (other than a covenant, agreement or warranty a default in the performance
or the breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than such series) and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company and such Guarantor by the Trustee or to the Company,
such Guarantor and the Trustee by the Holders of not less than a majority in principal amount of the Outstanding Securities of such series
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder;
(e)
the
entry by a court having jurisdiction of a decree or order adjudging the Company or a 60% Subsidiary Guarantor bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company
or a 60% Subsidiary Guarantor under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or a 60% Subsidiary Guarantor
or of any substantial part of any of their respective property, or ordering the winding up or liquidation of any of their affairs, and
the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
38
(f)
the
commencement by the Company or a 60% Subsidiary Guarantor of a voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or similar law or of a voluntary proceeding to be adjudicated a bankrupt or insolvent, or the consent by any
of them to the entry of a decree or order for relief in respect of the Company or such 60% Subsidiary Guarantor in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement
of bankruptcy or insolvency case or proceeding against any of them, or the filing by any of them of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or the consent
by any of them to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a 60% Subsidiary Guarantor or of any substantial part of any of their
respective property, or the making by any of them of a general assignment for the benefit of creditors, or the admission by any of them
in writing of their inability to pay their respective debts generally as they become due, or the taking of corporate action by the Company
or a 60% Subsidiary Guarantor in furtherance of any such action; or
(g)
the
occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01.
Notwithstanding the foregoing provisions of this
Section 8.01, if the principal or any premium or interest on any Security is payable in a Foreign Currency and such Foreign Currency
is not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in
U.S. Dollars in an amount equal to the U.S. Dollar equivalent of the amount payable in such Foreign Currency, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers for such Currency (“Exchange Rate”), as
such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if
such rate is not then available, on the basis of the most recently available Exchange Rate (or as determined by the Company by reference
to such other exchange rate as provided in Section 3.01 with respect to a series of Securities).
Notwithstanding the foregoing provisions of this
Section 8.01, any payment made under such circumstances in the Currency of the United States where the required payment is in a
Foreign Currency will not constitute an Event of Default under this Indenture.
Section 8.02
Acceleration;
Rescission and Annulment.
(a)
Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, if an Event of Default (other than an Event of Default specified
in Section 7.01(e) or 7.01(f)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than a majority in principal amount of the Outstanding Securities of such series
may declare the principal amount of all the Securities of such series (or, if any Securities of such series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) with
respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case, the principal amount of
all the Securities of that series then Outstanding (or, if any Securities of such series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any acceleration
or any other action on the part of the Trustee or any Holder, become due and payable immediately.
39
(b)
At
any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for the payment of the money due has been obtained by the Trustee as hereinafter provided, the Holders of a majority in principal amount
of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(i)
the
Company has paid or deposited with the Trustee or Paying Agent a sum sufficient to pay:
(1)
all
overdue installments of interest on the Securities of such series;
(2)
the
principal of (and accrued and unpaid premium, if any, on) any Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by the Securities of such series and any Additional Amounts
with respect thereto;
(3)
to
the extent that payment of such interest is lawful, interest upon overdue interest or Additional Amounts at the rate borne by the Securities
of such series; and
(4)
all
amounts owing the Trustee hereunder under Section 12.01(a); and
(5)
all
Events of Default with respect to the Securities of such series, other than the non-payment of the principal of Securities of such series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 8.13.
(c)
No
such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 8.03
Collection
of Indebtedness and Suits for Enforcement by Trustee
. The Company covenants that if:
(a)
default
is made in the payment of any interest on any Securities, or any Additional Amounts payable with respect thereto, when such interest
or Additional Amounts become due and payable and such default continues for a period of 30 days, or
40
(b)
default
is made in the payment of the principal of (or premium, if any, on) any Securities at the Maturity;
the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium,
interest and Additional Amounts and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest or Additional Amounts, at the rate borne by such Securities and all amounts owing to
the Trustee under Section 12.01(a).
If the Company fails to pay such amounts forthwith
upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sum so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Securities of such series by such judicial proceedings as the Trustee shall deem appropriate to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such Securities or in aid of
the exercise of any power granted herein or therein, or to enforce any other proper remedy.
Section 8.04
Trustee
May File Proofs of Claim
. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a)
to
file and prove a claim for the whole amount (or such lesser amount as may be provided for in the Securities of such series) of principal
and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b)
to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it under Section 12.01(a).
41
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee
in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 8.05
Trustee
May Enforce Claims Without Possession of Securities
. All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment
has been recovered.
Section 8.06
Application
of Money Collected
. Any money collected by the Trustee with respect to a series of Securities pursuant to this Article VIII
shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium, interest or Additional Amounts, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the
Trustee under Section 12.01(a).
SECOND: Subject to Article XVI (to the extent
applicable to any series of Securities then outstanding), to the payment of the amounts then due and unpaid for principal of and any
premium, interest and Additional Amounts on the Securities of such series in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities
for principal and any premium, interest and Additional Amounts, respectively.
THIRD: To the payment of the remainder, if
any, to the Company or as directed by order of an arbitrator, court or governmental agency.
Section 8.07
Limitation
on Suits
. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (i) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series; (ii) the
Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (iii) such Holder
or Holders have offered to the Trustee indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceedings; and (v) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or
Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such actions or forbearances
on the part of any Holder or Holders are unduly prejudicial to such other Holder or Holders).
42
Section 8.08
Unconditional
Right of Holders to Receive Principal, Premium and Interest
. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.06 and 3.08) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such Holder.
Section 8.09
Restoration
of Rights and Remedies
. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 8.10
Rights
and Remedies Cumulative
. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 3.07(e), no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 8.11
Delay
or Omission Not Waiver
. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 8.12
Control
by Holders
. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such series, provided that: (i) such direction shall
not be in conflict with any rule of law or with this Indenture or with such Securities; (ii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction; and (iii) subject to the provisions of Sections
12.01 and 12.02, the Trustee need not take any action that the Trustee determines in good faith would be prejudicial to the Holders of
such series not consenting, would involve the Trustee in personal liability or would adversely affect its rights to be indemnified hereunder.
43
Section 8.13
Waiver
of Past Defaults
. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences,
except a default: (i) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to,
any Security of such series, or (ii) in respect of a covenant or provision hereof which under Article XV cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default
shall cease to exist with respect to such series, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 8.14
Undertaking
for Costs
. All parties to this Indenture agree, and each Holder of any Security by acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted to be taken by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this Section 8.14 shall not apply to any suit instituted by the Company,
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, or Additional Amounts, if any, on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE IX
CONCERNING
THE SECURITYHOLDERS
Section 9.01
Evidence
of Action of Securityholders
. Whenever in this Indenture it is provided that the Holders of a specified percentage or a majority
in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage or majority have joined therein may be evidenced by (a) any instrument or any number
of instruments of similar tenor executed by Securityholders in person, by an agent or by a proxy appointed in writing, including through
an electronic system for tabulating consents operated by the Depositary for such series or otherwise (such action becoming effective,
except as herein otherwise expressly provided, when such instruments or evidence of electronic consents are delivered to the Trustee
and, where it is hereby expressly required, to the Company), or (b) by the record of the Holders of Securities voting in favor thereof
at any meeting of Securityholders duly called and held in accordance with the provisions of Article X, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of Securityholders.
44
Section 9.02
Proof
of Execution or Holding of Securities
. Proof of the execution of any instrument by a Securityholder or his, her or its agent or proxy
and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The
fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary public or
other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within
such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other officer the execution
thereof, or (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer. Where such execution
is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(b)
The
ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the Registrar for such
series.
(c)
The
record of any Holders’ meeting shall be proved in the manner provided in Section 10.06.
(d)
The
Trustee may require such additional proof of any matter referred to in this Section 9.02 as it shall deem appropriate or necessary,
so long as the request is a reasonable one.
(e)
If
the Company shall solicit from the Holders of Securities of any series any action, the Company may, at its option fix in advance a record
date for the determination of Holders of Securities entitled to take such action, but the Company shall have no obligation to do so.
Any such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed
to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities of such
series have authorized or agreed or consented to such action, and for that purpose the Outstanding Securities of such series shall be
computed as of such record date.
Section 9.03
Persons
Deemed Owners
.
(a)
The
Company, the Guarantors, the Trustee or any of their agents shall treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 3.08) interest,
if any, on, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the
Guarantors, the Trustee or any of their agents shall be affected by notice to the contrary. All payments made to any Holder, or upon
his, her or its order, shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability for
moneys payable upon such Security.
45
(b)
None
of the Company, the Guarantors, the Trustee, or any of their agents will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 9.04
Effect
of Consents
. After an amendment, supplement, waiver or other action becomes effective as to any series of Securities, a consent to
it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every subsequent Holder
of the same Securities or portion thereof, and of any Security issued upon the transfer thereof or in exchange therefor or in place thereof,
even if notation of the consent is not made on any such Security.
ARTICLE X
SECURITYHOLDERS’
MEETINGS
Section 10.01
Purposes
of Meetings
. A meeting of Securityholders of any or all series may be called at any time and from time to time pursuant to the provisions
of this Article X for any of the following purposes:
(a)
to
give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any Default
or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article IX;
(b)
to
remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XII;
(c)
to
consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 15.02; or
(d)
to
take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 10.02
Call
of Meetings by Trustee
. The Trustee may at any time call a meeting of all Securityholders of any or all series that may be affected
by the action proposed to be taken, to take any action specified in Section 10.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting, shall be mailed at the expense of the Company to Holders
of Securities of such series at their addresses as they shall appear on the Register of the Company. Such notice shall be mailed not
less than 20 nor more than 90 days prior to the date fixed for the meeting.
46
Section 10.03
Call
of Meetings by Company or Securityholders
. In case at any time the Company or the Holders of at least 10% in aggregate principal
amount of the Securities of any or all series then Outstanding that may be affected by the action proposed to be taken, shall have requested
the Trustee to call a meeting of Securityholders of such series, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place for such meeting and may call such meeting to take any
action authorized in Section 10.01, by mailing notice thereof as provided in Section 10.02.
Section 10.04
Qualifications
for Voting
. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a Holder of one or more Securities
affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument in writing as proxy by
a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 10.05
Regulation
of Meetings
.
(a)
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem fit.
(b)
The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 10.03, in which case the Company or the Securityholders calling the meeting,
as the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent secretary of the meeting shall
be elected by majority vote of the meeting.
(c)
At
any meeting of Securityholders of a series, each Securityholder of such series or such Securityholder’s proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. If the Securities of any series are issuable in minimum denominations of less than $1,000, then
a Holder of such a Security in a principal amount of less than $1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no right to vote other than
by virtue of Securities of such series held by him or her or instruments in writing as aforesaid duly designating him or her as the Person
to vote on behalf of other Securityholders. At any meeting of the Securityholders of any series duly called pursuant to the provisions
of Section 10.02 or 10.03, the presence of Persons holding or representing Securities of such series in an aggregate principal amount
sufficient to take action as it concerns the Securities of such series upon the business for the transaction of which such meeting was
called shall be necessary to constitute a quorum, and any such meeting may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
47
Section 10.06
Voting
.
The vote upon any resolution submitted to any meeting of Securityholders of a series shall be by written ballots on which shall be subscribed
the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts of the Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders
shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided in Section 10.02. The record shall show the principal
amounts of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 10.07
No
Delay of Rights by Meeting
. Nothing contained in this Article X shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to make such call,
any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders of
such series under any of the provisions of this Indenture or of the Securities of such series.
ARTICLE XI
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
Section 11.01
Reports
by Trustee
.
(a)
So
long as any Securities are outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each anniversary following the date of this
Indenture deliver to Holders a brief report which complies with the provisions of such Section 313(a).
(b)
The
Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of this Section 11.01,
file a copy of such report with each stock exchange upon which the Securities are listed, if any, and also with the SEC in respect of
a Security listed and registered on a national securities exchange, if any. The Company agrees to notify the Trustee when, as and if
the Securities become listed on any stock exchange or any delisting thereof.
48
Section 11.02
Reports
by the Company
. The Company (and, as applicable, any Guarantor) shall file with the Trustee and the SEC, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided in the Trust Indenture Act; provided, however, that, unless available on EDGAR, any such information,
documents or reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (each, a “Required
SEC Filing” and, collectively, the “Required SEC Filings”) shall be filed with the Trustee within 15 days after the
same is filed with the SEC; provided, further, that the Company’s obligation to so file each such Required SEC Filing with the
Trustee shall not arise unless and until such Required SEC Filing has been filed with the SEC. Delivery of any such reports, information
and documents by the Company (or any Guarantor) to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). The Trustee acknowledges and agrees that materials transmitted electronically by the Company (or any
Guarantor) to the Trustee shall be deemed filed with the Trustee for purposes of this Section 11.02.
Section 11.03
Securityholders’
Lists
. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:
(a)
semi-annually,
within 15 days after each Record Date, but in any event not less frequently than semi-annually, a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of Securities to which such Record Date applies, as of such Record Date,
and
(b)
at
such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar,
such lists shall not be required to be furnished.
ARTICLE XII
CONCERNING
THE TRUSTEE
Section 12.01
Rights
of Trustees; Compensation and Indemnity
. The Trustee accepts the trusts created by this Indenture upon the terms and conditions hereof,
including the following, to all of which the parties hereto and the Holders from time to time of the Securities agree:
(a)
The
Trustee shall be entitled to such compensation as the Company and the Trustee shall from time to time agree in writing for all services
rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee shall not be limited by
any provision of law in regard to the compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly
upon its request for all reasonable and documented out-of-pocket expenses, disbursements and advances incurred or made by the Trustee
(including the reasonable fees and reasonable and documented expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its own negligence, bad faith or willful misconduct.
49
The Company also agrees to indemnify each of the
Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence, bad faith or willful misconduct, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it acts), as well as the
reasonable and documented costs and expenses of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except those attributable to its negligence, willful misconduct or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have counsel of its selection and the Company shall pay the reasonable and documented fees and expenses
of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
As security for the performance of the obligations
of the Company under this Section 12.01(a), the Trustee shall have a lien upon all property and funds held or collected by the Trustee
as such, except funds held in trust by the Trustee to pay the Redemption Price of any Securities subject to redemption under Article IV
hereof or satisfaction and discharge, covenant defeasance or Discharge as provided in Section 13.07 hereof. Notwithstanding any
provisions of this Indenture to the contrary, the obligations of the Company to compensate and indemnify the Trustee under this Section 12.01(a) shall
survive the resignation or removal of the Trustee, the termination of this Indenture and any satisfaction and discharge under Article XIII.
When the Trustee incurs expenses or renders services after an Event of Default specified in clause (e) or (f) of Section 8.01
occurs, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable federal
or state bankruptcy, insolvency or similar laws.
(b)
The
Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and attorneys
and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(c)
The
Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities (except its
certificates of authentication thereon) contained, all of which are made solely by the Company; and the Trustee shall not be responsible
or accountable in any manner whatsoever for or with respect to the validity or execution or sufficiency of this Indenture or of the Securities
(except its certificates of authentication thereon), and the Trustee makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. The Trustee shall not be accountable for the use or application by the Company of any
Securities, or the proceeds of any Securities, authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.
50
(d)
The
Trustee may consult with counsel of its selection, and advice of counsel shall be full and complete authorization and protection in respect
of any action taken or suffered by the Trustee hereunder in good faith and in accordance with such advice of counsel.
(e)
The
Trustee may rely upon the certificate of the Secretary or one of the Assistant Secretaries of the Company as to the adoption of any Board
Resolution or resolution of the stockholders of the Company, and any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by, and whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may rely upon, an Officer’s Certificate
of the Company (unless other evidence in respect thereof be herein specifically prescribed).
(f)
The
Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have had
if it were not the Trustee or such agent.
(g)
Money
held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
(h)
Any
action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time is the
Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of any Security
or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall have noted thereon the
fact that such request or consent had been made or given.
(i)
The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, direction, judgment, approval, bond, debenture or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(j)
The
Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of the Securities, pursuant to any provision of this Indenture, unless one or more of the Holders
of the Securities shall have offered, and if requested, provided to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred by it therein or thereby.
51
(k)
The
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within its discretion
or within the rights or powers conferred upon it by this Indenture.
(l)
The
Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or written notice of such Default or Event of Default has been given to the Trustee at the Corporate Trust
Office by the Company or by any Holder in accordance with the provisions hereof and such notice references the Securities of such series
and this Indenture.
(m)
The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or
document, but the Trustee may, but shall not be required to, make further inquiry or investigation into such facts or matters as it may
see fit.
(n)
The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(o)
In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
Section 12.02
Duties
of Trustee
.
(a)
If
one or more of the Events of Default specified in Section 8.01 with respect to the Securities of any series shall have happened,
then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers vested
in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b)
None
of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action, negligent
failure to act, or its own willful misconduct, except that, anything in this Indenture contained to the contrary notwithstanding,
(i)
unless
and until an Event of Default specified in Section 8.01 with respect to the Securities of any series shall have happened which at
the time is continuing,
(A)
the
Trustee undertakes to perform such duties and only such duties with respect to the Securities of that series as are specifically set
out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose duties and
obligations shall be determined solely by the express provisions of this Indenture; and
52
(B)
the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in the absence
of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions of this Indenture;
but in the case of any such certificates or opinions which, by the provisions of this Indenture, are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or
conclusions stated therein);
(ii)
the
Trustee shall not be liable to any Holder of Securities or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)
the
Trustee shall not be liable to any Holder of Securities or to any other Person with respect to any action taken or omitted to be taken
by it in good faith, in accordance with the direction of Securityholders given as provided in Section 8.12, relating to the time,
method and place of conducting any proceeding for any remedy available to it or exercising any trust or power conferred upon it by this
Indenture.
(c)
None
of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)
Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section 12.02.
Section 12.03
Notice
of Defaults
. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give to the Holders of the
Securities of a series notice of each Default or Event of Default with respect to the Securities of such series known to the Trustee,
by transmitting such notice to Holders at their addresses as the same shall then appear on the Register of the Company, unless such Default
shall have been cured or waived before the giving of such notice (the term “Default” being hereby defined to be the events
specified in Section 8.01, which are, or after notice or lapse of time or both would become, Events of Default as defined in said
Section); and provided that in the case of any Default of the character specified in Section 8.01(d) with respect to the Securities
of such series no such notice to Holders shall be given until at least 60 days after the occurrence thereof. Except in the case of a
Default or Event of Default in payment of the principal of, premium, if any, or interest on any of the Securities of such series when
and as the same shall become payable, or to make any sinking fund payment as to Securities of the same series, the Trustee shall be protected
in withholding such notice, if and so long as a Responsible Officer or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Securities of such series.
53
Section 12.04
Eligibility;
Disqualification
.
(a)
The
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus
of at least $150,000,000 as set forth in its most recent published annual report of condition, and shall have a Corporate Trust Office.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 12.04, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b)
The
Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(i) any
indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i) are met. If the Trustee has or shall
acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. If Section 310(b) of the Trust Indenture Act is amended any time after the date of this Indenture to change the
circumstances under which a Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series or to
change any of the definitions in connection therewith, this Section 12.04 shall be automatically amended to incorporate such changes.
Section 12.05
Resignation
and Notice; Removal
. The Trustee, or any successor to it hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities by giving to the Company notice in writing. Such resignation
shall take effect upon the appointment of a successor Trustee and the acceptance of such appointment by such successor Trustee. Any Trustee
hereunder may be removed with respect to any series of Securities at any time by the filing with such Trustee and the delivery to the
Company of an instrument or instruments in writing signed by the Holders of a majority in principal amount of the Securities of such
series then Outstanding, specifying such removal and the date when it shall become effective.
If at any time:
(1)
the
Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since the
initial issuance of the Securities of such series), or
54
(2)
the
Trustee shall cease to be eligible under Section 12.04 and shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series), or
(3)
the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by written notice to
the Trustee may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Securityholder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series) may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or
Trustees.
In addition, the Company may remove the Trustee
with respect to Securities of any series without cause if the Company gives written notice to the Trustee of such proposed removal at
least three months in advance of the proposed effective date of such removal.
Upon its resignation or removal, any Trustee shall
be entitled to the payment of reasonable compensation for the services rendered hereunder by such Trustee and to the payment of all reasonable
and documented expenses incurred hereunder and all moneys then due to it hereunder. The Trustee’s rights to indemnification provided
in Section 12.01(a) shall survive its resignation or removal.
Section 12.06
Successor
Trustee by Appointment
.
(a)
In
case at any time the Trustee shall resign, or shall be removed or if a vacancy exists in the office of the Trustee for any reason, with
respect to Securities of any or all series, the Company shall promptly appoint a successor Trustee. However, if all or substantially
all the assets of the Company shall be in the possession of one or more custodians or receivers lawfully appointed, or of trustees in
bankruptcy or reorganization proceedings (including a trustee or trustees appointed under the provisions of the federal bankruptcy laws,
as now or hereafter constituted), or of assignees for the benefit of creditors, such receivers, custodians, trustees or assignees, as
the case may be, shall promptly appoint a successor Trustee with respect to the Securities of any or all series. Subject to the provisions
of Sections 12.04 and 12.05, upon the appointment as aforesaid of a successor Trustee with respect to the Securities of any series, the
Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After any such appointment other than by the
Holders of Securities of any such series, the Person making such appointment shall forthwith cause notice thereof to be mailed to the
Holders of Securities of such series at their addresses as the same shall then appear on the Register of the Company. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of such appointment.
55
(b)
If
any Trustee with respect to the Securities of any series shall resign or be removed and a successor Trustee shall not have been appointed
by the Company or, if any successor Trustee so appointed shall not have accepted its appointment within 30 days after such appointment
shall have been made, the resigning Trustee at the expense of the Company may apply to any court of competent jurisdiction for the appointment
of a successor Trustee. If in any other case a successor Trustee shall not be appointed pursuant to the foregoing provisions of this
Section 12.06 within three months after such appointment might have been made hereunder, the Holder of any Security of the applicable
series or any retiring Trustee at the expense of the Company may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, in any such case, after such notice, if any, as such court may deem proper and prescribe, appoint
a successor Trustee.
(c)
Any
successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and deliver to
its predecessor Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the case may be, an instrument
accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations with respect to such series of such predecessor
Trustee with like effect as if originally named as Trustee hereunder, and such predecessor Trustee, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to pay over, and such successor Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder with respect to the Securities of such series, subject nevertheless to its lien
provided for in Section 12.01(a). Nevertheless, on the written request of the Company or of the successor Trustee or of the Holders
of at least 10% in principal amount of the Securities of any such series then Outstanding, such predecessor Trustee, upon payment of
its said charges and disbursements, shall execute and deliver an instrument transferring to such successor Trustee upon the trusts herein
expressed all the rights, powers and trusts of such predecessor Trustee with respect to the Securities of such series and shall assign,
transfer and deliver to the successor Trustee all moneys and properties held by such predecessor Trustee with respect to the Securities
of such series, subject nevertheless to its lien provided for in Section 12.01(a); and, upon request of any such successor Trustee
or the Company shall make, execute, acknowledge and deliver any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Trustee all such authority, rights, powers, trusts, immunities, duties and obligations.
Section 12.07
Successor
Trustee by Merger
. Any Person into which the Trustee or any successor to it in the trusts created by this Indenture shall be merged
or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any successor
to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor
Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto;
provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture with respect to one or more series of Securities, any of such Securities shall
have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of authentication
of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
56
Section 12.08
Right
to Rely on Officer’s Certificate
. Whenever in the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate with respect thereto
delivered to the Trustee, and such Officer’s Certificate, in the absence of negligence, bad faith or willful misconduct on the
part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 12.09
Appointment
of Authenticating Agent
. The Trustee may appoint an agent (the “Authenticating Agent”) acceptable to the Company to authenticate
the Securities, and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by the Authenticating Agent. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder.
Each Authenticating Agent shall at all times be
a corporation organized and doing business and in good standing under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $150,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Article XII,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Article XII, it shall resign immediately in the manner and with the effect specified in this Article XII.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Article XII, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating
Agent.
57
An Authenticating Agent may resign at any time
by giving 30 days’ written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 12.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to
the Company and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section 12.09.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation as agreed upon from time to time by the Company and such Authenticating Agent in writing
for its services under this Section 12.09.
Section 12.10
Communications
by Securityholders with Other Securityholders
. Holders of Securities may communicate pursuant to Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act with respect to such communications.
ARTICLE XIII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section 13.01
Applicability
of Article
. The provisions of this Article shall be applicable to the Securities of all series issued pursuant to this Indenture,
except as otherwise specified pursuant to Section 3.01.
Section 13.02
Satisfaction
and Discharge of Indenture
. This Indenture, with respect to the Securities of any series (if all series issued under this Indenture
are not to be affected), shall, upon Company Order, cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of such Securities herein expressly provided for and the rights of the Holders of the Securities of such series
to receive, the principal of and premium, if any, and interest on such Securities as and when the same shall become due and payable and
except as otherwise provided in the last paragraph of this Section 13.02), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series,
when,
(a)
either:
(i)
all
Securities of such series theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.07 and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 6.03) have been delivered to the Trustee for cancellation; or
58
(ii)
all
Securities of such series not theretofore delivered to the Trustee for cancellation,
(A)
have
become due and payable, or
(B)
will
become due and payable at their Stated Maturity within one year, or
(C)
if
redeemable at the option of the Company (including, without limitation, by operation of any mandatory sinking fund), are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above,
has irrevocably deposited or caused to be deposited with the Trustee, in trust for the purpose, (i) money in the Currency in which
such Securities are payable in an amount, or (ii) U.S. Government Obligations that, through the payment of interest and principal
in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment, money in
the Currency in which such Securities are payable in an amount, or (iii) a combination of (i) and (ii), sufficient (without
consideration of any reinvestment of such principal and interest) to pay and discharge the entire indebtedness on such Securities for
principal and premium, if any, and interest on any Additional Amounts with respect to such Securities, to the date of such deposit (in
the case of Securities that have become due and payable) or to the Stated Maturity thereof or, in the case of Securities of such series
which are to be called for redemption as contemplated by (C) above, the applicable Redemption Date, as the case may be, and including
any mandatory sinking fund payments as and when the same shall become due and payable;
(b)
the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such series;
and
(c)
the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture with respect to the Securities of any series, the obligations of the Company to the Trustee under Section 12.01
and in the case of satisfaction and discharge under Section 13.02, the provisions of Sections 3.04, 3.05, 3.06, 3.07, 3.10 and 6.02,
the last paragraph of Section 6.03, the obligation to pay Additional Amounts, if any, with respect to such Securities as contemplated
by Section 6.07 (but only to the extent that any Additional Amounts payable with respect to such Securities exceed the amount deposited
in respect of such Additional Amounts pursuant to Section 13.02(a)(ii)) and this Article XIII, and, if the Securities of such
series are to be redeemed prior to their Stated Maturity (including, without limitation, pursuant to a mandatory sinking fund), the provisions
of Article IV hereof, and, if the Securities of such series are convertible into or exchangeable for other securities or property,
the rights of the Holders of such Securities to convert or exchange, and the obligations of the Company to convert or exchange, such
Securities into other securities or property, and, if money shall have been deposited with the Trustee pursuant to clause (a) of
this Section, the obligations of the Trustee under Section 13.07 and the last paragraph of Section 6.03 shall survive such
satisfaction and discharge.
59
Section 13.03
Defeasance
and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations
. At the Company’s option, either (x) the
Company and the Guarantors shall be deemed to have been Discharged (as defined below) from their obligations with respect to Securities
of any series on the first day after the applicable conditions set forth below have been satisfied (“defeasance”) or (y) the
Company and the Guarantors shall cease to be under any obligation to comply with any term, provision or condition set forth in Sections
7.01, 8.01(d) (as to Section 7.01), 8.01(e), 8.01(f) and 8.01(g) (if Section 8.01(g) is specified as applicable
to such Securities) and Section 11.02 with respect to Securities of any series (and any other restrictive covenant added for the
benefit of such series pursuant to Section 3.01(aa) and Sections 15.01(a) and (p)) (“covenant defeasance”) upon
the satisfaction of the applicable conditions set forth below:
(a)
the
Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in the Currency in
which such Securities are payable in an amount, or (ii) U.S. Government Obligations that, through the payment of interest and principal
in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment, money in
the Currency in which such Securities are payable in an amount, or (iii) a combination of (i) and (ii), sufficient (without
consideration of any reinvestment of such principal and interest) to pay and discharge each installment of principal (including any mandatory
sinking fund payments) of and premium, if any, and interest on, and any Additional Amounts with respect to, the Outstanding Securities
of such series on the dates such installments of interest or principal and premium are due and, if the Securities of such series are
to be called for redemption as described in clause (c) below, to pay and discharge the Redemption Price on the Securities called
for redemption on the applicable Redemption Date;
(b)
no
Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other than a
Default resulting from the borrowing of funds and the grant of any related liens to be applied to such deposit) and, solely in the case
of Discharge pursuant to clause (x) of the first paragraph of this Section 13.03, no Default with respect to the Securities
of such series under either clause (e) or (f) of Section 8.01 shall have occurred at any time during the period ending
on and including the date of such deposit;
60
(c)
if
the monies or U.S. Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient
to pay the principal of and premium, if any, and interest on, and any Additional Amounts with respect to, the Securities of such series
(including, without limitation, any mandatory sinking fund payment) or any portion thereof to be redeemed on a particular Redemption
Date (including, without limitation, pursuant to a mandatory sinking fund), the Company shall have given to the Trustee irrevocable instructions
to redeem such Securities on such date and shall have made arrangements satisfactory to the Trustee for the giving of notice of such
redemption by the Trustee in the name, and at the expense, of the Company;
(d)
the
Company shall have delivered to the Trustee an Opinion of Counsel, (x) in the case of defeasance, stating that either (i) the
Internal Revenue Service has published a ruling or the Company has received a ruling from the Internal Revenue Service, or (ii) since
the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not occurred, and (y) in the case of covenant defeasance,
to the effect that the Holders of such Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance had not occurred; and
(e)
the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such action under this Indenture have been complied with.
“Discharged” means, with respect to
the Securities of any series, that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following, all of which shall survive such Discharge and remain in full force and effect with respect to the Securities of such series:
(A) the rights of Holders of Securities of such series to receive, from the trust fund described in clause (a) above, payment
of the principal of and premium, if any, and interest on such Securities when such payments are due, (B) Sections 3.04, 3.05, 3.06,
3.07, 3.10, 6.02, 6.03 and 6.07 (but only to the extent that any Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to Section 13.03(a)), (C) if the Securities of such series
are to be redeemed prior to their Stated Maturity, the provisions of Article IV hereof, (D) if the Securities of such series
are convertible into or exchangeable for other securities or property, the rights of the Holders of such Securities to convert or exchange,
and the obligations of the Company to convert or exchange, such Securities into such other securities or property, (E) the provisions
of this Article XIII and (F) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
61
“U.S. Government Obligations” means
securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt;
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
Section 13.04
Repayment
to Company
. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee) upon delivery of a Company Order
any moneys or U.S. Government Obligations deposited pursuant to Sections 13.02 and 13.03 with respect to the Securities of any series
and held by them that are in excess of the monies and/or U.S. Government Obligations that were required to effect the satisfaction and
discharge, covenant defeasance or Discharge, as applicable, with respect to the Securities of such series. The provisions of the last
paragraph of Section 6.03 shall apply to any money held by the Trustee or any Paying Agent under this Article.
Section 13.05
Indemnity
for U.S. Government Obligations
. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the deposited U.S. Government Obligations or the principal or interest received on such U.S. Government Obligations.
Section 13.06
[Reserved]
.
Section 13.07
Application
of Trust Money
.
(a)
Neither
the Trustee nor any other Paying Agent shall be required to pay interest on any moneys deposited pursuant to the provisions of this Indenture,
except such as it shall agree with the Company in writing to pay thereon.
(b)
Subject
to the last paragraph of Section 6.03, any monies and U.S. Government Obligations which at any time shall be deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of paying the principal of, premium, if any, and interest
on, and any Additional Amounts with respect to, any of the Securities shall be and are hereby assigned, transferred and set over to the
Trustee or such other Paying Agent in trust for the respective Holders of the Securities for the purpose for which such moneys shall
have been deposited, and such funds shall be applied by the Trustee or Paying Agent in accordance with the provisions of such Securities
and this Indenture to the payment of all sums due and to become due on such Securities in respect of principal and premium, if any, and
any interest on and Additional Amounts with respect to such Securities; but such moneys need not be segregated from other funds except
to the extent required by law.
62
Section 13.08
Deposits
of Foreign Currencies
. Notwithstanding the foregoing provisions of this Article, if the Securities of any series are payable in a
Foreign Currency, the Currency or the nature of the government obligations to be deposited with the Trustee under the foregoing provisions
of this Article shall be as set forth in a Board Resolution, a Company Order or in one or more supplemental indentures hereto and
may be deposited with an entity appointed by the Company and reasonably acceptable to the Trustee for purposes of holding the funds until
payment to Holders.
Section 13.09
Return
of Unclaimed Moneys
. Subject to applicable abandoned property law, any moneys deposited with the Trustee or any Paying Agent not
applied but remaining unclaimed by the Holders of Securities for two years after the date upon which the principal of, premium, if any,
or interest, if any, on and, Additional Amounts with respect to, such Securities shall have become due and payable shall be repaid to
the Company by the Trustee or such agent on written demand. Thereafter, the Holder of any of the Securities entitled to receive such
payment shall look only to the Company for the payment thereof unless applicable abandoned property designates another person, and the
Trustee shall have no further liability with respect to such money.
ARTICLE XIV
IMMUNITY
OF CERTAIN PERSONS
Section 14.01
No
Personal Liability
. No recourse shall be had for the payment of the principal of, or the premium, if any, or interest on, and any
Additional Amounts with respect to, any Security or for any claim based thereon or otherwise in respect thereof or of the Indebtedness
represented thereby, or upon any obligation, covenant or agreement of this Indenture or the Guarantees, against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company, any Guarantor or of any successor corporation, either
directly or through the Company, any Guarantor or any successor corporation, whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this
Indenture, the Guarantees and the Securities are solely corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company,
any Guarantor or of any successor corporation, either directly or through the Company or any successor corporation, because of the incurring
of the Indebtedness hereby authorized or under or by reason of any of the obligations, covenants, promises or agreements contained in
this Indenture or the Guarantees or in any of the Securities, or to be implied herefrom or therefrom, and that all liability, if any,
of that character against every such incorporator, stockholder, officer, director and employee is, by the acceptance of the Securities
and as a condition of, and as part of the consideration for, the execution of this Indenture, the Guarantees and the issue of the Securities
expressly waived and released.
63
ARTICLE XV
SUPPLEMENTAL
INDENTURES
Section 15.01
Without
Consent of Securityholders
. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities,
the Company, the Guarantors and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any one or more of or all the following purposes:
(a)
to
add to the covenants and agreements of the Company or any Guarantor, to be observed thereafter and during the period, if any, in such
supplemental indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders
of all or any series of the Securities (and if such covenants, agreements and Events of Default are to be for the benefit of fewer than
all series of Securities, stating that such covenants, agreements and Events of Default are expressly being included for the benefit
of such series as shall be identified therein), or to surrender any right or power herein conferred upon the Company or any Guarantor;
(b)
to
delete or modify any Events of Default with respect to any series of the Securities, the form and terms of which are being first established
pursuant to such supplemental indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable to fewer than
all such series of the Securities, specifying the series to which such Event of Default is applicable), and to specify the rights and
remedies of the Trustee and the Holders of such Securities in connection therewith;
(c)
to
add to or change any of the provisions of this Indenture to provide, change or eliminate any restrictions on the payment of principal
of or premium, if any, on Securities; provided that any such action shall not adversely affect the interests of the Holders of Securities
of any series in any material respect;
(d)
to
add, change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision and as to which such supplemental indenture would apply;
(e)
to
evidence the succession of another entity to the Company or any Guarantor, or successive successions, and the assumption by such successor
of the covenants and obligations of the Company or such Guarantor contained in the Securities or such Guarantee of one or more series
and in this Indenture or any supplemental indenture;
(f)
to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to one or more series of Securities
and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 12.06(c);
64
(g)
to
secure any series of Securities (including the execution of security and other documents related thereto);
(h)
to
evidence any changes to this Indenture pursuant to Sections 12.05, 12.06 or 12.07 hereof as permitted by the terms thereof;
(i)
to
cure any ambiguity or inconsistency or to correct or supplement any provision contained herein or in any indenture supplemental hereto
which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform the terms
hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of such Securities
in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time of initial sale
thereof;
(j)
to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act;
(k)
to
add guarantors or co-obligors with respect to any series of Securities or to release, terminate or discharge guarantors from their guarantees
of Securities in accordance with the terms of the applicable series of Securities;
(l)
to
make any change in any series of Securities that does not adversely affect in any material respect the rights of the Holders of such
Securities;
(m)
to
provide for uncertificated securities in addition to certificated securities;
(n)
to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the satisfaction and
discharge, defeasance or covenant defeasance of any series of Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other series of Securities in any material respect;
(o)
to
prohibit the authentication and delivery of additional series of Securities; or
(p)
to
establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms
or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions, limitations
or restrictions thereafter to be observed.
Subject to the provisions of Section 15.03,
the Trustee is authorized to join with the Company and the Guarantors in the execution of any such supplemental indenture, to make the
further agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property or assets thereunder.
65
Any supplemental indenture authorized by the provisions
of this Section 15.01 may be executed by the Company, the Guarantors and the Trustee without the consent of the Holders of any of
the Securities at the time Outstanding.
Section 15.02
With
Consent of Securityholders; Limitations
.
(a)
With
the consent of the Holders (evidenced as provided in Article IX) of not less than a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental indenture voting as one class (including consents obtained in connection with
a tender offer or exchange offer for such series of Securities), the Company, the Guarantors and the Trustee may, from time to time and
at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such
series to be affected; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding
Security of each such series affected thereby:
(i)
extend
the Stated Maturity of the principal of, or any premium or installment of interest on, or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof, any interest thereon or any Additional Amounts with respect thereto, or any premium
payable thereon, or change the Currency in which the principal of and premium, if any, or interest on, or any Additional Amount with
respect to, such Security is denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon acceleration of the Maturity thereof pursuant to Section 8.02, change the priority of payment of any
Security or, in the case of any subordinated Security, the definition of Senior Indebtedness applicable thereto, or impair the right
to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or materially adversely affect the economic terms of any right to convert or exchange any Security as may be provided
pursuant to Section 3.01; or
(ii)
reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any supplemental
indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences provided for in this Indenture; or
(iii)
modify
any of the provisions of this Section, Section 8.13 or Section 6.05, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to “the Trustee” and concomitant changes in this Section and Section 6.05, or the deletion of
this proviso, in accordance with the requirements of Sections 12.06 and 15.01(f); or
66
(iv)
[reserved];
or
(v)
modify,
without the written consent of the Trustee, the rights, duties or immunities of the Trustee.
(b)
A
supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for the benefit
of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any
other series.
(c)
It
shall not be necessary for the consent of the Securityholders under this Section 15.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d)
The
Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled to give a
written consent or waive compliance by the Company as authorized or permitted by this Section. Such record date shall not be more than
30 days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders furnished to the Trustee
prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e)
Promptly
after the execution by the Company, any Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of this Section 15.02,
the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of Securities
at their addresses as the same shall then appear in the Register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 15.03
Trustee
Protected
. Upon the request of the Company, accompanied by the Officer’s Certificate and Opinion of Counsel required by Section 18.01
(provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection with the execution
of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof) and evidence reasonably
satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be executed pursuant to Section 15.02,
the Trustee shall join with the Company and any Guarantor in the execution of said supplemental indenture unless said supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in relying upon
such Officer’s Certificate and Opinion of Counsel.
Section 15.04
Effect
of Execution of Supplemental Indenture
. Upon the execution of any supplemental indenture pursuant to the provisions of this Article XV,
this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise expressly provided,
the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the
Guarantors and the Holders of all of the Securities or of the Securities of any series affected, as the case may be, shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
67
Section 15.05
Notation
on or Exchange of Securities
. Securities of any series authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for the Securities then Outstanding
in equal aggregate principal amounts, and such exchange shall be made without cost to the Holders of the Securities.
Section 15.06
Conformity
with TIA
. Every supplemental indenture executed pursuant to the provisions of this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE XVI
SUBORDINATION
OF SECURITIES
Section 16.01
Agreement
to Subordinate
. In the event a series of Securities is designated as subordinated pursuant to Section 3.01, and except as otherwise
provided in a Company Order or in one or more indentures supplemental hereto, the Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Securities of such series by his, her or its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities of such series is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
In the event a series of Securities is not designated as subordinated pursuant to Section 3.01(t), this Article XVI shall have
no effect upon the Securities.
Section 16.02
Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities
. Subject to Section 16.01, upon any distribution of
assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision
reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities
and the holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(a)
the
holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if any) and interest
due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any) or interest,
if any, on Indebtedness evidenced by the Securities;
68
(b)
any
payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of this Article XVI shall be paid by the liquidation
trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior Indebtedness held
or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior Indebtedness;
(c)
in
the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether
in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before
all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to a Responsible Officer
of the Trustee, to the holder of such Senior Indebtedness or his, her or its representative or representatives or to the trustee or trustees
under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid,
as calculated by the Company, for application to payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness;
and
(d)
Subject
to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness (to the extent that distributions otherwise payable to such holder have been applied to the payment of Senior Indebtedness)
to receive payments or distributions of cash, property or securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders
of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities be deemed to be a payment by
the Company to or on account of the Securities. It is understood that the provisions of this Article XVI are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand. Nothing contained in this Article XVI or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation
of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and
interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall
anything herein or in the Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XVI of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment
or distribution of assets of the Company referred to in this Article XVI, the Trustee, subject to the provisions of Section 16.06,
shall be entitled to conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution
to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereof and all
other facts pertinent thereto or to this Article XVI.
69
Section 16.03
No
Payment on Securities in Event of Default on Senior Indebtedness
. Subject to Section 16.01, no payment by the Company on account
of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at any time if: (i) a default
on Senior Indebtedness exists that permits the holders of such Senior Indebtedness to accelerate its maturity and (ii) the default
is the subject of judicial proceedings or the Company has received notice of such default. The Company may resume payments on the Securities
when full payment of amounts then due for principal (premium, if any), sinking funds and interest on Senior Indebtedness has been made
or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 16.03, such
payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or
their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by the Company, but only to the extent that the holders
of such Senior Indebtedness (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of such Senior Indebtedness.
Section 16.04
Payments
on Securities Permitted
. Subject to Section 16.01, nothing contained in this Indenture or in any of the Securities shall (a) affect
the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections 16.02 and 16.03,
payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application by the Trustee
of any moneys or assets deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Securities, unless a Responsible Officer of the Trustee shall have received at its Corporate Trust Office written notice
of any fact prohibiting the making of such payment from the Company or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such
trustee more than two Business Days prior to the date fixed for such payment.
Section 16.05
Authorization
of Securityholders to Trustee to Effect Subordination
. Subject to Section 16.01, each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article XVI and appoints the Trustee his attorney-in-fact for any and all such purposes.
70
Section 16.06
Notices
to Trustee
. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment of monies or assets to or by the Trustee in respect of the Securities of any series pursuant
to the provisions of this Article XVI. Subject to Section 16.01, notwithstanding the provisions of this Article XVI or
any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge
of the existence of any Senior Indebtedness or of any fact which would prohibit the making of any payment of moneys or assets to or by
the Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in
the case of a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee) written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee
of such holding of Senior Indebtedness or of the authority of such trustee and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects conclusively to presume that no such facts exist; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys or assets may become payable for any purpose (including, without
limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Security) a Responsible Officer of the
Trustee shall not have received with respect to such moneys or assets the notice provided for in this Section 16.06, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys or assets and
to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received
by it within two Business Days prior to such date. The Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XVI, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XVI
and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
Section 16.07
Trustee
as Holder of Senior Indebtedness
. Subject to Section 16.01, the Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XVI in respect of any Senior Indebtedness at any time held by it to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such
holder. Nothing in this Article XVI shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 8.05 or
12.01.
71
Section 16.08
Modifications
of Terms of Senior Indebtedness
. Subject to Section 16.01, any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders
of the Securities or the Trustee. To the extent permitted by applicable law, no compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or
of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding
or of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable document, shall in
any way alter or affect any of the provisions of this Article XVI or of the Securities relating to the subordination thereof.
Section 16.09
Reliance
on Judicial Order or Certificate of Liquidating Agent
. Subject to Section 16.01, upon any payment or distribution of assets
of the Company referred to in this Article XVI, the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating
trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XVI.
Section 16.10
Satisfaction
and Discharge; Defeasance and Covenant Defeasance
. Subject to Section 16.01, amounts and U.S. Government Obligations deposited
in trust with the Trustee pursuant to and in accordance with Article XIII and not, at the time of such deposit, prohibited to be
deposited under Sections 16.02 or 16.03 shall not be subject to this Article XVI.
Section 16.11
Trustee
Not Fiduciary for Holders of Senior Indebtedness
. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or observe only such of its covenants and obligations as are specifically set forth in this Article XVI, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder
if it shall pay over or distribute to or on behalf of Holders of Securities or the Company, or any other Person, moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this Article XVI or otherwise.
72
ARTICLE XVII
Guarantee
of Securities
Section 17.01
Unconditional
Guarantee
. Each of the Guarantors hereby fully and unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Securities or the obligations of the Company to the Holders or the Trustee hereunder or thereunder, that: (a) the
principal of and any premium or interest on, and any Additional Amounts with respect to, the Securities will be duly and punctually paid
in full when due, whether at maturity, upon redemption, by acceleration or otherwise, and (to the extent permitted by law) interest on
the overdue principal, premium and interest, if any, on, and any Additional Amounts with respect to, the Securities and all other obligations
of the Company or the Guarantors to the Holders or the Trustee hereunder or thereunder (including fees, expenses or other) and all other
obligations under this Indenture or the Securities will be duly and punctually paid in full or performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other
obligations under this Indenture or the Securities or any change in the time, manner or place of payment of, or in any other term in
respect thereof, or waiver of or consent to any departure from any other agreement relating to any obligations under this Indenture or
the Securities, the same will be duly and punctually paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Holders, for whatever reason, the Guarantors shall be obligated to pay, or
to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute
an event of default under this Guarantee and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extent as the obligations of the Company.
The Guarantors hereby agree that their obligations
hereunder shall be absolute and unconditional, not subject to any reduction, limitation, impairment, termination, defense, offset, counterclaim
or recoupment whatsoever (all of which are expressly hereby waived by the Guarantors) whether by reason of any claim of any character
whatsoever, including any claim of waiver, release, surrender, alteration or compromise, or by reason of any liability at any time to
any Guarantor or otherwise, whether based upon any obligations or any other agreement or otherwise, and howsoever arising, whether out
of action or inaction or otherwise and whether resulting from default, willful misconduct, negligence or otherwise, and without limiting
the foregoing, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery
of any judgment against the Company, any action to enforce the same, any release or amendment or waiver of or consent to any departure
from or failure to enforce any other guarantee, for all or any of the Securities or other obligations under this Indenture, whether or
not a Guarantee is affixed to any particular Security, any insolvency, bankruptcy, reorganization or dissolution, or any other proceeding
of the Company, or any Guarantor, including rejection of any Guarantee in such bankruptcy or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
73
Each Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. This Guarantee is a
guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company
or to the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor,
any amount paid by the Company or any Guarantor to the Trustee or such Holder, this Guarantee to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Securities
and the Trustee, on the other hand (a) subject to this Article XVII, the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article VIII hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration
of such obligations as provided in Article VIII hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantors for the purpose of this Guarantee.
Section 17.02
[Reserved]
.
Section 17.03
Future
Guarantors
. The Company covenants and agrees that it shall cause each Person that becomes a Guarantor hereunder after the date hereof
to execute and deliver to the Trustee an indenture supplemental hereto, substantially in the form of Schedule II attached hereto, evidencing
the same.
Section 17.04
Release
of a Guarantor
. The Guarantee by a Guarantor will be automatically and unconditionally released and discharged with respect to the
Securities of any series, and the Guarantor shall be released from all of its obligations, in its capacity as a Guarantor, under this
Indenture with respect to the Securities of such series, and no further action by the Trustee or any Holder is required for the release
of the Guarantee with respect to the Securities of such series, upon:
(a)
any
sale, exchange, transfer, distribution or disposition (by merger, amalgamation, consolidation, business combination or otherwise) of
(x) the Capital Stock of such Guarantor, after which such Guarantor is no longer a Subsidiary of the Company or (y) all or
substantially all the assets of such Guarantor (other than a sale, exchange, transfer, distribution or disposition to the Company or
a Subsidiary of the Company), in each case if such sale, exchange, transfer, distribution or disposition is made in compliance with the
applicable provisions of this Indenture to the extent required to be satisfied as of the date of the transaction;
(b)
the
merger or consolidation of such Guarantor with and into the Company or another Guarantor that is the surviving Person in such merger
or consolidation;
(c)
the
liquidation, winding-up or dissolution of such Guarantor; or
(d)
the
exercise by the Company of its option to have either Section 13.02 or Section 13.03 of this Indenture applied with respect
to the Securities of any series in accordance with the terms set forth in Article XIII; provided, that such Guarantor shall only
be released pursuant to this Section 17.04(d) with respect to the Securities of any series to which either Section 13.02
or Section 13.03 have been so applied.
74
The Trustee shall, without any further action
required on the part of any Holder, deliver an appropriate instrument evidencing such release and discharge upon receipt of a Company
Order accompanied by an Officer’s Certificate certifying as to the compliance with this Section 17.04.
Section 17.05
Waiver
of Subrogation
. Until this Indenture is discharged and all of the Securities are discharged and paid in full, each Guarantor hereby
irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of the Company’s obligations under the Securities or this Indenture
and such Guarantor’s obligations under this Guarantee and this Indenture, in any such instance including any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy against the Company, whether
or not such claim, remedy or right arises in equity, or under contract, statute or common law, including the right to take or receive
from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account
of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing
to the Trustee or the Holders of Securities under the Securities, this Indenture, or any other document or instrument delivered under
or in connection with such agreements or instruments, shall not have been paid in full, such amount shall have been deemed to have been
paid to such Guarantor for the benefit of, and held in the trust for the benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be credited and applied to the Securities, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in this Section 17.05 is knowingly made in contemplation
of such benefits.
Section 17.06
Reliance
on Judicial Order or Certificate of Liquidating Agent Regarding Dissolution, Etc. of Guarantors
. Upon any payment or distribution
of assets of any Guarantor referred to in this Article XVII, the Trustee, subject to the provisions of Section 12.02, and the
Holders, shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XVII.
Section 17.07
Limitation
of Guarantor’s Liability
. Notwithstanding any other provision hereof, each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee by such Guarantor pursuant to its Guarantee does not
constitute a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law. To effectuate the foregoing intention,
each Holder and each Guarantor hereby irrevocably agree that the obligations of such Guarantor under this Guarantee shall be limited
to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, will result in the
obligations of the Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance.
75
Section 17.08
Obligations
Reinstated
. The obligations of each Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be,
if at any time any payment which would otherwise have reduced the obligations of such Guarantor hereunder (whether such payment shall
have been made by or on behalf of the Company) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation
or reorganization of the Company or such Guarantor or otherwise, all as though such payment had not been made. If demand for, or acceleration
of the time for, payment by the Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization of the Company, all
such Indebtedness otherwise subject to demand for payment or acceleration shall nonetheless be payable by each Guarantor as provided
herein.
Section 17.09
No
Obligation to Take Action Against the Company
. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust
any rights or remedies or to take any other steps under any security for the obligations under this Indenture or against the Company
or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance
by any Guarantor of its liabilities and obligations under its Guarantee or under this Indenture.
ARTICLE XVIII
MISCELLANEOUS
PROVISIONS
Section 18.01
Certificates
and Opinions as to Conditions Precedent
.
(a)
Upon
any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of
such document is specifically required by any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b)
Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates provided pursuant to Section 6.04 of this Indenture) shall include (i) a
statement that the Person giving such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the view or opinion of such Person, he or she has made such examination or investigation as is
necessary to enable such Person to express an informed view or opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the view or opinion of such Person, such condition or covenant has been complied
with.
76
(c)
Any
certificate, statement or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his or her certificate, statement or opinion is based
are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate,
statement or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate, statement or opinion or representations with respect to such matters are erroneous.
(d)
Any
certificate, statement or opinion of an Officer of the Company or of counsel to the Company may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement or opinion may be based are erroneous. Any certificate
or opinion of any firm of independent registered public accountants filed with the Trustee shall contain a statement that such firm is
independent.
(e)
In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(f)
Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 18.02
Trust
Indenture Act Controls
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or another provision included in this Indenture which is required to be included in this Indenture by any of the provisions
of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 18.03
Notices
to the Company, Guarantors and Trustee
. Any notice or demand authorized by this Indenture to be made upon, given or furnished to,
or filed with, the Company, the Guarantors or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it
shall be mailed, delivered or telefaxed to:
(a)
the
Company or a Guarantor, at 942 South Shady Grove Road, Memphis, Tennessee 38120, Attention: Corporate Vice President, Corporate Development
and Treasurer, Fax: [* * * *] or at such other address or email or facsimile number as may have been furnished in writing to the
Trustee by the Company or a Guarantor, as applicable.
77
(b)
the
Trustee, at the Corporate Trust Office of the Trustee, Attention: Trust Administrator, email: [* * * *].
Any such notice, demand or other document shall
be in the English language.
Section 18.04
Notices
to Securityholders; Waiver
. Any notice required or permitted to be given to Securityholders shall be sufficiently given (unless otherwise
herein expressly provided),
(a)
if
to Holders, if given in writing by first class mail, postage prepaid, to such Holders at their addresses as the same shall appear on
the Register of the Company; provided, that in the event of suspension of regular mail service or by reason of any other cause it shall
be impracticable to give notice by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder; or
(b)
If
a series of Securities has been issued in the form of one or more Global Securities through DTC as Depositary, notice may be provided
with respect to such series of Securities by delivery of such notice to DTC for posting through its “Legal Notice Service”
(LENS) or a successor system thereof.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be delivered to the Trustee, but such delivery shall
not be a condition precedent to the validity of any action taken in reliance on such waiver. In any case where notice to Holders is given
by mail; neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect to other Holders, and any notice that is published in
the manner herein provided shall be conclusively presumed to have been duly given.
Section 18.05
Legal
Holiday
. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment Date, Redemption Date or
Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities of that series, then payment
of principal and premium, if any, or any interest on or Additional Amounts with respect to such Securities, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on such Interest Payment Date, Redemption Date or Maturity and no interest (or any Additional Amounts with respect thereto)
shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be,
to such Business Day if such payment is made or duly provided for on such Business Day.
Section 18.06
Effects
of Headings and Table of Contents
. The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
78
Section 18.07
Successors
and Assigns
. All covenants and agreements in this Indenture by the parties hereto shall bind their respective successors and assigns
and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 18.08
Separability
Clause
. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 18.09
Benefits
of Indenture
. Nothing in this Indenture expressed and nothing that may be implied from any of the provisions hereof is intended,
or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors and
the Holders of the Securities any benefit or any right, remedy or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained
shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 18.10
Counterparts
Originals
. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same instrument.
Section 18.11
Governing
Law; Waiver of Trial by Jury; Submission to Jurisdiction
. This Indenture and the Securities shall be deemed to be contracts made
under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY
BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
The Company irrevocably and unconditionally submits
to the exclusive jurisdiction of any U.S. federal or New York State court located in the Borough of Manhattan, The City of New York over
any suit, action or proceeding arising out of or relating to this Indenture or the Securities. The Company irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any objection to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment
in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to whose jurisdiction the Company is or may be subject, by suit upon judgment. The Company further agrees that nothing
herein shall affect any Holder’s right to effect service of process in any other manner permitted by law or bring a suit action
or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable
law.
79
Section 18.12
Electronic
Signatures
. This Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the
transactions contemplated hereby shall be valid, binding and enforceable against a party only when executed and delivered by an authorized
individual on behalf of the party by means of (i) an original manual signature, (ii) a faxed, scanned or photocopied manual
signature or (iii) in the case of this Indenture and any certificate, agreement or other document to be signed in connection with
this Indenture and the transactions contemplated hereby, any electronic signature permitted by the federal Electronic Signatures in Global
and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures
law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”). Each electronic signature
or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence
as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect
to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate,
confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for
execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended
character of the writings. Notwithstanding anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic
signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to reasonable procedures approved by the Trustee.
80
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
FedEx
Corporation
,
as Issuer
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Corporate
Vice President, Corporate Development and Treasurer
Federal
Express Corporation
,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Treasurer
Federal Express Europe, Inc.
,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Treasurer
Federal Express Holdings S.A.,
LLC
,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Treasurer
Federal Express International, Inc.
,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Treasurer
81
FedEx Office and Print Services, Inc.
,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana
L. Griffin
Name:
Trampas
T. Gunter
Title:
Assistant
Secretary
Title:
Treasurer
U.S. Bank Trust Company, National Association,
as Trustee
By:
/s/ Ivy L. Wegener
Name:
Ivy L. Wegener
Title:
Vice President
82
SCHEDULE I
Subsidiary Guarantors
Federal Express Corporation
FedEx Office and Print Services, Inc.
Federal Express Europe, Inc.
Federal Express Holdings S.A., LLC
Federal Express International, Inc.
SCHEDULE II
Form of
Su
p
plemental Indenture to Add Additional Guarantor
FEDEX CORPORATION, as Issuer
THE ADDITIONAL GUARANTOR NAMED HEREIN
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
Supplemental Indenture
No.
Dated as of
,
Notes due
,
SUPPLEMENTAL INDENTURE
NO.    , dated as of
,
among
FedEx Corporation, a Delaware corporation (the “Company”),
(the
“Additional Guarantor”) and U.S. Bank Trust Company, National Association, a national banking association duly organized
under the laws of the United States (the “Trustee”).
RECITALS
WHEREAS, the Company, the Guarantors party thereto
and the Trustee have executed and delivered an Indenture, dated as of September 14, 2026 (as amended and supplemented, the “Indenture”),
to provide for the issuance from time to time of the Company’s Securities;
WHEREAS, Section 17.03 of the Indenture provides
that each Person who becomes a Guarantor shall execute a supplemental indenture evidencing the same;
WHEREAS, the Additional Guarantor desires to become
a Guarantor under the Indenture; and
WHEREAS, all acts and proceedings required by
the Indenture and the organizational documents of the Company and the Additional Guarantor necessary to constitute this Supplemental
Indenture No. a valid and binding agreement for the uses and purposes set forth herein have been done and performed, and the execution
and delivery of this Supplemental Indenture No. have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and good
and valuable consideration, the receipt of which is hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate
benefit of the Holders of the Securities of each series, as follows:
ARTICLE 1
RELATION TO THE INDENTURE; DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01
. Relation to the Indenture.
This Supplemental Indenture No. constitutes an integral part of the Indenture.
SECTION 1.02
. Definitions and Other Provisions
of General Application.
For all purposes of this Supplemental Indenture No.      unless otherwise specified herein:
(a)
all
terms defined in this Indenture which are used and not otherwise defined herein shall have the meanings they are given in the Indenture;
and
(b)
the
provisions of general application stated in Article I of the Indenture shall apply to this Supplemental Indenture No.      , except
that the words “herein,” “hereof,” “hereto,” “hereto” and “hereunder” and
other words of similar import refer to this Supplemental Indenture as a whole and not to the Indenture or any particular Article, Section or
other subdivision of the Indenture or this Supplemental Indenture No.     .
ARTICLE 2
ADDITION OF GUARANTOR
SECTION 2.01.
Addition of Guarantor.
The
Additional Guarantor is hereby made a party to the Indenture as a Guarantor thereunder.
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01.
Supplemental Indenture.
The Indenture, as supplemented and amended by this Supplemental Indenture No.      , is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.02.
Effectiveness.
This
Supplemental Indenture No.      shall take effect as of the date hereof.
SECTION 3.03.
Execution by the Trustee
.
The Trustee has executed this Supplemental Indenture No. only upon the terms and conditions set forth in the Indenture. Without
limiting the generality of the foregoing, the Trustee shall not be responsible for the correctness of the recitals herein contained,
which shall be taken as statements of the Company and the Additional Guarantor, and the Trustee makes no representation and shall have
no responsibility for, or in respect of, the validity or sufficiency of this Supplemental Indenture No.      or the execution hereof
by any Person (other than the Trustee).
SECTION 3.04.
Governing Law.
This
Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts
of laws principles thereof (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York). To the fullest
extent permitted by applicable law, the Company hereby irrevocably submits to the jurisdiction of any Federal or State court located
in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating
to this Indenture or any Securities and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in
any such court. The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying
of the venue of any such suit, action or proceeding brought in an inconvenient forum. The Company agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company, and may be enforced in any courts
to the jurisdiction of which the Company is subject by a suit upon such judgment, provided, that service of process is effected upon
the Company in the manner specified herein or as otherwise permitted by law.
2
SECTION 3.05.
Counterparts.
This Supplemental
Indenture No.       may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture No. to be duly executed, as of the day and year first written above.
FedEx Corporation, as Issuer
By:
Name:
Title:
[Additional Guarantor(s)], as Guarantor
By:
Name:
Title:
U.S. Bank Trust Company, National Association, as Trustee
By:
Name:
Title:
3

----- tm2625313d1_ex4-2.htm -----
EX-4.2
5
tm2625313d1_ex4-2.htm
EXHIBIT 4.2
Exhibit 4.2
Execution Version
SUPPLEMENTAL
INDENTURE NO. 1
Dated as of September 14,
2026
4.000% Notes due
2030
4.625% Notes due
2034
SUPPLEMENTAL
INDENTURE NO. 1, dated as of September 14, 2026, among FedEx Corporation, a Delaware corporation (the “
Company
”),
and Federal Express Corporation, a Delaware corporation, Federal Express Europe, Inc., a Delaware corporation, Federal Express Holdings
S.A., LLC, a Delaware limited liability company, Federal Express International, Inc., a Delaware corporation, and FedEx Office and
Print Services, Inc., a Texas corporation (collectively, the “
Guarantors
”), U.S. Bank Trust Company, National
Association, as trustee (the “
Trustee
”), and U.S. Bank Europe DAC, UK Branch, as paying agent (the “
Paying
Agent
”).
RECITALS
WHEREAS,
the Company, the Guarantors and the Trustee have executed and delivered an Indenture, dated as of the date hereof (as amended or supplemented
from time to time, the “
Indenture
”), to provide for the issuance by the Company from time to time, and the guarantee
by the Guarantors, of the Company’s debt securities;
WHEREAS,
Section 15.01(a) of the Indenture permits execution of supplemental indentures without the consent of any Holders for the purpose
of adding to the covenants of the Company or any Guarantor for the benefit of the Holders of all or any series of Securities so long
as such supplemental indenture states that such covenant is expressly being included solely for the benefit of one or more particular
series of Securities;
WHEREAS,
Section 15.01(p) of the Indenture permits execution of supplemental indentures without the consent of any Holders for the purpose
of establishing the form or terms of Securities of any series as permitted by Section 3.01 of the Indenture;
WHEREAS,
the entry into this Supplemental Indenture No. 1 by the parties hereto is authorized by the provisions of the Indenture;
WHEREAS,
the Redemption for Tax Reasons and the Redemption for Reason of Minimal Outstanding Amount (each as defined herein), each as set forth
below, are expressly being included solely for the benefit of the Company;
WHEREAS,
the Change of Control Repurchase Event (as defined herein) covenant, as set forth below, is expressly being included solely for the benefit
of the Notes (as defined herein); and
WHEREAS,
all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder and under the Indenture,
duly issued by the Company and to make this Supplemental Indenture No. 1 a valid and legally binding agreement of the Company and
the Guarantors, in accordance with the terms hereof and thereof, have been done.
NOW,
THEREFORE, for and in consideration of the premises and the purchase of the Notes by the Holders, the Company, the Guarantors, the Trustee
and the Paying Agent mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time
of each series of the Notes as follows:
Article 1
RELATION
To THE INDENTURE; DEFINITIONs AND OTHER PRovIsIoNs OF GENERAL APPLICATION
Section 1.01.
Relation
to the Indenture
. This Supplemental Indenture No. 1 constitutes an integral part of the Indenture.
Section 1.02.
Definitions
.
For all purposes of this Supplemental Indenture No. 1, the following terms shall have the respective meanings set forth in this
Section.
“
2030
Notes
” means the 4.000% Notes due 2030.
“
2034
Notes
” means the 4.625% Notes due 2034.
“
Agency
Agreement
” means the agreement among the Company, U.S. Bank Europe DAC, UK Branch, as the Paying Agent, U.S. Bank Trust Company,
National Association, as the registrar and Transfer Agent (as defined herein), and the Trustee.
“
business
day
” means each day which is not a Saturday, Sunday or other day on which the Trustee, Paying Agent, Transfer Agent and registrar
or banking institutions are not required by law or regulation to be open in the State of New York or London and, for any place of payment
outside of New York City or London, in such place of payment, and on which the Trans-European Automated Real-time Gross Settlement Express
Transfer system (the TARGET2 system), or any successor thereto, does not operate;
“
Clearing
System Business Day
” means a day on which Clearstream and Euroclear are open for business.
“
Clearstream
”
means Clearstream Banking, société anonyme.
“
Common
Depositary
” means any Person acting as the common depositary for Euroclear and Clearstream which initially shall be U.S. Bank
Europe DAC.
“
euro
”
or “
€
” means the currency of the member states of the European Monetary Union that have adopted or that adopt
the single currency in accordance with the treaty establishing the European Community, as amended by the Treaty on European Union.
“
Euroclear
”
means Euroclear Bank SA/NV, as operator of the Euroclear System.
“
Notes
”
means, collectively, the 2030 Notes and the 2034 Notes.
Section 1.03.
Definitions
and Other Provisions of General Application
. For all purposes of this Supplemental Indenture No. 1 unless otherwise specified
herein:
(a)            all
terms defined in this Supplemental Indenture No. 1 which are used and not otherwise defined herein shall have the meanings they
are given in the Indenture; and
(b)            the
provisions of general application stated in Section 1.01 of the Indenture shall apply to this Supplemental Indenture No. 1,
except that the words “
herein
,” “
hereof
,” “
hereto
” and “
hereunder
”
and other words of similar import refer to this Supplemental Indenture No. 1 as a whole and not to the Indenture or any particular
Article, Section or other subdivision of the Indenture or this Supplemental Indenture No. 1.
2
Article 2
THE
SERIES OF NOTES
Section 2.01.
Title
.
There shall be (i) a series of Securities designated the 4.000% Notes due 2030 and (ii) a series of Securities designated the
4.625% Notes due 2034.
Section 2.02.
Principal
Amounts
. Subject to Section 2.14, (i) the initial aggregate principal amount of the 2030 Notes that may be authenticated
and delivered under this Supplemental Indenture No. 1 shall not exceed €1,100,000,000 and (ii) the initial aggregate principal
amount of the 2034 Notes that may be authenticated and delivered under this Supplemental Indenture No. 1 shall not exceed €900,000,000
(except for Notes of each series authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other
Notes pursuant to Section 3.04, 3.06, 3.07, 4.06 or 15.05 of the Indenture and except for any Notes which pursuant to Section 3.03
of the Indenture are deemed never to have been authenticated and delivered hereunder).
Section 2.03.
Stated
Maturity Dates
. The entire outstanding principal amount of the 2030 Notes shall be payable on September 30, 2030 and the entire
outstanding principal amount of the 2034 Notes shall be payable on September 30, 2034, in each case subject to Section 2.07,
Section 2.08, Section 2.09 and Section 4.02 of this Supplemental Indenture No. 1.
Section 2.04.
Interest.
(a)
2030
Notes
. The 2030 Notes will bear interest at the rate of 4.000% per annum. Interest on the 2030 Notes will be payable annually in
arrears on September 30 of each year, commencing on September 30, 2026, to the Persons in whose names the 2030 Notes are registered
at the close of business on the preceding September 15 or, if the 2030 Notes are represented by one or more Global Securities, the
close of business on the Clearing System Business Day immediately preceding the relevant Interest Payment Date. Interest on the 2030
Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual
number of days from and including the last date to which interest was paid on the 2030 Notes (September 14, 2026, if no interest
has been paid on the 2030 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to
as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
(b)
2034
Notes
. The 2034 Notes will bear interest at the rate of 4.625% per annum. Interest on the 2034 Notes will be payable annually in
arrears on September 30 of each year, commencing on September 30, 2026, to the Persons in whose names the 2034 Notes are registered
at the close of business of the preceding September 15 or, if the 2034 Notes are represented by one or more Global Securities, the
close on business on the Clearing System Business Day immediately preceding the relevant Interest Payment Date. Interest on the 2034
Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual
number of days from and including the last date to which interest was paid on the 2034 Notes (September 14, 2026 if no interest
has been paid on the 2034 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to
as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
Section 2.05.
Payments
in Euro
. All payments of interest and principal, including payments made upon any redemption of the Notes, will be payable in euro.
If, on or after the date of issuance of the Notes, the euro is unavailable to the Company due to the imposition of exchange controls
or other circumstances beyond the Company’s control (including the dissolution of the European Monetary Union) or if the euro is
no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the
settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the
Notes will be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable
on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business
on the second business day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate
of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior
to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S.
dollars will not constitute an Event of Default under the Notes or the Indenture. Neither the Trustee nor the Paying Agent shall have
any responsibility for any calculation or conversion in connection with the foregoing.
3
Section 2.06.
Defeasance
and Discharge; Covenant Defeasance
.
(a)            The
provisions of Article XIII of the Indenture shall apply to each series of the Notes, subject to clause (b) below.
(b)            Solely
with respect to the Notes, any reference to “money” shall be replaced by “money (in euros)” and any reference
to “U.S. Government Obligations” shall be replaced by "Federal Republic of Germany Obligations” in that Article XIII.
“
Federal Republic of Germany Obligations
” means (1) securities that are direct obligations of the Federal Republic
of Germany for the payment of which its full faith and credit is pledged or (2) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the Federal Republic of Germany, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the Federal Republic of Germany, which, in either case under clauses (1) or (2) are
not callable or redeemable at the option of the issuer thereof.
Section 2.07.
Optional
Redemption
. The Company will have the right, at its option, to redeem a series of Notes, in whole or in part, at any time and from
time to time, prior to the applicable Par Call Date (as defined herein), on at least 10 days’, but no more than 60 days’,
prior written notice mailed or electronically delivered by the Company (or otherwise transmitted in accordance with the applicable clearing
system’s procedures) to the Holders of the Notes to be redeemed. Upon redemption of the Notes of any series, the Company will pay
a Redemption Price equal to the greater of:
(a)            100%
of the principal amount of the Notes of that series to be redeemed; and
(b)            the
sum of the present values of the Remaining Scheduled Payments (as defined herein) of principal and interest on the Notes to be redeemed
that would be due if the Notes matured on the applicable Par Call Date (not including any portion of such payments of interest accrued
as of the Redemption Date), discounted to the Redemption Date on an ACTUAL/ACTUAL (ICMA) day count basis, at the applicable Comparable
Government Bond Rate (as defined herein) plus 0.150% (15 basis points), in the case of the 2030 Notes, and 0.200% (20 basis points),
in the case of the 2034 Notes, in each case, plus accrued and unpaid interest to, but not including, the date of redemption on the principal
amount of the Notes being redeemed.
At
any time on or after the applicable Par Call Date, the Company may redeem a series of Notes, in whole or in part, at any time and from
time to time, at a Redemption Price equal to 100% of the principal amount of the applicable series of Notes to be redeemed plus accrued
and unpaid interest to, but not including, the date of redemption on the principal amount of the Notes being redeemed.
“
Comparable
Government Bond
” means, with respect to the series of Notes to be redeemed prior to the applicable Par Call Date, in relation
to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a bond
that is a direct obligation of the Federal Republic of Germany (“
German government bond
”), whose maturity is closest
to the Par Call Date of such Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar
bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of,
and/or market makers in, German government bonds selected by the Company, determine to be appropriate for determining the Comparable
Government Bond Rate.
“
Comparable
Government Bond Rate
” means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005
being rounded upwards), on the third business day prior to the date fixed for redemption, of the Comparable Government Bond on the basis
of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such business day as
determined by an independent investment bank selected by the Company.
4
“
Par
Call Date
” means August 30, 2030, in the case of the 2030 Notes (the date that is one month prior to the maturity date
of the 2030 Notes), and June 30, 2034, in the case of the 2034 Notes (the date that is three months prior to the maturity date of
the 2034 Notes).
“
Remaining
Scheduled Payments
” means with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof
and interest thereon that would be due after the related Redemption Date but for such redemption; provided, however, that, if such Redemption
Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon
will be deemed to be reduced (solely for the purposes of this calculation) by the amount of interest accrued thereon to such Redemption
Date.
In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of €100,000 or less will be redeemed in
part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal
amount of such Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the Note will be issued in the
name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by a depositary,
the redemption of the Notes shall be done in accordance with the policies and procedures of the applicable clearing system.
Any
redemption notice may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of a corporate
transaction. In such event, the related notice of redemption shall describe each such condition and, if applicable, shall state that,
at the Company’s discretion, the date of redemption may be delayed until such time (including more than 60 days after the notice
of redemption was given) as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice
may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion)
by the date of redemption, or by the date of redemption as so delayed.
Unless
the Company defaults in payment of the Redemption Price, on and after the date of redemption, interest will cease to accrue on the Notes,
or portions of the Notes, called for redemption.
Section 2.08.
Redemption
for Tax Reasons
. If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the
laws) of the United States (or any taxing authority in the United States), or any change in, or amendments to, an official position regarding
the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on
or after September 9, 2026, the Company becomes or, based upon a written opinion of independent counsel selected by the Company,
the Company will become obligated to pay additional amounts as described in Section 3.01 hereof with respect to a series of Notes,
then the Company may at any time at its option redeem, in whole, but not in part, the outstanding Notes of such series on not less than
10 nor more than 60 days prior notice, at a Redemption Price equal to 100% of their principal amount, together with accrued and unpaid
interest on those Notes to, but not including, the date fixed for redemption (any such redemption, a “
Redemption for Tax Reasons
”).
Section 2.09.
Redemption
for Reason of Minimal Outstanding Amount
. In the event that the Company has purchased Notes of one or both such series equal to or
greater than 75% of the aggregate principal amount of Notes of such series initially issued, the Company may redeem, in whole, but not
in part, the remaining Notes of such series on not less than 10 nor more than 60 days prior notice, at a Redemption Price equal to 100%
of the principal amount of the Notes to be redeemed, together with accrued and unpaid interest on those Notes to, but not including,
the date fixed for redemption (any such redemption, a “
Redemption for Reason of Minimal Outstanding Amount
”).
Section 2.10.
Form of
Notes and Payment
.
(a)            Each
series of Notes shall be represented by one or more Global Securities. The 2030 Notes shall be in the form of
Exhibit A
attached
hereto and the 2034 Notes shall be in the form of
Exhibit B
attached hereto. The Notes shall be issued in minimum
denominations of €100,000 and integral multiples of €1,000 in excess thereof.
5
(b)            Principal,
premium and additional amounts, if any, and/or interest, if any, on the Global Securities representing the Notes shall be made to the
Paying Agent which in turn, for so long as the Notes are in global form, shall make payment with respect to the Notes to the Common Depositary
for their respective accounts.
(c)            The
Global Securities representing the Notes shall be deposited with, or on behalf of, the Common Depositary, and registered in the name
of the Common Depositary or its nominee for the accounts of Euroclear and Clearstream.
Section 2.11.
Paying
Agent and Security Registrar.
(a)            U.S.
Bank Europe DAC, UK Branch shall initially act as the Paying Agent for the Notes in accordance with the terms of the Agency Agreement.
U.S. Bank Trust Company, National Association shall initially act as the transfer agent for the Notes (the “
Transfer Agent
”)
in accordance with the terms of the Agency Agreement. The Company may change the Paying Agent or the Transfer Agent without prior notice
to the Holders.
(b)            U.S.
Bank Trust Company, National Association shall initially act as the Security Registrar, as such term is defined in Section 3.05
of the Indenture, for the Notes in accordance with the terms of the Agency Agreement. The Company may change the Security Registrar without
prior notice to the Holders.
(c)            Each
of the Company and the Guarantors designates the office of the Paying Agent at 125 Old Broad Street, Fifth Floor, London EC2N 1AR as
an agency where the Notes may be presented for payment, in each case as provided for in the Indenture.
(d)            Each
of the Company and the Guarantors designates the officer of the Transfer Agent at US Bank Corporate Trust Services, Attention: Transfers
/ Administrator for FedEx Corporation, 111 Fillmore Ave E, St. Paul, Minnesota 55107 as an agency where the Notes may be presented for
exchange or registration of transfer as provided for in the Indenture.
Section 2.12.
Sinking
Fund; Open Market Purchases
. The Notes shall not be subject to a sinking fund. The Company or any of its Affiliates may at any time
and from time to time purchase Notes in the open market or otherwise.
Section 2.13.
Additional
Amounts
. The provisions of Section 6.07 of the Indenture shall not apply to the Notes; provided that the provisions of Section 3.01
of this Supplemental Indenture No. 1 shall apply to the Notes.
Section 2.14.
Amount
Not Limited
. The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture, as supplemented
from time to time, shall not be limited. The Company may, without the consent of the Holders or the Trustee, increase the principal amount
of any series of Notes by issuing additional Notes of such series. The Notes of each series and any additional Notes of such series subsequently
issued under the Indenture will be treated as a single series or class for all purposes under the Indenture, including, without limitation,
waivers, amendments and redemptions; provided that, if any such additional Notes are not fungible with the existing Notes of the applicable
series for U.S. federal income tax purposes, such additional Notes will have a separate CUSP/ISIN number, common code or other identifying
number.
6
Article 3
PAYMENT
OF ADDITIONAL AMOUNTS
Section 3.01.
Payment
of Additional Amounts
.
(a)            The
Company will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts
as are necessary in order that the net payment by the Company of the principal of and interest on the Notes to a Holder who is not a
United States person (as defined herein), after withholding or deduction for any present or future tax, assessment or other governmental
charge imposed by the United States or a taxing authority in the United States (including any withholding or deduction with respect to
the payment of such additional amounts), will not be less than the amount provided in the Notes to be then due and payable; provided,
however, that the foregoing obligation to pay additional amounts shall not apply:
(1)            to
any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such
Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder or beneficial owner if the Holder
or beneficial owner is an estate, trust, partnership, corporation or other entity, or a person holding a power over an estate or trust
administered by a fiduciary holder, being considered as:
(a)            being
or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(b)            having
a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes,
the receipt of any payment thereon or the enforcement of any rights thereunder), including being or having been a citizen or resident
of the United States;
(c)            being
or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States
federal income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
(d)            being
or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the United States Internal
Revenue Code of 1986, as amended (the “
Code
”), or any successor provision; or
(e)            being
a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade
or business;
(2)            to
any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited
liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to
the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment
of such additional amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive
share of the payment;
(3)            to
any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person
to comply with any certification, identification or information reporting requirements concerning the nationality, residence, identity
or connection with the United States of such Holder or other person, if compliance is required by statute, by regulation of the United
States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition
to exemption from, or reduction in, such tax, assessment or other governmental charge;
(4)            to
any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from
payments on the Notes;
(5)            to
any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative
or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6)           to
any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or
other governmental charge;
7
(7)           to
any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest
on any Note, if such payment can be made without such withholding by presenting such Note (where presentation is required) to at least
one other paying agent;
(8)           to
any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note,
where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs later;
(9)           to
any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing
the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes
only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes
only;
(10)           to
any tax, assessment or other governmental charge imposed under Sections 1471 through 1474 of the Code (or any amended or successor
provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of
the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered
into in connection with the implementation of such sections of the Code; or
(11)           in
the case of any combination of items (1), (2), (3), (4), (5), (6), (7), (8), (9), and (10).
(b)           The
Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable
to the Notes. Except as specifically provided under this Section 3.01, the Company will not be required to make any payment for
any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any
government or political subdivision.
(c)           As
used under this Section 3.01 and Section 2.08 hereof, the term “
United States
” means the United States of
America (including the states of the United States and the District of Columbia and any political subdivision thereof) and the term “
United
States person
” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes,
a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States
or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income taxation regardless of its source or any trust that (i) is
subject to the primary supervision of a court within the United States and the control of one or more United States persons with
respect to all of its substantial decisions or (ii) has a valid election in effect under applicable Treasury regulations to be treated
as a United States person.
(d)           Any
reference to amounts payable in respect of the Notes herein or in the Indenture shall be deemed to include any additional amounts which
may be payable under this Section 3.01.
Article 4
CHANGE
OF CONTROL REPURCHASE EVENT
Section 4.01.
Intended
Beneficiary; Definitions
.
(a)           The
provisions of this Article 4 shall be applicable only to, and are solely for the benefit of Holders of, each series of Notes and
to no other Security.
8
(b)           For
purposes of this Supplemental Indenture No. 1:
“
Below
Investment Grade Ratings Event
” means, with respect to a series of Notes, on any day within the 60-day period (which period
shall be extended so long as the rating of such series of Notes is under publicly announced consideration for a possible downgrade by
any Rating Agency) after the earlier of (1) the occurrence of a Change of Control, or (2) the public announcement of the occurrence
of a Change of Control or the intention by the Company to effect a Change of Control, the Notes of such series are rated below Investment
Grade by each and every Rating Agency. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue
of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall
not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder)
if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not publicly announce or publicly
confirm, or inform the Trustee in writing at the Company’s request, that the reduction was the result, in whole or in part, of
any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not
the applicable Change of Control shall have occurred at the time of the Below Investment Grade Ratings Event).
“
Change
of Control
” means the consummation of any transaction (including, without limitation, any merger or consolidation) the result
of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange
Act), other than (1) the Company or any Subsidiary, (2) any employee benefit plan (or a trust forming a part thereof) maintained
by the Company or any Subsidiary, or (3) any underwriter temporarily holding Voting Stock of the Company pursuant to an offering
of such Voting Stock, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s
Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.
“
Change
of Control Repurchase Event
” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with
respect to a series of Notes.
“
Investment
Grade
” means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent under any successor rating categories
of Moody’s); with respect to S&P, a rating of BBB- or better (or its equivalent under any successor rating categories of S&P);
and, with respect to any additional Rating Agency or Rating Agencies selected by the Company, the equivalent investment grade credit
rating.
“
Moody’s
”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“
Rating
Agency
” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate
the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally
recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company
(as certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
“
S&P
”
means S&P Global Ratings, a division of S&P Global, Inc., and its successors.
“
Voting
Stock
” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of
any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors
of such person.
Section 4.02.
Change
of Control Repurchase Event.
(a)           If
a Change of Control Repurchase Event occurs with respect to a series of Notes, except to the extent the Company has exercised its right
to redeem such Notes pursuant to the redemption terms of such Notes, the Company will make an offer to each Holder of the Notes of such
series to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof)
of that Holder’s Notes at a repurchase price (the “
Repurchase Price
”) in cash equal to 101% of the aggregate
principal amount of such Notes repurchased plus any accrued and unpaid interest on such Notes repurchased to, but not including, the
Repurchase Date (as defined herein).
9
(b)           Within
30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the
public announcement of such Change of Control, the Company will mail or electronically deliver, or cause to be mailed or electronically
delivered, or otherwise transmit in accordance with the procedures of the applicable clearing system, a notice to each Holder of the
Notes of such series, with a copy to the Trustee and the Paying Agent, describing the transaction or transactions that constitute or
may constitute the Change of Control Repurchase Event and offering to repurchase the Notes of such series on the payment date specified
in the notice (such offer, the “
Repurchase Offer
” and such date, the “
Repurchase Date
”), which
Repurchase Date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed or delivered, pursuant
to the procedures described in such notice. The notice shall, if mailed or delivered prior to the date of consummation of the Change
of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase
Date.
(c)           The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to
the extent those laws and regulations are applicable in connection with the repurchase of a series of Notes as a result of a Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control
Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
(d)           On
the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(i)            accept
for payment all Notes or portions of Notes properly tendered pursuant to the Repurchase Offer;
(ii)           deposit
with the Paying Agent an amount equal to the aggregate Repurchase Price for all Notes or portions of Notes properly tendered;
(iii)          deliver,
or cause to be delivered, to the Trustee the Notes properly accepted for payment by the Company, together with an Officers’ Certificate
stating the aggregate principal amount of Notes being repurchased by the Company pursuant to the Repurchase Offer; and
(iv)          deliver,
or cause to be delivered, to the Trustee, for authentication by the Trustee, any new Notes required to be issued pursuant to Section 4.02(e) below,
duly executed by the Company.
(e)           Upon
receipt by the Trustee from the Company of a notice setting forth the Repurchase Price and the Notes properly tendered and accepted for
payment, the Trustee will promptly mail or electronically deliver, or cause the Paying Agent to promptly mail or electronically deliver,
or otherwise deliver in accordance with the procedures of the applicable clearing system, to each Holder of such Notes, or portions of
such Notes, properly tendered and accepted for payment by the Company the Repurchase Price for such Notes or portions of such Notes,
and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each such Holder a new Note, as applicable,
duly executed by the Company equal in principal amount to any unrepurchased portion of the Notes surrendered, as applicable; provided
that each new Note will be in a principal amount equal to €100,000 or integral multiples of €1,000 in excess thereof.
(f)            The
Company will not be required to make a Repurchase Offer upon a Change of Control Repurchase Event if a third party makes such an offer
in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party
purchases all Notes or portions of Notes properly tendered and not withdrawn under its offer.
10
Article 5
MISCELLANEOUS
PROVISIONS
Section 5.01.
Supplemental
Indenture
. The Indenture, as supplemented by this Supplemental Indenture No. 1, is in all respects hereby adopted, ratified
and confirmed.
Section 5.02.
Effectiveness
.
This Supplemental Indenture No. 1 shall take effect as of the date hereof.
Section 5.03.
Effect
of Headings
. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 5.04.
Separability
Clause
. In case any provision in this Supplemental Indenture No. 1 shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions herein shall not in any way be affected or impaired thereby.
Section 5.05.
Governing
Law
. This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New
York.
Section 5.06.
Submission
of Paying Agent to Jurisdiction in the United States
. Each of the Paying Agent, the Transfer Agent and the registrar irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this Supplemental Indenture No. 1. To the fullest extent
permitted by applicable law, each of the Paying Agent, the Transfer Agent and the registrar irrevocably waives and agrees not to assert,
by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Section 5.07.
Execution
by the Trustee
. The Trustee has executed this Supplemental Indenture No. 1 only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the Trustee shall not be responsible for the correctness of the recitals
contained herein, which shall be taken as statements of the Company and the Guarantors, and the Trustee makes no representation and shall
have no responsibility for, or in respect of, the validity or sufficiency of this Supplemental Indenture No. 1 or the execution
hereof by any Person (other than the Trustee).
Section 5.08.
Counterparts
.
This Supplemental Indenture No. 1 may be executed in any number of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument. Facsimile, PDF copies or other electronic transmission of signatures shall
constitute original signatures for all purposes of this Supplemental Indenture No. 1 and any enforcement hereof. The words “execution,”
signed,” “signature,” “delivery,” and words of like import in or relating to this Supplemental Indenture
No. 1 or any document to be signed in connection with this Supplemental Indenture No. 1 shall be deemed to include Electronic
Signatures (as defined herein), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means. “
Electronic
Signatures
” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted
by a person with the intent to sign, authenticate or accept such contract or record.
11
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 1 to be duly executed, all as of the day and year
first above written.
FedEx Corporation
,
as Issuer
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Corporate Vice President, Corporate Development and Treasurer
Federal Express Corporation,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express Europe, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express Holdings S.A., LLC
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express International, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
FedEx Office and Print Services, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
[Signature Page – Supplemental Indenture No. 1]
U.S. Bank Trust Company, National Association,
as Trustee
By:
/s/ Ivy L. Wegener
Name:
Ivy L. Wegener
Title:
Vice President
U.S. Bank Europe DAC, UK Branch,
as Paying Agent
By:
/s/ Shobita Choudhury
Name:
Shobita Choudhury
Title:
Authorised Signatory
[Signature Page – Supplemental Indenture No. 1]
Exhibit A
2030 Note
THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH SHALL BE TREATED BY THE COMPANY, THE GUARANTORS, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER
OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE DEPOSITARY OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
A-
1
No. R-[__]
CUSIP
No. [__________]
1
ISIN No. [__________]
2
Common Code [__________]
3
FEDEX CORPORATION
4.000% Notes
due 2030
Guaranteed as to
Payment of Principal, Premium, if any, and Interest
by the Guarantors named in the Indenture Referred to Below
FedEx Corporation,
a Delaware corporation (the “
Company
,” which term includes any successor Corporation under the Indenture), for value
received, hereby promises to pay to USB Nominees (UK) Limited, as nominee of U.S. Bank Europe DAC, as common depositary for the accounts
of Euroclear/Clearstream or registered assigns, the principal sum of €[____], or such other principal sum as may be indicated on
the Schedule of Changes in Outstanding Principal Amount attended hereto, on September 30, 2030 (the “
Stated Maturity Date
”)
and to pay interest thereon from September 14, 2026 or from the most recent “
Interest Payment Date
” to which
interest has been paid or duly provided for, annually in arrears on September 30 of each year, commencing on September 30,
2026, or if any such day is not a business day, on the next succeeding business day, and Holders will not be entitled to any interest
as a result of such delay, and ending on the Stated Maturity Date or date of earlier redemption as contemplated herein, at the rate of
4.000% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, dated as of September 14, 2026, among the Company, the Guarantors
referred to in the Indenture and U.S. Bank Trust Company, National Association, as Trustee (the “
Trustee
,” which term
includes any successor trustee pursuant to the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of September 14,
2026 (“
Supplemental Indenture No. 1
”), among the Company, the Guarantors named therein, the Trustee and U.S.
Bank Europe DAC, UK Branch, as paying agent (the “
Paying Agent
”) (as so amended and supplemented, the “
Indenture
”),
be paid to the Person in whose name this Note is registered at the close of business on the “
Record Date
” for such
interest, which shall be the preceding September 15 or, if the Notes are represented by one or more Global Securities, the close
of business on the Clearing System Business Day immediately preceding such Interest Payment Date, where “
Clearing System Business
Day
” means a day on which Euroclear/Clearstream are open for business. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder on such Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Interest
payments on this Note will be computed on the basis of the actual number of days in the period for which interest is being calculated
and the actual number of days from and including the last date on which interest was paid on this Note (or September 14, 2026, if
no interest has been paid on this Note) to, but not including, the next scheduled Interest Payment Date. This payment convention is referred
to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
1
Initial Note: 31428X EE2
2
Initial Note: XS3494005021
3
Initial Note: 349400502
A-
2
If the Stated Maturity
Date or any Redemption Date of this Note falls on a day that is not a business day, the related payment of principal, premium and additional
amounts, if any, and interest will be made on the next business day as if it were made on the date such payment was due, and no interest
shall accrue on the amounts so payable for the period from and after such date to the next business day. If any Interest Payment Date
would otherwise be a day that is not a business day, that Interest Payment Date will be postponed to the next date that is a business
day.
If, on or after
issuance of this Note, the single currency of participating member states of the economic and monetary union as contemplated in the Treaty
on European Union (the “
euro
”) is unavailable to the Company due to the imposition of exchange controls or other circumstances
beyond the Company’s control (including the dissolution of the European Monetary Union) or if the euro is no longer being used
by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions
by public institutions of or within the international banking community, then all payments in respect of this Note will be made in U.S.
dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will
be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second business
day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the
basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior to the relevant payment
date as determined by the Company in its sole discretion. Any payment in respect of this Note so made in U.S. dollars will not constitute
an Event of Default under this Note or the Indenture.
Reference is hereby
made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate
of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit pursuant
to the Indenture or be valid or obligatory for any purpose.
A-
3
IN WITNESS WHEREOF,
the Company has caused this instrument to be duly executed.
FEDEX CORPORATION
By:
Name:
Title:
Attest:
By:
Name:
Title:
A-
4
Certificate of
Authentication
This is one of the
Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
Authorized Signatory
Dated of authentication: [   ___________]
4
4
Initial Note: September
14, 2026
A-
5
[REVERSE OF SECURITY]
FEDEX CORPORATION
4.000% Notes due
2030
This Note is one
of a duly authorized issue of notes of the Company (herein called the “
Notes
”), issued pursuant to the Indenture.
Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. This
Note is one of the series designated on the face hereof, limited in initial aggregate principal amount to €1,100,000,000, except
as contemplated in Supplemental Indenture No. 1. Capitalized terms used herein but not defined herein have the meanings ascribed
to such terms in the Indenture.
The Notes of this
series are not subject to any sinking fund.
The Company will
have the right, at its option, to redeem the Notes of this series, in whole or in part, at any time and from time to time, prior to the
Par Call Date (as defined herein), on at least 10 days’, but no more than 60 days’, prior written notice mailed or electronically
delivered by the Company (or otherwise transmitted in accordance with the applicable clearing system’s procedures) to the Holders
of the Notes of this series to be redeemed. Upon redemption of such Notes, the Company will pay a Redemption Price equal to the greater
of (i) 100% of the principal amount of the Notes of this series to be redeemed and (ii) the sum of the present values of the
Remaining Scheduled Payments (as defined in Supplemental Indenture No. 1) of principal and interest on the Notes of this series
to be redeemed that would be due if the Notes of this series matured on the Par Call Date (not including any portion of such payments
of interest accrued as of the Redemption Date), discounted to the Redemption Date on an ACTUAL/ACTUAL (ICMA) day count basis, at the
applicable Comparable Government Bond Rate (as defined in Supplemental Indenture No. 1) plus 0.150% (15 basis points),
plus
,
in the case of either (i) or (ii), accrued and unpaid interest to, but not including, the date of redemption on the principal amount
of the Notes of this series being redeemed.
At any time on or
after the Par Call Date, the Company may redeem the Notes of this series, in whole or in part, at a Redemption Price equal to 100% of
the principal amount of the Notes of this series to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption
on the principal amount of the Notes of this series being redeemed. As used in this Note, Par Call Date shall mean August 30, 2030
(the date that is one month prior to the Stated Maturity Date of the Notes of this series).
Any redemption notice
may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of a corporate transaction.
In such event, the related notice of redemption shall describe each such condition and, if applicable, shall state that, at the Company’s
discretion, the date of redemption may be delayed until such time (including more than 60 days after the notice of redemption was given)
as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the
event that any or all such conditions shall not have been satisfied (or waived by the Company in the Company’s sole discretion)
by the date of redemption, or by the date of redemption as so delayed.
Unless the Company
defaults in payment of the Redemption Price, on and after the date of redemption, interest will cease to accrue on the Notes, or portions
of the Notes of this series called for redemption.
If, as a result
of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing
authority in the United States), or any change in, or amendments to, an official position regarding the application or interpretation
of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after September 9, 2026,
the Company becomes or, based upon a written opinion of independent counsel selected by the Company, the Company will become obligated
to pay additional amounts (as described in Supplemental Indenture No. 1) with respect to the Notes of this series, then the Company
may at any time at its option redeem, in whole, but not in part, the outstanding Notes of this series on not less than 10 nor more than
60 days prior notice, at a Redemption Price equal to 100% of their principal amount, together with accrued and unpaid interest on the
Notes of this series to be redeemed to, but not including, the date fixed for redemption.
A-
6
In the event that
the Company has purchased Notes of this series equal to or greater than 75% of the aggregate principal amount of Notes of this series
initially issued, the Company may redeem, in whole, but not in part, the remaining Notes of this series on not less than 10 nor more
than 60 days prior notice, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, together with accrued
and unpaid interest on the Notes of this series to be redeemed to, but not including, the date fixed for redemption.
If a Change of Control
Repurchase Event (as defined in Supplemental Indenture No. 1) occurs with respect to Notes of this series, except to the extent
the Company has exercised its right to redeem the Notes of this series pursuant to the redemption terms of the Notes, the Company will
make an offer, as provided in, and subject to the terms of, Supplemental Indenture No. 1, to each Holder of the Notes of this series
to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof) of
that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus
any accrued and unpaid interest on such Notes repurchased to, but not including, the date of repurchase.
The Notes of this
series are fully and unconditionally guaranteed as to the due and punctual payment of the principal, premium, if any, and interest in
respect thereof by the Guarantors (the “
Guarantees
”). The Guarantees are the direct and unconditional obligations
of such Guarantors and rank and will rank equally in right of payment and in all other respects with all other unsubordinated obligations
of such Guarantors now or hereafter outstanding.
In case an Event
of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains
provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions
apply to the Notes.
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company
and the Guarantors and the rights of the Holders of the Securities of each series to be affected pursuant to the Indenture at any time
by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Outstanding Securities
of all series affected thereby voting as one class. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company and the Guarantors with certain provisions of the Indenture and certain past defaults pursuant to
the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein
to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, places and rate, and in the currency
herein prescribed.
As provided in the
Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office of the Transfer Agent, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney-in-fact
duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee or transferees.
A-
7
The Notes of this
series are issuable only in registered form without coupons in denominations equal to €100,000 and integral multiples of €1,000
in excess thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series
are exchangeable for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested
by the Holder surrendering the same.
No service charge
shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge payable in connection therewith.
Prior to due presentment
of this Note for registration of transfer, the Company, the Guarantors, the Trustee, the Paying Agent, the Security Registrar and any
agent of the Company, a Guarantor or the Trustee, the Paying Agent or the Security Registrar may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Guarantors,
the Trustee, the Paying Agent or the Security Registrar nor any such agent shall be affected by notice to the contrary.
No recourse under
or upon any obligation, covenant or agreement of the Company or any Guarantor in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company or any Guarantor or of any successor thereto, either
directly or through the Company or any Guarantor or any successor thereto, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall
be governed by and construed in accordance with the laws of the State of New York.
A-
8
Schedule 1
SCHEDULE OF CHANGES
IN OUTSTANDING PRINCIPAL AMOUNT
The following notations
in respect of changes in the outstanding principal amount of this Note have been made:
Date
Initial Principal
Amount
Change in
Outstanding
Principal Amount
New Balance
Notation Made by
A-
9
Exhibit B
2034 Note
THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH SHALL BE TREATED BY THE COMPANY, THE GUARANTORS, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER
OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE DEPOSITARY OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
B-
1
No. R-[__]
CUSIP
No. [__________]
5
ISIN No. [__________]
6
Common Code [__________]
7
FEDEX CORPORATION
4.625% Notes
due 2034
Guaranteed as to
Payment of Principal, Premium, if any, and Interest
by the Guarantors named in the Indenture Referred to Below
FedEx Corporation,
a Delaware corporation (the “
Company
,” which term includes any successor Corporation under the Indenture), for value
received, hereby promises to pay to USB Nominees (UK) Limited, as nominee of U.S. Bank Europe DAC, as common depositary for the accounts
of Euroclear/Clearstream or registered assigns, the principal sum of €[____], or such other principal sum as may be indicated on
the Schedule of Changes in Outstanding Principal Amount attended hereto, on September 30, 2034 (the “
Stated Maturity Date
”)
and to pay interest thereon from September 14, 2026 or from the most recent “
Interest Payment Date
” to which
interest has been paid or duly provided for, annually in arrears on September 30 of each year, commencing on September 30,
2026, or if any such day is not a business day, on the next succeeding business day, and Holders will not be entitled to any interest
as a result of such delay, and ending on the Stated Maturity Date or date of earlier redemption as contemplated herein, at the rate of
4.625% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, dated as of September 14, 2026, among the Company, the Guarantors
referred to in the Indenture and U.S. Bank Trust Company, National Association, as Trustee (the “
Trustee
,” which term
includes any successor trustee pursuant to the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of September 14,
2026 (“
Supplemental Indenture No. 1
”), among the Company, the Guarantors named therein, the Trustee and U.S.
Bank Europe DAC, UK Branch, as paying agent (the “
Paying Agent
”) (as so amended and supplemented, the “
Indenture
”),
be paid to the Person in whose name this Note is registered at the close of business on the “
Record Date
” for such
interest, which shall be the preceding September 15 or, if the Notes are represented by one or more Global Securities, the close
of business on the Clearing System Business Day immediately preceding such Interest Payment Date, where “
Clearing System Business
Day
” means a day on which Euroclear/Clearstream are open for business. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder on such Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Interest payments
on this Note will be computed on the basis of the actual number of days in the period for which interest is being calculated and the
actual number of days from and including the last date on which interest was paid on this Note (or September 14, 2026, if no interest
has been paid on this Note) to, but not including, the next scheduled Interest Payment Date. This payment convention is referred to as
ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
5
Initial Note: 31428X EF9
6
Initial Note: XS3494029393
7
Initial Note: 349402939
B-
2
If the Stated Maturity
Date or any Redemption Date of this Note falls on a day that is not a business day, the related payment of principal, premium and additional
amounts, if any, and interest will be made on the next business day as if it were made on the date such payment was due, and no interest
shall accrue on the amounts so payable for the period from and after such date to the next business day. If any Interest Payment Date
would otherwise be a day that is not a business day, that Interest Payment Date will be postponed to the next date that is a business
day.
If, on or after
issuance of this Note, the single currency of participating member states of the economic and monetary union as contemplated in the Treaty
on European Union (the “
euro
”) is unavailable to the Company due to the imposition of exchange controls or other circumstances
beyond the Company’s control (including the dissolution of the European Monetary Union) or if the euro is no longer being used
by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions
by public institutions of or within the international banking community, then all payments in respect of this Note will be made in U.S.
dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will
be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second business
day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the
basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior to the relevant payment
date as determined by the Company in its sole discretion. Any payment in respect of this Note so made in U.S. dollars will not constitute
an Event of Default under this Note or the Indenture.
Reference is hereby
made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate
of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit pursuant
to the Indenture or be valid or obligatory for any purpose.
B-
3
IN WITNESS WHEREOF,
the Company has caused this instrument to be duly executed.
FEDEX CORPORATION
By:
Name:
Title:
Attest:
By:
Name:
Title:
B-
4
Certificate of
Authentication
This is one of the
Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
Authorized Signatory
Dated of authentication: [   ___________]
8
8
Initial Note: September
14, 2026
B-
5
[REVERSE OF SECURITY]
FEDEX CORPORATION
4.625% Notes due
2034
This Note is one
of a duly authorized issue of notes of the Company (herein called the “
Notes
”), issued pursuant to the Indenture.
Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. This
Note is one of the series designated on the face hereof, limited in initial aggregate principal amount to €900,000,000, except as
contemplated in Supplemental Indenture No. 1. Capitalized terms used herein but not defined herein have the meanings ascribed to
such terms in the Indenture.
The Notes of this
series are not subject to any sinking fund.
The Company will
have the right, at its option, to redeem the Notes of this series, in whole or in part, at any time and from time to time, prior to the
Par Call Date (as defined herein), on at least 10 days’, but no more than 60 days’, prior written notice mailed or electronically
delivered by the Company (or otherwise transmitted in accordance with the applicable clearing system’s procedures) to the Holders
of the Notes of this series to be redeemed. Upon redemption of such Notes, the Company will pay a Redemption Price equal to the greater
of (i) 100% of the principal amount of the Notes of this series to be redeemed and (ii) the sum of the present values of the
Remaining Scheduled Payments (as defined in Supplemental Indenture No. 1) of principal and interest on the Notes of this series
to be redeemed that would be due if the Notes of this series matured on the Par Call Date (not including any portion of such payments
of interest accrued as of the Redemption Date), discounted to the Redemption Date on an ACTUAL/ACTUAL (ICMA) day count basis, at the
applicable Comparable Government Bond Rate (as defined in Supplemental Indenture No. 1) plus 0.200% (20 basis points),
plus
,
in the case of either (i) or (ii), accrued and unpaid interest to, but not including, the date of redemption on the principal amount
of the Notes of this series being redeemed.
At any time on or
after the Par Call Date, the Company may redeem the Notes of this series, in whole or in part, at a Redemption Price equal to 100% of
the principal amount of the Notes of this series to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption
on the principal amount of the Notes of this series being redeemed. As used in this Note, Par Call Date shall mean June 30, 2034
(the date that is three months prior to the Stated Maturity Date of the Notes of this series).
Any redemption notice
may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of a corporate transaction.
In such event, the related notice of redemption shall describe each such condition and, if applicable, shall state that, at the Company’s
discretion, the date of redemption may be delayed until such time (including more than 60 days after the notice of redemption was given)
as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the
event that any or all such conditions shall not have been satisfied (or waived by the Company in the Company’s sole discretion)
by the date of redemption, or by the date of redemption as so delayed.
Unless the Company
defaults in payment of the Redemption Price, on and after the date of redemption, interest will cease to accrue on the Notes, or portions
of the Notes of this series called for redemption.
If, as a result
of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing
authority in the United States), or any change in, or amendments to, an official position regarding the application or interpretation
of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after September 9, 2026,
the Company becomes or, based upon a written opinion of independent counsel selected by the Company, the Company will become obligated
to pay additional amounts (as described in Supplemental Indenture No. 1) with respect to the Notes of this series, then the Company
may at any time at its option redeem, in whole, but not in part, the outstanding Notes of this series on not less than 10 nor more than
60 days prior notice, at a Redemption Price equal to 100% of their principal amount, together with accrued and unpaid interest on the
Notes of this series to be redeemed to, but not including, the date fixed for redemption.
B-
6
In the event that
the Company has purchased Notes of this series equal to or greater than 75% of the aggregate principal amount of Notes of this series
initially issued, the Company may redeem, in whole, but not in part, the remaining Notes of this series on not less than 10 nor more
than 60 days prior notice, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, together with accrued
and unpaid interest on the Notes of this series to be redeemed to, but not including, the date fixed for redemption.
If a Change of Control
Repurchase Event (as defined in Supplemental Indenture No. 1) occurs with respect to Notes of this series, except to the extent
the Company has exercised its right to redeem the Notes of this series pursuant to the redemption terms of the Notes, the Company will
make an offer, as provided in, and subject to the terms of, Supplemental Indenture No. 1, to each Holder of the Notes of this series
to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof) of
that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus
any accrued and unpaid interest on such Notes repurchased to, but not including, the date of repurchase.
The Notes of this
series are fully and unconditionally guaranteed as to the due and punctual payment of the principal, premium, if any, and interest in
respect thereof by the Guarantors as evidenced by their guarantees (the “
Guarantees
”) set forth hereon. The Guarantees
are the direct and unconditional obligations of such Guarantors and rank and will rank equally in right of payment and in all other respects
with all other unsubordinated obligations of such Guarantors now or hereafter outstanding.
In case an Event
of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains
provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions
apply to the Notes.
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company
and the Guarantors and the rights of the Holders of the Securities of each series to be affected pursuant to the Indenture at any time
by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Outstanding Securities
of all series affected thereby voting as one class. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company and the Guarantors with certain provisions of the Indenture and certain past defaults pursuant to
the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein
to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, places and rate, and in the currency
herein prescribed.
As provided in the
Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office of the Transfer Agent, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney-in-fact
duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee or transferees.
B-
7
The Notes of this
series are issuable only in registered form without coupons in denominations equal to €100,000 and integral multiples of €1,000
in excess thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series
are exchangeable for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested
by the Holder surrendering the same.
No service charge
shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge payable in connection therewith.
Prior to due presentment
of this Note for registration of transfer, the Company, the Guarantors, the Trustee, the Paying Agent, the Security Registrar and any
agent of the Company, a Guarantor or the Trustee, the Paying Agent or the Security Registrar may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Guarantors,
the Trustee, the Paying Agent or the Security Registrar nor any such agent shall be affected by notice to the contrary.
No recourse under
or upon any obligation, covenant or agreement of the Company or any Guarantor in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company or any Guarantor or of any successor thereto, either
directly or through the Company or any Guarantor or any successor thereto, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall
be governed by and construed in accordance with the laws of the State of New York.
B-
8
Schedule 1
SCHEDULE OF CHANGES
IN OUTSTANDING PRINCIPAL AMOUNT
The following notations
in respect of changes in the outstanding principal amount of this Note have been made:
Date
Initial Principal
Amount
Change in
Outstanding
Principal Amount
New Balance
Notation Made by
B-
9

----- tm2625313d1_ex4-5.htm -----
EX-4.5
6
tm2625313d1_ex4-5.htm
EXHIBIT 4.5
Exhibit 4.5
Execution Version
SUPPLEMENTAL
INDENTURE NO. 2
Dated as of September 14,
2026
5.750% Notes due
2036
SUPPLEMENTAL
INDENTURE NO. 2, dated as of September 14, 2026, among FedEx Corporation, a Delaware corporation (the “
Company
”),
and Federal Express Corporation, a Delaware corporation, Federal Express Europe, Inc., a Delaware corporation, Federal Express Holdings
S.A., LLC, a Delaware limited liability company, Federal Express International, Inc., a Delaware corporation, and FedEx Office and
Print Services, Inc., a Texas corporation (collectively, the “
Guarantors
”), and U.S. Bank Trust Company, National
Association, as trustee (the “
Trustee
”).
RECITALS
WHEREAS,
the Company, the Guarantors and the Trustee have executed and delivered an Indenture, dated as of the date hereof (as amended or supplemented
from time to time, the “
Indenture
”), to provide for the issuance by the Company from time to time, and the guarantee
by the Guarantors, of the Company’s debt securities;
WHEREAS,
the Company, the Guarantors, the Trustee and U.S. Bank Europe DAC, UK Branch, as paying agent, have executed and delivered Supplemental
Indenture No. 1, dated as of the date hereof;
WHEREAS,
Section 15.01(a) of the Indenture permits execution of supplemental indentures without the consent of any Holders for the purpose
of adding to the covenants of the Company or any Guarantor for the benefit of the Holders of all or any series of Securities so long
as such supplemental indenture states that such covenant is expressly being included solely for the benefit of one or more particular
series of Securities;
WHEREAS,
Section 15.01(p) of the Indenture permits execution of supplemental indentures without the consent of any Holders for the purpose
of establishing the form or terms of Securities of any series as permitted by Section 3.01 of the Indenture;
WHEREAS,
the entry into this Supplemental Indenture No. 2 by the parties hereto is authorized by the provisions of the Indenture;
WHEREAS,
the Change of Control Repurchase Event (as defined herein) covenant, as set forth below, is expressly being included solely for the benefit
of the Notes (as defined herein); and
WHEREAS,
all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder and under the Indenture,
duly issued by the Company and to make this Supplemental Indenture No. 2 a valid and legally binding agreement of the Company and
the Guarantors, in accordance with the terms hereof and thereof, have been done.
NOW,
THEREFORE, for and in consideration of the premises and the purchase of the Notes by the Holders, the Company, the Guarantors and the
Trustee mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time of the Notes
as follows:
Article 1
RELATION
To THE INDENTURE; DEFINITIONs AND OTHER PRovIsIoNs OF GENERAL APPLICATION
Section 1.01.
Relation
to the Indenture
. This Supplemental Indenture No. 2 constitutes an integral part of the Indenture.
Section 1.02.
Definitions and Other Provisions of General Application
. For all purposes of this Supplemental Indenture No. 2
unless otherwise specified herein:
(a)    all
terms defined in this Supplemental Indenture No. 2 which are used and not otherwise defined herein shall have the meanings they
are given in the Indenture; and
(b)            the
provisions of general application stated in Section 1.01 of the Indenture shall apply to this Supplemental Indenture No. 2,
except that the words “
herein
,” “
hereof
,” “
hereto
” and “
hereunder
”
and other words of similar import refer to this Supplemental Indenture No. 2 as a whole and not to the Indenture or any particular
Article, Section or other subdivision of the Indenture or this Supplemental Indenture No. 2.
Article 2
THE
SERIES OF NOTES
Section 2.01.
Title
.
There shall be a series of Securities designated the 5.750% Notes due 2036 (the “
Notes
”).
Section 2.02.
Principal
Amounts
. Subject to Section 2.10, the initial aggregate principal amount of the Notes that may be authenticated and delivered
under this Supplemental Indenture No. 2 shall not exceed $1,100,000,000 (except for Notes authenticated and delivered upon registration
of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 3.04, 3.06, 3.07, 4.06 or 15.05 of the Indenture
and except for any Notes which pursuant to Section 3.03 of the Indenture are deemed never to have been authenticated and delivered
hereunder).
Section 2.03.
Stated
Maturity Date
. The entire outstanding principal amount of the Notes shall be payable on September 30, 2036, subject to
Section 2.06 and Section 3.02 of this Supplemental Indenture No. 2.
Section 2.04.
Interest
.
The Notes will bear interest at the rate of 5.750% per annum. Interest on the Notes will be computed on the basis of a 360-day year of
twelve 30-day months. Interest on the Notes will be payable semi-annually in arrears on March 30 and September 30, commencing
March 30, 2027, and ending on the date of maturity, to the Persons in whose names the Notes are registered on the preceding March 15
and September 15 (whether or not that date is a Business Day), respectively.
Section 2.05.
Defeasance
and Discharge; Covenant Defeasance
. The provisions of Article XIII of the Indenture shall apply to the Notes.
Section 2.06.
Optional
Redemption
. Prior to June 30, 2036 (three months prior to the Stated Maturity Date) (the “
Par Call Date
”),
the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed
as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
1)
(a) the sum of the present values
of the remaining scheduled payments of principal and interest thereon discounted to the Redemption
Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points
less (b) interest accrued to the date of redemption, and
2)
100% of the principal amount of the
Notes to be redeemed,
plus, in either
case, accrued and unpaid interest thereon to, but not including, the Redemption Date.
On
or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including,
the Redemption Date.
2
“
Treasury
Rate
” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two
paragraphs.
The
Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government
securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption
Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release
published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15”
(or any successor designation or publication) (“
H.15
”) under the caption “U.S. government securities - Treasury
constant maturities - Nominal” (or any successor caption or heading) (“
H.15 TCM
”). In determining
the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the Redemption Date to the Par Call Date (the “
Remaining Life
”); or (2) if there is no such
Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the
Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately
longer than the Remaining Life - and shall interpolate to the Par Call Date on a straight-line basis (using the actual
number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant
maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest
to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed
to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption
Date.
If
on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate
based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business
Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par
Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United
States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call
Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity
date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or
more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two
or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of
the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate
in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall
be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time,
of such United States Treasury security, and rounded to three decimal places.
The
Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent
manifest error.
Notice
of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the applicable procedures of
DTC) at least 10 days but not more than 60 days before the Redemption Date to each holder of the Notes to be redeemed.
In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $2,000 or less will be redeemed in part.
If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal
amount of such Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the
name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by a depositary,
the redemption of the Notes shall be done in accordance with the policies and procedures of DTC.
Any
redemption notice may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of a corporate
transaction. In such event, the related notice of redemption shall describe each such condition and, if applicable, shall state that,
at the Company’s discretion, the date of redemption may be delayed until such time (including more than 60 days after the notice
of redemption was given) as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice
may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion)
by the date of redemption, or by the date of redemption as so delayed.
3
Unless
the Company defaults in payment of the Redemption Price, on and after the date of redemption, interest will cease to accrue on the Notes,
or portions of the Notes, called for redemption.
Section 2.07.
Form of
Notes
. The Notes shall be represented by one or more Global Securities. The Notes shall be in the form of
Exhibit A
attached hereto. The Notes shall be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.08.
Sinking
Fund; Open Market Purchases
. The Notes shall not be subject to a sinking fund. The Company or any of its Affiliates may at any time
and from time to time purchase Notes in the open market or otherwise.
Section 2.09.
Additional
Amounts
. The provisions of Section 6.07 of the Indenture shall not apply to the Notes.
Section 2.10.
Amount
Not Limited
. The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture, as supplemented
from time to time, shall not be limited. The Company may, without the consent of the Holders or the Trustee, increase the principal amount
of Notes by issuing additional Notes. The Notes and any additional Notes subsequently issued under the Indenture will be treated as a
single series or class for all purposes under the Indenture, including, without limitation, waivers, amendments and redemptions; provided
that, if any such additional Notes are not fungible with the existing Notes for U.S. federal income tax purposes, such additional Notes
will have a separate CUSIP/ISIN number, common code or other identifying number.
Article 3
CHANGE
OF CONTROL REPURCHASE EVENT
Section 3.01.
Intended
Beneficiary; Definitions
.
(a)    The
provisions of this Article 3 shall be applicable only to, and are solely for the benefit of Holders of, the Notes and to no other
Security.
(b)    For
purposes of this Supplemental Indenture No. 2:
“
Below
Investment Grade Ratings Event
” means, with respect to the Notes, on any day within the 60-day period (which period shall be
extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any Rating Agency)
after the earlier of (1) the occurrence of a Change of Control, or (2) the public announcement of the occurrence of a Change
of Control or the intention by the Company to effect a Change of Control, the Notes are rated below Investment Grade by each and every
Rating Agency. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction
in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment
Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the
reduction in rating to which this definition would otherwise apply do not publicly announce or publicly confirm, or inform the Trustee
in writing at the Company’s request, that the reduction was the result, in whole or in part, of any event or circumstance comprised
of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall
have occurred at the time of the Below Investment Grade Ratings Event).
4
“
Change
of Control
” means the consummation of any transaction (including, without limitation, any merger or consolidation) the result
of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange
Act), other than (1) the Company or any Subsidiary, (2) any employee benefit plan (or a trust forming a part thereof) maintained
by the Company or any Subsidiary, or (3) any underwriter temporarily holding Voting Stock of the Company pursuant to an offering
of such Voting Stock, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s
Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.
“
Change
of Control Repurchase Event
” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with
respect to the Notes.
“
Investment
Grade
” means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent under any successor rating categories
of Moody’s); with respect to S&P, a rating of BBB- or better (or its equivalent under any successor rating categories of S&P);
and, with respect to any additional Rating Agency or Rating Agencies selected by the Company, the equivalent investment grade credit
rating.
“
Moody’s
”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“
Rating
Agency
” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate
the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally
recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company
(as certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
“
S&P
”
means S&P Global Ratings, a division of S&P Global, Inc., and its successors.
“
Voting
Stock
” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of
any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors
of such person.
Section 3.02.
Change
of Control Repurchase Event.
(a)    If
a Change of Control Repurchase Event occurs with respect to the Notes, except to the extent the Company has exercised its right to redeem
the Notes pursuant to the redemption terms of the Notes, the Company will make an offer to each Holder of the Notes to repurchase all
or any part (in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a
repurchase price (the “
Repurchase Price
”) in cash equal to 101% of the aggregate principal amount of such Notes repurchased
plus any accrued and unpaid interest on such Notes repurchased to, but not including, the Repurchase Date (as defined herein).
(b)    Within
30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the
public announcement of such Change of Control, the Company will mail or electronically deliver, or cause to be mailed or electronically
delivered, or otherwise transmit in accordance with the procedures of DTC, a notice to each Holder of the Notes, with a copy to the,
describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase
the Notes on the payment date specified in the notice (such offer, the “
Repurchase Offer
” and such date, the “
Repurchase
Date
”), which Repurchase Date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed
or delivered, pursuant to the procedures described in such notice. The notice shall, if mailed or delivered prior to the date of consummation
of the Change of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior
to the Repurchase Date.
(c)    The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to
the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of a Change of Control Repurchase
Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions
of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
5
(d)    On
the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(i)     accept
for payment all Notes or portions of Notes properly tendered pursuant to the Repurchase Offer;
(ii)    deposit
with the Trustee or with such paying agent as the Trustee may designate an amount equal to the aggregate Repurchase Price for all Notes
or portions of Notes properly tendered;
(iii)   deliver,
or cause to be delivered, to the Trustee the Notes properly accepted for payment by the Company, together with an Officers’ Certificate
stating the aggregate principal amount of Notes being repurchased by the Company pursuant to the Repurchase Offer; and
(iv)   deliver,
or cause to be delivered, to the Trustee, for authentication by the Trustee, any new Notes required to be issued pursuant to Section 3.02(e) below,
duly executed by the Company.
(e)    Upon receipt by the Trustee from the Company of a notice setting forth the Repurchase Price and the
Notes properly tendered and accepted for payment, the Trustee will promptly mail or electronically deliver, or cause the Paying
Agent to promptly mail or electronically deliver, or otherwise deliver in accordance with the procedures of DTC to each Holder of
such Notes, or portions of such Notes, properly tendered and accepted for payment by the Company the Repurchase Price for such Notes
or portions of such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each
such Holder a new Note, as applicable, duly executed by the Company equal in principal amount to any unrepurchased portion of the
Notes surrendered, as applicable; provided that each new Note will be in a principal amount equal to $2,000 or integral multiples of
$1,000 in excess thereof.
(f)     The Company will not be required to make a Repurchase Offer upon a Change of Control
Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements
for such an offer made by the Company and such third party purchases all Notes or portions of Notes properly tendered and not
withdrawn under its offer.
Article 4
MISCELLANEOUS
PROVISIONS
Section 4.01.
Supplemental
Indenture
. The Indenture, as supplemented by this Supplemental Indenture No. 2, is in all respects hereby adopted, ratified
and confirmed.
Section 4.02.
Effectiveness
.
This Supplemental Indenture No. 2 shall take effect as of the date hereof.
Section 4.03.
Effect
of Headings
. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 4.04.
Separability
Clause
. In case any provision in this Supplemental Indenture No. 2 shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions herein shall not in any way be affected or impaired thereby.
6
Section 4.05.
Governing
Law
. This Supplemental Indenture No. 2 shall be governed by, and construed in accordance with, the laws of the State of New
York.
Section 4.06.
Execution
by the Trustee
. The Trustee has executed this Supplemental Indenture No. 2 only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the Trustee shall not be responsible for the correctness of the recitals
contained herein, which shall be taken as statements of the Company and the Guarantors, and the Trustee makes no representation and shall
have no responsibility for, or in respect of, the validity or sufficiency of this Supplemental Indenture No. 2 or the execution
hereof by any Person (other than the Trustee).
Section 4.07.
Counterparts
.
This Supplemental Indenture No. 2 may be executed in any number of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument. Facsimile, PDF copies or other electronic transmission of signatures shall
constitute original signatures for all purposes of this Supplemental Indenture No. 2 and any enforcement hereof. The words “execution,”
signed,” “signature,” “delivery,” and words of like import in or relating to this Supplemental Indenture
No. 2 or any document to be signed in connection with this Supplemental Indenture No. 2 shall be deemed to include Electronic
Signatures (as defined herein), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means. “
Electronic
Signatures
” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted
by a person with the intent to sign, authenticate or accept such contract or record.
7
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 2 to be duly executed, all as of the day and year
first above written.
FedEx Corporation
,
as Issuer
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Corporate Vice President, Corporate Development and Treasurer
Federal Express Corporation,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express Europe, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express Holdings S.A., LLC
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
Federal Express International, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
FedEx Office and Print Services, Inc.,
as Guarantor
Attest:
By:
/s/ Alana L. Griffin
By:
/s/ Trampas T. Gunter
Name:
Alana L. Griffin
Name:
Trampas T. Gunter
Title:
Assistant Secretary
Title:
Treasurer
[
Signature Page – Supplemental Indenture No. 2
]
U.S. Bank Trust Company, National Association,
as Trustee
By:
/s/
Ivy L. Wegener
Name:
Ivy L. Wegener
Title:
Vice President
[
Signature Page – Supplemental Indenture No. 2
]
Exhibit A
2036 Note
THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH SHALL BE TREATED BY THE COMPANY, THE GUARANTORS, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER
OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE DEPOSITARY OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
A-
1
No. R-[__]
CUSIP
No. [__________]
1
ISIN No. [__________]
2
FEDEX CORPORATION
5.750% Notes
due 2036
Guaranteed as to
Payment of Principal, Premium, if any, and Interest
by the Guarantors named in the Indenture Referred to Below
FedEx Corporation,
a Delaware corporation (the “Company,” which term includes any successor Corporation under the Indenture), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US $[______], or such other principal sum
as may be indicated on the Schedule of Changes in Outstanding Principal Amount attached hereto, on September 30, 2036 (the “
Stated
Maturity Date
”) and to pay interest thereon from September 14, 2026, or from the most recent “Interest Payment Date”
to which interest has been paid or duly provided for, semi-annually in arrears on March 30 and September 30 of each year, commencing
March 30, 2027, and ending on the Stated Maturity Date or date of earlier redemption or repurchase as contemplated herein, at the
rate of 5.750% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture, dated as of September 14, 2026, among the Company,
the Guarantors referred to in the Indenture and U.S. Bank Trust Company, National Association as Trustee (the “
Trustee
,”
which term includes any successor trustee pursuant to the Indenture), as supplemented by Supplemental Indenture No. 2, dated as
of September 14, 2026 (“
Supplemental Indenture No. 2
”), among the Company, the Guarantors named therein
and the Trustee (as so amended and supplemented, the “
Indenture
”), be paid to the Person in whose name this Note is
registered at the close of business on the “
Record Date
” for such interest, which shall be the preceding March 15
and September 15 (whether or not a Business Day (as defined herein)), respectively. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holder on such Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in the Indenture.
The Company will
at all times appoint and maintain a Paying Agent (which may be the Trustee) authorized by the Company to pay the principal of and premium,
if any, and interest on any Notes of this series on behalf of the Company and having an office or agency in New York, New York and in
such other cities, if any, as the Company may designate in writing to the Trustee (the “
Place of Payment
”) where Notes
of this series may be presented or surrendered for payment and where notices, designations or requests in respect for payments with respect
to Notes of this series may be served. The Company has initially appointed U.S. Bank Trust Company, National Association as such Paying
Agent.
Interest payments
on this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months. Interest payable on this Note on any Interest
Payment Date and on the Stated Maturity Date or date of earlier redemption or repurchase as contemplated herein will include interest
accrued from and including the most recent Interest Payment Date to which interest has been paid or duly provided for (or from and including
September 14, 2026, if no interest has been paid on this Note) to but excluding such Interest Payment Date or the Stated Maturity
Date or date of earlier redemption or repurchase as contemplated herein, as the case may be.
1
Initial Note: 31428X ED4
2
Initial Note: US31428XED49
A-
2
If any Interest
Payment Date or the Stated Maturity Date or date of earlier redemption or repurchase as contemplated herein falls on a day that is not
a Business Day, principal, premium, if any, and/or interest payable with respect to such Interest Payment Date or the Stated Maturity
Date, or such date of earlier redemption or repurchase, as the case may be, will be paid on the next succeeding Business Day with the
same force and effect as if it were paid on the date such payment was due, and no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date or the Stated Maturity Date or date of earlier redemption or repurchase as contemplated
herein, as the case may be. “Business Day” means any day other than Saturday, Sunday or other day on which banking institutions
in New York or Tennessee are obligated or authorized by law to close.
The principal, premium,
if any, and interest payable on this Note will be made by wire transfer of immediately available funds to the Holder hereof in such currency
of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Reference is hereby
made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate
of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit pursuant
to the Indenture or be valid or obligatory for any purpose.
A-
3
IN WITNESS WHEREOF,
the Company has caused this instrument to be duly executed.
FEDEX CORPORATION
By:
Name:
Title:
Attest:
By:
Name:
Title:
A-
4
Certificate of
Authentication
This is one of the
Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
Authorized Signatory
Date of authentication:
[    ___________]
3
3
Initial Note: September
14, 2026
A-
5
[REVERSE OF SECURITY]
FEDEX CORPORATION
5.750% Notes due
2036
This Note is one
of a duly authorized issue of notes of the Company (herein called the “
Notes
”), issued pursuant to the Indenture.
Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. This
Note is one of the series designated on the face hereof, limited in initial aggregate principal amount to $1,100,000,000, except as contemplated
in Supplemental Indenture No. 2. Capitalized terms used herein but not defined herein have the meanings ascribed to such terms in
the Indenture.
The Notes of this
series are not subject to any sinking fund.
Prior
to June 30, 2036 (three months prior to the Stated Maturity Date) (the “
Par Call Date
”), the Company may redeem
the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of
principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par
Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in Supplemental
Indenture No. 2) plus 15 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal
amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but not including, the Redemption Date.
On
or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including,
the Redemption Date.
Any redemption notice
may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of a corporate transaction.
In such event, the related notice of redemption shall describe each such condition and, if applicable, shall state that, at the Company’s
discretion, the date of redemption may be delayed until such time (including more than 60 days after the notice of redemption was given)
as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the
event that any or all such conditions shall not have been satisfied (or waived by the Company in the Company’s sole discretion)
by the date of redemption, or by the date of redemption as so delayed.
Unless the Company
defaults in payment of the Redemption Price, on and after the date of redemption, interest will cease to accrue on the Notes, or portions
of the Notes of this series called for redemption.
If a Change of Control
Repurchase Event (as defined in Supplemental Indenture No. 2) occurs with respect to Notes of this series, except to the extent
the Company has exercised its right to redeem the Notes of this series pursuant to the redemption terms of the Notes, the Company will
make an offer, as provided in, and subject to the terms of, Supplemental Indenture No. 2, to each Holder of the Notes of this series
to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s
Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid
interest on such Notes repurchased to, but not including, the date of repurchase.
The Notes of this
series are fully and unconditionally guaranteed as to the due and punctual payment of the principal, premium, if any, and interest in
respect thereof by the Guarantors (the “
Guarantees
”). The Guarantees are the direct and unconditional obligations
of such Guarantors and rank and will rank equally in right of payment and in all other respects with all other unsubordinated obligations
of such Guarantors now or hereafter outstanding.
A-
6
In case an Event
of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains
provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions
apply to the Notes.
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company
and the Guarantors and the rights of the Holders of the Securities of each series to be affected pursuant to the Indenture at any time
by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Outstanding Securities
of all series affected thereby voting as one class. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company and the Guarantors with certain provisions of the Indenture and certain past defaults pursuant to
the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein
to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, places and rate, and in the currency
herein prescribed.
As provided in the
Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office of the Transfer Agent, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney-in-fact
duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this
series are issuable only in registered form without coupons in denominations equal to $2,000 and integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series are exchangeable
for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested by the Holder
surrendering the same.
No service charge
shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge payable in connection therewith.
Prior to due presentment
of this Note for registration of transfer, the Company, the Guarantors, the Trustee, and any agent of the Company, a Guarantor or the
Trustee, or the Security Registrar may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Guarantors, the Trustee, or the Security Registrar nor any such agent shall
be affected by notice to the contrary.
No recourse under
or upon any obligation, covenant or agreement of the Company or any Guarantor in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company or any Guarantor or of any successor thereto, either
directly or through the Company or any Guarantor or any successor thereto, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall
be governed by and construed in accordance with the laws of the State of New York.
A-
7
Schedule 1
SCHEDULE OF CHANGES
IN OUTSTANDING PRINCIPAL AMOUNT
The following notations
in respect of changes in the outstanding principal amount of this Note have been made:
Date
Initial Principal
Amount
Change in
Outstanding
Principal Amount
New Balance
Notation Made by
A-
8

----- tm2625313d1_ex5-1.htm -----
EX-5.1
7
tm2625313d1_ex5-1.htm
EXHIBIT 5.1
Exhibit 5.1
Skadden,
Arps, Slate, Meagher & Flom llp
One
Manhattan West
New York, NY 10001
FIRM/AFFILIATE
OFFICES
TEL:
(212) 735-3000
BOSTON
FAX: (212) 735-2000
CHICAGO
www.skadden.com
HOUSTON
LOS
ANGELES
PALO
ALTO
WASHINGTON,
D.C.
WILMINGTON
ABU
DHABI
BEIJING
BRUSSELS
FRANKFURT
HONG
KONG
LONDON
MUNICH
PARIS
September 14, 2026
SÃO
PAULO
SEOUL
SINGAPORE
TOKYO
TORONTO
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Re:
FedEx Corporation – Senior Notes Offering
Ladies and Gentlemen:
We
have acted as special United States counsel to FedEx Corporation, a Delaware corporation (the “Company”), in connection with
the public offering of
€1,100,000,000 in aggregate principal amount of its 4.000% Notes due 2030 and €900,000,000 in
aggregate principal amount of its 4.625% Notes due 2034 (collectively, the “Notes”) to be issued under the Indenture, dated
as of September 14, 2026 (the “Base Indenture”), among the Company, each of the entities listed on
Schedule I-A
hereto (collectively, the “Guarantors”) and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the
“Trustee”), as supplemented by Supplemental Indenture No. 1, dated as of September 14, 2026 (“Supplemental
Indenture No. 1” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantors, the
Trustee and U.S. Bank Europe DAC, UK Branch, as paying agent (in such capacity, the “Paying Agent”). The Indenture provides
that the Notes are to be guaranteed by the Guarantors (such guarantees, together with the Notes, the “Securities”).
This opinion letter is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).
FedEx Corporation
September 14, 2026
Page 2
In rendering the opinions stated herein, we have
examined and relied upon the following:
(a)
the
registration statement on Form S-3 (File No. 333-297595) of the Company and the Guarantors relating to debt securities and other
securities filed on July 21, 2026 with the Securities and Exchange Commission (the “Commission”) under the Securities
Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and
Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and
Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);
(b)
the
prospectus, dated July 21, 2026 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement;
(c)
the
preliminary prospectus supplement, dated September 9, 2026 (together with the Base Prospectus, the “Preliminary Prospectus”),
relating to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(d)
the
prospectus supplement, dated September 9, 2026 (together with the Base Prospectus, the “Prospectus Supplement”), relating
to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(e)
an
executed copy of the Underwriting Agreement, dated September 9, 2026 (the “Underwriting Agreement”), among the Company,
the Significant Guarantors (as defined in the Underwriting Agreement) party thereto and the several Underwriters named therein (the “Underwriters”),
relating to the sale by the Company and the Guarantors to the Underwriters of the Securities;
(f)
an
executed copy of the Base Indenture, including Article XVII thereof containing the guarantee obligations of the Guarantors (the “Guarantees”);
(g)
an
executed copy of Supplemental Indenture No. 1;
(h)
the
global certificates evidencing the Notes, executed by the Company and registered in the name of the nominee of the common depositary for
the accounts of Euroclear and Clearstream (the “Note Certificates”), delivered by the Company to the Trustee for authentication
and delivery;
(i)
the
Agency Agreement, dated as of September 14, 2026 (the “Agency Agreement”), among the Company, the Paying Agent, U.S.
Bank Trust Company, National Association, as the registrar and transfer agent, and the Trustee;
(j)
an
executed copy of a certificate of Alana L. Griffin, Assistant Secretary of each Opinion Party (as defined below), dated the date hereof
(the “Secretary’s Certificate”);
(k)
a
copy of each Opinion Party’s certificate of incorporation or certificate of formation, as applicable, certified by the Secretary
of State of the State of Delaware as of September 3, 2026, and certified pursuant to the Secretary’s Certificate as being in
effect on the date of the applicable resolutions or action by written consent referred to below and as of the date hereof;
FedEx Corporation
September 14, 2026
Page 3
(l)
a
copy of each Opinion Party’s by-laws or limited liability company agreement, as applicable, as amended and certified pursuant to
the Secretary's Certificate as being in effect on the date of the applicable resolutions or action by written consent referred to
below and as of the date hereof;
(m)
copies
of certain resolutions of the Board of Directors of the Company, adopted on May 13, 2026 and July 21, 2026, certified pursuant
to the Secretary’s Certificate; and
(n)
copies
of actions by written consent of the board of directors or sole/managing member, as applicable, of each of the Opinion Party Guarantors
(as defined below), each dated July 6, 2026, certified pursuant to the Secretary’s Certificate.
We have also examined originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Opinion Parties and such agreements, certificates and receipts of
public officials, certificates of officers or other representatives of the Opinion Parties and others, and such other documents as we
have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness
of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic,
certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated
herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives
of the Opinion Parties and others and of public officials, including the facts and conclusions set forth in the Secretary’s Certificate
and the factual representations and warranties contained in the Transaction Documents.
We do not express any opinion with respect to the
laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the Covered State Laws (as defined below)
(all of the foregoing being referred to as “Opined-on Law”).
The
Underwriting Agreement, the Note Certificates, the Indenture and the Agency Agreement are referred to herein collectively as the “Transaction
Documents.”
As used herein, (i) “Opinion Party Guarantors” means the DE Corporate Subsidiaries and Federal
Express Holdings S.A., LLC, (ii) “DE Corporate Subsidiaries” means the entities listed on
Schedule I-B
hereto,
(iii) “Opinion Parties” means the Company and the Opinion Party Guarantors, and (iv) “Non-Opinion Party Guarantor”
means the Guarantor listed on
Schedule I-C
that is not an Opinion Party Guarantor.
As
used herein, “Covered State Laws” means
, with respect to the Company and the DE Corporate Subsidiaries, the General
Corporation Law of the State of Delaware (the “DGCL”), and, with respect to Federal Express Holdings S.A., LLC, the Delaware
Limited Liability Company Act (the “DLLCA”).
FedEx Corporation
September 14, 2026
Page 4
Based upon the foregoing and subject to the qualifications
and assumptions stated herein, we are of the opinion that:
1.
The
Note Certificates have been duly authorized and executed by all requisite corporate action on the part of the Company under the DGCL,
and when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms
of the Underwriting Agreement and the Indenture, the Note Certificates will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms under the laws of the State of New York.
2.
The
Guarantees of each Opinion Party Guarantor have been duly authorized by all requisite corporate or limited liability company, as applicable,
action on the part of such Opinion Party Guarantor under the applicable Covered State Laws and, when the Note Certificates are duly authenticated
by the Trustee and are issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement
and the Indenture, each Guarantee will constitute the valid and binding obligation of the applicable Guarantor, enforceable against such
Guarantor in accordance with its terms under the laws of the State of New York.
The opinions stated herein are subject to the following
assumptions and qualifications:
(a)
we
do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions
stated herein are limited by such laws and governmental orders and by general principles of equity (regardless of whether enforcement
is sought in equity or at law);
(b)
we
do not express any opinion with respect to any law, rule, regulation or order that is applicable to any party to any of the Transaction
Documents or the transactions contemplated thereby solely because such law, rule, regulation or order is part of a regulatory regime applicable
to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c)
except
to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the
valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms;
(d)
we
do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification,
contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect
that may be contrary to public policy or violative of federal or state securities laws, rules, regulations or orders, or to the extent
any such provision purports to waive or alter, or has the effect of waiving or altering, any statute of limitations;
FedEx Corporation
September 14, 2026
Page 5
(e)
we
do not express any opinion whether the execution or delivery of any Transaction Document by any Opinion Party, or the performance by any
Opinion Party of its obligations under any Transaction Document to which such Opinion Party is a party will constitute a violation of,
or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition
or results of operations of any Opinion Party or any of its subsidiaries;
(f)
the
opinions stated herein are limited to the agreements and documents specifically identified in the opinions contained herein (the “Specified
Documents”) without regard to any agreement or other document referenced in any Specified Document (including agreements or other
documents incorporated by reference or attached or annexed thereto) and without regard to any other agreement or document relating to
any Specified Document that is not a Transaction Document;
(g)
subsequent
to the effectiveness of the Indenture and immediately prior to the effectiveness of Supplemental Indenture No. 1, the Indenture has
not been amended, restated, supplemented or otherwise modified in any way that affects or relates to the Securities;
(h)
we
do not express any opinion with respect to the enforceability of Section 18.11 of the Indenture to the extent that such section purports
to bind any Opinion Party to the exclusive jurisdiction of any particular federal court or courts;
(i)
we
call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case
on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in
addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal
courts of the United States of America in any action arising out of or relating to any Transaction Document;
(j)
we
do not express any opinion with respect to the enforceability of Article XVII of the Indenture to the extent that such section provides
that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture
or the effect thereof on the opinions herein stated;
(k)
we
do not express any opinion with respect to the enforceability of the provisions contained in Section 17.07 of the Indenture to the
extent that such provisions limit the obligations of the Guarantors under the Indenture or any right of contribution of any party with
respect to the obligations of the Guarantors under the Indenture;
(l)
we
call to your attention that the opinions stated herein are subject to possible judicial action giving effect to governmental actions or
laws of jurisdictions other than those with respect to which we express our opinions;
FedEx Corporation
September 14, 2026
Page 6
(m)
we
do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document providing for indemnity
by any party thereto against any loss in obtaining the currency due to such party under any Transaction Document from a court judgment
in another currency;
(n)
we
have assumed that the choice of euros as the currency in which the Securities are denominated does not contravene any exchange control
or other laws of the European Union, and further we call to your attention that a court may not award a judgment in any currency other
than U.S. dollars;
(o)
to
the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained
in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in
each case, (i) the exceptions and limitations in New York General Obligations Law Sections 5-1401 and 5-1402 and (ii) principles
of comity and constitutionality; and
(p)
this
opinion letter shall be interpreted in accordance with customary practice of United States lawyers who regularly give opinions in transactions
of this type.
In addition, in rendering the foregoing opinions
we have also assumed that, at all applicable times:
(a)
the
Non-Opinion Party Guarantor (i) was duly incorporated and was validly existing and in good standing, (ii) had requisite legal
status and legal capacity under the laws of the jurisdiction of its organization, and (iii) has complied and will comply with all
aspects of the laws of the jurisdiction of its organization in connection with the transactions contemplated by, and the performance of
its obligations under, the Transaction Documents to which the Non-Opinion Party Guarantor is a party;
(b)
the
Non-Opinion Party Guarantor had the corporate power and authority to execute, deliver and perform all its obligations under each of the
Transaction Documents to which the Non-Opinion Party Guarantor is a party;
(c)
each
of the Transaction Documents to which the Non-Opinion Party Guarantor is a party had been duly authorized, executed and delivered by all
requisite corporate action on the part of the Non-Opinion Party Guarantor;
(d)
neither
the execution and delivery by the Company and each Guarantor of the Transaction Documents to which the Company or each Guarantor is a
party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the Securities:
(i) conflicted or will conflict with the certificate of incorporation or by-laws of the Non-Opinion Party Guarantor, (ii) constituted
or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which the Company or any
Guarantor or its property is subject (except that we do not make the assumption set forth in this clause (ii) with respect to those
agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration
Statement or the Company’s Annual Report on Form 10-K for the year ended May 31, 2026), (iii) contravened or will
contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violated
or will violate any law, rule or regulation to which the Company or any Guarantor or their respective property is subject (except
that we do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law);
FedEx Corporation
September 14, 2026
Page 7
(e)
neither
the execution and delivery by the Company or any Guarantor of the Transaction Documents to which the Company or such Guarantor is a party
nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the Securities,
required or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental
authority under any law, rule or regulation of any jurisdiction; and
(f)
the
limited liability company agreement of Federal Express Holdings S.A., LLC is the only limited liability company agreement, as defined
under the DLLCA, of the members of Federal Express Holdings S.A., LLC as to the affairs of Federal Express Holdings S.A., LLC and the
conduct of its business, and we do not express any opinion with respect to the effect of any other agreement of the members of Federal
Express Holdings S.A., LLC as to the affairs of Federal Express Holdings S.A., LLC and the conduct of its business. Further, we have assumed
that Federal Express Holdings S.A., LLC has, and since the time of its formation has had, at least one validly admitted and existing member
of Federal Express Holdings S.A., LLC and (i) no procedures have been instituted for, and no other event has occurred, including,
without limitation, any action taken by Federal Express Holdings S.A., LLC or its sole/managing member, that would result in, the liquidation,
dissolution or winding-up of Federal Express Holdings S.A., LLC, (ii) no event has occurred that has adversely affected the good
standing of Federal Express Holdings S.A., LLC under the laws of its jurisdiction of formation, and Federal Express Holdings S.A., LLC
has taken all actions required by the laws of its jurisdiction of formation to maintain such good standing and (iii) no grounds exist
for the revocation or forfeiture of Federal Express Holdings S.A., LLC’s certificate of formation.
We hereby consent to the reference to our firm
under the heading “Legal Matters” in the Preliminary Prospectus and the Prospectus. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and
Regulations. We also hereby consent to the filing of this opinion letter with the Commission as an exhibit to the Company’s Current
Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. This opinion letter
is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent
changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
FedEx Corporation
September 14, 2026
Page 8
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher &
Flom LLP
MSH
FedEx Corporation
September 14, 2026
Page 9
Schedule I-A
Guarantors
Federal Express Corporation
Federal Express Europe, Inc.
Federal Express Holdings S.A., LLC
Federal Express International, Inc.
FedEx Office and Print Services, Inc.
Schedule I-B
Delaware Corporate Subsidiaries
Federal Express Corporation
Federal Express Europe, Inc.
Federal Express International, Inc.
Schedule I-C
Non-Opinion Party Guarantor
FedEx Office and Print Services, Inc., a Texas corporation

----- tm2625313d1_ex5-2.htm -----
EX-5.2
8
tm2625313d1_ex5-2.htm
EXHIBIT 5.2
Exhibit 5.2
FedEx Office and Print Services, Inc.
7900 Legacy Drive
Plano, Texas 75024
September 14, 2026
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Ladies and Gentlemen:
FedEx
Corporation, a Delaware corporation (the
“
Company
”), FedEx Office and Print Services, Inc., a Texas corporation
(“
FedEx Office
”), and the other subsidiary guarantors named in the Registration Statement (defined below) have filed
with the Securities and Exchange Commission (the “
Commission
”) a Registration Statement on Form S-3 (File No. 333-297595)
(the “
Registration Statement
”) and a prospectus supplement, dated September 9, 2026 (the “
Prospectus
Supplement
”), for the purpose of registering under the Securities Act of 1933, as amended (the “
Securities Act
”),
certain securities including €1,100,000,000 aggregate principal amount of the Company’s 4.000% Notes due 2030 and €900,000,000
aggregate principal amount of the Company’s 4.625% Notes due 2034 (collectively, the “
Notes
”). The Notes are
to be issued pursuant to the provisions of a base indenture, dated as of September 14, 2026, among the Company, the guarantors party
thereto (the “
Guarantors
”) and U.S. Bank Trust Company, National Association, as trustee (the “
Trustee
”)
(the “
Base Indenture
”), as supplemented by supplemental indenture no. 1, dated as of September 14, 2026, among
the Company, the Guarantors, the Trustee and U.S. Bank Europe DAC, UK Branch, as paying agent (the “
US Bank Paying Agent
”)
(“
Supplemental Indenture No. 1
”) (the Base Indenture and Supplemental Indenture No. 1 are collectively referred
to herein as the “
Indenture
”), and are to be sold pursuant to the Underwriting Agreement, dated September 9, 2026,
among the Company, the subsidiary guarantors named therein and the several underwriters named in Schedule A thereto (the “
Underwriting
Agreement
”) and will be subject to the Agency Agreement among the Company, the US Bank Paying Agent, U.S. Bank Trust Company,
National Association, as registrar and transfer agent, and the Trustee.
I
am the Vice President—General Counsel and Assistant Secretary of FedEx Office and have acted as counsel to FedEx Office in connection
with the guarantee obligations by FedEx Office of the Notes pursuant to the Indenture (the
“
FedEx Office Guarantee
”).
In connection with the opinions
expressed below, I have examined, or caused to be examined by attorneys under my supervision, originals or copies, certified or otherwise
identified to my satisfaction, of the Registration Statement, the Prospectus Supplement, the Indenture (including Article XVII thereof
containing the guaranty obligations of the Guarantors), the Underwriting Agreement, FedEx Office’s certificate of incorporation
and bylaws, and such agreements, documents, certificates and statements of government officials and other papers as I have deemed necessary
or advisable as a basis for such opinions. In such examination, I have assumed the legal capacity of all natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents
submitted to us as certified, conformed, photostatic, electronic or facsimile copies and the authenticity of the originals of such documents.
In making our examination of executed documents and documents to be executed, I have assumed (i) that the parties thereto (other
than FedEx Office) had or will have the power, corporate or otherwise, and authority to enter into and perform all obligations thereunder,
(ii) the due delivery by such parties of such documents and (iii) that such documents constitute or will constitute valid and
binding obligations of such parties. As to any facts material to the opinions expressed herein, which I have not independently established
or verified, I have relied upon statements and representations of officers and representatives of FedEx Office.
Based upon the foregoing,
it is my opinion that:
1.
FedEx
Office is a corporation validly existing and in good standing under the laws of the State of Texas.
2.
FedEx
Office has the corporate power to enter into and perform its obligations under the Indenture (including the FedEx Office Guarantee).
3.
The
Indenture has been duly and validly authorized, executed and delivered by FedEx Office. The FedEx Office Guarantee has been duly and validly
authorized by FedEx Office.
I am qualified to practice
law in the State of Texas, and the foregoing opinion is limited to the laws of the State of Texas.
I hereby consent to the filing
of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference
into the Registration Statement. In addition, I further consent to the reference to me under the heading “Legal Matters”
in the Prospectus Supplement, which is a part of the Registration Statement. In giving such consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Skadden, Arps, Slate, Meagher &
Flom LLP, special counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.
[The remainder of this page is intentionally
left blank]
2
This opinion is expressed
as of the date hereof and I undertake no, and disclaim any, obligation to advise you (or any third party) of any subsequent change in
or development of law or fact that might affect the matters, conclusions, statements or opinions set forth herein.
Sincerely,
By:
/s/ Tiffany H. Brunson
Name:
Tiffany H. Brunson
Title:
Vice President—General Counsel and Assistant Secretary
3

----- tm2625313d1_ex5-3.htm -----
EX-5.3
9
tm2625313d1_ex5-3.htm
EXHIBIT 5.3
Exhibit 5.3
Skadden,
Arps, Slate, Meagher & Flom llp
One
Manhattan West
New York, NY 10001
FIRM/AFFILIATE
OFFICES
TEL:
(212) 735-3000
BOSTON
FAX: (212) 735-2000
CHICAGO
www.skadden.com
HOUSTON
LOS
ANGELES
PALO
ALTO
WASHINGTON,
D.C.
WILMINGTON
ABU
DHABI
BEIJING
BRUSSELS
FRANKFURT
HONG
KONG
LONDON
MUNICH
PARIS
September 14, 2026
SÃO
PAULO
SEOUL
SINGAPORE
TOKYO
TORONTO
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Re:
FedEx Corporation – Senior Notes
Offering
Ladies
and Gentlemen:
We
have acted as special United States counsel to FedEx Corporation, a Delaware corporation (the “Company”), in connection with
the public offering of
$1,100,000,000 in aggregate principal amount of its 5.750% Notes due 2036
(the “Notes”) to be issued under the Indenture, dated as of September 14, 2026 (the “Base Indenture”), among
the Company, each of the entities listed on
Schedule I-A
hereto (collectively, the “Guarantors”) and U.S. Bank Trust
Company, National Association, as trustee (in such capacity, the “Trustee”), as supplemented by Supplemental Indenture No. 2,
dated as of September 14, 2026 (“Supplemental Indenture No. 2” and, together with the Base Indenture, the “Indenture”),
among the Company, the Guarantors and the Trustee. The Indenture provides that the Notes are to be guaranteed by the Guarantors (such
guarantees, together with the Notes, the “Securities”).
This opinion letter
is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the
“Securities Act”).
In rendering the
opinions stated herein, we have examined and relied upon the following:
(a)
the
registration statement on Form S-3 (File No. 333-297595) of the Company and the Guarantors relating to debt securities and
other securities filed on July 21, 2026 with the Securities and Exchange Commission (the “Commission”) under the Securities
Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the
“Rules and Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B
of the Rules and Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);
FedEx Corporation
September 14, 2026
Page 2
(b)
the
prospectus, dated July 21, 2026 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement;
(c)
the
preliminary prospectus supplement, dated September 9, 2026 (together with the Base Prospectus, the “Preliminary Prospectus”),
relating to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(d)
the
prospectus supplement, dated September 9, 2026 (together with the Base Prospectus, the “Prospectus Supplement”), relating
to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(e)
an
executed copy of the Underwriting Agreement, dated September 9, 2026 (the “Underwriting Agreement”), among the Company,
the Significant Guarantors (as defined in the Underwriting Agreement) party thereto and the several Underwriters named therein (the “Underwriters”),
relating to the sale by the Company and the Guarantors to the Underwriters of the Securities;
(f)
an
executed copy of the Base Indenture, including Article XVII thereof containing the guarantee obligations of the Guarantors (the
“Guarantees”);
(g)
an
executed copy of Supplemental Indenture No. 2;
(h)
the
global certificates evidencing the Notes, executed by the Company and registered in the name of Cede & Co. (the “Note
Certificates”), delivered by the Company to the Trustee for authentication and delivery;
(i)
an
executed copy of a certificate of Alana L. Griffin, Assistant Secretary of each Opinion Party (as defined below), dated the date hereof
(the “Secretary’s Certificate”);
(j)
a
copy of each Opinion Party’s certificate of incorporation or certificate of formation, as applicable, certified by the Secretary
of State of the State of Delaware as of September 3, 2026, and certified pursuant to the Secretary’s Certificate as being
in effect on the date of the applicable resolutions or action by written consent referred to below and as of the date hereof;
(k)
a
copy of each Opinion Party’s by-laws or limited liability company agreement, as applicable, as amended and certified pursuant to
the Secretary's Certificate as being in effect on the date of the applicable resolutions or action by written consent referred to
below and as of the date hereof;
(l)
copies
of certain resolutions of the Board of Directors of the Company, adopted on May 13, 2026 and July 21, 2026, certified pursuant
to the Secretary’s Certificate; and
FedEx Corporation
September 14, 2026
Page 3
(m)
copies
of actions by written consent of the board of directors or sole/managing member, as applicable, of each of the Opinion Party Guarantors
(as defined below), each dated July 6, 2026, certified pursuant to the Secretary’s Certificate.
We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of such records of the Opinion Parties and such agreements,
certificates and receipts of public officials, certificates of officers or other representatives of the Opinion Parties and others, and
such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination,
we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural
persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted
to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts
relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations
of officers and other representatives of the Opinion Parties and others and of public officials, including the facts and conclusions
set forth in the Secretary’s Certificate and the factual representations and warranties contained in the Transaction Documents.
We do not express
any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the Covered
State Laws (as defined below) (all of the foregoing being referred to as “Opined-on Law”).
The Underwriting Agreement, the Note Certificates
and the Indenture are referred to herein collectively as the “Transaction Documents.” As used herein, (i) “Opinion
Party Guarantors” means the DE Corporate Subsidiaries and Federal Express Holdings S.A., LLC, (ii) “DE Corporate Subsidiaries”
means the entities listed on
Schedule I-B
hereto, (iii) “Opinion Parties” means the Company and the Opinion Party
Guarantors, and (iv) “Non-Opinion Party Guarantor” means the Guarantor listed on
Schedule I-C
that is not an Opinion
Party Guarantor.
As
used herein, “Covered State Laws” means
, with respect to the Company and the DE Corporate
Subsidiaries, the General Corporation Law of the State of Delaware (the “DGCL”), and, with respect to Federal Express Holdings
S.A., LLC, the Delaware Limited Liability Company Act (the “DLLCA”).
Based upon the foregoing
and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1.
The
Note Certificates have been duly authorized and executed by all requisite corporate action on the part of the Company under the DGCL,
and when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms
of the Underwriting Agreement and the Indenture, the Note Certificates will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms under the laws of the State of New York.
FedEx Corporation
September 14, 2026
Page 4
2.
The
Guarantees of each Opinion Party Guarantor have been duly authorized by all requisite corporate or limited liability company, as applicable,
action on the part of such Opinion Party Guarantor under the applicable Covered State Laws and, when the Note Certificates are duly authenticated
by the Trustee and are issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting
Agreement and the Indenture, each Guarantee will constitute the valid and binding obligation of the applicable Guarantor, enforceable
against such Guarantor in accordance with its terms under the laws of the State of New York.
The opinions stated
herein are subject to the following assumptions and qualifications:
(a)
we
do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions
stated herein are limited by such laws and governmental orders and by general principles of equity (regardless of whether enforcement
is sought in equity or at law);
(b)
we
do not express any opinion with respect to any law, rule, regulation or order that is applicable to any party to any of the Transaction
Documents or the transactions contemplated thereby solely because such law, rule, regulation or order is part of a regulatory regime
applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such
affiliates;
(c)
except
to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the
valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms;
(d)
we
do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any
indemnification, contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having
similar effect that may be contrary to public policy or violative of federal or state securities laws, rules, regulations or orders,
or to the extent any such provision purports to waive or alter, or has the effect of waiving or altering, any statute of limitations;
(e)
we
do not express any opinion whether the execution or delivery of any Transaction Document by any Opinion Party, or the performance by
any Opinion Party of its obligations under any Transaction Document to which such Opinion Party is a party will constitute a violation
of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial
condition or results of operations of any Opinion Party or any of its subsidiaries;
(f)
the
opinions stated herein are limited to the agreements and documents specifically identified in the opinions contained herein (the “Specified
Documents”) without regard to any agreement or other document referenced in any Specified Document (including agreements or other
documents incorporated by reference or attached or annexed thereto) and without regard to any other agreement or document relating to
any Specified Document that is not a Transaction Document;
FedEx Corporation
September 14, 2026
Page 5
(g)
subsequent
to the effectiveness of the Indenture and immediately prior to the effectiveness of Supplemental Indenture No. 2, the Indenture
has not been amended, restated, supplemented or otherwise modified in any way that affects or relates to the Securities;
(h)
we
do not express any opinion with respect to the enforceability of Section 18.11 of the Indenture to the extent that such section
purports to bind any Opinion Party to the exclusive jurisdiction of any particular federal court or courts;
(i)
we
call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case
on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in
addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal
courts of the United States of America in any action arising out of or relating to any Transaction Document;
(j)
we
do not express any opinion with respect to the enforceability of Article XVII of the Indenture to the extent that such section provides
that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture
or the effect thereof on the opinions herein stated;
(k)
we
do not express any opinion with respect to the enforceability of the provisions contained in Section 17.07 of the Indenture to the
extent that such provisions limit the obligations of the Guarantors under the Indenture or any right of contribution of any party with
respect to the obligations of the Guarantors under the Indenture;
(l)             to
the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained
in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in
each case, (i) the exceptions and limitations in New York General Obligations Law Sections 5-1401 and 5-1402 and (ii) principles
of comity and constitutionality; and
(m)
this
opinion letter shall be interpreted in accordance with customary practice of United States lawyers who regularly give opinions in transactions
of this type.
In addition, in
rendering the foregoing opinions we have also assumed that, at all applicable times:
(a)
the
Non-Opinion Party Guarantor (i) was duly incorporated and was validly existing and in good standing, (ii) had requisite legal
status and legal capacity under the laws of the jurisdiction of its organization, and (iii) has complied and will comply with all
aspects of the laws of the jurisdiction of its organization in connection with the transactions contemplated by, and the performance
of its obligations under, the Transaction Documents to which the Non-Opinion Party Guarantor is a party;
FedEx Corporation
September 14, 2026
Page 6
(b)
the
Non-Opinion Party Guarantor had the corporate power and authority to execute, deliver and perform all its obligations under each of the
Transaction Documents to which the Non-Opinion Party Guarantor is a party;
(c)
each
of the Transaction Documents to which the Non-Opinion Party Guarantor is a party had been duly authorized, executed and delivered by
all requisite corporate action on the part of the Non-Opinion Party Guarantor;
(d)
neither
the execution and delivery by the Company and each Guarantor of the Transaction Documents to which the Company or each Guarantor is a
party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the Securities:
(i) conflicted or will conflict with the certificate of incorporation or by-laws of the Non-Opinion Party Guarantor, (ii) constituted
or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which the Company or any
Guarantor or its property is subject (except that we do not make the assumption set forth in this clause (ii) with respect to those
agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration
Statement or the Company’s Annual Report on Form 10-K for the year ended May 31, 2026), (iii) contravened or will
contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violated
or will violate any law, rule or regulation to which the Company or any Guarantor or their respective property is subject (except
that we do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law);
(e)
neither
the execution and delivery by the Company or any Guarantor of the Transaction Documents to which the Company or such Guarantor is a party
nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the Securities,
required or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental
authority under any law, rule or regulation of any jurisdiction; and
(f)
the
limited liability company agreement of Federal Express Holdings S.A., LLC is the only limited liability company agreement, as defined
under the DLLCA, of the members of Federal Express Holdings S.A., LLC as to the affairs of Federal Express Holdings S.A., LLC and the
conduct of its business, and we do not express any opinion with respect to the effect of any other agreement of the members of Federal
Express Holdings S.A., LLC as to the affairs of Federal Express Holdings S.A., LLC and the conduct of its business. Further, we have
assumed that Federal Express Holdings S.A., LLC has, and since the time of its formation has had, at least one validly admitted and existing
member of Federal Express Holdings S.A., LLC and (i) no procedures have been instituted for, and no other event has occurred,
including, without limitation, any action taken by Federal Express Holdings S.A., LLC or its sole/managing member, that would result
in, the liquidation, dissolution or winding-up of Federal Express Holdings S.A., LLC, (ii) no event has occurred that has adversely
affected the good standing of Federal Express Holdings S.A., LLC under the laws of its jurisdiction of formation, and Federal Express
Holdings S.A., LLC has taken all actions required by the laws of its jurisdiction of formation to maintain such good standing and (iii) no
grounds exist for the revocation or forfeiture of Federal Express Holdings S.A., LLC’s certificate of formation.
FedEx Corporation
September 14, 2026
Page 7
We hereby consent
to the reference to our firm under the heading “Legal Matters” in the Preliminary Prospectus and the Prospectus. In giving
this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations. We also hereby consent to the filing of this opinion letter with the Commission as
an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the
Registration Statement. This opinion letter is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable
laws.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher &
Flom LLP
MSH
FedEx Corporation
September 14, 2026
Page 8
Schedule I-A
Guarantors
Federal Express Corporation
Federal Express Europe, Inc.
Federal Express Holdings S.A., LLC
Federal Express International, Inc.
FedEx Office and Print Services, Inc.
Schedule I-B
Delaware Corporate Subsidiaries
Federal Express Corporation
Federal Express Europe, Inc.
Federal Express International, Inc.
Schedule I-C
Non-Opinion Party Guarantor
FedEx Office and Print Services, Inc.,
a Texas corporation

----- tm2625313d1_ex5-4.htm -----
EX-5.4
10
tm2625313d1_ex5-4.htm
EXHIBIT 5.4
Exhibit 5.4
FedEx Office and Print Services, Inc.
7900 Legacy Drive
Plano, Texas 75024
September 14, 2026
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Ladies and Gentlemen:
FedEx
Corporation, a Delaware corporation (the
“
Company
”), FedEx Office and Print Services, Inc., a Texas corporation
(“
FedEx Office
”), and the other subsidiary guarantors named in the Registration Statement (defined below) have filed
with the Securities and Exchange Commission (the “
Commission
”) a Registration Statement on Form S-3 (File No. 333-297595)
(the “
Registration Statement
”) and a prospectus supplement, dated September 9, 2026 (the “
Prospectus
Supplement
”), for the purpose of registering under the Securities Act of 1933, as amended (the “
Securities Act
”),
certain securities including $1,100,000,000 aggregate principal amount of the Company’s 5.750% Notes due 2036 (the “
Notes
”).
The Notes are to be issued pursuant to the provisions of a base indenture, dated as of September 14, 2026, among the Company, the
guarantors party thereto (the “
Guarantors
”) and U.S. Bank Trust Company, National Association, as trustee (the “
Trustee
”)
(the “
Base Indenture
”), as supplemented by supplemental indenture no. 1, dated as of September 14, 2026, among
the Company, the Guarantors, the Trustee and U.S. Bank Europe DAC, UK Branch, as paying agent (the “
US Bank Paying Agent
”)
(“
Supplemental Indenture No. 1
”), and as further supplemented by supplemental indenture no. 2, dated as of September 14,
2026, among the Company, the Guarantors and the Trustee (“
Supplemental Indenture No. 2
”) (the Base Indenture,
Supplemental Indenture No. 1 and Supplemental Indenture No. 2 are collectively referred to herein as the “
Indenture
”),
and are to be sold pursuant to the Underwriting Agreement, dated September 9, 2026, among the Company, the subsidiary guarantors
named therein and the several underwriters named in Schedule A thereto (the “
Underwriting Agreement
”).
I
am the Vice President—General Counsel and Assistant Secretary of FedEx Office and have acted as counsel to FedEx Office in connection
with the guarantee obligations by FedEx Office of the Notes pursuant to the Indenture (the
“
FedEx Office Guarantee
”).
In connection with the opinions
expressed below, I have examined, or caused to be examined by attorneys under my supervision, originals or copies, certified or otherwise
identified to my satisfaction, of the Registration Statement, the Prospectus Supplement, the Indenture (including Article XVII thereof
containing the guaranty obligations of the Guarantors), the Underwriting Agreement, FedEx Office’s certificate of incorporation
and bylaws, and such agreements, documents, certificates and statements of government officials and other papers as I have deemed necessary
or advisable as a basis for such opinions. In such examination, I have assumed the legal capacity of all natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents
submitted to us as certified, conformed, photostatic, electronic or facsimile copies and the authenticity of the originals of such documents.
In making our examination of executed documents and documents to be executed, I have assumed (i) that the parties thereto (other
than FedEx Office) had or will have the power, corporate or otherwise, and authority to enter into and perform all obligations thereunder,
(ii) the due delivery by such parties of such documents and (iii) that such documents constitute or will constitute valid and
binding obligations of such parties. As to any facts material to the opinions expressed herein, which I have not independently established
or verified, I have relied upon statements and representations of officers and representatives of FedEx Office.
Based upon the foregoing,
it is my opinion that:
1.
FedEx
Office is a corporation validly existing and in good standing under the laws of the State of Texas.
2.
FedEx
Office has the corporate power to enter into and perform its obligations under the Indenture (including the FedEx Office Guarantee).
3.
The
Indenture has been duly and validly authorized, executed and delivered by FedEx Office. The FedEx Office Guarantee has been duly and validly
authorized by FedEx Office.
I am qualified to practice
law in the State of Texas, and the foregoing opinion is limited to the laws of the State of Texas.
I hereby consent to the filing
of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference
into the Registration Statement. In addition, I further consent to the reference to me under the heading “Legal Matters”
in the Prospectus Supplement, which is a part of the Registration Statement. In giving such consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Skadden, Arps, Slate, Meagher &
Flom LLP, special counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.
[The remainder of this page is intentionally
left blank]
2
This opinion is expressed
as of the date hereof and I undertake no, and disclaim any, obligation to advise you (or any third party) of any subsequent change in
or development of law or fact that might affect the matters, conclusions, statements or opinions set forth herein.
Sincerely,
By:
/s/ Tiffany H. Brunson
Name:
Tiffany H. Brunson
Title:
Vice President—General Counsel and Assistant Secretary
3