The following excerpt is from the company's
SEC filing.
as Syndication Agent,
CITIBANK, N.A.
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents,
The Several Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, CITIGROUP GLOBAL MARKETS INC. and THE BANK OF
NOVA SCOTIA,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined Terms
SECTION 1.02.
Classification of Loans and Borrowings
SECTION 1.03.
Terms Generally
SECTION 1.04.
Accounting Terms; GAAP
SECTION 1.05.
Currency Conversion and Fluctuations
ARTICLE II
THE CREDITS
SECTION 2.01.
Commitments
SECTION 2.02.
Loans and Borrowings
SECTION 2.03.
Requests for Borrowings
SECTION 2.04.
Funding of Borrowings
SECTION 2.05.
Interest Elections
SECTION 2.06.
Termination and Reduction of Commitments
SECTION 2.07.
Repayment of Loans; Evidence of Debt
SECTION 2.08.
Prepayment of Loans
SECTION 2.09.
SECTION 2.10.
SECTION 2.11.
Alternate Rate of Interest
SECTION 2.12.
Increased Costs; Illegality
SECTION 2.13.
Break Funding Payments
SECTION 2.14.
SECTION 2.15.
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
SECTION 2.16.
Defaulting Lenders
SECTION 2.17.
Mitigation Obligations; Replacement of Lenders
SECTION 2.18.
Commitment Increases
ARTICLE III
LETTERS OF CREDIT
SECTION 3.01.
L/C Commitment
SECTION 3.02.
Procedure for Issuance of Letter of Credit
SECTION 3.03.
Fees and Other Charges
SECTION 3.04.
L/C Participations
SECTION 3.05.
Reimbursement Obligation of the Borrower
SECTION 3.06.
Obligations Absolute
SECTION 3.07.
Letter of Credit Payments
SECTION 3.08.
Applications
SECTION 3.09.
Cash Collateralization
SECTION 3.10.
Currency Adjustments
SECTION 3.11.
Existing Letters of Credit
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.
Organization; Powers
SECTION 4.02.
Authorization; Enforceability
SECTION 4.03.
Governmental Approvals; No Conflicts
SECTION 4.04.
Financial Statements
SECTION 4.05.
SECTION 4.06.
Litigation and Environmental Matters
SECTION 4.07.
Subsidiaries
SECTION 4.08.
SECTION 4.09.
Compliance with Laws and Agreements
SECTION 4.10.
Properties; Liens
SECTION 4.11.
Investment Company Status
SECTION 4.12.
Anti-Corruption Laws and Sanctions
SECTION 4.13.
Patriot Act Compliance
ARTICLE V
CONDITIONS
SECTION 5.01.
Effective Date
SECTION 5.02.
Each Credit Event
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01.
Financial Statements and Other Information
SECTION 6.02.
Use of Proceeds
SECTION 6.03.
Notice of Material Events
SECTION 6.04.
Existence; Conduct of Business
SECTION 6.05.
Payment of Taxes
SECTION 6.06.
SECTION 6.07.
Maintenance of Properties; Insurance
SECTION 6.08.
Books and Records; Inspection Rights
SECTION 6.09.
Leverage
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01.
SECTION 7.02.
Merger and Consolidation
SECTION 7.03.
Clauses Restricting Significant Subsidiary Distributions
SECTION 7.04.
Subsidiary Indebtedness
SECTION 7.05.
ARTICLE VIII
EVENTS OF DEFAULT
ARTICLE IX
THE AGENTS
SECTION 9.01.
Appointment
SECTION 9.02.
Delegation of Duties
SECTION 9.03.
Exculpatory Provisions
SECTION 9.04.
Reliance by Administrative Agent
SECTION 9.05.
Notice of Default
SECTION 9.06.
Non-Reliance on Agents and Other Lenders
SECTION 9.07.
Indemnification
SECTION 9.08.
Agent in Its Individual Capacity
SECTION 9.09.
Successor Administrative Agent
SECTION 9.10.
Co-Documentation Agents and Syndication Agent
ARTICLE X
MISCELLANEOUS
SECTION 10.01.
Amendments and Waivers
SECTION 10.02.
Notices
SECTION 10.03.
No Waiver; Cumulative Remedies
SECTION 10.04.
Survival of Representations and Warranties
SECTION 10.05.
Payment of Expenses and Taxes
SECTION 10.06.
Successors and Assigns; Participations and Assignments
SECTION 10.07.
Adjustments; Set-off
SECTION 10.08.
Counterparts
SECTION 10.09.
Severability
SECTION 10.10.
Integration
SECTION 10.11.
GOVERNING LAW
SECTION 10.12.
Submission To Jurisdiction; Waivers
SECTION 10.13.
Acknowledgements
SECTION 10.14.
Guarantors
SECTION 10.15.
Confidentiality
SECTION 10.16.
WAIVERS OF JURY TRIAL
SECTION 10.17.
Interest Rate Limitation
SECTION 10.18.
Headings
SECTION 10.19.
USA Patriot Act
SECTION 10.20.
Judgment Currency
SECTION 10.21.
SCHEDULES
Schedule 2.01
Lenders and Commitments
Schedule 3.01
Schedule 4.06
Disclosed Matters
Schedule 4.07
Significant Subsidiaries
Schedule 10.14
Initial Subsidiary Guarantors
EXHIBITS
Exhibit A
Form of Borrowing Request
Exhibit B
Form of Interest Election Request
Exhibit C
Form of Guarantee Agreement
Exhibit D
Form of Opinion of Borrowers Counsel
Exhibit E
Form of Assignment and Acceptance
Exhibit F
Form of Exemption Certificate
Exhibit G-1
Form of Increased Facility Activation Notice
Exhibit G-2
Form of Increasing Lender Supplement
Exhibit G-3
Form of New Lender Supplement
Exhibit H
Form of Compliance Certificate
FIVE-YEAR CREDIT AGREEMENT, dated as of November 13, 2015, among
FEDEX CORPORATION, the LENDERS party hereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, BANK OF AMERICA, N.A., as
Syndication Agent, and CITIBANK, N.A., and THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents.
The parties hereto agree as follows:
. As used in this Agreement, the following terms have the
meanings specified below:
, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate
Base Rate.
Adjusted LIBO Rate
means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
means JPMorgan Chase Bank, N.A., together with its Affiliates,
as the administrative agent for the Lenders hereunder, together
with any of its successors.
means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the
Person specified.
means, collectively, the Syndication Agent, the Co-Documentation
Agents and the Administrative Agent.
Aggregate Exposure
means, with respect to any Lender at any time, an amount equal
to (a) until the Effective Date, the amount of such Lenders
Commitments at such time and (b) thereafter, such Lenders
Commitment then in effect or, if the Commitments have been
terminated, the amount of such Lenders Loans and L/C Exposure (and,
in the case of Foreign Currency Loans and Foreign Currency Letters
of Credit, the Dollar Equivalent of such Lenders Foreign Currency
Loans and L/C Exposure with respect to Foreign Currency Letters of
Credit) then outstanding;
provided
that, in the case of Section 2.16, when a Defaulting Lender
shall exist, any such Defaulting Lenders Commitment shall be
disregarded in the calculation.
Aggregate Exposure Percentage
means, with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lenders Aggregate Exposure at
such time to the Aggregate Exposure of all Lenders at such
time.
means this Five-Year Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
means the United States Foreign Corrupt Practices Act of 1977,
as amended, and the UK Bribery Act 2010, as amended.
means, for any day, a rate per annum (rounded, if necessary, to
the next 1/16 of 1%) equal to the highest of (a) the Prime Rate in
effect on such day, (b) the New York Fed Bank Rate in effect on
such day plus ½ of 1% or (c) the Adjusted LIBO Rate for an Interest
Period of one (1) months duration on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus
1%;
that the Adjusted LIBO Rate for any day shall be based on the
rate appearing on the LIBOR Reuters Screen LIBOR01 Page (or any
successor or substitute page) at approximately 11:00 a.m., London
time, on such day (without any rounding). Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime
Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate,
respectively.
Applicable Rate
means, for any day with respect to (a) any Eurodollar Loan
denominated in any currency, a rate per annum equal to the
applicable rate per annum set forth in the Pricing Grid under the
caption Applicable Rate (Eurodollar Loan) based upon the ratings by
Moodys and S&P, respectively, applicable on such date to the
Index Debt, (b) any ABR Loan, a rate per annum equal to the
applicable rate per annum set forth in the Pricing Grid under the
caption Applicable Rate (ABR Loan) based upon the ratings by Moodys
and S&P, respectively, applicable on such date to the Index
Debt, or (c) commitment fees payable hereunder, the applicable rate
per annum set forth in the Pricing Grid under the caption
Commitment Fee Rate based upon the ratings by Moodys and S&P,
respectively, applicable on such date to the Index Debt.
means an application requesting the relevant Issuing Bank to
open a Letter of Credit.
Assignee
has the meaning assigned to such term in Section 10.06(c).
Assignment and Acceptance
means an assignment and acceptance entered into by a Lender and
an Assignee (with the consent of any party whose consent is
required by Section 10.06), and accepted by the Administrative
Agent, in the form of
Assignor
Availability Period
means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
Benefitted Lender
has the meaning assigned to such term in Section 10.07(a).
means the Board of Governors of the Federal Reserve System of
the United States of America.
means FedEx Corporation, a Delaware corporation.
means Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
Borrowing Request
means a request by the Borrower for a Borrowing in accordance
with Section 2.03.
means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required
by law to remain closed;
that, (a) when used in connection with a Eurodollar Loan, the
term
shall also exclude any day
on which banks are not open for dealings in deposits in the
relevant currency in the interbank eurocurrency market and (b) when
used in connection with a Eurodollar Loan denominated in Euros, the
term Business Day shall also exclude any day on which (x)
commercial banks in Brussels, Belgium are authorized or required by
law to remain closed or (y) the TARGET2 payment system is not open
for the settlement of payments in Euros.
Calculation Date
means the last Business Day of each calendar quarter;
that (a) the second Business Day preceding the date of any
borrowing or continuation of any Loans denominated in Euros or
Pounds Sterling, (b) the date any borrowing or continuation of any
Loans denominated in Dollars and (c) the date of issuance,
amendment, renewal or extension of a Letter of Credit shall, in
each case, also be a Calculation Date.
Change in Law
means (a) the adoption of any law, rule or regulation after the
date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.12(b), by
any lending office of such Lender or by such Lenders holding
company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made
or issued after the date of this Agreement. Notwithstanding
anything herein to the contrary (solely for the purposes of
Sections 2.12(a), 2.12(b) and Section 2.12(g)), (i) all requests,
rules, guidelines, requirements and directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or by United
States or foreign regulatory authorities, in each case pursuant to
Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines, requirements
and directives thereunder or issued in connection therewith or in
implementation thereof, shall in each case be deemed to be a Change
in Law, regardless of the date enacted, adopted, issued or
implemented.
Change of Control
means any of the following: (a) Any person (as such term is used
in Sections 13(d) and 14 of the Securities Exchange Act of 1934, as
amended), other than (1) the Borrower, (2) any Subsidiary, (3) any
employee benefit plan (or a trust forming a part thereof)
maintained by the Borrower or any Subsidiary, or (4) any
underwriter temporarily holding securities of the Borrower pursuant
to an offering of such securities becoming the beneficial owner
(within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934, as amended) of securities of the Borrower representing 30%
or more of the Borrowers then outstanding Voting Stock; or (b)
directors who, as of the date of this Agreement, constitute the
Board of Directors of the Borrower (the
Incumbent Board
) ceasing to constitute at least a majority of the Board of
Directors of the Borrower (or, in the event of any merger,
consolidation or reorganization the principal purpose of which is
to change the Borrowers state of incorporation, form a holding
company or effect a similar reorganization as to form, the board of
directors of such surviving company or its ultimate parent
company),
however
, that any individual becoming a member of the Board of
Directors of the Borrower subsequent to the date of this Agreement
whose election, or nomination for election by the Borrowers
stockholders, was approved by a vote of a majority of the directors
then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board.
means the Internal Revenue Code of 1986, as amended from time to
time.
means, with respect to any Lender, the obligation of such
Lender, if any, to make Loans and participate in Letters of Credit
hereunder, in an amount not to exceed the amount set forth under
the heading Commitment opposite such Lenders name on
(as may be increased pursuant to Section 2.18) or in the
Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant
to the terms hereof. The aggregate original amount of the
Commitments on the Effective Date is $1,750,000,000.
Conduit Lender
means any special purpose corporation organized and administered
by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written
instrument;
, that the designation by any Lender of a Conduit Lender shall
not relieve the designating Lender of any of its obligations to
fund a Loan under this Agreement if, for any reason, its Conduit
Lender fails to fund any such Loan, and the designating Lender (and
not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender,
and
further
, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.12, 2.13, 2.14, 2.15 or 10.05
than the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender, or
(b) be deemed to have any Commitment.
Consolidated Adjusted Total Assets
means, at any date as of which the amount thereof is to be
determined, (a) the aggregate amount set forth as the assets of the
Borrower and the consolidated Subsidiaries on a consolidated
balance sheet of the Borrower and the consolidated Subsidiaries
prepared as of such date in accordance with GAAP, minus (b) the
aggregate book value as of such date of determination of all assets
of the Borrower or any consolidated Subsidiary subject on such date
of determination to a Lien permitted by Section 7.01(j).
Consolidated EBITDA
means, for any period, Consolidated Operating Income for such
period plus, without duplication and to the extent reducing such
Consolidated Operating Income for such period, the sum of (a)
depreciation and amortization expense, (b) amortization of
intangibles (including, but not limited to, goodwill), (c) non-cash
expenses or losses related to periodic mark-to-market charges
related to pension losses, and (d) non-cash asset impairment
charges related to long-lived assets (including intangible asset
impairment charges), and minus, without duplication, to the extent
included in such Consolidated Operating Income for such period,
non-cash periodic mark-to-market credits related to pension gains,
all as determined on a consolidated basis.
means, for any period, the consolidated operating income (or
loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP;
that there shall be excluded the income (or deficit) of any
Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by
the Borrower or such Subsidiary in the form of dividends or similar
distributions.
Consolidated Total Debt
means, as of any date with respect to the Borrower and its
Subsidiaries, all liabilities of the Borrower and its Subsidiaries
outstanding on such date which would in accordance with GAAP be
classified as short-term or long-term debt (including the current
portion of long-term debt) of the Borrower and its Subsidiaries
(including, without limitation, capitalized lease obligations) on a
consolidated balance sheet of the Borrower and its Subsidiaries as
of such date.
Contingent Obligation
of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses (other than
endorsements for collection or deposit in the ordinary course of
business), contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon,
the payment obligation or liability of any other Person, or agrees
to maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including, without limitation, any
comfort letter or take-or-pay contract.
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by
contract or otherwise.
Controlling
and
have meanings correlative thereto.
Credit Exposure
means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lenders Loans and L/C Exposure
(and, in the case of Foreign Currency Loans and Foreign Currency
Letters of Credit, the Dollar Equivalent of such Lenders Foreign
Currency Loans and L/C Exposure with respect to Foreign Currency
Letters of Credit) at such time.
Current Maturities
means, as of any date with respect to the Long Term Debt of any
Person, any portion of such Long Term Debt that would in accordance
with GAAP be classified as a current liability of such Person.
means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
means any Lender that has (a) failed to within three (3)
Business Days of the date required hereunder (i) fund any portion
of its Loans or (ii) fund any portion of its participations in
Letters of Credit,
unless, in the case of clause (i) above, such Lender, acting in
good faith, notifies the Administrative Agent and the Borrower in
writing within three (3) Business Days of the date such Lender was
required to fund such portion of its Loans that such failure to
fund is the result of such Lenders reasonable determination that
one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall
be specifically identified in such writing) has not been satisfied,
(b) notified the Borrower or the Administrative Agent in writing
that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to
the effect that it does not intend to comply with its funding
obligations under this Agreement (unless such writing or public
statement (i) relates to such Lenders obligation to fund a Loan
hereunder, (ii) states, in good faith, that such position is based
on such Lenders reasonable determination that a condition precedent
to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public
statement) cannot be satisfied and (iii) is issued within three (3)
Business Days of the date such Lender was required to fund a
portion of its Loans hereunder) or generally under similar
agreements in which it has committed to extend credit, (c) failed,
within three (3) Business Days after written request by the
Administrative Agent (whether acting on its own behalf or at the
reasonable request of the Borrower (it being understood that the
Administrative Agent shall comply with any such reasonable
request)), to confirm that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit;
that any such Lender shall cease to be a Defaulting Lender under
this clause (c) upon receipt of such confirmation by the
Administrative Agent, (d) otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within three (3) Business Days of the
date when due, unless the subject of a good faith dispute, or (e)
become the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee or custodian appointed for it,
or has a parent company that has become other than via an
Undisclosed Administration the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee
or custodian appointed for it. No Lender shall be a Defaulting
Lender solely by virtue of the ownership or acquisition of any
equity interest in such Lender or a parent company thereof by a
Governmental Authority or an instrumentality thereof so long as
such ownership does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States
or from enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such Governmental Authority or
instrumentality thereof) to reject, repudiate, disavow or disaffirm
any contracts or agreements with or of such Lender.
means the actions, suits and proceedings and the environmental
matters disclosed in (i) the Borrowers most recent annual report on
Form 10-K or most recent quarterly report on Form 10-Q filed, in
each case, prior to the date of this Agreement and only as and to
the extent disclosed therein (but excluding any risk factor
disclosures contained under the heading Risk Factors,
any disclosure of risks included in any forward-looking
statements disclaimer or any other statements that are similarly
predictive or forward-looking in nature) or (ii) as otherwise
disclosed in
means at any time as to any amount denominated in Euro or Pounds
Sterling, the equivalent amount in Dollars as determined by the
Administrative Agent at such time on the basis of the Exchange Rate
for the purchase of Dollars with such Euro or Pounds Sterling, as
applicable, on the most recent Calculation Date for such
currency.
Dollar Revolving Loans
has the meaning assigned to such term in Section 2.01.
refers to lawful money of the United States of America.
means the date on which the conditions specified in Section 5.01
are satisfied (or waived in accordance with Section 10.01).
Environmental Laws
means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority
that are in each case relating to pollution or the protection of
the environment, the preservation or reclamation of natural
resources, the management, storage or release of any Hazardous
Material, or to health and safety matters as they relate to
Hazardous Materials or natural resources.
Environmental Liability
means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) the
violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d)
the release or threatened release of any Hazardous Materials into
the environment or (e) any consent order or consent agreement
pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ERISA Affiliate
means (i) any entity (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under
Sections 414(b) or (c) of the Code or, solely for purposes of
Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code,
is treated as a single employer under Sections 414(m) or (o) of the
Code and (ii) any entity (whether or not incorporated) that,
together with the Borrower, is under common control within the
meaning of Section 4001(a)(14) of ERISA.
ERISA Event
means (a) a Reportable Event with respect to a Plan; (b) the
failure to meet the minimum funding standard of Sections 412 or 430
of the Code or Sections 302 or 303 of ERISA with respect to any
Single Employer Plan (whether or not waived in accordance with
Section 412(c) of the Code) or the failure to make by its due date
a required installment under Section 430(j) of the Code or Section
303(j) of ERISA with respect to any Single Employer Plan or the
failure to make any required contribution to a Multiemployer Plan;
(c) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA, other than for PBGC
premiums; (d) a determination that any Plan is, or is expected to
be, in at risk status (within the meaning of Section 430 of the
Code or Title IV of ERISA; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan or the commencement of
proceedings by the PBGC to terminate a Plan; (f) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is insolvent (within the meaning of Section 4245 of ERISA), in
endangered or critical status (within the meaning of Section 432 of
the Code or Section 305 of ERISA).
EURIBOR Screen Rate
has the meaning assigned to such term in the definition of LIBO
Rate.
means the single
currency of Participating Member States introduced in accordance
with the provisions of Article 109(1)4 of the Treaty and, in
respect of all payments to be made under this Agreement in Euro,
means immediately available, freely transferable funds.
Euro Revolving Loans
means when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted
LIBO Rate.
Eurodollar Tranche
means the collective reference to Eurodollar Loans denominated
in the same currency the then current Interest Periods with respect
to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on
the same day).
has the meaning assigned to such term in Article VIII.
Excluded Taxes
shall mean (i) net income taxes and franchise taxes (imposed on
or measured by net income) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between
the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any
other Loan Document), (ii) Taxes that are attributable to a Lenders
failure to comply with the requirements of Section 2.14(f), (iii)
in the case of a Lender, United States federal withholding taxes
resulting from any Requirement of Law in effect on the date such
Lender becomes a party to this Agreement (other than pursuant to an
assignment request by the Borrower under Section 2.17(b)), except
to the extent that such Lenders assignor (if any) was entitled, at
the time of assignment, to receive additional amounts with respect
to such Taxes pursuant to Section 2.14 or (iv) any U.S. federal
withholding Taxes imposed under FATCA.
means on any day, with respect to any currency, the rate at
which such currency may be exchanged into any other currency, as
set forth at approximately 11:00 a.m., London time, on such date on
the Reuters World Currency Page for such currency. In the event
that such rate does not appear on any Reuters World Currency Page,
the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be
selected by the Administrative Agent, or, in the event no such
service is selected, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency
exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., Local Time, on such date for the
purchase of the relevant currency for delivery two Business Days
later;
that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent, after
consultation with the Borrower, may use any reasonable
method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error.
Existing Letters of Credit
means the letters of credit set forth in
Existing Revolving Credit Facility
means the Five-Year Credit Agreement, dated as of April 26,
2011, as amended, pursuant to the First Amendment thereto dated as
of March 1, 2013, among the Borrower and JPMorgan Chase Bank, N.A.,
individually and as agent, and certain lenders.
Existing Letter of Credit Facility
means the Five-Year Credit Agreement, dated as of April 26,
2011, as amended, among the Borrower and Bank of America, N.A.,
individually and as agent, and certain issuing banks party
thereto.
means Sections 1471 through 1474 of the Code, as of the date of
this Agreement, and any regulations or official interpretations
thereof.
Federal Aviation Act
means the Federal Aviation Act of 1958, as amended from time to
time.
means, for any day, an interest rate per annum equal to the rate
calculated by the New York Fed based on such days federal funds
transactions by depository institutions (as determined in such
manner as the New York Fed shall set forth on its public website
from time to time) and published on the next succeeding Business
Day by the New York Fed as the federal funds effective rate.
Fee Payment Date
last day of March, June, September and December of each year and
(b) the date on which the Commitments terminate.
Financial Officer
means the chief financial officer, principal accounting officer,
treasurer, staff vice president and assistant treasurer or
controller of the Borrower.
Flight Equipment
means, individually and collectively, aircraft, aircraft
engines, appliances and spare parts, all as defined in the Federal
Aviation Act, and related parts.
Foreign Currency Letter of Credit
means a Letter of Credit denominated in Euros or Pounds
Sterling.
Foreign Subsidiary
means any Subsidiary of the Borrower that is organized and
existing under the laws of any jurisdiction outside of the United
States of America or that is a Foreign Subsidiary Holding
Company.
means any Subsidiary of the Borrower or its domestic
Subsidiaries that has no material assets other than securities of
one (1) or more Foreign Subsidiaries, and other assets relating to
an ownership interest in any such securities or Subsidiaries.
means generally accepted principles of accounting as in effect
from time to time in the United States of America. In the event
that any Accounting Change (as defined below) shall occur and such
change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then
upon delivery of notice of such Accounting Change from either
the
Borrower or the Administrative Agent, each of the Borrower and
the Administrative Agent agree to enter into negotiations in order
to amend such provisions of this Agreement so as to reflect
equitably such Accounting Changes with the desired result that the
criteria for evaluating the Borrowers financial condition shall be
the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as notice of such
Accounting Change has been delivered pursuant to the preceding
sentence and an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting
Changes had not occurred.
refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by
the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants or, if applicable, the SEC.
means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.
Guarantee Agreement
means, collectively, those certain Guarantee Agreements,
substantially in the form of
attached hereto, to be executed by certain Subsidiaries in
accordance with the terms of this Agreement.
means each Subsidiary that is a party to the Guarantee
Agreement.
means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas, and (b) any
other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant
(or terms of similar meaning), under any Requirement of Law.
Hedge Agreement
means any interest rate swap, exchange or cap agreement.
Impacted Interest Period
Increased Facility Activation Notice
means a notice substantially in the form of Exhibit G-1.
Increased Facility Closing Date
means any Business Day designated as such in an Increased
Facility Activation Notice.
of a Person means, without duplication, (i) obligations of such
Person for borrowed money, (ii) obligations of such Person
representing the deferred purchase price of property or services
(other than accounts payable arising in the ordinary course of such
Persons business payable), (iii) Indebtedness of others, whether or
not assumed, secured by Liens on any property now or hereafter
owned or acquired by such Person, (iv) obligations of such Person
which are evidenced by notes, bonds, debentures, or other similar
instruments, (v) net liabilities of such Person under Hedge
Agreements, (vi) Contingent Obligations of such Person, and (vii)
obligations of such Person created through asset securitization
financing programs.
Indemnified Taxes
means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document and (b) to the extent not
otherwise described in (a), Other Taxes.
means senior, unsecured, non-credit enhanced long-term debt
issued by the Borrower.
Individual L/C Sublimit
has the meaning assigned to such term in the definition of L/C
Sublimit.
Interest Election Request
means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.05.
Interest Payment Date
means (a) with respect to any ABR Loan, the last day of each
March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three (3)
months duration, each day prior to the last day of such Interest
Period that occurs at intervals of three (3) months duration after
the first day of such Interest Period.
means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one
(1), two (2) , three (3) or six (6) months thereafter, as the
Borrower may elect;
, that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
Interpolated Rate
means at any time and with respect to any currency, the rate per
annum (rounded to the same number of decimal places as the Screen
Rate) determined by the Administrative Agent (which determination
shall be conclusive and binding absent manifest error) to be equal
to the rate that results from interpolating on a linear basis
between: (a) the applicable Screen Rate (for the longest period for
which the applicable Screen Rate is available for the applicable
currency) that is shorter than the Impacted Interest Period and (b)
the applicable Screen Rate (for the shortest period for which the
applicable Screen Rate is available for the applicable currency)
that exceeds the Impacted Interest Period, in each case, as of the
Specified Time on the Quotation Day for such Interest Period. When
determining the rate for a period which is less than the shortest
period for which the Screen Rate is available, the Screen Rate for
purposes of clause (a) above shall be deemed to be the overnight
rate for the relevant currency determined by the Administrative
Agent from such service as the Administrative Agent may select.
means the Internal Revenue Service.
means each of JPMorgan Chase Bank, N.A., Bank of America, N.A.,
The Bank of Nova Scotia, Citibank, N.A. and any other Lender
approved by the Administrative Agent and the Borrower that has
agreed in its sole discretion to act as an Issuing Bank hereunder,
or any of their respective affiliates, in each case in its capacity
as issuer of any Letter of Credit. Each reference herein to the
Issuing Bank shall be deemed to be a reference to the relevant
Issuing Bank.
has the meaning assigned to such term in Section 10.20(a).
Judgment Currency Conversion Date
means, at any time, the total L/C Obligations. The L/C Exposure
of any Lender at any time shall be an amount equal to its Aggregate
Exposure Percentage of the total L/C Exposure at such time;
that in the case of Section 2.16 when a Defaulting Lender shall
exist, the L/C Exposure of any Lender shall be adjusted to give
effect to any reallocation effected pursuant to Section 2.16.
means at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under
Letters of Credit that have not then been reimbursed pursuant to
Section 3.05.
L/C Participants
means the collective reference to all the Lenders other than the
Issuing Banks.
means an amount equal to the lesser of (a) $500,000,000 and (b)
the remaining outstanding Commitments;
that, with respect to each Person acting as an Issuing Bank as
of the Effective Date, there shall be an individual L/C Sublimit
(the
) equal to the greater of (x) $125,000,000 and (y) the face
amount of all Existing Letters of Credit (including extensions and
renewals thereof but without giving effect to any increase in the
face amount thereof) issued by such Issuing Bank (if any);
that if the face amount of such Existing Letters of Credit
issued by such Issuing Bank is decreased below $125,000,000 at any
time, the Individual L/C Sublimit with respect to such Issuing Bank
shall be $125,000,000;
provided further
no such Issuing Bank that has issued an Existing Letter of
Credit shall have any obligation to issue additional Letters of
Credit until the outstanding face amount of its Existing Letters of
Credit is less than $125,000,000. The L/C Sublimit is part of, and
not in addition to, the Commitments and each Issuing Banks
Individual L/C Sublimit is part of, and not in addition to such
Issuing Banks (or its Affiliates) Commitments.
Lender Affiliate
means (a) any Affiliate of any Lender, (b) any Person that is
administered or managed by any Lender or any Affiliate of any
Lender and that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business, or (c) with respect
to any Lender which is a fund that invests in commercial loans and
similar extensions of credit, any other fund that invests in
commercial loans and similar extensions of credit and is managed or
advised by the same investment advisor as such Lender or by an
Affiliate of such Lender or investment advisor.
means the Persons listed on
Schedule 2.01
and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance. Unless the context otherwise requires, each
reference herein to the Lenders shall be deemed to include any
Conduit Lender.
has the meaning assigned to such term in Section 3.01(a).
means, (a) with respect to any Eurodollar Borrowing (other than
a Eurodollar Borrowing denominated in Euros) for any Interest
Period, a rate per annum equal to the London interbank offered rate
as administered by the ICE Benchmark Administration (or any other
Person that takes over the administration of such rate) for the
applicable currency for a period equal in length to such Interest
Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters
Screen that
displays such rate (or, in the event such rate does not appear
on either of such Reuters pages, on any successor or substitute
page on such screen that displays such rate, or on the appropriate
page of such other information service that publishes such rate
from time to time as selected by the Administrative Agent in its
reasonable discretion; in each case, the
LIBO Screen Rate
) and (b) with respect to any such Eurodollar Borrowing
denominated in Euros, the interbank offered rate administered by
the Banking Federation of the European Union (or any other Person
which takes over the administration of such rate) for Euros for a
period equal in length to such Interest Period as displayed on page
EURIBOR01 of the Reuters screen (or, in the event such rate does
not appear on such Reuters page, on any successor or substitute
page on such screen that displays such rate, or on the appropriate
page of such other information service that publishes such rate
from time to time as selected by the Administrative Agent in its
reasonable discretion; in each case, the
), in each case as of the Specified Time on the Quotation Day
for such Interest Period;
that if the applicable Screen Rate shall be less than zero, such
rate shall be deemed to be zero for purposes of this Agreement;
, that if the Screen Rate shall not be available at such time
for such Interest Period (an
) with respect to the relevant currency, then the LIBO Rate
shall be the Interpolated Rate at such time (
that if the Interpolated Rate shall be less than zero, such rate
shall be deemed to be zero for purposes of this Agreement).
means any lien (statutory or other), mortgage, pledge,
hypothecation, encumbrance or other security interest of any kind
or nature whatsoever (including, without limitation, the interest
of a vendor or lessor under any conditional sale, capital lease or
other title retention agreement).
means the Dollar Revolving Loans, Euro Revolving Loans and
Sterling Revolving Loans made by the Lenders to the Borrower
pursuant to this Agreement.
Loan Documents
means this Agreement, the Guarantee Agreement and the Notes, if
any.
Loan Parties
means the collective reference to the Borrower and each
Guarantor.
means (a) with respect to a Loan or Letter of Credit denominated
in Dollars, New York City time and (b) with respect to a Loan or
Letter of Credit denominated in Euros or Pounds Sterling, London
time.
means, as of any date with respect to any Person, all
liabilities of such Person outstanding on such date which would in
accordance with GAAP be classified as long term debt of such Person
(including, without limitation, capitalized lease obligations of
such Person).
Margin Stock
has the meaning assigned to such term in Regulation U.
Material Adverse Effect
means a material adverse effect on (i) the business, property,
financial condition or results of operations of the Borrower and
its consolidated Subsidiaries taken as a whole, (ii) the ability of
the Borrower to perform its obligations under the Loan Documents,
or (iii) the validity or enforceability of any of the Loan
Documents to which Borrower or any of the Significant Subsidiaries
is a party or the rights or remedies of the Administrative Agent or
the Lenders thereunder.
Material Indebtedness
means Indebtedness (other than the Loans or other Obligations)
of any one (1) or more of the Borrower and its consolidated
Subsidiaries in an aggregate principal amount exceeding
$200,000,000 (or the equivalent thereof in any other currency).
means November 13, 2020, or if such date is not a Business Day,
the next succeeding Business Day.
means Moodys Investors Service, Inc., or, if Moodys shall cease
rating Index Debt of the Borrower and its ratings business with
respect to Index Debt of the Borrower shall have been transferred
to a successor Person, such successor Person;
, that if Moodys ceases rating securities similar to Index Debt
of the Borrower and its ratings business with respect to such
securities shall not have been transferred to any successor Person,
then Moodys shall mean any other nationally recognized rating
agency (other than S&P) selected by the Borrower and reasonably
satisfactory to the Administrative Agent that rates any
Indebtedness of the Borrower.
means a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
New Lenders
has the meaning assigned to such term in Section 2.18(b).
means the Federal Reserve Bank of New York.
means, for any day, the greater of (a) the Federal Funds
Effective Rate in effect on such day and (b) the Overnight Bank
Funding Rate in effect on such day;
that if both such rates are not so published for any day that is
a Business Day, the term New York Fed Bank Rate means the rate
quoted for such day for a federal funds transaction at 11:00 a.m.
on such day received by the Administrative Agent from a Federal
funds broker of recognized standing selected by it;
, that if any of the aforesaid rates shall be less than zero,
such rate shall be deemed to be zero for purposes of this
Agreement.
Non-U.S. Lender
has the meaning assigned to such term in Section 2.14(f).
means any promissory notes executed by the Borrower in favor of
a Lender Party hereto pursuant to Section 2.07(e).
means the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans,
the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any
Lender, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any
other Loan Document, the Letters of Credit or any other document
made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs or expenses (including all
fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower
pursuant hereto).
means any and all present or future stamp, court or documentary,
intangible, recording, filing or similar taxes arising from any
payment made hereunder or from the execution, delivery,
performance, registration or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
Owners Equity
means, as of any date, the amount set forth as total common
stockholders investment on a consolidated balance sheet of the
Borrower and its consolidated Subsidiaries prepared as of such date
in accordance with GAAP.
means, for any day, the rate comprised of both overnight federal
funds and overnight Eurodollar borrowings by U.S.managed banking
offices of depository institutions (as such composite rate shall be
determined by the New York Fed as set forth on its public website
from time to time) and published on the next succeeding Business
Day by the New York Fed as an overnight bank funding rate (from and
after such date as the New York Fed shall commence to publish such
composite rate).
has the meaning assigned to such term in Section 10.06(b).
Participant Register
means each state so described in any EMU legislation.
means the USA Patriot Act, Title III of Pub. L. 107-56, signed
into law on October 26, 2001.
means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
means the lawful currency of the United Kingdom of Great Britain
and Northern Ireland.
means at a particular time, any employee benefit plan within the
meaning of Section 3(3) of ERISA (including a Single Employer
Plan), maintained for employees of the Borrower or any ERISA
Affiliate or any such Plan to which Borrower of any ERISA Affiliate
is required to contribute on behalf of any of its employees.
means as follows:
Index Debt Ratings
Applicable Rate
(Eurodollar Loan)
(ABR Loan)
Commitment Fee
Rate
Level 1
≥ A from S&P or ≥ A2 from Moodys
0.750%
0.080%
Level 2
A- from S&P or A3 from Moodys
0.875%
0.100%
Level 3
BBB+ from S&P or Baa1 from Moodys
0.125%
Level 4
BBB from S&P or Baa2 from Moodys
0.150%
Level 5
≤ BBB- from S&P and ≤ Baa3 from Moodys
0.200%
For purposes of the foregoing, (i) if the ratings established or
deemed to have been established by Moodys and S&P for the Index
Debt shall be changed (other than as a result of a change in the
rating system of Moodys or S&P), such change shall be effective
as of the date on which it is first announced by the applicable
rating agency; (ii) if the ratings established or deemed to have
been established by Moodys and S&P for the Index Debt shall
fall within different Levels, the Applicable Rate shall be based on
the higher of the two (2) ratings unless one (1) of the two (2)
ratings is two (2) or more Levels lower than the other, in which
case the Applicable Rate shall be determined by reference to the
Level next below that of the higher of the two (2) ratings; and
(iii) if either Moodys or S&P shall not have in effect a rating
for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Level
5. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such
change. If the rating system of Moodys or S&P shall change, the
Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system and, pending
the effectiveness of any such amendment, the Applicable Rate shall
be determined by reference to the rating most recently in effect
prior to such change.
means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in
effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
of a Person means any and all property of such Person, whether
real, personal, tangible, intangible, or mixed, and other assets
owned or leased by such Person, including cash, securities,
accounts, and contract rights.
means with respect to any Loan or Borrowing determined by
reference to the Adjusted LIBO Rate for any Interest Period, (i) in
the case of Dollar Revolving Loans, two Business Days prior to the
commencement of such Interest Period, (ii) in the case of Euro
Revolving Loans, two Business Days prior to the commencement of
such Interest Period and (iii) in the case of Sterling Revolving
Loans, the first day of such Interest Period.
has the meaning assigned to such term in Section 10.06(d).
means Regulation U of the Board as from time to time in effect
and any successor or other regulation or official interpretation of
the Board relating to the extension of credit by banks and/or
nonbank lenders other than brokers or dealers that is (i) for the
purpose of purchasing or carrying Margin Stock or (ii) secured by
Margin Stock, and that is applicable to member banks of the Federal
Reserve System and/or nonbank lenders other than brokers or
dealers.
Regulation X
means Regulation X of the Board as from time to time in
effect.
means the obligation of the Borrower to reimburse the Issuing
Banks pursuant to Section 3.05 for amounts drawn under Letters of
Credit.
means any of the events set forth in Section 4043(c) of ERISA,
other than those events for which the thirty (30) day notice period
has been waived under the applicable regulations.
means, at any time, Lenders having Credit Exposures and unused
Commitments representing more than fifty percent (50%) of the sum
of the total Credit Exposures and unused Commitments at such
time.
means, as to any Person, any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its
property is subject.
Reset Date
has the meaning assigned to such term in Section 1.05(c).
Restricted Margin Stock
means Margin Stock owned by the Borrower or any Subsidiary which
represents not more than twenty-five percent (25%) of the aggregate
value (determined in accordance with Regulation U), on a
consolidated basis, of the property and assets of the Borrower and
the Subsidiaries (other than Margin Stock) that is subject to the
provisions of Article VII (including Section 7.01).
means all international economic sanctions administered or
enforced by (a) the U.S. government, including those administered
by the Office of Foreign Assets Control of the U.S. Department of
the Treasury or the U.S. Department of State, (b) the European
Union or Her Majestys Treasury of the United Kingdom.
Sanctioned Country
means, at any time, a country, region or territory which is
itself the subject or target of any Sanctions (at the time of this
Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
Sanctioned Person
means, at any time, (a) any Person listed in any
Sanctions-related list of designated Persons maintained by the
Office of Foreign Assets Control of the U.S. Department of the
Treasury, the U.S. Department of State, the European Union or Her
Majestys Treasury of the United Kingdom, (b) any Person operating,
organized or resident in a Sanctioned Country or (c) any Person
controlled by any such Person or Persons described in the foregoing
clauses (a) or (b).
means the Securities and Exchange Commission or any successor
thereto.
means any Subsidiary that would meet the definition of
significant subsidiary contained as of the date hereof in
Regulation S-X of the SEC, excluding, however, any Foreign
Subsidiary Holding Company.
means any Plan that is covered by Title IV of ERISA or Sections
412 or 430 of the Code or Sections 302 or 303 of ERISA, but that is
not a Multiemployer Plan.
means Standard & Poors Financial Services LLC, a subsidiary
of The McGraw Hill Companies, Inc., or, if S&P shall cease
rating Index Debt of the Borrower and its ratings business with
respect to Index Debt of the Borrower shall have been transferred
to a successor Person, such successor Person;
, that if S&P ceases rating securities similar to Index Debt
of the Borrower and its ratings business with respect to such
securities shall not have been transferred to any successor Person,
then S&P shall mean any other nationally recognized rating
agency (other than Moodys) selected by the Borrower and reasonably
satisfactory to the Administrative Agent that rates any
Indebtedness of the Borrower.
means the EURIBOR Screen Rate and the LIBO Screen Rate,
collectively and individually, as the context may require.
Specified Guarantors
means Federal Express Corporation, FedEx Ground Package System,
Inc., FedEx Freight Corporation, FedEx Freight, Inc., FedEx
Corporate Services, Inc., FedEx TechConnect, Inc., and FedEx Office
and Print Services, Inc., and, in each case, any other Person to
which any such Specified Guarantor sells, transfers or otherwise
disposes of all or substantially all of its assets or into which
such Specified Guarantor is merged or consolidated.
means (i) in the case of Dollar Revolving Loans, 11:00 a.m. New
York City time, (ii) in the case of Euro Revolving Loans, 11:00
a.m. Brussels time and (iii) in the case of Sterling Revolving
Loans, 11:00 a.m. London time.
means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number
one minus the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect
on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently
referred to as Eurocurrency Liabilities in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve
percentage.
of a Person means (i) any corporation more than fifty percent
(50%) of the outstanding Voting Stock of which shall at the time be
owned or controlled, directly or indirectly, by such Person or by
one (1) or more of its subsidiaries or by such Person and one (1)
or more of its subsidiaries, or (ii) any partnership, association,
joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having power to direct the
ordinary affairs thereof of which shall at the time be so owned or
controlled.
means any subsidiary of the Borrower.
means the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET2) payment system (or, if such payment
system ceases to be operative, such other payment system (if any)
reasonably determined by the Administrative Agent to be a suitable
replacement) for the s