CREDIT AGREEMENT
Dated as of July 25, 1995
among
DYNCORP,
a Delaware corporation
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
CITICORP NORTH AMERICA, INC.
as Agent
CREDIT AGREEMENT
This Credit Agreement dated as of July 25, 1995 (as
amended, supplemented or modified from time to time, the "Agree
ment") is entered into among DynCorp, a Delaware corporation (the
"Borrower"), the institutions from time to time a party hereto as
Lenders, whether by execution of this Agreement or an Assignment
and Acceptance, and Citicorp North America, Inc., a Delaware
corporation ("Citicorp"), in its capacity as agent for the
Lenders hereunder (in such capacity, the "Agent").
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. The following terms used
in this Agreement shall have the following meanings, applicable
both to the singular and the plural forms of the terms defined:
"Accommodation Obligation" means any Contractual Obliga
tion, contingent or otherwise, of one Person with respect to any
Indebtedness, obligation or liability of another, if the primary
purpose or intent thereof by the Person incurring the
Accommodation Obligation is to provide assurance to the obligee
of such Indebtedness, obligation or liability of another that
such Indebtedness, obligation or liability will be paid or
discharged, or that any agreements relating thereto will be
complied with, or that the holders thereof will be protected (in
whole or in part) against loss in respect thereof including,
without limitation, direct and indirect guarantees, endorsements
(except for collection or deposit in the ordinary course of busi
ness), notes co-made or discounted, recourse agreements, take-or-
pay agreements, keep-well agreements, agreements to purchase or
repurchase such Indebtedness, obligation or liability or any
security therefor or to provide funds for the payment or dis
charge thereof, agreements to maintain solvency, assets, level of
income, or other financial condition, and agreements to make
payment other than for value received. The amount of any Accom
modation Obligation shall be equal to the amount of the
Indebtedness, obligation or liability so guaranteed or otherwise
supported; provided, that (i) if the liability of the Person
extending such guaranty or support is limited with respect
thereto to an amount less than the Indebtedness, obligation or
liability guaranteed or supported, or is limited to recourse
against a particular asset or assets of such Person, the amount
of the corresponding Accommodation Obligation shall be limited
(in the case of a guaranty or other support limited by amount) to
such lesser amount or (in the case of a guaranty or other support
limited by recourse to a particular asset or assets) to the
higher of the Fair Market Value of such asset or assets at the
date for determination of the amount of the Accommodation Obliga
tion or the value at which such asset or assets would, in con
formity with GAAP, be reflected on or valued for the purposes of
preparing a consolidated balance sheet of such Person as at such
determination date; and (ii) if any obligation or liability is
guaranteed or otherwise supported jointly and severally by a
Person and others, then the amount of the obligation or liability
of such Person with respect to such guaranty or other support to
be included in the amount of such Person's Accommodation
Obligation shall be the whole principal amount so guaranteed or
otherwise supported.
"Affiliate", as applied to any Person, means any other
Person that directly or indirectly controls, is controlled by, or
is under common control with, that Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote five percent (5.0%) or more
of the Securities having voting power for the election of
directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether
through the ownership of voting Securities or by contract or
otherwise.
"Agent" means Citicorp and each successor agent
appointed pursuant to the terms of Article XII of this Agreement.
"Agreement" is defined in the preamble hereto.
"Applicable Lending Office" means, with respect to a
particular Lender, its Eurodollar Lending Office in respect of
provisions relating to Eurodollar Rate Loans and its Domestic
Lending Office in respect of provisions relating to Base Rate
Loans.
"Assignment and Acceptance" means an Assignment and
Acceptance in substantially the form of Exhibit A attached hereto
and made a part hereof (with blanks appropriately completed)
delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement in accordance with the
provisions of Section 14.01.
"Bankruptcy Code" means Title 11 of the United States
Code (11 U.S.C. 101 et seq.), as amended from time to time,
and any successor statute.
"Base Eurodollar Rate" means, with respect to any Euro
dollar Interest Period applicable to a Borrowing of Eurodollar
Rate Loans, an interest rate per annum determined by the Agent to
be the average (rounded upward to the nearest whole multiple of
one-sixteenth of one percent (0.0625%) per annum if such average
is not such a multiple) of the rates per annum specified by
notice to the Agent by Citibank as the rate per annum at which
deposits in Dollars are offered by the principal office of
Citibank in London, England to major banks in the London
interbank market at approximately 11:00 a.m. (London time) on the
Eurodollar Interest Rate Determination Date for such Eurodollar
Interest Period for a period equal to such Eurodollar Interest
Period and in an amount substantially equal to the amount of the
Eurodollar Rate Loan to be outstanding to Citicorp for such
Eurodollar Interest Period.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the higher
of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to
the next higher 1/4 of one percent) of (i) 1/2 of one
percent per annum, plus (ii) the rate per annum obtained by
dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United
States money market banks, such three-week moving average
being determined weekly on each Monday (or, if any such date
is not a Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank,
by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by
the Federal Reserve Board for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank in respect of liabilities
consisting of or including (among other liabilities) three-
month U.S. dollar nonpersonal time deposits in the United
States, plus (iii) the average during such three-week period
of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or
any successor) for insuring U.S. dollar deposits of Citibank
in the United States.
"Base Rate Loans" means all Loans which bear interest
at a rate determined by reference to the Base Rate as provided in
Section 4.01(a).
"Base Rate Margin" means a rate equal to one and one-
quarter percent (1.25%) per annum.
"Benefit Plan" means a defined benefit plan as defined
in Section 3(35) of ERISA (other than a Multiemployer Plan or
Foreign Employee Benefit Plan) in respect of which the Borrower
or any ERISA Affiliate is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of
ERISA.
"Borrower" is defined in the preamble of this
Agreement.
"Borrower Pledge Agreement" means that certain Pledge
Agreement of even date herewith executed by the Borrower in favor
of the Agent for the benefit of the Holders pursuant to which the
issued and outstanding Capital Stock of certain of Borrower's
Subsidiaries is pledged as part of the Collateral securing the
payment and performance of the Obligations.
"Borrower Security Agreement" means that certain
Security Agreement of even date herewith executed by the Borrower
in favor of the Agent for the benefit of the Holders pursuant to
which the personal Property and interests in Property of the
Borrower more specifically described therein are pledged as part
of the Collateral securing the payment and performance of the
Obligations.
"Borrowing" means a borrowing consisting of Loans of
the same type made, continued or converted on the same day.
"Borrowing Base" means, as of any date of determina
tion, an amount equal to up to (i) eighty-five percent (85%) of
the face amount of Dyn Funding Eligible Receivables set forth on
the Borrowing Base Certificate dated as of such date of
determination plus (ii) twenty percent (20%) (not to exceed
$5,000,000 in the aggregate at any time) of the face amount of
Non-Dyn Funding Eligible Receivables plus (iii) one hundred
percent (100%) of the amount of Cash Collateral. For purposes of
this definition, Dyn Funding Eligible Receivables and Non-Dyn
Funding Eligible Receivables as of any date of determination
shall be determined after deduction of all Eligibility Reserves
then effective with respect to such items.
"Borrowing Base Certificate" means a certificate, in
substantially the form of Exhibit B attached hereto and made a
part hereof, setting forth Eligible Receivables, respective
advance percentages with respect thereto, and the resultant
Borrowing Base, in each instance, as of the date of such certificate.
"Business Activity Report" means (A) a Notice of
Business Activities Report from the State of New Jersey Division
of Taxation or (B) a Minnesota Business Activity Report from the
Minnesota Department of Revenue.
"Business Day" means a day, in the applicable local
time, which is not a Saturday or Sunday or a legal holiday and on
which banks are not required or permitted by law or other govern
mental action to close (i) in New York, New York and (ii) in the
case of Eurodollar Rate Loans, in London, England.
"Capital Expenditures" means, for any period, the aggre
gate of all expenditures (whether payable in cash or other
Property or accrued as a liability (but without duplication))
during such period that, in conformity with GAAP, are required to
be included in or reflected by the Borrower's or any of its
Subsidiaries' fixed asset accounts as reflected in any of their
respective balance sheets; provided, however, (i) Capital
Expenditures shall include, whether or not such a designation
would be in conformity with GAAP, (A) that portion of Capital
Leases which is capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries and (B) expenditures for
Equipment which is purchased simultaneously with the trade-in of
existing Equipment owned by the Borrower or any of its
Subsidiaries, to the extent the gross purchase price of the
purchased Equipment exceeds the book value of the Equipment being
traded in at such time.
"Capital Lease" means any lease of any property
(whether real, personal or mixed) by a Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any
capital stock of such Person, regardless of class or designation,
and all warrants, options, purchase rights, conversion or ex
change rights, voting rights, calls or claims of any character
with respect thereto.
"Cash Collateral" means cash or Cash Equivalents held
by the Agent or any of the Lenders as security for the
Obligations.
"Cash Equivalents" means (i) marketable direct
obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the
United States government; and (ii) domestic and Eurodollar
certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any
commercial bank organized under the laws of the United States,
any state thereof, the District of Columbia, any foreign bank, or
its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A-1
(or better) by Standard & Poor's Corporation or P-1 (or better)
by Xxxxx'x Investors Services, Inc.; provided, that (x) the
maturities of such Cash Equivalents shall not exceed one year and
(y) such Cash Equivalents shall be maintained in investment and
other accounts of the Agent at Citibank.
"CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601 et seq., any amendments thereto, any successor statutes, and
any regulations promulgated thereunder.
"Change of Control" means either of (i) any transaction
or series of transactions (including, without limitation, a
tender offer, merger or consolidation) the result of which is
that any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act) other than an
Affiliate of the Borrower, becomes the "beneficial owner" (as
defined in Rule 13(d)(3) under the Securities Exchange Act) of
more than forty percent (40%) of the total aggregate voting power
of all classes of the Capital Stock which is voting stock of the
Borrower and/or warrants or options to acquire such Capital
Stock, calculated on a fully diluted basis or (ii) individuals
who as of the Closing Date constituted the Borrower's Board of
Directors (together with any new directors whose election by the
Borrower's Board of Directors or whose nomination for election by
the Borrower's stockholders was approved by a vote of at least
two-thirds of the directors then still in officer who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors then in office.
"Citibank" means Citibank, N.A., a national banking
association.
"Citicorp" is defined in the preamble of this
Agreement.
"Claim" means any claim or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs,
whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, Permit, ordinance or
regulation, common law or otherwise.
"Closing Date" means July 25, 1995.
"Collateral" means all Property and interests in Prop
erty now owned or hereafter acquired by the Borrower and the
Guarantors upon which a Lien is granted under the Borrower Pledge
Agreement, the Borrower Security Agreement, and the Guarantor
Pledge Agreements.
"Collection Account" means each lock-box and blocked
depository account maintained by the Borrower or any of its
Subsidiaries for the collection of Receivables and other proceeds
of Collateral subject to a written agreement among the Borrower
or a Subsidiary of the Borrower, the Agent, and Citibank,
substantially in the form attached hereto as Exhibit C with such
modifications as the Agent, from time to time, deems acceptable.
"Commercial Contract" means an agreement, in writing,
between the Borrower or a Guarantor and an account debtor, or an
open account of an account debtor of the Borrower or a Guarantor
evidenced by an invoice of the Borrower or a Guarantor, pursuant
to which such account debtor is obligated to pay for merchandise
or services; provided, however, that no Government Contract shall
be a Commercial Contract.
"Commercial Letter of Credit" means any documentary
letter of credit for the account of the Borrower or any of the
Borrower's Subsidiaries which is drawable upon presentation of
documents evidencing the sale or shipment of goods purchased by
the Borrower or such Subsidiary in the ordinary course of its
business.
"Commission" means the Securities and Exchange Commis
sion and any Person succeeding to the functions thereof.
"Commitment" means, with respect to any Lender at the
time of determination thereof, the aggregate amount of such
Lender's Revolving Credit Commitment and "Commitments" means the
aggregate amount of all Revolving Credit Commitments.
"Compliance Certificate" is defined in Section 7.01(c)
"Consolidated EBITDA" means, without duplication, for
any period, (i) the sum of the amounts for such period of (a)
Consolidated Net Income, plus (b) provision for taxes based on
income, plus (c) Consolidated Interest Expense, plus (d)
depreciation expense, plus (e) amortization expense, plus (f)
Restricted Stock Plan expense, plus (g) Net ESOP Contributions,
plus (h) non-cash 401(k) matching contributions and other
compensation expense payable in Capital Stock of the Borrower
which is common stock, minus (ii) the amount for such period of
interest income, all as determined on a consolidated basis in
accordance with GAAP. Notwithstanding the foregoing, the
calculation of Consolidated EBITDA shall not include the gain or
loss derived from the sale of assets permitted by Section 9.02(e)
and the sale of DynAir Tech.
"Consolidated Interest Expense" means, for any period,
the total interest expense of the Borrower and its Subsidiaries
on a consolidated basis for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries,
including, without limitation, all commissions, discounts, and
other fees and charges owed with respect to Letters of Credit and
bankers' acceptance financings and net costs under Hedge
Agreements, all as determined in accordance with GAAP.
"Consolidated Net Cash Interest Expense" means, for any
period, (i) Consolidated Interest Expense for such period, but
excluding interest expense not payable in cash, amortization of
debt discount and deferred financing costs, minus (ii)
consolidated cash interest income for such period.
"Consolidated Net Income" means, for any period, the
net income (or loss) of the Borrower and its Subsidiaries on a
consolidated basis for such period, excluding the sum of (i)
extraordinary items for such period, net of taxes based on
income, plus (ii) dividends for such period on Capital Stock
which is preferred stock plus (iii) amortization of issuance
discount on Capital Stock which is preferred stock for such
period, all as determined in accordance with GAAP.
"Contaminant" means any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum-derived substance or waste, radioactive
materials, asbestos-containing material, polychlorinated
biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contractual Obligation", as applied to any Person,
means any provision of any Securities issued by that Person or
any indenture, mortgage, deed of trust, security agreement,
pledge agreement, guaranty, contract, undertaking, agreement or
instrument to which that Person is a party or by which it or any
of its properties is bound, or to which it or any of its
properties is subject.
"Crestar Account" means Borrower's depository account
no. 00000000 at Crestar Bank in Alexandria, Virginia.
"Xxxxxxxx Point Note" means that certain promissory
note in the original principal amount of $9,108,230.87 dated
February 12, 1995 payable to the Borrower and executed by
Xxxxxxxx Point Industries, Inc., which note constitutes part of
the Collateral.
"Cure Loans" is defined in Section 3.02(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and
Liens in favor of the PBGC) with respect to the payment
of taxes, assessments or governmental charges in all
cases which are not yet due or which are being
contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other
appropriate provisions are being maintained in
accordance with GAAP;
(ii) Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or
workmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves
or other appropriate provisions are being maintained in
accordance with GAAP;
(iii) Liens (other than any Lien in favor of the
PBGC) incurred or deposits made in the ordinary course
of business in connection with worker's compensation,
unemployment insurance or other types of social
security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment
of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the
Borrower's or any of its Subsidiaries' assets or
Property or materially impair the use thereof in the
operation of their respective businesses, and (B) all
Liens of attachment or judgment and Liens securing
bonds to stay judgments or in connection with appeals
do not secure at any time an aggregate amount exceeding
$2,000,000; and
(iv) Liens arising with respect to zoning
restrictions, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances
on the use of Real Property which do not interfere with
the ordinary conduct of the business of the Borrower or
any of its Subsidiaries.
"DOL" means the United States Department of Labor and
any Person succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United
States.
"Domestic Lending Office" means, with respect to any
Lender, such Lender's office, located in the United States,
specified as the "Domestic Lending Office" under its name on the
signature pages hereof or on the Assignment and Acceptance by
which it became a Lender or such other United States office of
such Lender as it may from time to time specify by written notice
to the Borrower and the Agent.
"DynAir Tech" means Borrower's aircraft maintenance and
repair business conducted primarily through DynAir Tech of
Arizona, Inc., DynAir Tech of Florida, Inc. and DynAir Tech of
Texas.
"Dyn Funding" means Dyn Funding Corporation, a Delaware
corporation and Wholly-Owned Subsidiary of the Borrower.
"Dyn Funding Eligible Receivables" means those
Receivables of the Borrower and its Subsidiaries which comply
with the criteria set forth on Schedule A to Exhibit B.
"Eligibility Reserves" means, as of three (3) Business
Days after the date of written notice of any determination
thereof to the Borrower by the Agent, or to the Borrower and the
Agent by the Requisite Lenders, such amounts as the Agent, or the
Requisite Lenders, as the case may be, in the exercise of its or
their reasonable credit judgment, may from time to time establish
against the gross amounts of Eligible Receivables to reflect
risks or contingencies arising after the Closing Date which may
affect such items.
"Eligible Assignee" means (i) a Lender or any Affiliate
thereof; (ii) a commercial bank having total assets in excess of
$2,500,000,000; (iii) the central bank of any country which is a
member of the Organization for Economic Cooperation and
Development; or (iv) a finance company, insurance company, other
financial institution or fund, acceptable to the Agent, which is
regularly engaged in making, purchasing or investing in loans and
having total assets in excess of $300,000,000.
"Eligible Receivables" means, collectively, the Dyn
Funding Eligible Receivables and the Non-Dyn Funding Eligible
Receivables.
"Environmental, Health or Safety Requirements of Law"
means all Requirements of Law derived from or relating to any
federal, state or local law, ordinance, rule, regulation, Permit,
license or other binding determination of any Governmental
Authority relating to, imposing liability or standards
concerning, or otherwise addressing, the environment, health
and/or safety, including, but not limited to the Clean Air Act,
the Clean Water Act, CERCLA, RCRA, any so-called "Superfund" or
"Superlien" law, the Toxic Substances Control Act, OSHA, and
public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any
Governmental Authority for any (i) liabilities under any
Environmental, Health or Safety Requirement of Law, or
(ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Acts" means any
applicable Requirement of Law that conditions, restricts,
prohibits or requires any notification or disclosure triggered by
the transfer, sale, lease or closure of any Property or deed or
title for any Property for environmental reasons, including, but
not limited to, any so-called "Industrial Site Recovery Acts" or
"Responsible Property Transfer Acts".
"Equipment" means, with respect to any Person, all of
such Person's present and future (i) equipment, including,
without limitation, machinery, manufacturing, distribution,
selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings,
vehicles, vessels, aircraft, aircraft engines, and trade
fixtures, (ii) other tangible personal property (other than such
Person's Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in
connection therewith, and any substitutions therefor and
replacements, products and proceeds thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, 29 U.S.C. 1000 et seq., any amendments thereto,
any successor statutes, and any regulations or guidance
promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a
member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Internal Revenue Code) as the
Borrower; (ii) a partnership or other trade or business (whether
or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the
Borrower; and (iii) a member of the same affiliated service group
(within the meaning of Section 414(m) of the Internal Revenue
Code) as the Borrower, any corporation described in clause (i)
above or any partnership or trade or business described in clause
(ii) above.
"ESOP Documents" means, collectively, that certain
Subscription Agreement dated as of September 9, 1988 between
Borrower and Manufacturers Hanover Trust Company, as trustee of
the DynCorp Employee Stock Ownership Trust established pursuant
to the DynCorp Employee Stock Ownership Trust Agreement ("Trust
Agreement") adopted as part of the ESOP, the Trust Agreement, the
Plan, and that certain 1995 Stock Issuance Agreement dated March
30, 1995 between Borrower and the DynCorp Employee Stock
Ownership Trust.
"ESOP" means the DynCorp Employee Stock Ownership Plan
dated as of January 1, 1988 as amended through the Closing Date.
"Eurodollar Affiliate" means, with respect to each
Lender, the Affiliate of such Lender (if any) set forth below
such Lender's name under the heading "Eurodollar Affiliate" on
the signature pages hereof or on the Assignment and Acceptance by
which it became a Lender or such Affiliate of a Lender as it may
from time to time specify by written notice to the Borrower and
the Agent.
"Eurodollar Interest Payment Date" means (i) with
respect to any Eurodollar Rate Loan, the last day of each
Eurodollar Interest Period applicable to such Loan and (ii) with
respect to any Eurodollar Rate Loan having a Eurodollar Interest
Period in excess of three (3) calendar months, the last day of
each three (3) calendar month interval during such Eurodollar
Interest Period.
"Eurodollar Interest Period" is defined in
Section 4.02(b).
"Eurodollar Interest Rate Determination Date" is
defined in Section 4.02(c).
"Eurodollar Lending Office" means, with respect to any
Lender, the office or offices of such Lender (if any) set forth
below such Lender's name under the heading "Eurodollar Lending
Office" on the signature pages hereof or on the Assignment and
Acceptance by which it became a Lender or such office or offices
of such Lender as it may from time to time specify by written
notice to the Borrower and the Agent.
"Eurodollar Rate" means, with respect to any Eurodollar
Interest Period applicable to a Eurodollar Rate Loan, an interest
rate per annum obtained by dividing (i) the Base Eurodollar Rate
applicable to that Eurodollar Interest Period by (ii) a
percentage equal to 100% minus the Eurodollar Reserve Percentage
in effect on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loans" means those Loans outstanding
which bear interest at a rate determined by reference to the
Eurodollar Rate and the Eurodollar Rate Margin as provided in
Section 4.01(a).
"Eurodollar Rate Margin" means a rate equal to two and
three-quarters percent (2.75%) per annum.
"Eurodollar Reserve Percentage" means, for any day,
that percentage which is in effect on such day, as prescribed by
the Federal Reserve Board for determining the maximum reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York, New York with
deposits exceeding Five Billion Dollars ($5,000,000,000) in
respect of "Eurocurrency Liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to
which the interest rate on Eurodollar Rate Loans is determined or
any category of extensions of credit or other assets which
includes loans by a non-United States office of any bank to
United States residents).
"Event of Default" means any of the occurrences set
forth in Section 11.01 after the expiration of any applicable
grace period, as expressly provided in Section 11.01.
"Existing Securitization Program" means the financing
transactions set forth in the Receivables Purchase Documents.
"Fair Market Value" means, with respect to any asset,
the value of the consideration obtainable in a sale of such asset
in the open market, assuming a sale by a willing seller to a
willing purchaser dealing at arm's length and arranged in an
orderly manner over a reasonable period of time, each having
reasonable knowledge of the nature and characteristics of such
asset, neither being under any compulsion to act, and, if in
excess of $5,000,000, as determined in good faith by the Board of
Directors of the Borrower.
"Federal Funds Rate" means, for any period, a fluctu
ating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the
next preceding Business Day) in New York, New York by the Federal
Reserve Bank of New York, or if such rate is not so published for
any day which is a Business Day in New York, New York, the
average of the quotations for such day on such transactions
received by the Agent from three federal funds brokers of recog
nized standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors of
the Federal Reserve System or any Governmental Authority succeed
ing to its functions.
"Fee Letter" means that certain letter agreement dated
July 25, 1995 between the Borrower and Citicorp.
"Financial Officer" means any of the Borrower's senior
vice president and chief financial officer; vice president,
finance; vice president and controller; treasurer; and assistant
treasurer.
"Financial Statements" means (i) statements of income
and retained earnings, statements of cash flow, and balance
sheets and (ii) such other financial statements as the Borrower
and its Subsidiaries shall routinely and regularly prepare.
"Fiscal Month" means each period commencing on the date
immediately succeeding the "Effective Close Date" for the prior
fiscal month and ending on the "Effective Close Date" for the
applicable fiscal month as set forth on Schedule 1.01.1 attached
hereto.
"Fiscal Quarter" means each period commencing on the
date immediately succeeding the "Effective Close Date" for the
prior fiscal quarter and ending on the "Effective Close Date" for
the applicable fiscal quarter as set forth on Schedule 1.01.1
attached hereto.
"Fiscal Year" means the fiscal year of the Borrower and
its Subsidiaries for accounting and tax purposes, which shall be
the 12-month period ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means, for any period,
the ratio of (a) the amount calculated as (i) Consolidated EBITDA
minus (ii) all federal income taxes paid in cash during such
period minus (iii) the aggregate amount of Capital Expenditures
made in cash during such period to (b) Consolidated Net Cash
Interest Expense plus (ii) the aggregate amount of scheduled
payments of principal of Funded Debt during such period plus
(iii) the aggregate amount of cash dividends and cash stock
repurchases under the ESOP Documents paid by the Borrower during
such period other than those permitted by Section 9.06(d) and
(e).
"Foreign Employee Benefit Plan" means any employee bene
