EXHIBIT 10.1
THE BOEING COMPANY
364-DAY
CREDIT AGREEMENT
among
THE BOEING COMPANY
for itself and on behalf of its Subsidiaries,
as a Borrower
THE LENDERS PARTY HERETO
CITIBANK, N.A.,
as Administrative Agent
JPMORGAN CHASE BANK,
as Syndication Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
and
JPMORGAN SECURITIES, INC.,
as Joint Lead Arrangers and Joint Book Managers
dated as of November 23, 2001
TABLE OF CONTENTS
Article and Section Page
Article 1 Definitions
1.1 Definitions............................................................4
1.2 Use of Defined Terms; References......................................13
1.3 Accounting Terms......................................................13
Article 2 Amounts and Terms of the Advances
2.1 Committed Advances....................................................13
2.2 Making Committed Advances.............................................13
2.3 Conversion to Term Loans, Repayment...................................15
2.4 Interest Rate on Committed Advances...................................15
2.5 Bid Advances..........................................................16
2.6 Lender Assignment or Sale.............................................19
2.7 Fees19
2.8 Reduction of the Commitments..........................................20
2.9 Additional Interest on Eurodollar Rate Committed Advances.............20
2.10 Eurodollar Interest Rate Determination................................20
2.11 Voluntary Conversion of Committed Advances............................21
2.12 Prepayments...........................................................21
2.13 Increases in Costs....................................................22
2.14 Taxes.................................................................23
2.15 Illegality............................................................25
2.16 Payments and Computations.............................................26
2.17 Sharing of Payments, Etc..............................................26
2.18 Evidence of Debt......................................................27
2.19 Alteration of Commitments and Addition of Lenders.....................27
2.20 Assignments; Sales of Participations and Other Interests in Advances..29
2.21 Extension of Termination Date.........................................31
2.22 Subsidiary Borrowers..................................................32
Article 3 Representations and Warranties
3.1 Representations and Warranties by the Borrowers.......................34
Article 4 Covenants of TBC
4.1 Affirmative Covenants of TBC..........................................35
4.2 General Negative Covenants of TBC.....................................36
4.3 Financial Statement Terms.............................................38
4.4 Waivers of Covenants..................................................38
Article 5 Conditions Precedent to Borrowings
5.1 Conditions Precedent to the Initial Borrowing of TBC..................38
5.2 Conditions Precedent to Each Committed Borrowing of TBC...............39
5.3 Conditions Precedent to Each Bid Borrowing of TBC.....................39
5.4 Conditions Precedent to the Initial Borrowing of a Subsidiary
Borrower..............................................................40
5.5 Conditions Precedent to Each Committed Borrowing of a Subsidiary
Borrower..............................................................41
5.6 Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower...41
Article 6 Events of Default
6.1 Events of Default.....................................................42
6.2 Lenders' Rights upon Borrower Default.................................43
Article 7 The Agent
7.1 Authorization and Action..............................................44
7.2 Agent's Reliance, Etc.................................................44
7.3 Citibank, N.A. and its Affiliates.....................................45
7.4 Lender Credit Decision................................................45
7.5 Indemnification.......................................................45
7.6 Successor Agent.......................................................46
7.7 Certain Obligations May Be Performed by Affiliates....................46
Article 8 Miscellaneous
8.1 Modification, Consents and Waivers....................................46
8.2 Notices...............................................................47
8.3 Costs, Expenses and Taxes.............................................48
8.4 Binding Effect........................................................48
8.5 Severability..........................................................48
8.6 Governing Law.........................................................49
8.7 Headings..............................................................49
8.8 Execution in Counterparts.............................................49
8.9 Right of Set-Off......................................................49
8.10 Confidentiality.......................................................49
8.11 Agreement in Effect...................................................49
Exhibit A-1 - Committed Note
Exhibit A-2 - Bid Note
Exhibit B-1 - Notice of Committed Borrowing
Exhibit B-2 - Notice of Bid Borrowing
Exhibit C - Request for Alteration
Exhibit D - Borrower Subsidiary Letter
Exhibit E - Extension Request
Exhibit F - Continuation Notice
Exhibit G - Opinion of Counsel of the Company
Exhibit H - Opinion of Counsel for Agent
Exhibit I - Opinion of in-house counsel to Subsidiary Borrower
Exhibit J - Guaranty of TBC
Exhibit K - Opinion of Counsel to TBC
Schedule I - Commitments
CREDIT AGREEMENT
Dated as of November 23, 2001
THE BOEING COMPANY, a Delaware corporation ("TBC" or the "Company"), for itself
and on behalf of the other BORROWERS (as defined below), the LENDERS (as defined
below), ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. and JPMORGAN SECURITIES INC., as joint lead
arrangers and joint book managers, JPMORGAN CHASE BANK, as syndication agent,
and CITIBANK, N.A., in its capacity as administrative agent for the Lenders (in
such capacity, the "Agent"), agree as follows:
Article 1
Definitions
1.1 Definitions. As used in this Agreement, the following terms have the
respective meanings set out below:
"2000 Credit Agreement" means the Bank Credit Agreement, dated as of
September 27, 2000, as amended and restated as of September 24, 2001,
by and among TBC, Citibank, N.A., as administrative agent, and certain
other banks as lenders.
"Advance" means a Committed Advance or a Bid Advance.
"Agent" means Citibank, N.A. acting in its capacity as administrative agent for
the Lenders, or any successor administrative agent appointed pursuant
to Section 7.6.
"Agent's Account" means the account of the Agent maintained by the Agent with
Citibank, N.A., at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account ▇▇▇▇▇▇▇▇, Attention: Mr. ▇▇▇▇▇
▇▇▇▇▇▇▇.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. (For purposes
of this definition, the term "controls", "controlling", "controlled by"
and "under common control with" mean, with respect to a Person, the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of Voting Stock, by contract, or otherwise.)
"Agreement" means this agreement, as it may be amended or otherwise modified
from time to time, and any written additions or supplements hereto.
"Applicable Lending Office" means, with respect to each Lender, such Lender's
Domestic Lending Office, in the case of a Base Rate Advance, and such
Lender's Eurodollar Lending Office, in the case of a Eurodollar Rate
Advance, and, in the case of a Bid Advance, the office of such Lender
specified by such Lender in a notice to the Agent as its Applicable
Lending Office with respect to such Bid Advance.
"Applicable Margin" means,
(i) with respect to Base Rate Advances, 0% per annum; and
(ii) with respect to Eurodollar Rate Advances for any date, a
fluctuating per annum rate equal to the then-applicable rate
set forth in the pricing grid below, depending upon the rating
of the long-term senior unsecured debt of TBC then in effect:
--------------- ------------------------------------------------ --------------------- ---------------------
Level Public Debt Rating: S&P and ▇▇▇▇▇'▇ Applicable Margin Applicable Margin
Through the After the
Termination Date Termination Date
--------------- ------------------------------------------------ --------------------- ---------------------
Level I A+ by S&P or A1 by ▇▇▇▇▇'▇ or above 0.110% 0.250%
--------------- ------------------------------------------------ --------------------- ---------------------
Level II less than Level I 0.240% 0.400%
but at least A by S&P or A2 by ▇▇▇▇▇'▇
--------------- ------------------------------------------------ --------------------- ---------------------
Level III less than Level II 0.280% 0.500%
but at least A- by S&P or A3 by ▇▇▇▇▇'▇
--------------- ------------------------------------------------ --------------------- ---------------------
Level IV less than Level III 0.350% 0.675%
but at least BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇
--------------- ------------------------------------------------ --------------------- ---------------------
Level V less than Level IV 0.475% 0.875%
--------------- ------------------------------------------------ --------------------- ---------------------
provided, however, that if the ratings from S&P and ▇▇▇▇▇'▇ fall within
different levels, then the Applicable Margin shall be based on the
higher of the two ratings except that, if the lower of such ratings is
more than one level below the higher of such ratings, the Applicable
Margin shall be determined based on the level above the lower of such
ratings, and
provided further that if, at any time, no rating is available from S&P
and ▇▇▇▇▇'▇ or any other nationally recognized statistical rating
organization designated by TBC and approved in writing by the Majority
Lenders, the Applicable Margin for each Interest Period or each other
period commencing during the thirty days following such ratings
becoming unavailable shall be the Applicable Margin in effect
immediately prior to such ratings becoming unavailable. Thereafter, the
rating to be used until ratings from S&P and ▇▇▇▇▇'▇ become available
shall be as agreed between TBC and the Agent, and TBC and the Agent
shall use good faith efforts to reach such agreement within such
thirty-day period, provided, however, that if no such agreement is
reached within such thirty-day period the Applicable Margin thereafter,
until such agreement is reached, shall be (a) if any such rating has
become unavailable as a result of S&P or ▇▇▇▇▇'▇ ceasing its business
as a rating agency, the Applicable Margin in effect immediately prior
to such cessation or (b) otherwise, the Applicable Margin as set forth
under Level V above; and
provided further that in the event and during the continuance of an
Event of Default, the Applicable Margin shall immediately increase by
1.0% above the Applicable Margin then in effect, and, in the case of a
Eurodollar Rate Advance, such Advance shall automatically convert to a
Base Rate Advance at the end of the Interest Period then in effect for
such Eurodollar Rate Advance.
"Applicable Percentage" means, for any date, a fluctuating per annum rate equal
to the then-applicable rate set forth in the pricing grid below,
depending upon the rating of the long-term senior unsecured debt of TBC
then in effect:
----------------- ----------------------------------------------------------- --------------------------
Level Public Debt Rating: S&P and ▇▇▇▇▇'▇ Applicable Percentage
----------------- ----------------------------------------------------------- --------------------------
Level I A+ by S&P or A1 by ▇▇▇▇▇'▇ or above 0.040%
----------------- ----------------------------------------------------------- --------------------------
Level II less than Level I 0.060%
but at least A by S&P or A2 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level III less than Level II 0.070%
but at least A- by S&P or A3 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level IV less than Level III 0.100%
but at least BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level V less than Level IV 0.125%
----------------- ----------------------------------------------------------- --------------------------
provided, however, that if the ratings from S&P and ▇▇▇▇▇'▇ fall within
different levels, then the Applicable Percentage shall be based on the
higher of the two ratings except that, if the lower of such ratings is
more than one level below the higher of such ratings, the Applicable
Percentage shall be determined based on the level above the lower of
such ratings, and
provided further that if, at any time, no rating is available from S&P
and ▇▇▇▇▇'▇ or any other nationally recognized statistical rating
organization designated by TBC and approved in writing by the Majority
Lenders, the Applicable Percentage for each period commencing during
the thirty days following such ratings becoming unavailable shall be
the Applicable Percentage in effect immediately prior to such ratings
becoming unavailable. Thereafter, the rating to be used until ratings
from S&P and ▇▇▇▇▇'▇ become available shall be as agreed between TBC
and the Agent, and TBC and the Agent shall use good faith efforts to
reach such agreement within such thirty-day period, provided, however,
that if no such agreement is reached within such thirty-day period the
Applicable Percentage thereafter, until such agreement is reached,
shall be (a) if any such rating has become unavailable as a result of
S&P or ▇▇▇▇▇'▇ ceasing its business as a rating agency, the Applicable
Percentage in effect immediately prior to such cessation or (b)
otherwise, the Applicable Percentage as set forth under Level V above.
"Applicable Utilization Fee" means, for any date that the aggregate outstanding
Advances exceed 25% of the aggregate Commitments, a fluctuating per
annum rate equal to the then-applicable rate set forth in the pricing
grid below, depending upon the rating of the long-term senior unsecured
debt of TBC then in effect:
----------------- ----------------------------------------------------------- --------------------------
Level Public Debt Rating: S&P and ▇▇▇▇▇'▇ Applicable Utilization
Fee
----------------- ----------------------------------------------------------- --------------------------
Level I A+ by S&P or A1 by ▇▇▇▇▇'▇ or above 0.100%
----------------- ----------------------------------------------------------- --------------------------
Level II less than Level I 0.100%
but at least A by S&P or A2 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level III less than Level II 0.150%
but at least A- by S&P or A3 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level IV less than Level III 0.225%
but at least BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇
----------------- ----------------------------------------------------------- --------------------------
Level V less than Level IV 0.275%
----------------- ----------------------------------------------------------- --------------------------
provided, however, that if the ratings from S&P and ▇▇▇▇▇'▇ fall within
different levels, then the Applicable Utilization Fee shall be based on
the higher of the two ratings except that, if the lower of such ratings
is more than one level below the higher of such ratings, the Applicable
Utilization Fee shall be determined based on the level above the lower
of such ratings, and
provided further that if, at any time, no rating is available from S&P
and ▇▇▇▇▇'▇ or any other nationally recognized statistical rating
organization designated by TBC and approved in writing by the Majority
Lenders, the Applicable Utilization Fee for each period commencing
during the thirty days following such ratings becoming unavailable
shall be the Applicable Utilization Fee in effect immediately prior to
such ratings becoming unavailable. Thereafter, the rating to be used
until ratings from S&P and ▇▇▇▇▇'▇ become available shall be as agreed
between TBC and the Agent, and TBC and the Agent shall use good faith
efforts to reach such agreement within such thirty-day period,
provided, however, that if no such agreement is reached within such
thirty-day period the Applicable Utilization Fee thereafter, until such
agreement is reached, shall be (a) if any such rating has become
unavailable as a result of S&P or ▇▇▇▇▇'▇ ceasing its business as a
rating agency, the Applicable Utilization Fee in effect immediately
prior to such cessation or (b) otherwise, the Applicable Utilization
Fee as set forth under Level V above.
"Available Commitments" means, as of any date of determination, (a) the
aggregate Commitments of the Lenders, as such amount may be reduced,
changed or terminated in accordance with the terms of this Agreement,
reduced by (b) the aggregate Advances outstanding on such date of
determination.
"Base Rate" means the rate of interest announced publicly by Citibank, N.A.,
in New York City, from time to time, as Citibank's "base" rate.
"Base Rate Advance" means a Committed Advance which bears interest at the Base
Rate.
"Bid Advance" means an advance by a Lender to a Borrower as part of a Bid
Borrowing resulting from the auction bidding procedure described in
Section 2.5, and refers to a Fixed Rate Advance or a Eurodollar Rate
Bid Advance, each of which shall be a "Type" of Bid Advance.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Advances
from each of the Lenders whose offers to make one or more Bid Advances
as part of such borrowing has been accepted by a Borrower under the
auction bidding procedure described in Section 2.5.
"Bid Note" means a promissory note of a Borrower payable to the order of a
Lender, in substantially the form of Exhibit A-2, evidencing the
indebtedness of that Borrower to such Lender resulting from a Bid
Advance made by such Lender to such Borrower.
"Bid Reduction" has the meaning specified in Section 2.1(a).
"Borrower" means, individually and collectively, as the context requires, TBC
and each Subsidiary Borrower (unless and until it becomes a "Terminated
Subsidiary Borrower" pursuant to Section 2.22).
"Borrower Subsidiary Letter" means, with respect to any Subsidiary Borrower, a
letter in the form of Exhibit D, signed by such Subsidiary Borrower and
TBC.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advance, on which dealings are
carried on in the London interbank market.
"Commitment" means, for each Lender, the full amount set forth opposite the name
of such Lender in Schedule I or, if such Lender is a Replacement Lender
or a Lender that has entered into one or more assignments pursuant to
Section 2.20 or Section 2.21, the amount set forth for such Lender in
the Register maintained by the Agent pursuant to Section 2.20(d), as
such amount may be reduced pursuant to Section 2.3, Section 2.8 or
Section 2.19 or increased pursuant to Section 2.19.
"Committed Advance" means an advance made by a Lender to a Borrower as part of a
Committed Borrowing and refers to a Base Rate Advance or a Eurodollar
Rate Committed Advance, each of which is a "Type" of Committed Advance.
"Committed Borrowing" means a borrowing consisting of simultaneous Committed
Advances of the same Type made by each of the Lenders pursuant to
Section 2.1.
"Committed Note" means a promissory note of a Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-1, evidencing the
indebtedness of that Borrower to such Lender resulting from the
Committed Advances made by such Lender to that Borrower.
"Company" means The Boeing Company, a Delaware corporation (usually referred to
herein as "TBC").
"Confidential Information" means information that a Borrower furnishes to the
Agent or any Lender in a writing designated as confidential, but does
not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such
Lender from a source other than a Borrower.
"Consolidated" refers to the consolidation of accounts in accordance with
generally accepted accounting principles.
"Continuing Lender" has the meaning specified in Section 2.21(a).
"Convert," "Conversion" and "Converted" each means a conversion of Committed
Advances of one Type into Committed Advances of another Type pursuant
to Section 2.10, 2.11 or 2.15.
"Debt" of a Person means
(i) indebtedness for borrowed money or for the deferred purchase price
of property or services;
(ii) financial obligations evidenced by bonds, debentures, notes or
other similar instruments,
(iii) financial obligations as lessee under leases which have been
or should be, in accordance with generally accepted accounting
principles, recorded as capital leases; and
(iv) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or financial obligations of
others of the kind referred to in clauses (i) through (iii)
above.
"Default" means any Event of Default or any event that would constitute an Event
of Default but for the requirement that notice be given or time elapse
or both.
"Domestic Lending Office" means with respect to any Lender, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I, or in the assignment or other agreement pursuant to which
it became a Lender or such other office of such Lender as such Lender
may from time to time specify to TBC and the Agent.
"Effective Date" has the meaning specified in Section 2.19.
"Eligible Assignee" means
(i) a commercial bank organized under the laws of the United States,
or any state thereof, and having a combined capital and surplus
in excess of $3,000,000,000;
(ii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or a political
subdivision of any such country, and having a combined capital
and surplus in excess of $3,000,000,000, provided that such
bank is acting through a branch or agency located in either
(a) the country in which it is organized or (b) another
country which is also a member of the OECD or the Cayman
Islands;
(iii) the central bank of any country which is a member of the OECD;
(iv) any Lender;
(v) an Affiliate of any Lender; and
(vi) so long as no Default has occurred and is continuing, any
other Person approved in writing by TBC, which approval has
been communicated in writing to the Agent, provided that
neither TBC nor an Affiliate of TBC shall qualify as an
Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time and the regulations promulgated and rulings issued
thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, (a) the office of
such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I (or, if no such office is specified, its Domestic
Lending Office) or in the assignment or other agreement pursuant to
which it became a Lender or (b) such other office of such Lender as
such Lender may from time to time specify to TBC and the Agent.
"Eurodollar Rate" means, for an Interest Period for a Eurodollar Rate Committed
Advance constituting part of a Committed Borrowing, and for the
relevant period specified in the applicable Notice of Bid Borrowing for
a Eurodollar Rate Bid Advance, an interest rate per annum equal to
either
(a) the offered rate (rounded to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple)
for deposits in U.S. dollars for a period substantially equal
to such Interest Period (if a Committed Advance) or such
relevant period specified in the applicable Notice of Bid
Borrowing (if a Bid Advance), appearing on Telerate Markets
Page 3750 (or any successor page or, if unavailable for any
reason by Telerate, then by reference to Reuters Screen) as of
11:00 a.m. (London time) two business days before the first
day of such Interest Period or the first day of the relevant
period specified in such Notice of Bid Borrowing; or
(b) if the foregoing rate is unavailable from Telerate or the
Reuters Screen for any reason, the average (rounded to the
nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rates per annum are
offered by the principal office of each of the Reference Banks
to prime banks in the London interbank market at 11:00 a.m.
(London time) on deposits in U.S. dollars two Business Days
before the first day of such Interest Period or the first day
of such relevant period specified in the Notice of Bid
Borrowing
(i) for such Eurodollar Committed Advance, on an amount
substantially equal to such Reference Bank's Eurodollar
Rate Advance constituting part of such Committed
Borrowing and for a period equal to such Interest
Period, or
(ii) for such Eurodollar Rate Bid Advance, on an amount
substantially equal to the amount of the Eurodollar
Rate Bid Borrowing which includes such Bid Advance
multiplied by a fraction equal to such Reference Bank's
ratable portion of the Commitments and for a period
equal to the relevant period specified in such Notice
of Bid Borrowing.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Committed Advance constituting part of the same Borrowing and for the
relevant period specified in a Notice of Bid Borrowing for each
Eurodollar Rate Bid Advance shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period or period, as the case may be, subject, however, to the
provisions of Section 2.10.
"Eurodollar Rate Advance" means a Committed Advance (a "Eurodollar Rate
Committed Advance") or a Bid Advance (a "Eurodollar Rate Bid Advance")
which bears interest at a rate of interest quoted as a margin (which
shall be the Applicable Margin in the case of a Committed Advance or as
offered by a Lender and accepted by a Borrower in the case of a Bid
Advance) over the Eurodollar Rate.
"Eurodollar Rate Bid Borrowing" has the meaning specified in Section 2.5(b).
"Eurodollar Rate Reserve Percentage" means the reserve percentage applicable to
a Lender for any Interest Period for a Eurodollar Rate Advance during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"Event of Default" means any of the events described in Section 6.1.
"Extension Request" has the meaning specified in Section 2.21.
"Facility Fee" has the meaning specified in Section 2.7.
"Federal Funds Rate" means, for each day during a period, an interest rate per
annum equal to the weighted average of the fluctuating 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, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.
"Fixed Rate Advance" means an Advance made by a Lender to a Borrower as part of
a Fixed Rate Borrowing.
"Fixed Rate Borrowing" has the meaning specified in Section 2.5(b).
"Guaranty" means each Guaranty Agreement executed by TBC in favor of the Agent
and the Lenders, unconditionally guaranteeing the payment of all
obligations of a Subsidiary Borrower hereunder and under any Notes
executed or to be executed by it.
"Indemnified Costs" has the meaning specified in Section 7.5.
"Indemnified Parties" has the meaning specified in Section 8.3(b).
"Interest Period" means, for each Eurodollar Rate Committed Advance constituting
part of the same Borrowing, the period commencing on the date of such
Committed Advance or the date of the Conversion of a Base Rate Advance
into such a Eurodollar Rate Committed Advance and ending on the last
day of the period selected by the applicable Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three, or six months (or nine months, with the consent of all
Lenders funding those particular Advances), as the applicable Borrower
may, upon notice received by the Agent not later than 11:00 a.m. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select, provided, however, that:
(i) no Interest Period shall end on a date later than the
Termination Date (or in the case of a Committed Advance which
is converted to a Term Loan pursuant to Section 2.3, the
Maturity Date);
(ii) Interest Periods commencing on the same date for Committed
Advances constituting part of the same Committed Borrowing
shall be of the same duration; and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next
succeeding Business Day, provided that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of the Interest Period
shall occur on the immediately preceding Business Day.
"Lender", subject to Section 2.20, means any of the institutions that is a
signatory hereto or that, pursuant to Section 2.13, 2.19, 2.20 or 2.21,
becomes a "Lender" hereunder.
"Majority Lenders" means Lenders having greater than 50% of the total
Commitments or, if the Commitments have been terminated in full,
Lenders holding greater than 50% of the then aggregate unpaid principal
amount of the Advances.
"Maturity Date" means the Termination Date or, if the Term Loan Conversion
Option described in Section 2.3 has been exercised, the date that is
the one-year anniversary of the Termination Date.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Non-Extending Lender" has the meaning specified in Section 2.21(a).
"Note" means a Committed Note or a Bid Note.
"Notice of Bid Borrowing" has the meaning specified in Section 2.5(b).
"Notice of Borrowing" means a Notice of Committed Borrowing or a Notice of Bid
Borrowing.
"Notice of Committed Borrowing" has the meaning specified in Section 2.2(a).
"OECD" means the Organization for Economic Cooperation and Development.
"Person" means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Property, Plant and Equipment" means any item of real property, or any interest
therein, buildings, improvements and machinery.
"Proposed Increased Commitment" has the meaning specified in Section 2.19(a).
"Reference Banks" means JPMorgan Chase Bank, Citibank, N.A., Bank of America,
N.A., and Deutsche Bank AG.
"Register" has the meaning specified in Section 2.20(d).
"Replacement Lenders" has the meaning specified in Section 2.21(c).
"Request for Alteration" means a document substantially in the form of Exhibit
C, duly executed by TBC, pursuant to Section 2.19.
"Required Assignment" has the meaning specified in Section 2.20(a).
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Subsidiary" means any corporation in which more than 50% of the Voting Stock is
owned by TBC, by TBC and any one or more other Subsidiaries, or by any
one or more other Subsidiaries.
"Subsidiary Borrower" means, individually and collectively, as the context
requires, each Subsidiary that is or becomes a "Borrower" in accordance
with Section 2.22; in each case, unless and until it becomes a
"Terminated Subsidiary Borrower".
"TBC" means The Boeing Company, a Delaware corporation.
"Term Loan" means a term loan resulting from the conversion of Committed
Advances on the Termination Date pursuant to Section 2.3.
"Term Loan Conversion Option" means the option under Section 2.3 for the
Borrowers to convert, as of the Termination Date, all Committed
Advances then outstanding into Term Loans.
"Terminated Subsidiary Borrower" means, individually and collectively, as the
context requires, a Subsidiary Borrower that has ceased to be a
"Borrower" in accordance with Section 2.22.
"Termination Date" means the earlier to occur of (i) November 22, 2002, as such
date may be extended from time to time pursuant to Section 2.21, and
(ii) the date of termination in whole of the Commitments pursuant to
Section 2.8 or Section 6.2.
"Total Capital" has the meaning specified in Section 4.2(b).
"Type", as to Committed Borrowings, means either Base Rate Advances or
Eurodollar Rate Committed Advances and, as to Bid Borrowings, means
either Fixed Rate Advances or Eurodollar Rate Bid Advances.
"Voting Stock" means, as to a corporation, all the issued and outstanding
capital stock of such corporation having general voting power, under
ordinary circumstances, to elect a majority of the Board of Directors
of such corporation (irrespective of whether or not any capital stock
of any other class or classes shall or might have voting power upon the
occurrence of any contingency).
1.2 Use of Defined Terms; References. Any defined term used in the plural
preceded by the definite article encompasses all members of the
relevant class. Any defined term used in the singular preceded by "a",
"an" or "any" indicates any number of the members of the relevant
class. All references in this Agreement to a Section, Article, Schedule
or Exhibit are to a Section, Article, Schedule or Exhibit of or to this
Agreement, unless otherwise indicated.
1.3 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally
accepted accounting principles consistently applied.
Article 2
Amounts and Terms of the Advances
2.1 Committed Advances.
(a) Obligation to Make Committed Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make Committed Advances to the Borrowers from time to time on
any Business Day during the period from the date hereof until
the Termination Date in an aggregate principal amount at any
time outstanding not to exceed such Lender's Commitment,
provided that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Bid Advances then outstanding
and such deemed use of the aggregate amount of the Commitments
shall be applied to the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "Bid Reduction").
(b) Amount of Committed Advances. Each Committed Borrowing shall be
in an aggregate amount not less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(c) Type of Committed Advances. Each Committed Borrowing shall
consist of Committed Advances of the same Type made on the
same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the
Borrowers may from time to time borrow, prepay pursuant to
Section 2.12, and reborrow under this Section 2.1 and
Section 2.2.
2.2 Making Committed Advances.
(a) Notice of Committed Borrowing. Each Committed Borrowing shall
be made on notice, given by a Borrower to the Agent not later
than 11:00 a.m.(New York City time) on the day of the proposed
Committed Borrowing in the case of a Base Rate Borrowing and
on the third Business Day prior to the date of the proposed
Committed Borrowing in the case of a Eurodollar Rate Borrowing
(a "Notice of Committed Borrowing"). Each such Notice of
Committed Borrowing shall be in substantially the form
of Exhibit ▇-▇, specifying the requested
(i) date of such Committed Borrowing,
(ii) Type of Committed Advances constituting such
Committed Borrowing,
(iii) aggregate amount of such Committed Borrowing, and
(iv) in the case of a Committed Borrowing composed of
Eurodollar Rate Advances, the initial Interest Period
for each such Committed Advance, which Interest
Period may be 1, 2, 3 or 6 months, at the option of
the Borrower, or, if acceptable to all the Lenders,
9 months.
Every Notice of Committed Borrowing given by a Subsidiary
Borrower must be countersigned by an authorized representative
of TBC, in order to evidence the consent of TBC, in its sole
discretion, to that proposed Committed Borrowing. Upon receipt
of a Notice of Committed Borrowing, the Agent shall promptly
give notice to each Lender thereof.
(b) Funding Committed Advances. Each Lender shall, before 1:00 p.m.
(New York City time) on the date of such Committed Borrowing,
make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Committed Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article 5, the Agent will
make such funds available to the relevant Borrower at an
account specified by such Borrower.
(c) Irrevocable Notice. Each Notice of Committed Borrowing shall be
irrevocable and binding. In the case of any Committed Borrowing
that the related Notice of Committed Borrowing specifies is to
be composed of Eurodollar Rate Advances, the Borrower requesting
such Committed Borrowing shall indemnify each Lender against
any loss, cost or expense incurred by such Lender on account
of any failure to fulfill on or before the date specified for
such Committed Borrowing in such Notice of Committed Borrowing
the applicable conditions set forth in Article 5, including,
without limitation, any loss (but excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Committe Advance to be made by such Lender
as part of such Committed Borrowing when such Committed
Advance, as a result of such failure, is not made on such date.
(d) Lender's Ratable Portion. Unless the Agent has received notice
from a Lender prior to 1:00 p.m. (New York City time) on the
day of any Committed Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such
Committed Borrowing, the Agent may assume that such Lender
has made such portion available to the Agent on the date of
such Committed Borrowing in accordance with subsection
(b) of this Section 2.2 and the Agent may, in reliance
upon such assumption, make available to the requesting
Borrower on such date a corresponding amount. If and to the
extent that a Lender has not so made such ratable portion
available to the Agent, such Lender and such Borrower shall
severally repay to the Agent forthwith on demand an amount
that in the aggregate equals such corresponding amount
together with interest thereon for each day from the date
such amount is made available by the Agent to such Borrower
until the date such amount is repaid to the Agent, at
(i) in the case of such Borrower, the interest rate
applicable at the time to Committed Advances
constituting such Committed Borrowing, and
(ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's
Committed Advance as part of such Committed Borrowing for
purposes of this Agreement.
(e) Independent Lender Obligations. The failure of any Lender to
make the Committed Advance to be made by it as part of any
Committed Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Committed Advance on
the date of such Committed Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Committed Advance to be made by such other Lender on the
date of any Committed Borrowing.
2.3 Conversion to Term Loans, Repayment. The Borrowers shall, subject to
the next succeeding sentence, repay to the Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal
amount of the Committed Advances then outstanding. The Borrowers may,
upon notice given to the Agent not later than 11:00 a.m. (New York City
time) on the Termination Date, convert all or a part of the unpaid
principal amount of the Committed Advances outstanding as of the
Termination Date into Term Loans. If this Term Loan Conversion Option
is exercised, then, on the Termination Date, immediately prior to the
time when the unpaid principal amount of the Committed Advances would
otherwise be due, the Committed Advances shall automatically convert
into Term Loans which the respective Borrowers shall repay to the Agent
for the ratable accounts of the Lenders on the Maturity Date. The
amounts so converted shall be treated for all purposes of this
Agreement as Committed Advances except that after the Termination Date:
(i) the Borrowers may not make any additional borrowings;
(ii) any amounts paid or prepaid may not be reborrowed;
(iii) the amount of each Lender's Commitment shall be equal at all
times to the principal amount of the Term Loans payable to
such Lender from time to time;
(iv) the provisions of Section 2.19 shall not be effective;
(v) no Lender shall have the right to assign its rights in any
outstanding Term Loan; and
(vi) no Facility Fees or utilization fees shall accrue or be
payable after the Termination Date.
2.4 Interest Rate on Committed Advances. Each Borrower shall pay interest
on the unpaid principal amount of each of its Committed Advances from
the date of such Committed Advance until such principal amount is paid
in full, at the following rates per annum:
(i) during each period in which such Committed Advance is a Base
Rate Advance, at a rate per annum equal at all times to the
Base Rate in effect from time to time plus the Applicable
Margin plus the Applicable Utilization Fee, if any, payable
quarterly in arrears on the first day of each January, April,
July and October and on the Termination Date, or, if such
Borrower has exercised the Term Loan Conversion Option, the
Maturity Date, and
(ii) during each period in which such Committed Advance is a
Eurodollar Rate Advance, at a rate per annum equal at all
times during each relevant Interest Period for such Committed
Advance to the Eurodollar Rate for such Interest Period plus
the Applicable Margin plus the Applicable Utilization Fee, if
any, payable on the last day of each such Interest Period, and
if such Interest Period has a duration of more than three
months, quarterly on each day during such Interest Period that
is three months from either (A) the first day of such Interest
Period or (B) the last such interest payment date and on the
date such Committed Advance is Converted or paid in full.
2.5 Bid Advances.
(a) Bid Advances Impact on Commitments. The Borrowers may make
Bid Borrowings from time to time on any Business Day during
the period from the date hereof until the Termination Date in
the manner set forth below, provided that, following the
making of each Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders (computed without
regard to the Bid Reduction). As provided in Section 2.1
above, the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Bid Advances then
outstanding, and such deemed use of the aggregate amount
of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments; provided,
however, that any Lender's Bid Advances shall not otherwise
reduce that Lender's obligation to lend its pro rata share of
the remaining Available Commitments.
(b) Notice of Bid Borrowing. Any Borrower may request a Bid
Borrowing by delivering to the Agent a notice of a Bid
Borrowing (a "Notice of Bid Borrowing"), in substantially the
form of Exhibit B-2, specifying the following:
(i) the date and aggregate amount of the proposed Bid
Borrowing,
(ii) the maturity date for repayment of each Bid Advance
to be made as part of such Bid Borrowing, which
maturity date
(A) may not be later than 5 Business Days prior
to the Termination Date, but may otherwise be
7 days or more from the date of such
requested Bid Advance if the Borrower
specifies in the Notice of Bid Borrowing
that the rates of interest to be offered by
the Lenders will be fixed rates per annum (a
"Fixed Rate Borrowing"), and
(B) shall be either 1, 2, 3, 6 or 9 months from
the date of such Bid Borrowing if the Borrower
specifies in the Notice of Bid Borrowing that
such Bid Borrowing is to consist of Eurodollar
Rate Bid Advances (a "Eurodollar Rate Bid
Borrowing"),
(iii) the interest payment date or dates relating thereto,
and
(iv) any other terms to be applicable to such Bid
Borrowing.
A Borrower requesting a Bid Borrowing shall deliver a Notice
of Bid Borrowing to the Agent not later than 11:00 a.m. (New
York City time) (A) at least one Business Day prior to the
date of the proposed Bid Borrowing if the proposed Bid
Borrowing is to be a Fixed Rate Borrowing, and (B) at least
four Business Days prior to the date of the proposed Bid
Borrowing, if the proposed Bid Borrowing is to be a
Eurodollar Rate Bid Borrowing. Every Notice of Bid Borrowing
given by a Subsidiary Borrower must be countersigned by an
authorized representative of TBC, in order to evidence the
consent of TBC, in its sole discretion, to that proposed Bid
Borrowing. The Agent shall in turn promptly notify each
Lender of each request for a Bid Borrowing by sending such
Lender a copy of the related Notice of Bid Borrowing.
(c) Discretion as to Bid Advances. Each Lender may, in its sole
discretion, elect to irrevocably offer to make one or more Bid
Advances to the applicable Borrower as part of such proposed
Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion (each such rate of interest to
be a fixed rate if the Borrower requested Fixed Rate Advances
or a margin over the Eurodollar Rate if the Borrower requested
Eurodollar Rate Bid Advances), by notifying the Agent (which
shall give prompt notice thereof to the Company and such
Borrower), before 10:00 a.m. (New York City time) (A) on the
date of such proposed Bid Borrowing, if the proposed Bid
Borrowing is to be a Fixed Rate Borrowing and (B) three
Business Days before the date of such proposed Bid Borrowing,
in the case of a Notice of Bid Borrowing is to be a
Eurodollar Rate Bid Borrowing. In such notice the Lender
shall specify the following:
(i) the minimum amount and maximum amount of each Bid
Advance which such Lender would be willing to make as
part of such proposed Bid Borrowing (which amounts
may, subject to the first proviso in this Section
2.5(a), exceed such Lender's Commitment),
(ii) the rate or rates of interest therefor (specified as
stated in this paragraph (c)), and
(iii) such Lender's Applicable Lending Office with respect
to such Bid Advance;
provided that if the Agent in its capacity as a Lender, in its
sole discretion, elects to make any such offer, it shall notify
such Borrower and the Company of such offer before 9:30 a.m.
(New York City time) on the date on which notice of such
election is to be given to the Agent by the other Lenders. If,
by 10:00 a.m. (New York City time) on the date on which notice
of a Lender's election under this Section 2.5(c) is to be made,
the Agent fails to receive, at its address specified in
Section 8.2, a notice from a Lender provided for in this
Section 2.5(c), the Agent may conclusively presume that such
Lender has elected not to offer to make any Bid Advances to
such Borrower with respect to the related Notice of Bid
Borrowing.
(d) Borrower Selection of Lender Bids. The Borrower proposing the
Bid Borrowing shall, in turn, (A) before 11:00 a.m. (New York
City time) on the date of such proposed Bid Borrowing, in the
case of a proposed Bid Borrowing to be a Fixed Rate Borrowing,
and (B) before 12:00 noon (New York City time) three Business
Days before the date of such proposed Bid Borrowing, in the
case of a proposed Bid Borrowing to be a Eurodollar Rate Bid
Borrowing, either:
(i) cancel such Bid Borrowing by giving the Agent notice
to that effect, or
(ii) accept, in its sole discretion, one or more of the
offers made by a Lender or Lenders pursuant to
Section 2.5(c), by giving notice to the Agent of the
amount of each Bid Advance (which amount shall be
equal to or greater than the minimum amount and equal
to or less than the maximum amount, notified to such
Borrower by the Agent on behalf of such Lender
for such Bid Advance pursuant to Section 2.5(c)) to
be made by each Lender as part of such Bid Borrowing,
and reject any remaining offers made by Lenders
pursuant to Section 2.5(c) by giving the Agent notice
to that effect; provided that offers will be accepted,
if at all, in order of lowest to highest interest
rates, and, if two or more Lenders bid at the same
rate, the Bid Borrowing with respect to such rate will
be allocated among such Lenders in proportion
to the amount bid by each such Lender.
If the Borrower proposing the Bid Borrowing notifies the Agent
that such Bid Borrowing is canceled pursuant to Section
2.5(d)(i), the Agent shall give prompt notice thereof to the
Lenders and such Bid Borrowing shall not be made.
(e) Bid Borrowing. If the Borrower proposing the Bid Borrowing
accepts one or more of the offers made by a Lender or Lenders
pursuant to Section 2.5(d)(ii), the Agent shall in turn
promptly
(i) notify each Lender that has made an offer as
described in Section 2.5(c), of the date and
aggregate amount of such Bid Borrowing and whether
or not any offer or offers made by such Lender
pursuant to Section 2.5(c) have been accepted by
such Borrower,
(ii) notify each Lender that is to make a Bid Advance, as
part of such Bid Borrowing, of the amount of each
Bid Advance to be made by such Lender as part of
such Bid Borrowing, and
(iii) upon satisfaction of the conditions set forth in
5.3 or 5.6, as applicable, notify each Lender that
is to make a Bid Advance as part of such Bid
Borrowing that the applicable conditions set forth
in Article 5 appear to have been satisfied.
When each Lender that is to make a Bid Advance as part of such
Bid Borrowing has received notice from the Agent pursuant to
clause (iii) of the preceding sentence, such Lender shall,
before 1:00 p.m. (New York City time) on the date of such Bid
Borrowing specified in the notice received from the Agent
pursuant to clause (i) of the preceding sentence, make
availablefor the account of its Applicable Lending Office to
the Agent at the Agent's Account such Lender's portion of such
Bid Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article 5 and after receipt
by the Agent of such funds, the Agent will make such funds
available to the relevant Borrower at an account specified by
such Borrower. Promptly after each Bid Borrowing the Agent
shall notify each Lender of the amount of the Bid Borrowing,
the consequent Bid Reduction, and the dates upon which such
Bid Reduction commenced and will terminate.
(f) If the Borrower proposing such Bid Borrowing notifies the
Agent pursuant to Section 2.5(d)(ii) above that it accepts one
or more of the offers made by any Lender or Lenders, such
notice of acceptance shall be irrevocable and binding on
such Borrower. Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date
specified in the related Notice of Bid Borrowing for such Bid
Borrowing the applicable conditions set forth in Article 5,
including, without limitation, any loss (but excluding loss
of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Bid Advance to be made by
such Lender as part of such Bid Borrowing when such Bid
Advance, as a result of such failure, is not made on such date.
(g) Amount of Bid Borrowings. Each Notice of Bid Borrowing shall
request an aggregate amount of Bid Advances not less than
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof, provided that a Borrower may accept offers
aggregating less than $10,000,000 and offers which are not an
integral multiple of $1,000,000, and provided further that,
as provided in Section 2.5(a), following the making of each Bid
Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to the
Bid Reduction). Within the limits and on the conditions
set forth in this Section 2.5, the Borrowers may from time
to time borrow under this Section 2.5, repay pursuant to
Section 2.5(g), and reborrow under this Section 2.5,
provided that a Bid Borrowing shall not be made within three
Business Days of the date of any other Bid Borrowing.
(h) Repayment of Bid Advances. On the maturity date of each Bid
Advance specified by the relevant Borrower for repayment of
such Bid Advance in the related Notice of Bid Borrowing, the
Borrower shall repay to the Agent for the account of the Lender
which has made such Bid Advance the then unpaid principal
amount of such Bid Advance. The Borrowers shall have no right
to prepay any principal amount of any Bid Advance.
(i) Interest on Bid Advances; Bid Notes. The relevant Borrower
shall pay interest on the unpaid principal amount of each Bid
Advance, from the date of such Bid Advance to the date the
principal amount of such Bid Advance is repaid in full, at the
fixed rate of interest specified by the Lender making such
Fixed Rate Advance in its notice with respect thereto delivered
pursuant to Section 2.5(c) or, in the case of a Eurodollar Rate
Bid Advance, the margin specified by the Lender making such
Bid Advance in its notice with respect thereto plus the
Eurodollar Rate determined with respect to such Bid
Borrowing pursuant to Section 2.10, payable on the interest
payment date or dates specified by the Borrower for such Bid
Advance in the related Notice of Bid Borrowing. Upon the
occurrence and during the continuance of an Event of Default,
the applicable Borrower shall pay interest on the amount of
unpaid principal of and interest on each Bid Advance owing to
a Lender, payable in arrears on the date or dates interest is
payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such
Bid Advance under the terms of the Bid Note evidencing such
Bid Advance unless otherwise agreed in such Bid Note. The
indebtedness of the applicable Borrower resulting from each
Bid Advance made to the Borrower as part of a Bid Borrowing
shall be evidenced by a separate Bid Note of such Borrower
payable to the order of the Lender making such Bid Advance,
which Bid Note shall be returned to the Borrower upon payment
in full of such Bid Advance.
2.6 Lender Assignment or Sale. Any Lender may, without the prior written
consent of the Borrowers, sell or assign all or any part of such
Lender's rights in any or all of the Bid Advances made by such Lender
or in the Bid Notes in connection with such Bid Advances as a
participation, provided, however, that
(i) any such sale or assignment shall not require any Borrower to
file a registration statement with the Securities and Exchange
Commission or apply to qualify the Advances or the Notes under
the blue sky laws of any state, and the selling or assigning
Lender shall otherwise comply with all federal and state
securities laws applicable to such transaction,
(ii) no purchaser or assignee in such a transaction shall thereby
become a "Lender" for any purpose under this Agreement,
(iii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrowers) shall
remain unchanged,
(iv) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and
(v) the Borrowers, the Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this
Agreement.
2.7 Fees. TBC agrees to pay to the Agent for the account of each Lender a
facility fee ("Facility Fee") on such Lender's Commitment, without
regard to usage. The Facility Fee shall be payable for the periods from
the date hereof in the case of each Lender named in Schedule I, and
from the effective date on which any other Lender becomes party hereto,
until the Termination Date (or such earlier date on which such Lender
ceases to be a party hereto) at the rate per annum equal to the
Applicable Percentage in effect from time to time. Facility Fees shall
be payable in arrears on each January 1, April 1, July 1 and October 1
during the term of this Agreement until and on the Termination Date.
The amount of the Facility Fee payable on January 1, 2002 and on the
Termination Date shall be prorated based on the actual number of days
elapsed either since the date hereof (in the case of the January 1,
2002 payment) or since the date on which the last payment in respect of
the Facility Fee was made (in the case of the payment made on the
Termination Date).
2.8 Reduction of the Commitments.
(a) Optional Reductions. TBC shall have the right, upon at least
3 Business Days' notice to the Agent, to terminate in whole
or reduce ratably in part the unused portions of the
Commitments, provided that each partial reduction shall be in
a minimum amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, and provided
further that the aggregate amount of the Commitments shall
not be reduced to an amount which is less than the aggregate
principal amount of the Bid Advances then outstanding.
(b) Mandatory Reduction. At the close of business on the
Termination Date, the aggregate Commitments shall be
automatically and permanently reduced, on a pro rata basis,
by an amount equal to the amount by which the aggregate
Commitments immediately prior to giving effect to such
reduction exceed the aggregate unpaid principal amount of the
Committed Advances then outstanding.
2.9 Additional Interest on Eurodollar Rate Committed Advances. Each
Borrower shall pay to each Lender, so long as such Lender is required
under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Committed Advance of such Lender to such Borrower, from the date of
such Committed Advance until such principal amount is paid in full, at
an interest rate per annum for each Interest Period equal to the
remainder obtained by subtracting (i) the Eurodollar Rate for such
Interest Period for such Committed Advance from (ii) the rate obtained
by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such
Committed Advance. Such additional interest shall be determined by such
Lender and notified to the relevant Borrowers through the Agent.
2.10 Eurodollar Interest Rate Determination.
(a) Methods to Determine Eurodollar Rate. The Agent shall
determine the Eurodollar Rate for each Eurodollar Rate
Advance by using the methods described in the definition of
the term "Eurodollar Rate," and shall give prompt notice to
the relevant Borrowers and the Lenders of each such
Eurodollar Rate.
(b) Role of Reference Banks. In the event the Eurodollar Rate
cannot be determined by the first method described in the
definition of "Eurodollar Rate," each Reference Bank shall
furnish to the Agent timely information for the purpose of
determining the Eurodollar Rate in accordance with the second
method described therein. If any one or more of the Reference
Banks does not furnish such timely information to the Agent
for the purpose of determining a Eurodollar Rate, the Agent
shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. In
the event the rate cannot be determined by either of the
methods described in the definition of "Eurodollar Rate,"
then:
(i) the Agent shall forthwith notify the Borrowers
and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances,
(ii) each such Advance, if a Committed Advance, will
automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate
Advance (or if the Borrower was attempting to
Convert a Base Rate Advance into a Eurodollar Rate
Committed Advance, such Advance will continue as a
Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar
Rate Bid Advances, or to make, or to Convert Base
Rate Advances into, Eurodollar Rate Committed
Advances shall be suspended until the Agent notifies
the Borrowers and the Lenders that the
circumstances causing such suspension no longer
exist.
(c) Inadequate Eurodollar Rate. If, with respect to any Eurodollar
Rate Committed Advances, the Majority Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such
Committed Advances will not adequately reflect the cost to
such Majority Lenders of making, funding or maintaining their
respective Eurodollar Rate Committed Advances for such Interest
Period, the Agent shall forthwith so notify the relevant
Borrowers and the Lenders, whereupon
(i) each such Eurodollar Rate Committed Advance will
automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Base Rate Advances into, Eurodollar Rate Committed
Advances shall be suspended until the Agent notifies
the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
(d) Absence of an Interest Period on a Eurodollar Rate Committed
Advance. If a Borrower fails to select the duration of an
Interest Period for a Eurodollar Rate Committed Advance in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.1, the Agent will forthwith so
notify the Borrower and the Lenders and such Committed
Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate
Advances.
2.11 Voluntary Conversion of Committed Advances. Subject to the provisions
of Sections 2.10 and 2.15, any Borrower may Convert all such Borrower's
Committed Advances of one Type constituting the same Committed
Borrowing into Advances of the other Type on any Business Day, upon
notice given to the Agent not later than 11:00 a.m. (New York City
time) on the third Business Day prior to the date of the proposed
Conversion; provided, however, that the Conversion of a Eurodollar Rate
Committed Advance into a Base Rate Advance may be made on, and only on,
the last day of an Interest Period for such Eurodollar Rate Committed
Advance. Each such notice of a Conversion shall, within the
restrictions specified above, specify
(i) the date of such Conversion,
(ii) the Committed Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Committed Advances,
the duration of the Interest Period for each such Committed
Advance.
2.12 Prepayments. Any Borrower shall have the right at any time and from
time to time, upon prior written notice from such Borrower to the
Agent, to prepay its outstanding principal obligations with respect to
its Committed Advances in whole or ratably in part (except as provided
in Section 2.15 or 2.19), provided that every notice of prepayment
given by a Subsidiary Borrower must be countersigned by an authorized
representative of TBC, in order to evidence the consent of TBC, in its
sole discretion, to that prepayment. Such prepaying Borrower may be
obligated to make certain prepayments of obligations with respect to
one or more Committed Advances subject to and in accordance with this
Section 2.12.
(a) Base Rate Borrowings Prepayments. With respect to Base Rate
Borrowings, such prepayment shall be without premium or
penalty, upon notice given to the Agent, and shall be made
not later than 11:00 a.m. (New York City time) on the date of
such prepayment. The Borrower shall designate in such notice
the amount and date of such prepayment. Accrued interest
on the amount so prepaid shall be payable on the first
Business Day of the calendar quarter next following the
prepayment. The minimum amount of Base Rate Borrowings which
may be prepaid on any occasion shall be $10,000,000 or an
integral multiple of $1,000,000 in excess thereof or, if less,
the total amount of Base Rate Advances then outstanding for
that Borrower.
(b) Eurodollar Rate Committed Borrowings Prepayments. With respect
to Eurodollar Rate Committed Borrowings, such prepayment shall
be made on at least 3 Business Days' prior written notice to
the Agent not later than 11:00 a.m. (New York City time), and
if such notice is given the applicable Borrower shall prepay
the outstanding principal amount of the Committed Advances
constituting part of the same Committed Borrowing in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid. The
minimum amount of Eurodollar Rate Committed Borrowings which
may be prepaid on any occasion shall be $10,000,000 or an
integral multiple of $1,000,000 in excess thereof or, if less,
the total amount of Eurodollar Rate Committed Advances then
outstanding for that Borrower.
(c) Additional Prepayment Payments. The prepaying Borrower shall,
on the date of the prepayment, pay to the Agent for the
account of each Lender interest accrued to such date of
prepayment on the principal amount prepaid plus, in the case
only of a prepayment on any date which is not the last day of
an applicable Eurodollar Interest Period, any amounts
which may be required to compensate such Lender for any losses
or out-of-pocket costs or expenses (including any loss, cost
or expense incurred by reason of the liquidation or
reemployment of deposits or other funds, but excluding loss of
anticipated profits) incurred by such Lender as a result of
such prepayment, provided that such Lender shall exercise
reasonable efforts to minimize any such losses, costs
and expenses.
(d) Eurodollar Rate Committed Advance Prepayment Expense. If, due
to the acceleration of any of the Committed Advances pursuant
to Section 6.2(b), an assignment, repayment or prepayment
under Section 2.19 or 2.20 or otherwise, any Lender receives
payment of its portion of, or is subject to any Conversion
from, any Eurodollar Rate Committed Advance on any day other
than the last day of an Interest Period with respect to such
Committed Advance, the relevant Borrowers shall pay to the
Agent for the account of such Lender any amounts which may be
payable to such Lender by such Borrower by reason of payment
on such day as provided in Section 2.12(c).
2.13 Increases in Costs.
(a) Costs from Law or Authorities. If, due to either
(1) the introduction of, or any change (other than, in
the case of Eurodollar Rate Borrowings, a change by
way of imposition or an increase of reserve
requirements described in Section 2.9) in, or new
interpretation of, any law or regulation effective
at any time and from time to time on or after the
date hereof, or
(2) the compliance with any guideline or the request
from or by any central bank or other governmental
authority (whether or not having the force of law),
there is an increase in the cost incurred by a Lender in
agreeing to make or making, funding or maintaining any
Eurodollar Rate Committed Advance or Eurodollar Rate Bid
Advance then or at any time thereafter outstanding (excluding
for purposes of this Section 2.13 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its
Applicable Lending Office (or any political subdivision
thereof), then TBC shall from time to time, upon demand of
such Lender (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender such amounts as are
required to compensate such Lender for such increased cost,
provided that such Lender shall exercise reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to minimize any such increased cost and provided
further that the Borrowers shall not be required to pay any
such compensation with respect to any period prior to the 90th
day before the date of any such demand, unless such
introduction, change, compliance or request shall have
retroactive effect to a date prior to such 90th day. A
certificate as to the amount of such increase in cost,
submitted to the relevant Borrowers and the Agent by such
Lender, shall be conclusive and binding for all purposes
under this Section 2.13(a), absent manifest error.
(b) Increased Capital Requirements. If any Lender determines
that compliance with any law or regulation or any guidelines
or request from any central bank or other governmental
authority (whether or not having the force of law) which is
enacted, adopted or issued at any time and from time to time
after the date hereof affects or would affect the amount
of capital required or expected to be maintained by such
Lender (or any corporation controlling such Lender) and
that the amount of such capital is increased by or based upon
the existence of such Lender's Commitment and other
commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrowers shall
immediately pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender in the light of
such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be
allocable to the existence of such Lender's Commitment,
provided that such Lender shall exercise reasonable
efforts (consistent with its internal policy and legal and
regulatory restrictions) to minimize any such compensation
payable by the Borrowers hereunder and provided further
that the Borrowers shall not be required to pay any such
compensation with respect to any period prior to the 90th day
before the date of any such demand, unless such introduction,
change, compliance or request shall have retroactive effect
to a date prior to such 90th day. A certificate as to such
amounts submitted to the relevant Borrowers and the Agent by
such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(c) Borrower Rights Upon Cost Increases. Upon receipt of notice
from any Lender claiming compensation pursuant to this
Section 2.13 or Section 2.14 and as long as no Default has
occurred and is continuing, TBC shall have the right, on or
before the 30th day after the date of receipt of any such
notice,
(i) to arrange for one or more Lenders or other
commercial banks to assume the Commitment of such
Lender; subject, however, to payment to the Agent by
the assignor or the assignee of a processing and
recording fee of $3,500, in the event the
assuming lender is not a Lender; or
(ii) to arrange for the Commitment of such Lender to be
terminated and all Committed Advances owed to such
Lender to be prepaid;
and, in either case, subject to payment in full of all
principal, accrued and unpaid interest, fees and other amounts
payable under this Agreement and then owing to such Lender
immediately prior to the assignment or termination of the
Commitment of such Lender.
2.14 Taxes.
(a) Exclusion and Inclusion of Taxes. Any and all payments by
each Borrower hereunder or with respect to any Advances or
under any Notes shall be made, in accordance with Section 2.16,
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes
that are imposed on its overall net income by the United
States and taxes that are imposed on its overall net income
(and franchise taxes imposed in lieu thereof) by the state
or foreign jurisdiction under the laws of which such Lender or
the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes
that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction
of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities
in respect of payments hereunder or with respect to any
Advances or under any Notes, hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct
any Taxes from or in respect to any sum payable hereunder or
with respect to any Advances or under any Note to any Lender or
the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) Payment of Other Taxes. In addition, each Borrower shall pay
any present or future stamp, documentary, excise, property or
similar taxes, charges, or levies that arise from any payment
made hereunder or with respect to any Advances and under any
Notes or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement
or any Notes ("Other Taxes").
(c) Indemnification as to Taxes. Each Borrower shall indemnify each
Lender and the Agent for and hold it harmless against the full
amount of Taxes and Other Taxes, and for the full amount of
taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14, imposed on or paid by such
Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent
(as the case may be) makes written demand therefor.
(d) Evidence of or Exemption from Taxes. Within 30 days after the
date of any payment of Taxes, the Borrower which paid such
Taxes shall furnish to the Agent, at its address referred to
in Section 8.2, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder
or with respect to the Advances or under any Notes by or on
behalf of any Borrower through an account or branch outside
the United States or by or on behalf of any Borrower by a
payor that is not a United States person, if the Borrower
determines that no taxes are payable in respect thereof, such
Borrower shall furnish, or shall cause such payor to furnish,
to the Agent, at such address, an opinion of counsel acceptable
to the Agent stating that such payment is exempt from Taxes.
For purposes of this subsection (d) and subsection (e), the
terms "United States" and "United States person" have the
meanings specified in Section 7701 of the Internal Revenue
Code.
(e) Non-U.S. Lenders. Each Lender organized under the laws of
a jurisdiction outside the United States shall, on or prior to
the date of its execution and delivery of this Agreement (in
the case of each Lender listed in Schedule I), and from the
date on which any other Lender becomes a party hereto (in the
case of each other Lender), and from time to time thereafter
as requested in writing by TBC (but only so long thereafter as
such Lender remains lawfully able to do so), provide each of
the Agent and TBC with two original Internal Revenue Service
forms W-8BEN or W-8EC1, as appropriate, or any successor form
prescribed by the Internal Revenue Service, to establish
that such Lender is not subject to, or is entitled to a reduced
rate of, United States withholding tax on payments pursuant to
this Agreement or with respect to any Advances or any Notes.
If the forms provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender provides the appropriate
form certifying that a lower rate applies, whereupon
withholding tax at such lower rate only shall be considered
excluded from Taxes for periods governed by such form;
provided, however, that, if at the date on which a Lender
becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection 2.14(a) in respect of
United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be
imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If
any form or document referred to in this subsection 2.14(e)
requires the disclosure of information, other than information
necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form W-8BEN or
W-8EC1, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the
relevant Borrowers and shall not be obligated to include in
such form or document confidential information.
(f) Lender Failure to Provide IRS Forms. For any period with
respect to which any Lender has failed to provide TBC with the
appropriate form described in subsection 2.14(e)(other than if
such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if
such form otherwise is not required under subsection 2.14(e)),
such Lender shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however,
that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, TBC shall take
such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
2.15 Illegality. If any Lender shall notify the Agent that either
(a) there is any introduction of, or change in or in the
interpretation of, any law or regulation that in the opinion
of counsel for such Lender in the relevant jurisdiction makes
it unlawful, or
(b) any central bank or other governmental authority asserts that
it is unlawful for such Lender to continue to fund or maintain
any Eurodollar Rate Advances or to perform its obligations
hereunder with respect to Eurodollar Rate Advances hereunder,
then, upon the issuance of such opinion of counsel or such
assertion by a central bank or other governmental authority,
the Agent shall give notice of such opinion or assertion to
the Borrowers (accompanied by such opinion, if applicable).
The Borrowers shall forthwith either
(i) prepay in full all Eurodollar Rate Committed Advances
and all Eurodollar Rate Bid Advances made by such
Lender, with accrued interest thereon or
(ii) Convert each such Eurodollar Rate Committed Advance
made by such Lender into a Base Rate Advance.
Upon such prepayment or Conversion, the obligation of such
Lender to make Eurodollar Rate Committed Advances or Eurodollar
Rate Bid Advances, or to Convert Committed Advances into
Eurodollar Rate Committed Advances, shall be suspended until
the Agent shall notify the Borrowers that the circumstances
causing such suspension no longer exists.
2.16 Payments and Computations.
(a) Time and Distribution of Payments. The Borrowers shall
make each payment hereunder and with respect to any Advances
or under any Notes not later than 11:00 a.m. (New York
City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds. The Agent shall
promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.5,
2.9, 2.13, 2.14, 2.15 or 2.19) to the Lenders for the
account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable
to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance
with the terms of this Agreement. From and after the
effective date of an assignment pursuant to Section 2.20,
the Agent shall make all payments hereunder and with respect
to any Advances or under any Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the
parties to such assignment shall make all appropriate
adjustments in such payments for the periods prior to such
effective date directly between themselves.
(b) Computation of Interest and Fees. All computations of interest
based on the Base Rate and utilization fees shall be made by
the Agent on the basis of a year of 365 or 366 days, as the
case may be. All computations of interest based on the
Eurodollar Rate or the Federal Funds Rate and of Facility Fees
shall be made by the Agent, and all computations of interest
pursuant to Section 2.9 shall be made by a Lender, on the basis
of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are
payable. Each determination by the Agent (or, in the case of
Section 2.9, by a Lender) of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest
error.
(c) Payment Due Dates. Whenever any payment hereunder or with
respect to any Advances or under any Notes shall be stated to
be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of
payment of interest or fee, as the case may be; provided,
however, if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the
immediately preceding Business Day.
(d) Presumption of Borrower Payment. Unless the Agent receives
notice from a Borrower prior to the date on which any payment
is due to any Lenders hereunder that such Borrower will not
make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption,
cause to be distributed to each such Lender on such due date an
amount equal to the amount then due such Lender. If and to the
extent that such Borrower has not made such payment in full to
the Agent, each such Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
2.17 Sharing of Payments, Etc. If any Lender obtains any payment (whether
voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Committed Advances made by it (other
than pursuant to Sections 2.9, 2.13, 2.14, 2.15 or 2.19), in excess of
its ratable share of payments on account of the Committed Advances
obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the Committed Advances made by
them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them, provided, however, that if
all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each other Lender shall be
rescinded and each such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with
an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any
Lender so purchasing a participation from another Lender pursuant to
this Section 2.17 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were a creditor of the
Borrowers in the amount of such participation.
2.18 Evidence of Debt.
(a) Lender Records; If Notes Required. Each Lender shall
maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Committed Advance owing to such
Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
hereunder in respect of Committed Advances. Each Borrower
shall, upon notice by any Lender to such Borrower (with a
copy of such notice to the Agent) to the effect that a
Committed Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Committed Advances owing
to, or to be made by, such Lender, such Borrower shall
promptly execute and deliver to such Lender a Committed
Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender.
(b) Record of Borrowings, Payables and Payments. The Register
maintained by the Agent pursuant to Section 2.20(d) shall
include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder
to each Borrower, the Type of Advances constituting
such Borrowing and, if appropriate, the Interest
Period applicable thereto,
(ii) the terms of each assignment pursuant to Section
2.20,
(iii) the amount of any principal or interest due and
payable or to become due and payable from each
Borrower to each Lender hereunder, and
(iv) the amount of any sum received by the Agent from a
Borrower hereunder and each Lender's share thereof.
(c) Evidence of Payment Obligations. Entries made in good faith by
the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become
due and payable from a Borrower to, in the case of the
Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Agent or such
Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrowers
under this Agreement.
2.19 Alteration of Commitments and Addition of Lenders.
(a) Alter Lender Commitment. By a written agreement executed
only by TBC, the Agent and the affected Lender and any
non-party lender involved,
(i) the Commitment of such affected Lender may be
increased to the amount set forth in such agreement;
(ii) such non-party lender may be added as a Lender with
a Commitment as set forth in such agreement, provided
that such lender agrees to be bound by all the terms
and provisions of this Agreement; and
(iii) the unused portion of the Commitment of such affected
Lender may be reduced or terminated and the Committed
Advances owing to such Lender may be prepaid in whole
or in part, all as set forth in such agreement.
(b) Conditions to Alteration. The Agent may execute any such
agreement without the prior consent of any Lender other than
the Lender affected, provided, however, that if at the time the
Agent proposes to execute such agreement or (A) TBC's long-term
senior unsecured debt is rated lower than A- by S&P or lower
than A3 by ▇▇▇▇▇'▇ and (B) a Default has occurred and is
continuing, then the Agent shall not execute any such
agreement unless it has first obtained the prior written
consent of the Majority Lenders, and provided further that the
Agent shall not execute any such agreement without the prior
written consent of the Majority Lenders if such agreement would
increase the total of the Commitments to an amount in excess of
$3,000,000,000 or, pursuant to Section 2.19(c), $3,200,000,000.
(c) Increase Total Commitment. The Company has the right, once
prior to the initial Termination Date (and, if the Termination
Date is extended pursuant to Section 2.21, once following such
extension), to increase the total of the Commitments through a
Request for Alteration, in minimum increments of $50,000,000,
up to a maximum aggregate of Commitments of $3,200,000,000,
provided that, in addition to the requirements specified in
Section 2.19(b), at the time of and after giving effect to an
increase, TBC's long-term senior unsecured non-credit-enhanced
debt ratings from ▇▇▇▇▇'▇ and S&P are better than or equal to
A3 and A-, respectively. The Company may offer the increases to
(i) the Lenders, and each Lender shall have the right,
but no obligation, to increase its Commitment, by
giving notice thereof to the Agent, to all or a
portion of the proposed increase (the "Proposed
Increased Commitment"), allocations to be based on
the ratio of each Lender's Proposed Increased
Commitment, if any, to the aggregate of all Proposed
Increased Commitments, and
(ii) third party financial institutions acceptable to the
Agent, provided that the minimum commitment of each
such institution equals or exceeds $50,000,000.
(d) Request for Alteration. The Agent shall give each Lender
prompt notice of any such agreement becoming effective.
All requests for Lender consent under the provisions of this
Section 2.19 shall specify the date upon which any such
increase, addition, reduction, termination, or prepayment
shall become effective (the "Effective Date") and shall be made
by means of a Request for Alteration substantially in the
form as set forth in Exhibit C. On the Effective Date on which
the Commitment of any Lender is increased, decreased,
terminated or created or on which prepayment is made, all
as described in such Request for Alteration, the Borrowers
or such Lender, as the case may be, shall make available to
the Agent not later than 12:30 p.m. (New York City time) on
such date, in same day funds, the amount, if any, which may
be required (and the Agent shall distribute such funds
received by it to the Borrowers or to such Lenders, as the
case may be) so that at the close of business on such date the
sum of the Committed Advances of each Lender then outstanding
shall be in the same proportion to the total of the Committed
Advances of all the Lenders then outstanding as the
Commitment of such Lender is to the total of the Commitments.
The Agent shall give each Lender notice of the amount to be
made available by, or to be distributed to, such Lender at
least 3 Business Days before such payment is made.
2.20 Assignments; Sales of Participations and Other Interests in Advances.
(a) Assignment of Lender Obligations. From time to time each Lender
may, with the prior written consent of TBC and subject to the
qualifications set forth below, assign to one or more Lenders
or an Eligible Assignee all or any portion of its rights and
obligations under this Agreement(including, without limitation,
all or a portion of its Commitment, the Committed Advances
owing to it and the Committed Note, if any, held by it) and
will, at any time, if arranged by the Company pursuant to
clause (i)(A) below upon at least 30 days' notice to such
Lender and the Agent, assign to one or more Eligible Assignees
all of its rights and obligations under this Agreement
(including without limitation, all of its Commitment, the
Committed Advances owing to it and the Committed Note, if any,
held by it); subject to the following:
(i) If such Lender notifies TBC and the Agent of its
intent to request the consent of TBC to an
assignment, TBC shall have the right, for 30 days
after receipt of such notice and so long as no Event
of Default has occurred and is continuing, in its
sole discretion either (A) to arrange for one or more
Eligible Assignees to accept such assignment (a
"Required Assignment") or (B) to arrange for the
rights and obligations of such Lender (including,
without limitation, such Lender's Commitment), and
the total Commitments, to be reduced by an amount
equal to the amount of such Lender's Commitment
proposed to be assigned and, in connection with such
reduction, to prepay that portion of the Committed
Advances owing to such Lender which it proposes to
assign;
(ii) If TBC fails to notify such Lender within 30 days of
TBC's receipt of such Lender's request for consent to
assignment that TBC has arranged for an assumption or
reduction of the portion of Commitment to be
assigned, the Borrowers shall be deemed to consent to
the proposed assignment;
(iii) Any such assignment shall not require any Borrower to
file a registration statement with the Securities and
Exchange Commission or apply to qualify the interests
in the Committed Advances under the blue sky laws of
any state and the assigning Lender shall otherwise
comply with all federal and state securities laws
applicable to such assignment;
(iv) The amount of the Commitment of the assigning Lender
being assigned pursuant to any such assignment
(determined as of the date of the assignment) shall
either (A) equal 50% of all such rights and
obligations (or 100% in the case of a Required
Assignment) or (B) not be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(v) The aggregate amount of the Commitment assigned
pursuant to all such assignments of such Lender
(after giving effect to such assignment) shall in no
event exceed 50% (except in the case of a Required
Assignment) of all such Lender's Commitment(as set
forth in Schedule I, in the case of each Lender that
is a party hereto as of November 23, 2001, or as set
forth in the Register as the aggregate Commitment
assigned to such Lender pursuant to one or more
assignments, in the case of any assignee); and
(vi) No Lender shall be obligated to make a Required
Assignment unless such Lender has received payments
in an aggregate amount at least equal to the
outstanding principal amount of all Committed
Advances being assigned, together with accrued
interest thereon to the date of payment of such
principal amount and all other amounts payable to
such Lender under this Agreement (including without
limitation Section 2.12(c), provided that such Lender
shall receive its pro rata share of the Facility Fee
on the next date on which the Facility Fee is
payable).
(b) Effect of Lender Assignment. From and after the effective date
of any assignment pursuant to Section 2.20(a), (i) the
assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to
it pursuant to such assignment, it shall have the rights and
obligations of a Lender hereunder except that such assignee may
not elect to assign any of its rights and obligations under
this Agreement acquired by such assignment for a period of
nine months following the effective date specified in such
assignment and (ii) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have
been assigned by it pursuant to such assignment, relinquish
its rights (other than its rights under Section 2.13, 2.14,
2.19 or 8.3 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the
case of an assignment covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) Security Interest; Assignment to Lender Affiliate.
Notwithstanding any other provision in this Agreement, any
Lender may, upon prior or contemporaneous notice to TBC and
the Agent, at any time (i) create a security interest in all
or any portion of its rights under this Agreement (including
without limitation, the Advances owing to it and the Notes
held by it, if any) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of
the Federal Reserve System, and (ii) assign all or any
portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion
of its Commitment, the Committed Advances owing to it and
the Committed Note held by it, if any) to an Affiliate of such
Lender unless the result of such an assignment would be to
increase the cost to any Borrowers of requesting, borrowing,
continuing, maintaining, paying or converting any Advances.
(d) Agent's Register. The Agent shall maintain at its address
referred to in Section 8.2 a copy of each assignment delivered
to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of,
and principal amount of the Committed Advances of each
Borrower owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each entity
whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior
notice. Upon receipt by the Agent from the assigning Lender
of an assignment in form and substance satisfactory to the
Agent executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with
evidence of each Committed Advance subject to such
assignment, and a processing and recording fee of $3,500
(payable by either the assignor or the assignee), the Agent
shall, if such assignment is a Required Assignment or has been
consented to by the Borrowers to the extent required by
Section 2.20(a) or has been effected pursuant to Section
2.21(c), (i) accept such assignment, (ii) record the
information contained therein in the Register, and (iii)
give prompt notice thereof to TBC.
(e) Lender Sale of Participations. Each Lender may sell
participations in all or a portion of its rights and
obligations under this Agreement(including, without limitation,
all or a portion of its Commitments, the Advances owing to it
and the Notes held by it, if any) to one or more Affiliates of
such Lender or to one or more other commercial banks; provided,
however, that
(i) any such participation shall not require any
Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to
qualify any interests in the Advances or any Notes
under the blue sky laws of any state and the Lender
selling or granting such participation shall
otherwise comply with all federal and state
securities laws applicable to such transaction,
(ii) no purchaser of such a participation shall be
considered to be a "Lender" for any purpose under
the Agreement,
(iii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the
Borrowers) shall remain unchanged,
(iv) such Lender shall remain solely responsible to the
other parties hereto for the performance of such
obligations,
(v) such Lender shall remain the holder of any Notes
issued with respect to its Advances for all purposes
of this Agreement, and
(vi) the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under this Agreement.
(f) Confidential Borrower Information. Any Lender may, in
connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 2.20,
disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers
furnished to such Lender by or on behalf of the Borrowers;
provided, however, that, prior to any such disclosure of
Confidential Information, such Lender shall obtain the written
consent of the Borrowers, and the assignee or participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any such Confidential Information received
by it from such Lender except as disclosure may be required or
appropriate to governmental authorities, pursuant to legal
process, or by law or governmental regulation or authority.
2.21 Extension of Termination Date.
(a) Extension Request. TBC may, on behalf of itself and the
Subsidiary Borrowers, by written notice to the Agent in the
form of Exhibit E (each such notice being an "Extension
Request") given no earlier than 60 days and no later than 45
days prior to the then applicable Termination Date, request
that the then applicable Termination Date be extended to a
date 364 days after the then applicable Termination Date;
provided, however, that the Borrowers shall not have
exercised the Term Loan Conversion Option for Committed
Advances outstanding on such Termination Date prior to such
time. Such extension shall be effective with respect to each
Lender which, by a written notice in the form of Exhibit F
(a "Continuation Notice") to TBC and the Agent given no
earlier than 30 days and no later than 20 days prior to the
then applicable Termination Date, consents, in its sole
discretion, to such extension (each Lender giving a
Continuation Notice being referred to sometimes as a
"Continuing Lender" and each Lender other than a Continuing
Lender being a "Non-Extending Lender"), provided, however,
that such extension shall be effective only if the aggregate
Commitments of the Continuing Lenders are not less than 51% of
the aggregate Commitments of the Lenders on the date of the
Extension Request. No Lender shall have any obligation to
consent to any such extension of the Termination Date. The
Agent shall notify each Lender of the receipt of an Extension
Request within three (3) Business Days after receipt
thereof. The Agent shall notify the Company and the Lenders no
later than 15 days prior to the then applicable Termination
Date whether the Agent has received Continuation Notices from
Lenders holding at least 51% of the aggregate Commitments on
the date of the Extension Request.
(b) Non-Extending Lenders. The Commitment of each Non-Extending
Lender shall terminate at the close of business on the
Termination Date in effect prior to the delivery of such
Extension Request without giving any effect to such proposed
extension, and on such Termination Date TBC shall take one of
the following three actions:
(i) Replace the Non-Extending Lenders pursuant to Section
2.21(c); or
(ii) Pay or cause to be paid to the Agent, for the account
of the Non-Extending Lenders, an amount equal to the
Non-Extending Lenders' Committed Advances, together
with accrued but unpaid interest and fees thereon and
all other amounts then payable hereunder to the
Non-Extending Lenders; or
(iii) By giving notice to the Agent no later than three
days prior to the Termination Date in effect prior to
the delivery of such Extension Request, elect not to
extend the Termination Date beyond the then
applicable Termination Date, and in this event the
Borrowers may in their sole discretion repay any
amount of the Committed Advances then outstanding or
exercise the Term Loan Conversion Option with respect
to the Committed Advances outstanding on the
Termination Date in accordance with Section 2.3.
(c) Replacement Lenders. A Non-Extending Lender shall be
obligated, at the request of TBC, to assign at any time prior
to the close of business on the Termination Date applicable to
such Non-Extending Lender all of its rights (other than
rights that would survive the termination of the Agreement
pursuant to Section 8.3) and obligations hereunder to one or
more Lenders or other commercial banks nominated by TBC and
willing to become Lenders in place of such Non-Extending
Lender (the"Replacement Lenders"). In order to qualify as a
Replacement Lender, a Lender or lender must satisfy all of the
requirements of this Agreement (including without
limitation the terms of Section 2.20 relating to
Required Assignments). Such obligation of each Non-Extending
Lenders is subject to such Non-Extending Lender's receiving
(i) payment in full from the Replacement Lenders of the
principal amount of all Advances owing to such Non-Extending
Lender immediately prior to an assignment to the Replacement
Lenders and (ii) payment in full from the relevant Borrowers
of all accrued interest and fees and other amounts payable
hereunder and then owing to such Non-Extending Lender
immediately prior to the assignment to the Replacement Lenders.
Upon such assignment, the Non-Extending Lender shall no longer
be a Lender, such Replacement Lender shall become a
Continuing Lender, and the Agent shall make appropriate entries
in the Register to reflect the foregoing.
2.22 Subsidiary Borrowers.
(a) Subsidiary Borrower Designation. TBC may at any time, and from
time to time, by delivery to the Agent of a Borrower Subsidiary
Letter substantially in the form of Exhibit D, duly executed by
TBC and the respective Subsidiary, designate such Subsidiary as
a "Subsidiary Borrower" for purposes of this Agreement, and
such Subsidiary shall thereupon become a "Subsidiary Borrower"
for purposes of this Agreement and, as such, shall have all of
the rights and obligations of a Borrower hereunder. The Agent
shall promptly notify each Lender of each such designation by
TBC and the identity of the designated Subsidiary.
(b) TBC Consent to Subsidiary Borrower Borrowings and Notices. No
Advances shall be made to a Subsidiary Borrower, and no
Conversion of any Advances at the request of a Subsidiary
Borrower shall be effective, without, in each and every
instance, the prior consent of TBC, in its sole discretion,
which shall be evidenced by the countersignature of TBC to the
relevant Notice of Borrowing or notice of Conversion. In
addition, no notices which are to be delivered by a Borrower
hereunder shall be effective, with respect to any Subsidiary
Borrower, unless the notice is countersigned by TBC.
(c) Subsidiary Borrower Termination Event. The occurrence of
any of the following events with respect to any Subsidiary
Borrower shall constitute a "Subsidiary Borrower Termination
Event" with respect to such Subsidiary Borrower:
(i) such Subsidiary Borrower ceases to be a Subsidiary;
(ii) such Subsidiary Borrower is liquidated or dissolved;
(iii) such Subsidiary Borrower fails to preserve and
maintain its existence or makes any material change
in the nature of its business as carried out on the
date such Subsidiary Borrower became a Borrower
hereunder;
(iv) such Subsidiary Borrower merges or consolidates with
or into another Person, or conveys, transfers,
leases, or otherwise disposes of (whether in one
transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to any Person (except that a
Subsidiary Borrower may merge into or dispose of
assets to another Borrower);
(v) any of the "Events of Default" described in Section
6.1(a) through (f) occurs to or with respect to such
Subsidiary Borrower as if such Subsidiary Borrower
were "TBC"; or
(vi) the Guaranty with respect to such Subsidiary Borrower
ceases, for any reason, to be valid and binding on
TBC or TBC so states in writing.
(d) Terminated Subsidiary Borrower. Upon the occurrence of a
Subsidiary Borrower Termination Event with respect to any
Subsidiary Borrower, such Subsidiary Borrower (a "Terminated
Subsidiary Borrower") shall cease to be a Borrower for purposes
of this Agreement and shall no longer be entitled to request
or borrow Advances hereunder. All outstanding Advances of
a Terminated Subsidiary Borrower shall be automatically due
and payable as of the date on which the Subsidiary Borrower
Termination Event of such Terminated Subsidiary Borrower
occurred, together with accrued interest thereon and any other
amounts then due and payable by that Borrower hereunder,
unless, in the case of a Subsidiary Borrower Termination
Event described in paragraph (iv) of Section 2.22(c), the
other Person party to the transaction is a Borrower and
such other Borrower has assumed in writing all of the
outstanding Advances and other obligations under this
Agreement and under the Notes, if any, of the Terminated
Subsidiary Borrower.
(e) TBC as Subsidiary Borrowers' Agent. Each of the Subsidiary
Borrowers hereby appoints and authorizes TBC to take such
action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to TBC by the terms hereof,
together with such powers as are reasonably incidental thereto.
(f) Subsidiaries' Several Liabilities. Notwithstanding anything
in this Agreement to the contrary, each of the Subsidiary
Borrowers shall be severally liable for the liabilities and
obligations of such Subsidiary Borrower under this Agreement
and its Borrowings, and Notes, if any. No Subsidiary
Borrower shall be liable for the obligations of any other
Borrower under this Agreement or any Borrowings of any other
Borrower or any other Borrower's Notes, if any. Each
Subsidiary Borrower shall be severally liable for all payments
of the principal of and interest on Advances to such Subsidiary
Borrower, and any other amounts due hereunder that are
specifically allocable to such Subsidiary Borrower or the
Advances to such Subsidiary Borrower. With respect to any
amounts due hereunder, including fees, that are not
specifically allocable to a particular Borrower, each
Borrower shall be liable for such amount pro rata in the same
proportion as such Borrower's outstanding Advances bear to
the total of then-outstanding Advances to all Borrowers.
Article 3
Representations and Warranties
3.1 Representations and Warranties by the Borrowers. Each of the Borrowers
represents and warrants as follows:
(a) Corporate Standing. TBC is a duly organized corporation
existing in good standing under the laws of the State of
Delaware. Each Subsidiary Borrower is duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization, and each of TBC and each
Subsidiary Borrower is qualified to do business in every
jurisdiction where such qualification is required, except where
the failure to so qualify would not have a material adverse
effect on the financial condition of TBC and the Subsidiary
Borrowers as a whole.
(b) Corporate Powers; Governmental Approvals. The execution and
delivery and the performance of the terms of this Agreement
are, and the execution and delivery and the performance of the
terms of any Notes and of each Guaranty will be, within the
corporate powers of each Borrower party thereto, have been or
will have been (as appropriate) duly authorized by all
necessary corporate action, have, or will have, received (as
appropriate) all necessary governmental approval, if any
(which approval, if any, remains in full force and effect), and
do not contravene any law, any provision of the Certificate of
Incorporation or By-Laws of any Borrower party thereto or any
contractual restriction binding on any Borrower party thereto.
(c) Enforceability. This Agreement and the Notes, if any, when duly
executed and delivered by each Borrower party thereto, will
constitute legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with
their respective terms, and each Guaranty, when duly executed
and delivered by TBC, will constitute a legal, valid and
binding obligation of TBC, enforceable against TBC in
accordance with its terms, subject to general equitable
principles and except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general application
relating to creditors' rights.
(d) No Material Pending or Threatened Actions. In TBC's opinion,
there are no pending or threatened actions or proceedings
before any court or administrative agency that are reasonably
likely to have a material adverse affect on the financial
condition or operations of the Company which is likely to
impair the ability of the Company to repay the Advances or
which would affect the legality, validity or enforceability
of this Agreement or the Advances.
(e) Consolidated Statements. The Consolidated statement of
financial position as of December 31, 2000 and the
related Consolidated statement of earnings and retained
earnings for the year then ended (copies of which have been
furnished to each Lender) correctly set forth the
Consolidated financial condition of TBC and its Subsidiaries
as of such date and the result of the Consolidated operations
for such year. The Consolidated statement of financial
position as of September 30, 2001 and the related Consolidated
statement of earnings and retained earnings for the nine month
period then ended (copies of which have been furnished to each
Lender) correctly set forth, subject to year-end audit
adjustments, the Consolidated financial condition of TBC and
its Subsidiaries as of such date and the result of the
Consolidated operations for such nine month period.
(f) Regulation U. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System, and no
proceeds of any Advance will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock. Following application
of the proceeds of each Advance, not more than 25 percent of
the value of the assets (either of any Borrower only or of each
Borrower and its subsidiaries on a Consolidated basis)
subject to the provisions of Section 4.2(a) or subject to any
restriction contained in any agreement or instrument between
any Borrower and any Lender or any Affiliate of a Lender
relating to Debt within the scope of Section 6.1(d) will be
margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System).
(g) Investment Company Act. No Borrower is an "investment company,"
or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
Neither the making of any Advances, nor the application of the
proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(h) No Material Adverse Change. There has been no material adverse
change in the Company's financial condition or results of
operations since December 31, 2000 that is likely to impair the
ability of the Company to repay the Advances.
Article 4
Covenants of TBC
4.1 Affirmative Covenants of TBC. From the date of this Agreement and so
long as any amount is payable by a Borrower to any Lender hereunder or
any Commitment is outstanding, TBC will:
(a) Periodic Reports. Furnish to the Lenders:
(1) within 60 days after the close of each of the first
three quarters of each of TBC's fiscal years, a
Consolidated statement of financial position of TBC
and the Subsidiaries as of the end of such quarter
and a Consolidated comparative statement of earnings
and retained earnings of TBC and the Subsidiaries for
the period commencing at the end of the previous
fiscal year and ending with the end of such quarter,
each certified by an authorized officer of TBC,
(2) within 120 days after the close of each of TBC's
fiscal years, and if requested by the Agent, within
60 days after the close of each of the first three
quarters thereof, a statement certified by an
authorized officer of TBC showing in detail the
computations required by the provisions of Sections
4.2(a), 4.2(b), 4.2(c) and 4.2(d), based on the
figures which appear on the books of account of TBC
and the Subsidiaries at the close of such quarters,
(3) within 120 days after the close of each of TBC's
fiscal years, a copy of the annual audit report of
TBC, certified by independent public accountants of
recognized standing acceptable to the Agent, together
with financial statements consisting of a
Consolidated statement of financial position of TBC
and the Subsidiaries as of the end of such fiscal
year and a Consolidated statement of earnings and
retained earnings of TBC and the Subsidiaries for
such fiscal year,
(4) within 120 days after the close of each of TBC's
fiscal years, a statement certified by the
independent public accountants who shall have
prepared the corresponding audit report furnished to
the Lenders pursuant to the provisions of clause
(3) of this subsection (a), to the effect that, in
the course of preparing such audit report, such
accountants had obtained no knowledge, except as
specifically stated, that TBC had been in violation
of the provisions of any one of Sections 4.2(a),
4.2(b), 4.2(c) and 4.2(d), at any time during such
fiscal year,
(5) promptly upon their becoming available, all
financial statements, reports and proxy statements
which TBC sends to its stockholders,
(6) promptly upon their becoming available, all regular
and periodic financial reports which TBC or any
Subsidiary files with the Securities and Exchange
Commission or any national securities exchange,
(7) within 3 Business Days after the discovery of the
occurrence of any event which constitutes a
Default, notice of such occurrence together with a
detailed statement by a responsible officer of TBC of
the steps being taken by TBC or the appropriate
Subsidiary to cure the effect of such event, and
(8) such other information respecting the financial
condition and operations of TBC or the Subsidiaries
as the Agent may from time to time reasonably
request.
In lieu of furnishing the Lenders the items referred to in
clauses (1),(3), (5) and (6) above, TBC may notify the Lenders
that such items are available on TBC's website at
▇▇▇.▇▇▇▇▇▇.▇▇▇ or at such other website as notified to the
Agent and the Lenders.
(b) Payment of Taxes, Etc. Duly pay and discharge, and cause each
Subsidiary duly to pay and discharge, all material taxes,
assessments and governmental charges upon it or against its
properties prior to a date which is 5 Business Days after the
date on which penalties are attached thereto, except and to the
extent only that the same shall be contested in good faith and
by appropriate proceedings by TBC or the appropriate
Subsidiary.
(c) Insurance. Maintain, and cause each Subsidiary to maintain,
with financially sound and reputable insurance companies or
associations, insurance of the kinds, covering the risks and
in the relative proportionate amounts usually carried by
companies engaged in businesses similar to that of TBC or such
Subsidiary, except, to the extent consistent with good business
practices, such insurance may be provided by TBC through its
program of self insurance.
(d) Corporate Existence. Preserve and maintain its corporate
existence.
4.2 General Negative Covenants of TBC. From the date of this Agreement and
so long as any amount shall be payable by TBC or any other Borrower to
any Lender hereunder or any Commitment shall be outstanding, TBC will
not:
(a) Mortgages, Liens, Etc. Create, incur, assume or suffer to exist
any mortgage, pledge, lien, security interest or other charge
or encumbrance (including the lien or retained security title
of a conditional vendor) upon or with respect to any of its
Property, Plant and Equipment, or upon or with respect to the
Property, Plant and Equipment of any Subsidiary, or assign or
otherwise convey, or permit any Subsidiary to assign or
otherwise convey, any right to receive income from or with
respect to its Property, Plant and Equipment, except
(1) liens in connection with workmen's compensation,
unemployment insurance or other social security
obligations;
(2) liens securing the performance of bids, tenders,
contracts (other than for the repayment of borrowed
money), leases, statutory obligations, surety and
appeal bonds, liens to secure progress or partial
payments made to TBC or such Subsidiary and other
liens of like nature made in the ordinary course of
business;
(3) mechanics', workmen's, materialmen's or other like
liens arising in the ordinary course of business in
respect of obligations which are not due or which are
being contested in good faith;
(4) liens for taxes not yet due or being contested
in good faith and by appropriate proceedings by
TBC or the affected Subsidiary;
(5) liens which arise in connection with the leasing of
equipment in the ordinary course of business;
(6) liens on Property, Plant and Equipment owned by TBC
or any Subsidiary of TBC existing on the date of this
Agreement;
(7) liens on assets of a Person existing at the time such
Person is merged into or consolidated with TBC or a
Subsidiary of TBC or at the time of purchase, lease,
or acquisition of the property or Voting Stock of
such Person as an entirety or substantially as an
entirety by TBC or a Subsidiary of TBC, whether or
not any Debt secured by such liens is assumed by
TBC or such Subsidiary, provided that such liens are
not created in anticipation of such purchase, lease,
acquisition or merger;
(8) liens securing Debt of a Subsidiary of TBC owing to
TBC or to another Subsidiary;
(9) liens on assets existing at the time of acquisition
of such property by TBC or a Subsidiary of TBC or
purchase money liens to secure the payment of all or
part of the purchase price of property upon
acquisition of such assets by TBC or such
Subsidiary or to secure any Debt incurred or
guaranteed by TBC or a Subsidiary prior to, at the
time of, or within one year after the later of the
acquisition, completion or construction
(including any improvements on existing property),
or commencement of full operation, of such property,
which Debt is incurred or guaranteed solely for the
purpose of financing all or any part of the purchase
price thereof or construction or improvements
thereon; provided, however, that in the case of any
such acquisition, construction or improvement, the
lien shall not apply to any property theretofore
owned by TBC or such Subsidiary other than, in
the case of such construction or improvement, any
theretofore unimproved real property on which the
property so constructed or the improvement made is
located;
(10) any extension, renewal or replacement (or successive
extensions, renewals or replacements in whole or in
part of any lien referred to in the foregoing;
provided, however, that the principal amount of Debt
secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension,
renewal or replacement and that such extension,
renewal or replacement shall be limited to all or any
part of the property that secured the lien so
extended, renewed or replace (plus improvements and
construction on such property); and
(11) other liens, charges and encumbrances, so long as the
aggregate amount of the Consolidated Debt for which
all such liens, charges and encumbrances serve as
security does not exceed 15% of Consolidated net
Property, Plant and Equipment.
(b) Consolidated Debt. Permit Consolidated Debt (subject to
Section 4.3) to be at any time more than 60% of Total
Capital, where "Total Capital" means the sum of Shareholders'
Equity and Consolidated Debt.
(c) Payment in Violation of an Agreement. Make any payment, or
permit any Subsidiary to make any payment, of principal or
interest, on any Debt which payment would constitute a
violation of the terms of this Agreement or of the terms of any
indenture or agreement binding on such corporation or to which
such corporation is a party except, in the case of any payment
made by a Subsidiary, to the extent such payment is not
likely to impair the ability of TBC to repay the Advances.
(d) Merger or Consolidation. Merge or consolidate with or into, or
convey, transfer, lease, or otherwise dispose of (whether in
one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to any Person except that a Borrower may merge or
consolidate with any Person so long as such Borrower is the
surviving corporation and no Default has occurred and is
continuing or would result therefrom, and except that any
direct or indirect Subsidiary of TBC may merge or consolidate
with or into, or dispose of assets to, TBC or any other direct
or indirect Subsidiary of TBC, provided, in each case, that no
Event of Default has occurred and is continuing at the time of
such proposed transaction or would result therefrom.
(e) Material Change in Business. Make any material change in the
nature of its business as carried out on the date hereof.
4.3 Financial Statement Terms. For purposes of Section 4.2(b), all
capitalized terms not defined in this Agreement shall have the
respective meanings used in TBC's published Consolidated financial
statements and calculated under the generally accepted accounting
principles and practices applied by TBC on the date hereof in the
preparation of such financial statements. However, notwithstanding the
foregoing, (a) such terms shall exclude amounts attributable to Boeing
Capital Services Corporation and its Subsidiaries and Boeing Financial
Corporation, a Delaware corporation; and (b) Total Capital shall
exclude the effects of any repurchase by TBC of its common stock and
any merger-related accounting adjustments which are attributable to the
merger with or acquisition of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation by TBC.
4.4 Waivers of Covenants. The departure by TBC or any Subsidiary from the
requirements of any of the provisions of this Article 4 shall be
permitted only if such departure has been consented to in advance in a
writing signed by the Majority Lenders, and such writing shall be
effective as a consent only to the specific departure described in such
writing. Such departure by TBC or any Subsidiary when properly
consented to by the Majority Lenders shall not constitute an Event of
Default under Section 6.1(c).
Article 5
Conditions Precedent to Borrowings
5.1 Conditions Precedent to the Initial Borrowing of TBC. The obligation of
each Lender to make its initial Advance to TBC is subject to receipt by
the Agent on or before the day of the initial Borrowing of all of the
following, each dated as of the day hereof, in form and substance
satisfactory to the Agent and its counsel:
(a) Documentation. Copies of all documents, certified by an
officer of TBC, evidencing necessary corporate action by TBC
and governmental approvals, if any, with respect to this
Agreement, to the Notes, if any, and to Guaranties to be
delivered by TBC pursuant to Section 5.4(e);
(b) Officer's Certificate. A certificate of the Secretary or an
Assistant Secretary of TBC which certifies the names of the
officers of TBC authorized to sign the Notes, if any, and the
other documents to be delivered hereunder, together with true
specimen signatures of such officers and facsimile signatures
of officers authorized to sign by facsimile signature (on
which certificate each Lender may conclusively rely until it
receives a further certificate of the Secretary or an
Assistant Secretary of TBC canceling or amending the prior
certificate and submitting specimen signatures of the officers
named in such further certificate);
(c) Opinion of Company Counsel. A favorable opinion of counsel
for TBC substantially in the form of Exhibit G and as to such
other matters as the Agent may reasonably request, which
opinion TBC hereby expressly instructs such counsel to prepare
and deliver;
(d) Opinion of Agent's Counsel. A favorable opinion of Shearman &
Sterling, counsel for the Agent, substantially in the form of
Exhibit H;
(e) Termination of 2000 Agreement. TBC shall have terminated
in whole the commitments of the banks parties to the 2000
Credit Agreement; and
(f) Satisfaction of 2000 Agreement Obligations. TBC and its
Subsidiaries shall have satisfied all of their respective
obligations under the 2000 Credit Agreement including, without
limitation, the payment of all fees under such agreement.
5.2 Conditions Precedent to Each Committed Borrowing of TBC. The obligation
of each Lender to make a Committed Advance on the occasion of each
Committed Borrowing (including the initial Borrowing) is subject to the
further conditions precedent that on the date of the request for a
Committed Borrowing and on the date of such Borrowing, the following
statements shall be true, and both the giving of the applicable Notice
of Committed Borrowing and the acceptance by TBC of the proceeds of
such Committed Borrowing shall be a representation by TBC that:
(a) the representations and warranties contained in subsections
(a) through (g) of Section 3.1 are true and accurate on and as
of each such date as though made on and as of each such date
(except to the extent that such representations and warranties
relate solely to an earlier date); and
(b) as of each such date no event has occurred and is continuing,
or would result from the proposed Committed Borrowing, which
constitutes a Default.
5.3 Conditions Precedent to Each Bid Borrowing of TBC. The obligation of
any Lender to make a Bid Advance on the occasion of a Bid Borrowing
(including the initial Borrowing) is subject to the further conditions
precedent that:
(a) Notice of Bid Borrowing. The Agent shall have received the
written confirmatory Notice of Bid Borrowing with respect
thereto;
(b) Bid Notes. On or before the date of such Bid Borrowing, but
prior to such Bid Borrowing, the Agent shall have received a
Bid Note payable to the order of such Lender for each of the
one or more Bid Advances to be made by such Lender as part of
such Bid Borrowing, in a principal amount equal to the
principal amount of the Bid Advance to be evidenced thereby
and otherwise on such terms as were agreed to for such Bid
Advance in accordance with Section 2.5;
(c) Periodic Reports. Each Lender intending to make a Bid Advance
shall have received the statements provided by TBC pursuant to
Section 4.1(a)(1), (2) and (3) or shall have received notice
that such statements are available on TBC's website
▇▇▇.▇▇▇▇▇▇.▇▇▇ or any successor website notified to the Agent
and the Lenders; and
(d) Representations. On the date of such request and the date of
such Borrowing, the following statements shall be true, and
each of the giving of the applicable Notice of Borrowing and
the acceptance by TBC of the proceeds of such Bid Borrowing
shall be a representation by TBC that:
(i) the representations and warranties contained in
subsections (a) through (g) of Section 3.1 are true and
accurate on and as of each such date as though made on
and as of each such date (except to the extent that
such representations and warranties relate solely to an
earlier date);
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed Bid
Borrowing, which onstitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which any information concerning TBC that has
been provided by TBC to the Agent or the Lenders in
connection with such Bid Borrowing would include an
untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the
statements contained therein, in light of the
circumstances under which they were made, not
misleading.
5.4 Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower.
The obligation of each Lender to make its initial Advance to any
particular Subsidiary Borrower is subject to the receipt by the Agent,
on or before the day of the initial Borrowing by such Subsidiary
Borrower, of all of the following, each dated on or prior to the day of
the initial Borrowing, in form and substance satisfactory to the Agent
and its counsel:
(a) Borrower Subsidiary Letter. A Borrower Subsidiary Letter,
substantially in the form of Exhibit D, executed by such
Subsidiary Borrower and TBC;
(b) Documentation. Copies of all documents, certified by an
officer of the Subsidiary Borrower, evidencing necessary
corporate action by the Subsidiary Borrower and governmental
approvals, if any, with respect to this Agreement and any Notes;
(c) Officer's Certificate. A certificate of the Secretary or an
Assistant Secretary of TBC or the Subsidiary Borrower which
certifies the names of the officers of the Subsidiary Borrower
authorized to sign the Notes and the other documents to be
delivered hereunder, together withtrue specimen signatures of
such officers and facsimile signatures of officers authorized
to sign by facsimile signature (on which certificate each
Lender may conclusively rely until it receives a
further certificate of the Secretary or an Assistant Secretary
of TBC or the Subsidiary Borrower canceling or amending the
prior certificate and submitting signatures of the officers
named in such further certificate);
(d) Opinion of Subsidiary Counsel. A favorable opinion of in-house
counsel to the Subsidiary Borrower, substantially in the
form of Exhibit I and as to such other matters as the Agent may
reasonably request; and
(e) TBC Guaranty. A Guaranty of TBC that unconditionally
guarantees the payment of all obligations of such Subsidiary
Borrower hereunder and under the Notes of such Subsidiary
Borrower, substantially in the form of Exhibit J, executed and
delivered by TBC to the Agent; and
(f) Opinion of Subsidiary Counsel. A favorable opinion of in-house
counsel to TBC, substantially in the form of Exhibit K and as
to such other matters as the Agent may reasonably request.
5.5 Conditions Precedent to Each Committed Borrowing of a Subsidiary
Borrower. The obligation of each Lender to make a Committed Advance to
a Subsidiary Borrower on the occasion of each Committed Borrowing
(including the initial Borrowing) is subject to the further conditions
precedent that on the date of the request for such Committed Borrowing
and the date of such Borrowing, the following statements shall be true,
and each of the giving of the applicable Notice of Committed Borrowing
and the acceptance by such Subsidiary Borrower of the proceeds of such
Committed Borrowing shall be (a) a representation by such Subsidiary
Borrower that:
(i) the representations and warranties of that Subsidiary Borrower
contained (A) in subsections (a) through (g) of Section 3.1
are true and accurate on and as of each such date as though
made on and as of each such date (except to the extent that
such representations and warranties relate solely to an
earlier date), and (B) in its Borrower Subsidiary Letter are
true and correct on and as of the date of such Borrowing,
before and after giving effect to such Borrowing; and
(ii) as of each such date no event has occurred and is continuing,
or would result from the proposed Committed Borrowing,
which constitutes a Default;
and (b) a representation by TBC that the representations and warranties
of TBC contained in subsections (a) through (g) of Section 3.1 are true
and accurate on and as of each such date as though made on and as of
each such date (except to the extent that such representations and
warranties relate solely to an earlier date), and that, as of each such
date, no event has occurred and is continuing, or would result from the
proposed Committed Borrowing, which constitutes a Default.
5.6 Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower.
The obligation of any Lender to make a Bid Advance to any particular
Subsidiary Borrower on the occasion of each Bid Borrowing (including
the initial Borrowing) is subject to the further conditions precedent
that:
(a) Notice of Bid Borrowing. The Agent shall have received the
written confirmatory Notice of Bid Borrowing with respect
thereto;
(b) Bid Notes. On or before the date of such Bid Borrowing, but
pior to such Bid Borrowing, the Agent shall have received a
Bid Note payable to the order of such Lender for each of the
one or more Bid Advances to be made by such Lender as part of
such Bid Borrowing, in a principal amount equal to the
principal amount of the Bid Advance to be evidenced thereby
and otherwise on such terms as were agreed to for such Bid
Advance in accordance with Section 2.5;
(c) Periodic Reports. Each Lender intending to make a Bid Advance
shall have received the statements provided by TBC pursuant
to Section 4.1(a)(1), (2) and (3) or shall have received
notice that such statements are available on TBC's website;
and
(d) Subsidiary Representations. On the date of such request and
the date of such Borrowing, the following statements shall be
true, and each of the giving of the applicable Notice of Bid
Borrowing and the acceptance by the Subsidiary of the
proceeds of such Bid Borrowing shall be (a) a representation
by such Subsidiary Borrower that:
(i) the representations and warranties contained (A) in
subsections (a) through (g) of Section 3.1 hereof
with respect to such Subsidiary Borrower are true
and accurate on and as of each such date as though
made on and as of each such date (except to the
extent that such representations and warranties
relate solely to an earlier date), and (B) in its
Borrower Subsidiary Letter are true and correct on
and as of the date of such Borrowing, before and
after giving effect to such Borrowing;
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed Bid
Borrowing which constitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which any information concerning TBC or the
Subsidiary Borrower that has been provided by TBC or
the Subsidiary Borrower to the Agent or the Lenders
in connection with such Bid Borrowing would include
an untrue statement of a material fact or omit to
state any material fact or any fact necessary to make
the statements contained therein, in light of the
circumstances under which they were made, not
misleading; and
(e) TBC Representation. A representation by TBC that the
representations and warranties of TBC contained in subsections
(a) through (g) of Section 3.1 are true and accurate on and as
of each such date as though made on and as of each such date
(except to the extent that such representations and warranties
relate solely to an earlier date), and that, as of each such
date, no event has occurred and is continuing, or would result
from the proposed Committed Borrowing which constitutes a
Default.
Article 6
Events of Default
6.1 Events of Default. Each of the following shall constitute an Event of
Default:
(a) Failure by TBC to make when due any payment of principal of
or interest on any Advance or under a Guaranty when the same
becomes due and payable and such failure is not remedied
within 5 Business Days thereafter;
(b) Any representation or warranty made by TBC in connection with
the execution and delivery of this Agreement, the Borrowings
or any Guaranty, or otherwise furnished pursuant hereto proves
to have been incorrect when made in any material respect;
(c) Failure by TBC to perform any other term, covenant or
agreement contained in this Agreement, and such failure is
not remedied within 30 days after written notice thereof has
been given to TBC by the Agent, at the request, or with the
consent, of the Majority Lenders.
(d) Failure by TBC to pay when due (i) any obligation for the
payment of borrowed money on any regularly scheduled payment
date or following acceleration thereof or (ii) any other
monetary obligation if the aggregate unpaid principal amount
of the obligations with respect to which such failure to pay
or acceleration occurred equals or exceeds $50,000,000 and
such failure is not remedied within 5 Business Days
after TBC receives notice thereof from the Agent or the
creditor on such obligation.
(e) TBC or any of its Subsidiaries
(1) incurs liability with respect to any employee pension
benefit plan in excess of $150,000,000 in the
aggregate under
(A) Sections 4062, 4063, 4064 or 4201 of ERISA;
or
(B) otherwise under Title IV of ERISA as a
result of any reportable event within the
meaning of ERISA (other than a reportable
event as to which the provision of 30 days'
notice is waived under applicable
regulations);
(2) has a lien imposed on its property and rights to
property under Section 4068 of ERISA on account of a
liability in excess of $50,000,000 in the aggregate; or
(3) incurs liability under Title IV of ERISA
(A) in excess of $50,000,000 in the aggregate as
a result of the Company or any Subsidiary
or any Person that is a member of the
"controlled group" (as defined in
Section 4001(a)(14) of ERISA) of the Company
or any Subsidiary having filed a notice of
intent to terminate any employee pension
benefit plan under the "distress
termination" provision of Section 4041 of
ERISA or
(B) in excess of $50,000,000 in the aggregate as
a result of the Pension Benefit Guaranty
Corporation having instituted proceedings to
terminate, or to have a trustee appointed to
administer, any such plan.
(f) The happening of any of the following events, provided such
event has not then been cured or stayed:
(1) the insolvency or bankruptcy of TBC,
(2) the cessation by TBC of the payment of its Debts as
they mature,
(3) the making of an assignment for the benefit of the
creditors of TBC,
(4) the appointment of a trustee or receiver or liquidator
for TBC or for a substantial part of its property, or
(5) the institution of bankruptcy, reorganization,
arrangement, insolvency or similar proceedings by or
against TBC under the laws of any jurisdiction in
which TBC is organized or has material business,
operations or assets.
(g) So long as any Subsidiary is a Borrower hereunder, the
Guaranty with respect to such Subsidiary Borrower for any
reason ceases to be valid and binding on TBC or TBC so states
in writing.
6.2 Lenders' Rights upon Borrower Default. If an Event of Default occurs
or is continuing, then the Agent shall at the request, or may with
the consent, of the Majority Lenders, by notice to TBC,
(a) declare the obligation of each Lender to make further
Advances to be terminated, whereupon the same shall
forthwith terminate, and
(b) declare the Advances, all interest thereon, and all other
amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, all such interest, and
all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly
waived by the Borrowers, provided, however, that in the
event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy
Code (whether in connection with a voluntary or an
involuntary case), (i) the obligation of each Lender to make
Advances shall automatically be terminated and (ii) the
payment obligations of the Borrowers with respect to Advances,
all such interest, and all such amounts shall automatically
become and be due and payable, without presentment, demand,
protest, or any notice of any kind, all of which are hereby
expressly waived by the Borrowers.
Article 7
The Agent
7.1 Authorization and Action. Each Lender hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including without limitation, enforcement or collection of any Notes),
the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon
the instructions of the Majority Lenders and such instructions shall be
binding upon all Lenders and all holders of interests in Advances;
provided, however, that the Agent shall not be required to take any
action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by the
Borrowers pursuant to the terms of this Agreement.
7.2 Agent's Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the
Agent:
(a) may treat the Lender that made any Advance as the payee
thereof until the Agent receives and accepts an assignment
entered into by such Lender, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 2.20;
(b) may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or other experts;
(c) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made
in or in connection with this Agreement;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or to
inspect the property (including the books and records) of any
Borrower;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document
furnished pursuant hereto; and
(f) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, cable or
telex) believed by it to be genuine and signed or sent by the
proper party or parties.
7.3 Citibank, N.A. and its Affiliates. With respect to its Commitment, the
Advances made by it, and any Notes issued to it, Citibank, N.A. shall
have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent
hereunder; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Citibank, N.A., in its individual
capacity. Citibank, N.A. and its Affiliates may accept deposits from,
lend money to, accept drafts drawn by, act as trustee under indentures
of, and generally engage in any kind of business with, the Company, any
of its Subsidiaries and any person or entity who may do business with
or own securities of the Company or any Subsidiary, all as if Citibank,
N.A. were not the Agent hereunder and without any duty to account
therefor to the other Lenders.
7.4 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 3.1(e) and
the representations and warranties contained in Sections 3.1 and 3.2
and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
7.5 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by TBC or any other Borrower), ratably according
to the respective principal amounts of the Committed Advances then made
by each of them (or if no Committed Advances are at the time
outstanding or if interests in any Committed Advances are held by
persons which are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no
Lender shall be liable for any portion of the Indemnified Costs
resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent
in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement to the
extent that the Agent is not reimbursed for such expenses by TBC or any
other Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.5
applies whether any such investigation, litigation or proceeding is
brought by the Agent, any Lender or a third party.
7.6 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and TBC and may be removed at any time
with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right, with
the consent of TBC (if no Event of Default has occurred and is
continuing), which shall not be unreasonably withheld, to appoint a
successor Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $50,000,000. If
no successor Agent has been so appointed by the Majority Lenders, and
has accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the removal of the retiring
Agent as provided herein, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which meets the requirements set out
in the previous sentence. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder
as Agent, the provisions of this Article 7 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
7.7 Certain Obligations May Be Performed by Affiliates. The Agent may
appoint any of its Affiliates to perform its obligations hereunder
other than any obligation requiring the Agent to receive, pay, or
otherwise handle funds or Notes, and provided that the Agent shall
continue to be responsible to the Borrowers and the Lenders for the due
performance of the Agent's obligations under this Agreement.
Article 8
Miscellaneous
8.1 Modification, Consents and Waivers.
(a) Waiver. No failure or delay on the part of any Lender in
exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of
any such right or power preclude any other or further
exercise thereof or the exercise of any other right or
power hereunder. No notice to or demand on the Borrowers in
any case shall entitle the Borrowers to any other or further
notice or demand in similar or other circumstances.
(b) Amendment. No amendment or waiver of any provision of this
Agreement or of any Committed Notes, nor consent to any
departure by the Borrowers therefrom, shall in any event be
effective unless such amendment, waiver or consent is in
writing and signed by the Majority Lenders, and then such
amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all the
Lenders, do any of the following:
(i) waive any of the conditions specified in Section
5.1, 5.2, or 5.3,
(ii) except as provided in Section 2.19 or Section 2.21,
increase the Commitments of the Lenders or subject
the Lenders to any additional obligations,
(iii) reduce the principal of, or interest on, the
Committed Advances or any fees or other amounts
payable hereunder,
(iv) except as provided in Section 2.21, postpone any
date fixed for any payment of principal of, or
interest on, the Committed Advances or any fees or
other amounts payable hereunder,
(v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Committed
Advances or the number of Lenders required for the
Lenders or any of them to take any action hereunder,
(vi) amend this Section 8.1, or
(vii) release TBC from any of its obligations under any
Guaranty or limit the liability of TBC as guarantor
thereunder;
and provided further that no amendment, waiver, or consent
shall, unless in writing and signed by the Agent in addition to
the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.
(c) Majority Lenders. Notwithstanding the foregoing, this
Section 8.1 shall not affect the provisions of Section 4.4,
"Waivers of Covenants", or Article 6, "Events of Default".
8.2 Notices.
(a) Addresses. All communications and notices provided for
hereunder shall be in writing and mailed, telecopied, telexed
or delivered and,
if to the Agent,
Citibank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Lender Loans Syndications Department
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇;
if to any Borrower,
care of The Boeing Company
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Mail Code: 5003 3648
Chicago, Illinois
Attention: Treasurer
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇
if to any Lender, to its office at the address given on the
signature pages of this Agreement; or,
as to each party, at such other address as designated by such
party in a written notice to each other party referring
specifically to this Agreement.
(b) Effectiveness of Notices. All communications and notices shall,
when mailed, telecopied, or telexed, be effective when
deposited in the mail, telecopied, or confirmed by telex
answerback, respectively. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any
provision of this Agreement or any Notes or of any Exhibit to
be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(c) Electronic Mail. Electronic mail may be used to distribute
routine communications, such as financial statements and other
information, and documents to be signed by the parties hereto;
provided, however, that no Notice of Borrowing, signature, or
other notice or document intended to be legally binding shall
be effective if sent by electronic mail.
8.3 Costs, Expenses and Taxes.
(a) TBC shall pay upon written request all reasonable costs and
expenses in connection with the preparation, execution,
delivery, modification and amendment requested by any of
the Borrowers of this Agreement, any Notes and the Guaranties
(including, without limitation, printing costs and the
reasonable fees and out-of-pocket expenses of counsel for the
Agent)and costs and expenses, if any, in connection with the
enforcement of this Agreement, any Notes and the Guaranties
(whether through negotiations, legal proceedings or
otherwise and including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel), as well as any
and all stamp and other taxes, and to save the Lenders and
other holders of interests in the Advances or any Notes
harmless from any and all liabilities with respect to or
resulting from any delay by or omission of the Borrowers to
pay such taxes, if any, which may be payable or determined
to be payable in connection with the execution and delivery of
this Agreement, any Notes and the Guaranties.
(b) TBC agrees to indemnify the Agent and each Lender and each of
their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without
limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in
connection therewith) the Advances, this Agreement,
the Notes, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Advances,
except to the extent such claim, damage, loss, liability or
expense resulted from such Indemnified Party's gross
negligence or willful misconduct and except that no
Indemnified Party shall have the right to be indemnified
hereunder to the extent such indemnification relates to
relationships of, between or among each of, or any of, the
Agent, the Lenders, any assignee of a Lender or any
participant. In the case of any investigation, litigation or
other proceeding to which this Section 8.3 applies, such
indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by
TBC, its directors, shareholders or creditors or an
Indemnified Party or any other Person or an Indemnified Party
is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The
Borrowers also agree not to assert any claim on any
theory of liability for special, indirect, consequential or
punitive damages against the Agent, and Lender, any of their
Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, arising out of or otherwise
relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use
of the proceeds of Advances.
8.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Lenders and the Agent, and their
respective successors and assigns, except that the Borrowers may not
assign or transfer their rights hereunder without the prior written
consent of the Lenders.
8.5 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
8.6 Governing Law. This Agreement, any Notes, the Guaranties and each
Borrower Subsidiary Letter shall be deemed to be contracts under the
laws of the State of New York and for all purposes shall be construed
in accordance with the laws of such State.
8.7 Headings. The Table of Contents and Article and Section headings
used in this Agreement are for convenience only and shall not affect
the construction of this Agreement.
8.8 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
8.9 Right of Set-Off. Each Lender and each of its Affiliates that is or
was at one time a Lender hereunder is authorized at any time and from
time to time, upon
(i) the occurrence and during the continuance of any Event of
Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.2 to authorize the Agent to declare any
Advances due and payable pursuant to the provisions of Section
6.2,
to the fullest extent permitted by law, without notice to any Borrower
(any such notice being expressly waived by each Borrower), to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the
account of any Borrower against any and all of the obligations to such
Lender or such Affiliate of such Borrower now or hereafter existing
under this Agreement and any Notes held by such Lender, whether or not
such Lender has made a demand under this Agreement or such Notes and
although such obligations may be unmatured. Each Lender shall promptly
notify any Borrower after any such setoff and application made by such
Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Lender
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such
Lender and its Affiliates may have.
8.10 Confidentiality. Neither the Agent nor any Lender shall disclose any
Confidential Information to any other Person without
the consent of a Borrower, other than
(a) to the Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated
by Section 2.20(f), to actual or prospective assignees and
participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process,
and
(c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
8.11 Agreement in Effect. This Agreement shall become effective upon its
execution and delivery, respectively, to the Agent and TBC by TBC and
the Agent, and when the Agent shall have been notified by each Lender
listed on Schedule I that such Lender has executed it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first above written.
THE BOEING COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
Title: Assistant Treasurer
CITIBANK, N.A., Individually and as Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
JPMORGAN CHASE BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Co-Documentation Agents
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
MITSUBISHI TOKYO FINANCIAL GROUP, INC.
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Manager
THE MITSUBISHI TRUST AND BANKING CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Senior Managing Agents
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
WACHOVIA BANK, N.A.
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Central Divisoin Head
CREDIT SUISSE FIRST BOSTON
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
SUMITOMO MITSUI BANKING CORPORATION
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Manager
Managing Agents
BANK ONE, NA
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
BARCLAYS BANK PLC
By /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLAND BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BNP PARIBAS
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Central Region Manager
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
THE ROYAL BANK OF SCOTLAND PLC
By /s/ ▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Corporate Director
Lenders
ABN AMRO BANK, N.V.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Diversified Industries Central
By /s/ ▇▇▇▇ ▇. HONDA
___________________________________
Name: ▇▇▇▇ ▇. Honda
Title: Group Vice President
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By /s/ R. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
____________________________
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Head of Structured Finance &
Relationship Management-Americas
BANCO BILBAO VIZCAYA ARGENTARIA
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Carreras
Title: Vice President Global Corporate
Banking
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Global Corporate
Banking
DEUTSCHE VERKEHRSBANK AG
By /s/ COPSTANCE ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
___________________________________
Name: Copstance ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
INTESABCI
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By /s/ D. ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: D. ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Credit Officer
PNC BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ROYAL BANK OF CANADA
By /s/ ▇.▇. ▇▇▇▇▇▇
___________________________________
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Senior Manager
STANDARD CHARTERED BANK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Sr. Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Associate Director
By /s/ ▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Manager
UBS A.G. STAMFORD BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. SAINT
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director
Banking Products Services, US
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
Banking Products Services, US
SCHEDULE I
APPLICABLE LENDING OFFICES
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
----------------------------------- ------------------ ------------------------------------ ----------------------------------
ABN Amro Bank, N.V. $50,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Australia and New Zealand Banking $23,800,000 1177 Avenue of the Americas 1177 Avenue of the Americas
Group Limited ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Banco Bilbao Vizcaya $25,000,000 1345 Avenue of the Americas 1345 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Bank One, NA $100,000,000 One Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Bank of America, N.A. $210,000,000 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇-▇▇-▇▇ ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
The Bank of New York $125,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: 212 635-6399 F: 212 635-6399
----------------------------------- ------------------ ------------------------------------ ----------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. $120,000,000 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Barclays Bank PLC $100,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chimatra ▇▇▇▇▇▇▇ Attn: Chimatra ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Bayerische Landesbank $100,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Branch ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
BNP Paribas $100,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Citibank, N.A. $238,400,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 399 Park Avenue
12th Floor, Zone ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Credit Lyonnais New York Branch $100,000,000 1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Credit Suisse First Boston $150,000,000 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Deutsche Bank AG New York Branch $210,000,000 ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Deutsche VerkehrsBank AG $30,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 609 Fifth Avenue
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
T: 212 588-8864 T: 212 588-8864
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Fleet National Bank $80,000,000 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mailstop: MADE 10010A Mailstop: MADE 10010A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
The Industrial Bank of Japan, $180,000,000 1251 Avenue of the Americas 1251 Avenue of the Americas
Limited ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: 212 282-4494 F: 212 282-4494
----------------------------------- ------------------ ------------------------------------ ----------------------------------
IntesaBCI $50,000,000 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
JPMorgan Chase Bank $238,400,000 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Bob O'sieski Attn: Bob O'sieski
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $50,000,000 ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ 15 W. South Temple
Suite 300 Suite 300
Salt Lake City, UT 84101 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Mitsubishi Trust & Banking $90,000,000 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
PNC Bank, N.A. $54,400,000 One PNC Plaza One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mailstop P1-▇▇▇▇-2-3 Mailstop P1-▇▇▇▇-2-3
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
T: (▇▇▇) ▇▇▇-▇▇▇▇ T: (412) 762-3202
F: (▇▇▇) ▇▇▇-▇▇▇▇ F: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Royal Bank of Canada $25,000,000 Royal Bank of Canada Centre Royal Bank of Canada Centre
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Royal Bank of Scotland $100,000,000 Waterhouse Square Waterhouse Square
138-142 Holborn ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
EC1N 2TH EC1N 2TH
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Standard Chartered Bank $50,000,000 One Evertrust Plaza ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: 201 536-04478 F: 201 536-04478
----------------------------------- ------------------ ------------------------------------ ----------------------------------
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Sumitomo Mitsui Banking $150,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 777 South ▇▇▇▇▇▇▇▇
Corporation ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
UBS AG, Stanford Branch $50,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Banking Product Services Banking Product Services
T: 203 179-0481 T: 203 179-0481
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
U.S. Bank National Association $25,000,000 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Wachovia Bank $150,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ Baschuite Attn: ▇▇▇ Baschuite
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Westdeutsche Landesbank $25,000,000 1211 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
T: 212 852-6113 T: 212 852-6113
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------- ------------------ ------------------------------------ ----------------------------------
Total of Commitments: $3,000,000,000
EXHIBIT A-1
FORM OF COMMITTED NOTE
U.S.$___________________ Dated: _______________, 200__
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
______________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below) on the later
of the Termination Date and the date designated pursuant to Section 2.3 of such
Credit Agreement (as defined in such Credit Agreement) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
unpaid principal amount of the Committed Advances (as defined below) under and
pursuant to the 364-Day Credit Agreement dated as of November 23, 2001, among
the Borrower, [The Boeing Company,] the Lender and certain other lenders
parties thereto, JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers and joint
book managers, and Citibank, N.A., as Agent for the Lender and such other
Lenders (as amended or modified from time to time, the "Credit Agreement"),
outstanding on such date. Capitalized terms used in the promissory note that
are not defined herein have the respective meanings specified in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Committed Advance made by the Lender to the Borrower pursuant to
the Credit Agreement (each, a "Committed Advance") from the date of such
Committed Advance until such principal amount is paid in full, at such interest
rates, and payable at such times, as are determined pursuant to the Credit
Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Committed Advance, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Committed Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things (i) provides for the making of Committed Advances
by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Committed Advance being
evidenced by this Promissory Note and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
[NAME OF BORROWER]
By ____________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Maturity Date Amount of Principal Paid or Unpaid Principal
Date Advance Prepaid Balance Notation Made by
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EXHIBIT A-2
FORM OF BID NOTE
Dated: _______________, 200__
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________ (the "Lender") for the account of its Applicable Lending Office
(as defined in the 364-Day Credit Agreement dated as of November 23, 2001, among
the Borrower,[The Boeing Company,] the Lender and certain other lenders parties
thereto, JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
and JPMorgan Securities, Inc., as joint lead arrangers and joint book managers,
and Citibank, N.A., as Agent for the Lender and such other Lenders (as amended
or modified from time to time, the "Credit Agreement") on__________, 200_, the
principal amount of U.S.$__________. Capitalized terms used in this promissory
note that are not defined herein have the respective meanings specified in the
Credit Agreement).
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: _____% per annum (calculated on the basis
of a year of ____ days for the actual number of days elapsed).
Interest Payment Date or Dates: _________________
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds.
This Promissory Note is one of the Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
[NAME OF BORROWER]
By ____________________________________
Title:
EXHIBIT B-1
NOTICE OF COMMITTED BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: _______________________
Gentlemen:
The undersigned, [NAME OF BORROWER] (the "Borrower"), refers
to the 364-Day Credit Agreement dated as of November 23, 2001, among the
Borrower, [The Boeing Company] the Lender and certain other lenders parties
thereto, JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
and JPMorgan Securities, Inc., as joint lead arrangers and joint book managers,
and Citibank, N.A., as Agent for the Lender and such other Lenders (as amended
or modified from time to time, the "Credit Agreement"). Capitalized terms used
in this notice that are not defined herein have the respective meanings
specified in the Credit Agreement. The undersigned hereby gives you notice,
irrevocably, pursuant to Section 2.2 of the Credit Agreement that the
undersigned hereby requests a Committed Borrowing under the Credit Agreement,
and in that connection sets forth below the information relating to such
Committed Borrowing (the "Proposed Committed Borrowing") as required by Section
2.2(a) of the Credit Agreement:
(i) The date of the Proposed Committed Borrowing is
________________, 200_.
(ii) The Type of Committed Advances constituting the
Proposed Committed Borrowing is [Base Rate Advances][Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed Committed
Borrowing is $____________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Committed Borrowing is ____ month[s]].
The undersigned hereby certifies that the following statements
are true on and as of the date hereof, and will be true on and as of the date of
the Proposed Committed Borrowing:
(A) the representations and warranties contained in
Section 3.1(a) through (g) of the Credit Agreement are true and
accurate as though made on and as of each such date (except to the
extent that such representations and warranties relate solely to an
earlier date); [and]
(B) no event has occurred and is continuing or would
result from such Proposed Committed Borrowing which constitutes a
Default.
[(C) the representations and warranties of the
undersigned Subsidiary Borrower contained in Section 3.1(a) through (g)
of the Credit Agreement are and will be true and accurate on and as of
each such date as though made on and as of each such date (except to
the extent that such representations and warranties relate solely to an
earlier date); and the representations and warranties of the
undersigned Subsidiary Borrower contained in the Borrower Subsidiary
Letter of the undersigned Subsidiary Borrower are and will be true and
correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing.]*
Very truly yours,
[NAME OF SUBSIDIARY BORROWER]*
[By __________________________
Title:]
THE BOEING COMPANY
By ___________________________
Title:
_____________________
* Include if Borrower is not The Boeing Company.
EXHIBIT B-2
NOTICE OF BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: _______________________
Gentlemen:
The undersigned, [NAME OF BORROWER] (the "Borrower"), refers
to the 364-Day Credit Agreement dated as of November 23, 2001, among the
Borrower,[The Boeing Company,] certain lenders parties thereto, JPMorgan Chase
Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and JPMorgan Securities,
Inc., as joint lead arrangers and joint book managers, and Citibank, N.A., as
Agent for such lenders (as amended or modified from time to time, the "Credit
Agreement"). Capitalized terms used in this notice that are not defined herein
have the respective meanings specified in the Credit Agreement. The undersigned
hereby gives you notice pursuant to Section 2.5(a) of the Credit Agreement that
the undersigned requests a Bid Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Bid Borrowing (the "Proposed Bid
Borrowing") is requested to be made:
(A) Date of Bid Borrowing _________________________________
(B) Amount of Bid Borrowing _________________________________
(C) The maturity date _________________________________
(D) Type [Fixed Rate][Eurodollar Rate]____
_________________________________
(E) Interest Payment Date(s) _________________________________
(F) Interest Calculation Basis_________________________________
[(G) Interest Rate Period _________________________________]
The undersigned hereby certifies that the following statements
are true on and as of the date hereof, and will be true on and as of the date of
the Proposed Bid Borrowing:
(a) the representations and warranties contained in Section
3.1(a) through (g) of the Credit Agreement are true and accurate as though made
on and as of each such date (except to the extent that such representations and
warranties relate solely to an earlier date);
(b) no event has occurred and is continuing, or would result
from the Proposed Bid Borrowing which constitutes a Default; and
(c) no event has occurred and no circumstance exists as a
result of which any information concerning [the Borrower] [The Boeing Company]
that has been provided by [the Borrower] [The Boeing Company]* to the Agent or
the Lenders in connection with the Proposed Bid Borrowing would include an
untrue statement of a material fact or omit to state any material fact or any
fact necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
[(d) the representations and warranties contained (1) in
Section 3.1 (a) through (g) of the Credit Agreement with respect to the
undersigned Subsidiary Borrower are true and accurate on and as of each such
date as though made on and as of each such date (except to the extent that such
representations and warranties related solely to an earlier date), and (2) in
the Borrower Subsidiary Letter of the undersigned Subsidiary Borrower are true
and correct on and as of the date of such Borrowing, before and after giving
effect to such Borrowing;
(e) no event has occurred and no circumstance exists as a
result of which any information concerning The Boeing Company or the undersigned
Subsidiary Borrower that has been provided by The Boeing Company or the
undersigned Subsidiary Borrower to the Agent or the Lenders in connection with
such Bid Borrowing would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.]*
The undersigned hereby confirms that the Proposed Bid
Borrowing is to be made available to it in accordance with Section 2.5(e) of the
Credit Agreement.
Very truly yours,
[[NAME OF BORROWER]
By _________________________
Title:]**
THE BOEING COMPANY
By __________________________
Title:
_____________________
* Reference should describe The Boeing Company.
** Include if Borrower is not The Boeing Company.
EXHIBIT C
REQUEST FOR ALTERATION
To the Lenders Parties to
Credit Agreement referred
to below
Gentlemen:
In accordance with Section 2.19 of the 364-Day Credit
Agreement dated as of November 23, 2001, among The Boeing Company, the lenders
parties thereto, JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. and JPMorgan Securities, Inc., as joint lead arrangers and joint book
managers, and Citibank, N.A., as Agent for such lenders (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined), you are hereby notified that, with the consent, if
any, required of the Lenders pursuant to such Section 2.19:
[Complete as Appropriate]
______________________________________ shall become a party to
the Credit Agreement with a Commitment of $_______________.
the Commitment of _________________ shall be increased/decreased
from $__________ to $_________.
the Commitment of _________________ shall be terminated,
the Committed Advances of _______________________ shall be prepaid
in the amount of $__________.
If this Request for Alteration has been executed by the
Company, the Agent and each Lender [and prospective lender]
affected by this Request for Alteration and all prepayments
called for hereby shall have been paid in full on or before
________, 200_ (the "Effective Date"), then pursuant to
Section 2.19 of the Credit Agreement this Request for
Alteration, and each increase, decrease, termination or
creation effected hereby, shall thereupon become effective on
the Effective Date. [The Company hereby certifies that no
event exists, or would result from giving effect to this
Request for Alteration, which would require the Agent to
obtain the consent of the Majority Lenders before signing this
Request for Alteration.] [The Agent may not sign this Request
for Alteration without the prior written consent of the
Majority Lenders.]
Please indicate your consent to this Request for
Alteration by signing the enclosed copy and returning it to the Agent.
Very truly yours,
THE BOEING COMPANY
By: ________________________________
Title:
We hereby consent to the foregoing.
[Name of Affected Lender]
By __________________________
Title:
[We hereby consent to the foregoing.
[Name of affected prospective lender]
By __________________________
Title:
CITIBANK, N.A. as Agent
By ___________________________
Title:
[We hereby consent to the foregoing. [If Majority Lender consent is required.]]
[Name of Lender]
By ___________________________
Title:
EXHIBIT D
FORM OF BORROWER SUBSIDIARY LETTER
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of
November 23, 2001, among The Boeing Company, the lenders parties thereto,
JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
JPMorgan Securities, Inc., as joint lead arrangers and joint book managers, and
Citibank, N.A., as Agent for such lenders (as amended or modified from time to
time, the "Credit Agreement"). Capitalized terms used in this letter that are
not defined herein have the respective meanings specified in the Credit
Agreement.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ____________ (the "Subsidiary Borrower"), as a
"Subsidiary Borrower" under and for all purposes of the Credit Agreement.
The Subsidiary Borrower, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Subsidiary Borrower" as a "Borrower" under the Credit Agreement and agrees to
be bound by the terms and conditions of the Credit Agreement. In furtherance of
the foregoing, the Subsidiary Borrower hereby represents and warrants to each
Lender as follows:
(a) The Subsidiary Borrower is a corporation duly organized,
validly existing and in good standing under the laws of
______________________. The Subsidiary Borrower is qualified to do
business in every jurisdiction where such qualification is required,
except where the failure to so qualify would not have a materially
adverse effect on the financial condition of the Company and the
Subsidiary Borrowers as a whole.
(b) The execution, delivery and performance by the Subsidiary
Borrower of this Subsidiary Borrower Letter and its Notes, if any, are
within the Subsidiary Borrower's corporate powers, have been duly
authorized by all necessary corporate action, have received all
necessary governmental approval, if any (which approval remains in full
force and effect), and do not contravene any law, any provision of the
Subsidiary Borrower's charter or by-laws or any contractual restriction
binding on the Subsidiary Borrower.
(c) This Subsidiary Borrower Letter does, and the Notes of the
Subsidiary Borrower when duly executed and delivered by the Subsidiary
Borrower will, constitute legal, valid and binding obligations of the
Subsidiary Borrower, enforceable against the Subsidiary Borrower in
accordance with their respective terms.
(d) In the Subsidiary Borrower's opinion, there are no pending
or threatened actions or proceedings before any court or administrative
agency that are reasonably likely to have a material adverse affect on
the financial condition or operations of the Subsidiary Borrower or any
Subsidiary which is likely to impair the ability of the Subsidiary
Borrower to repay the Advances to it or which would affect the
legality, validity or enforceability of such Advances or its Notes, if
any.
(e) The Consolidated statement of financial position as of
December 31, 2000 and the related Consolidated statement of earnings
and retained earnings for the year then ended (copies of which have
been furnished to each Lender) correctly set forth the Consolidated
financial condition of the Company and its Subsidiaries as of such date
and the result of the Consolidated operations for such year.
(f) The Subsidiary Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System, and no proceeds of any Advance to the
Subsidiary Borrower will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying
any margin stock. Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets (either of
the Subsidiary Borrower only or of the Subsidiary Borrower and its
subsidiaries on a consolidated basis) subject to the provisions of
Section 4.2(a) of the Credit Agreement or subject to any restriction
contained in any agreement or instrument between the Subsidiary
Borrower and any Lender or any Affiliate of a Lender relating to Debt
within the scope of Section 6.1(d) of the Credit Agreement will be
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System).
(g) The Subsidiary Borrower is not an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the application of the proceeds or repayment thereof by the
Subsidiary Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
Very truly yours,
THE BOEING COMPANY
By _________________________
Name:
Title:
[SUBSIDIARY BORROWER]
By __________________________
Name:
Title:
EXHIBIT E
EXTENSION REQUEST
[Date]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Extension Request Under The Boeing Company 364-Day
Credit Agreement dated as of November 23, 2001.
Reference is made to the 364-Day Credit Agreement dated as of
November 23, 2001, among The Boeing Company, the lenders parties thereto,
JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
JPMorgan Securities, Inc., as joint lead arrangers and joint book managers, and
Citibank, N.A., as Agent for the lenders (as amended or modified from time to
time, the "Credit Agreement"). The terms defined in the Credit Agreement are
used herein as therein defined. Pursuant to Section 2.21 of the Credit
Agreement, the Company hereby provides notice of its desire to extend the
Termination Date to November 22, 2003.
The Company hereby instructs the Agent promptly to notify each
of the Lenders of the receipt of this Extension Request by providing each such
Lender with a copy of this Extension Request.
THE BOEING COMPANY
By___________________________
Name:
Title:
EXHIBIT F
CONTINUATION NOTICE
[Date]
The Boeing Company
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Reference is made to the 364-Day Credit Credit Agreement dated
as of November 23, 2001, among The Boeing Company, the lenders parties thereto,
JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
JPMorgan Securities, Inc., as joint lead arrangers and joint book managers, and
Citibank, N.A., as Agent for the lenders (as amended or modified from time to
time, the "Credit Agreement"). The terms defined in the Credit Agreement are
used herein as therein defined.
Reference is made to the Extension Request dated [_________], 200_ from the
Company to the Agent. We have reviewed the Extension Request and we hereby
consent to the extension of the Termination Date to November 22, 2003.
Very truly yours,
[LENDER]
By___________________________
Name:
Title:
EXHIBIT G
FORM OF OPINION OF COUNSEL TO THE COMPANY
[Date]
To each of the Lenders parties
to the Credit Agreement referred to
below, and to Citibank, N.A., as Agent
The Boeing Company
Gentlemen:
This opinion is furnished to you pursuant to Section 5.1(c) of
the 364-Day Credit Agreement dated as of November 23, 2001, among The Boeing
Company, the lenders parties thereto, JPMorgan Chase Bank, as syndication agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers
and joint book managers, and Citibank, N.A., as Agent for the lenders (as
amended or modified from time to time, the "Credit Agreement"). The terms
defined in the Credit Agreement are used herein as therein defined.
I am counsel to the Company, and have acted in such capacity
in connection with the preparation, execution and delivery of, and the initial
Borrowing made by the Company under, the Credit Agreement.
In that connection, I have examined:
(1) The Credit Agreement.
(2) The other documents furnished by the Company
pursuant to Article 5 of the Credit Agreement.
(3) The Certificate of Incorporation of the Company and
all amendments thereto (the "Charter").
(4) The by-laws of the Company and all amendments
thereto (the "By-Laws").
In addition, I have examined the originals, or copies
certified to my satisfaction, of such other corporate records of the Company,
certificates of officers of the Company, and agreements, instruments and other
documents, as I have deemed necessary as a basis for the opinions expressed
below. I have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Lenders and the Agent.
I am qualified to practice law in the State of Washington and
I do not purport to be an expert on any laws other than the laws of the State of
Washington, the General Corporation Law of the State of Delaware and the Federal
laws of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinions:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, if any, are within the Company's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the
By-Laws or (ii) any law, rule or regulation applicable to the
Company (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction binding on the Company. The
Credit Agreement and the Notes, if any, have been duly executed
and delivered on behalf of the Company.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Company of the Credit Agreement and the Notes[, except for , all
of which have been duly obtained or made and are in full force and
effect].
4. In any action or proceeding arising out of or relating to the
Credit Agreement or the Notes, if any, in any court of the State
of Washington or in any federal court sitting in the State of
Washington, such court would recognize and give effect to the
provisions of Section 8.6 of the Credit Agreement wherein the
parties thereto agree that the Credit Agreement and the Notes
shall be governed by, and construed in accordance with, the laws
of the State of New York. Without limiting the generality of the
foregoing, a court of the State of Washington or a federal court
sitting in the State of Washington would apply the usury law of
the State of New York, and would not apply the usury law of the
State of Washington, to the Credit Agreement and the Notes.
However, if a court were to hold that the Credit Agreement and the
Notes are governed by, and to be construed in accordance with, the
laws of the State of Washington, the Credit Agreement and the
Notes would be, under the laws of the State of Washington, legal,
valid and binding obligations of the Company enforceable against
the Company in accordance with their respective terms.
5. To the best of my knowledge, there are no pending overtly
threatened actions or proceedings against the Company or any of
its Subsidiaries before any court or administrative agency that
(i) purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or (ii)
except as disclosed in the Company's financial statements
delivered to you prior to the date hereof pursuant to Section
3.1(e) of the Credit Agreement, are reasonably likely to have a
material adverse affect on the financial condition or operations
of the Company or any Subsidiary which is likely to impair the
ability of the Company or any Subsidiary to repay their respective
Advances or which would affect the legality, validity or
enforceability of the Credit Agreement.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in the last sentence of paragraph 4 above is
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally.
(b) My opinion in paragraph 4 above is subject to the effect
of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
Very truly yours,
EXHIBIT H
November 23, 2001
To the Initial Lenders party to the
Credit Agreement referred
to below and to Citibank, N.A.,
as Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
as Agent, in connection with the preparation, execution and delivery of the
364-Day Credit Agreement dated as of November 23, 2001, among The Boeing
Company, the Lenders parties thereto, JPMorgan Chase Bank, as syndication agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers
and joint book managers, and Citibank, N.A., as Agent for the Lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined).
In that connection, we have examined a counterpart of the
Credit Agreement executed by TBC and, to the extent relevant to our opinion
expressed below, the other documents delivered by TBC pursuant to Section 5.1 of
the Credit Agreement.
In our examination of the Credit Agreement and such other
documents, we have assumed, without independent investigation (a) the due
execution and delivery of the Credit Agreement by all parties thereto, (b) the
genuineness of all signatures, (c) the authenticity of the originals of the
documents submitted to us and (d) the conformity to originals of any documents
submitted to us as copies.
In addition, we have assumed, without independent
investigation, that (i) TBC is duly organized and validly existing under the
laws of the jurisdiction of its organization and has full power and authority
(corporate and otherwise) to execute, deliver and perform the Credit Agreement
and (ii) the execution, delivery and performance by TBC of the Credit Agreement
have been duly authorized by all necessary action (corporate or otherwise) and
do not (A) contravene the certificate of incorporation, bylaws or other
constituent documents of TBC, (B) conflict with or result in the breach of any
document or instrument binding on TBC or (C) violate or require any governmental
or regulatory authorization or other action under any law, rule or regulation
applicable to TBC other than New York law or United States federal law
applicable to borrowers generally or, assuming the correctness of TBC's
statements made as representations and warranties in Section 3.1(b) of the
Credit Agreement, applicable to TBC. We have also assumed that the Credit
Agreement is the legal, valid and binding obligation of each Lender, enforceable
against such Lender in accordance with its terms.
Based upon the foregoing examination and assumptions and upon
such other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that the Credit Agreement
is the legal, valid and binding obligation of TBC, enforceable against TBC in
accordance with its terms.
Our opinion above is subject to the following qualifications:
(i) Our opinion above is subject to the effect of any
applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors'
rights generally.
(ii) Our opinion above is also subject to the effect
of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(iii) We express no opinion as to the enforceability
of the indemnification provisions set forth in Section 8.3 of
the Credit Agreement to the extent enforcement thereof is
contrary to public policy regarding the exculpation of
criminal violations, intentional harm and acts of gross
negligence or recklessness.
(iv) Our opinion above is limited to the law of the
State of New York and the federal law of the United States of
America and we do not express any opinion herein concerning
any other law. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law
of a jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit
Agreement may be sought that limits the rates of interest
legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you
to any Person that becomes a Lender in accordance with the provisions of the
Credit Agreement. Any such Lender may rely on the opinion expressed above as if
this opinion letter were addressed and delivered to such Lender on the date
hereof.
This opinion letter speaks only as of the date hereof. We
expressly disclaim any responsibility to advise you or any other Lender who is
permitted to rely on the opinion expressed herein as specified in the next
preceding paragraph of any development or circumstance of any kind including any
change of law or fact that may occur after the date of this opinion letter even
though such development, circumstance or change may affect the legal analysis, a
legal conclusion or any other matter set forth in or relating to this opinion
letter. Accordingly, any Lender relying on this opinion letter at any time
should seek advice of its counsel as to the proper application of this opinion
letter at such time.
Very truly yours,
DLB:SLH
EXHIBIT I
FORM OF OPINION OF IN-HOUSE COUNSEL TO
SUBSIDIARY BORROWER
[Date]
To each of the Lenders parties
to the Credit Agreement referred
to below and to Citibank,
N.A., as Agent
The Boeing Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.4(d) of
the 364-Day Credit Agreement dated as of November 23, 2001, among The Boeing
Company, the lenders parties thereto, JPMorgan Chase Bank, as syndication agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers
and joint book managers, and Citibank, N.A., as Agent for the lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined).
I am legal counsel for [insert name of Subsidiary Borrower]
(the "Subsidiary Borrower"), and have acted in such capacity in connection with
the execution and delivery of the Borrower Subsidiary Letter dated as of [month,
date, year] by the Company and the Subsidiary Borrower (the "Borrower Subsidiary
Letter"), and the initial Borrowing made by the Subsidiary Borrower under the
Credit Agreement.
In that connection, I have examined:
(1) The Credit Agreement.
(2) The Borrower Subsidiary Letter.
(3) The other documents furnished by the Company and/or the
Subsidiary Borrower pursuant to Article 5 of the Credit Agreement.
(4) The Certificate of Incorporation of the Subsidiary
Borrower and all amendments thereto (the "Subsidiary Borrower
Charter").
(5) The by-laws of the Subsidiary Borrower and all
amendments thereto (the "Subsidiary Borrower By-Laws").
(6) A certificate of the Secretary of State of the State of
[insert state of incorporation of Subsidiary Borrower],
dated___________, 2000, attesting to the continued corporate
existence and good standing of the Subsidiary Borrower in that
State.
In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Subsidiary Borrower,
certificates of public officials and of officers of the Company and the
Subsidiary Borrower, and agreements, instruments and other documents, as I have
deemed necessary as a basis for the opinions expressed below. I have assumed the
due execution and delivery, pursuant to due authorization, of the Credit
Agreement by the Lenders, the Agent and the syndication agent.
I am qualified to practice law in the State of Washington [and
[insert state of incorporation of the Subsidiary Borrower if other than
Delaware]] and I do not purport to be an expert on any laws other than the laws
of the State of Washington, the General Corporation Law of the State of Delaware
and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinions:
1. The Subsidiary Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State
of [insert state of incorporation].
2. The execution, delivery and performance by the Subsidiary
Borrower of the Credit Agreement, the Borrower Subsidiary Letter
and the Subsidiary Borrower's Notes are within the Subsidiary
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the
Subsidiary Borrower Charter or the Subsidiary Borrower By-Laws or
(ii) any law, rule or regulation applicable to the Subsidiary
Borrower (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction binding on the Subsidiary
Borrower. The Credit Agreement, the Borrower Subsidiary Letter and
the Subsidiary Borrower's Notes have been duly executed and
delivered on behalf of the Subsidiary Borrower.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Subsidiary Borrower of the Credit Agreement, the Borrower
Subsidiary Letter and the Subsidiary Borrower's Notes [, except
for , all of which have been duly obtained or made and are in full
force and effect].
4. In any action or proceeding arising out of or relating to the
Credit Agreement, the Borrower Subsidiary Letter, or the
Subsidiary Borrower's Notes in any court of the State of [insert
state of incorporation of the Subsidiary Borrower] or in any
federal court sitting in the State of [insert state of
incorporation of the Subsidiary Borrower], such court would
recognize and give effect to the provisions in the Credit
Agreement, the Borrower Subsidiary Letter and the Subsidiary
Borrower's Notes wherein the parties thereto agree that the Credit
Agreement, the Borrower Subsidiary Letter and the Subsidiary
Borrower's Notes shall be governed by, and construed in accordance
with, the laws of the State of New York. Without limiting the
generality of the foregoing, a court of the State of [insert state
of incorporation of the Subsidiary Borrower]or a federal court
sitting in the State of [insert state of incorporation of the
Subsidiary Borrower]would apply the usury law of the State of New
York, and would not apply the usury law of the State of [insert
state of incorporation of the Subsidiary Borrower], to the Credit
Agreement, the Borrower Subsidiary Letter or the Subsidiary
Borrower's Notes. However, if a court were to hold that the Credit
Agreement, the Borrower Subsidiary Letter and the Subsidiary
Borrower's Notes are governed by, and are to be construed in
accordance with, the laws of the State of [insert state of
incorporation of the Subsidiary Borrower], to the Credit
Agreement, the Borrower Subsidiary Letter and the Subsidiary
Borrower's Notes would be, under the laws of the State of [insert
state of incorporation of the Subsidiary Borrower], legal, valid
and binding obligations of the Company and the Subsidiary Borrower
parties thereto, enforceable against the Company and the
Subsidiary Borrower parties thereto in accordance with their
respective terms.
5. To the best of my knowledge, there are no pending overtly
threatened actions or proceedings against the Subsidiary Borrower
before any court or administrative agency that (i) purport to
affect the legality, validity, binding effect or enforceability of
the Credit Agreement, the Borrower Subsidiary Letter or any of the
Subsidiary Borrower's Notes, or (ii) except as disclosed in the
Company's financial statements delivered to you prior to the date
hereof pursuant to the Credit Agreement are reasonably likely to
have a material adverse affect on the financial condition or
operations of the Subsidiary Borrower which is likely to impair
the ability of the Subsidiary Borrower to repay Advances to it or
which would affect the legality, validity or enforceability of
such Advances or its Notes.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in the last sentence of paragraph 4 above is
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally.
(b) My opinion in paragraph 4 above is subject to the effect
of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
Very truly yours,
EXHIBIT J
FORM OF GUARANTY
THIS GUARANTY ("Guaranty") is made and entered into this ____
day of __________, 200_, by THE BOEING COMPANY, a Delaware corporation ("TBC")
in favor of the LENDERS (as defined in the Credit Agreement defined below) and
CITIBANK, N.A., in its capacity as administrative agent for the Lenders (in such
capacity, the "Agent").
RECITALS
This Guaranty is executed and delivered in connection with the
364-Day Credit Agreement dated as of November 23, 2001, among The Boeing
Company, the Lenders, JPMorgan Chase Bank, as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers and joint
book managers, and the Agent (as amended or modified from time to time, the
"Credit Agreement").
The Credit Agreement provides that certain subsidiaries of TBC
may, upon satisfaction of certain conditions set forth therein, become a
Subsidiary Borrower for purposes of the Credit Agreement and have all of the
rights and obligations of a Borrower thereunder. One of the conditions precedent
to the making of any Advances to any particular Subsidiary Borrower is the
execution and delivery of this Guaranty.
In consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Lenders to make Advances and other
credit accommodations under the Credit Agreement to [insert name of the
Subsidiary Borrower] (the "Subject Subsidiary Borrower"), TBC hereby agrees as
follows:
1. Guarantee. TBC hereby guarantees punctual payment when due (subject to
applicable grace periods, if any), whether at stated maturity, by acceleration
or otherwise, by the Subject Subsidiary Borrower of each and every payment
obligation of such Subject Subsidiary Borrower arising under the Credit
Agreement and the promissory notes delivered thereunder (collectively, the
"Guaranteed Obligations"). Without limiting the generality of the foregoing,
TBC's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Subject Subsidiary Borrower to
the Agent or any Lender under this Guaranty but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Subject Subsidiary Borrower.
Upon receipt of a demand for payment from the guaranteed party in accordance
with the terms of this Guaranty, TBC will effect payment within thirty (30) days
of receipt.
2. Liability of Guarantor.
2.1 TBC agrees that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or
surety other than indefeasible payment in full of the Guaranteed Obligations. In
furtherance of the foregoing and without limiting the generality thereof, TBC
agrees that this Guaranty shall remain in full force and effect and be binding
upon TBC and its successors and assigns until all the Guaranteed Obligations
have been satisfied in full. TBC agrees that the release or discharge, in whole
or in part, or the bankruptcy, liquidation or dissolution of the Subject
Subsidiary Borrower, shall not discharge or affect the liabilities of TBC
hereunder.
2.2 TBC guarantees that the Guaranteed Obligations will be
paid (to the fullest extent permitted by applicable law), strictly in accordance
with the terms of the Credit Agreement and this Guaranty, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Lender or the Agent with respect thereto. The
obligations of TBC under this Guaranty are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted
against TBC to enforce this Guaranty, irrespective of whether any action is
brought against the Subject Subsidiary Borrower or any other Borrower or whether
the Subject Subsidiary Borrower or any other Borrower is joined in any such
action or actions. The liability of TBC under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and TBC hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of this
Guaranty, the Credit Agreement, or any other agreement or
instrument respectively relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Guaranty or the Credit Agreement (including, without limitation, any
extension pursuant to Section 2.21 of the Credit Agreement);
(c) any taking, exchange, release or non-perfection
of any collateral or any taking, release or amendment or
waiver of or consent to departure from any other guaranty, for all or
any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the
corporate structure or existence of the Subject Subsidiary
Borrower or any other Borrower; or
(e) any other circumstance, (including, without
limitation, any statute of limitations to the fullest extent permitted
by applicable law) which might otherwise constitute a defense available
to, or a discharge of, TBC, the Subject Subsidiary Borrower, any other
Borrower or any other guarantor (other than indefeasible payment in
full of the Guaranteed Obligations).
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any of the Lenders or the Agent upon the
insolvency, bankruptcy or reorganization of the Subject Subsidiary Borrower or
any other Borrower or otherwise, all as though such payment had not been made.
3. Notices,_etc. All notices, demands and other communications
provided for under this Guaranty shall be in writing and may be given by first
class mail (postage prepaid), telecopy or any other customary means of
communication, addressed to TBC at the address set forth below, or to such other
address as TBC may advise in a written notice to the Agent:
The Boeing Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇
The effective date of any notice, demand or other communication given in
connection with this Guaranty shall be the date when mailed or telecopied, or if
sent by overnight courier, the date following the day of delivery to the
overnight courier.
4. No Waiver: Cumulative Rights. No failure on the part of the
Agent to exercise, and no delay in exercising, any right, remedy or power under
this Guaranty shall operate as a waiver thereof, nor shall any single or partial
exercise by the Agent of any right, remedy or power under this Guaranty preclude
any other or future exercise of any right, remedy or power. Each and every
right, remedy and power hereby granted to the Agent and the Lenders or allowed
by law or other agreement shall be cumulative and not exclusive of any other,
and may be exercised from time to time.
5. Waivers. (a) TBC hereby expressly waives promptness,
diligence, notice of acceptance, presentment, protest, any requirement that any
right or power be exhausted or any action be taken against the Subject
Subsidiary Borrower, any other Borrower or against any other guarantor, and all
other notices and demands whatsoever (except for demand for payment, which must
be made in all instances; provided, however, that TBC hereby expressly waives
demand for payment to the Subject Subsidiary Borrower in those instances in
which such demand for payment is prohibited by law or prevented by operation of
law).
(b) TBC hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to
all Guaranteed Obligations, whether existing now or in the future.
(c) TBC acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated
herein and that the waivers set forth in this Guaranty are knowingly
made in contemplation of such benefits.
(d) TBC agrees that payments made by it pursuant to this
Guaranty will be subject to the provisions of Section 2.9 and 2.14 of
the Credit Agreement, as if such payments were made by TBC in its
capacity as a Borrower.
6. Subrogation. TBC will not exercise any rights that it may
now or hereafter acquire against the Subject Subsidiary Borrower, any other
Borrower or any other insider guarantor that arise from the existence, payment,
performance or enforcement of the Guaranteed Obligations under this Guaranty,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Agent or any Lender against the Subject Subsidiary
Borrower, any other Borrower or any other insider guarantor or any collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Subject Subsidiary Borrower, another Borrower or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash
and the Commitments shall have expired or terminated. If any amount shall be
paid to TBC in violation of the preceding sentence at any time prior to the
later of the payment in full in cash or immediately available funds of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Agent and the Lenders and shall forthwith be paid to the Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under
this Guaranty, whether matured or unmatured, in accordance with the terms of the
Credit Agreement. If (i) TBC shall make payment to the Agent or any Lender of
all or any part of the Guaranteed Obligations, (ii) all the Guaranteed
Obligations and all other amounts payable under this Guaranty shall be paid in
full in cash and (iii) the Termination Date shall have occurred, the Agent and
the Lenders will, at TBC's request and expense, execute and deliver to TBC
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to TBC of an interest in the
Guaranteed Obligations resulting from such payment by TBC. TBC acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreement and that the waiver set forth in this
section is knowingly made in contemplation of such benefits.
7. Survival. This Guaranty is a continuing guarantee and shall (a)
remain in full force and effect until payment in full (after the Termination
Date) of the Guaranteed Obligations and all other amounts payable under this
Guaranty, (b) be binding upon TBC, its successors and assigns, (c) inure to the
benefit of and be enforceable by each Lender (including each assignee Lender
pursuant to the terms of the Credit Agreement) and the Agent and their
respective successors, transferees and assigns and (d) be reinstated if at any
time any payment to a Lender or the Agent hereunder is required to be restored
by such Lender or the Agent.
8. Costs and Expenses. Without limitation on any other Guaranteed
Obligations of TBC or remedies of the Lenders under this Guaranty, TBC shall pay
on demand any and all losses, liabilities, damages, reasonable costs, expenses
and charges (including the reasonable fees and disbursements of counsel for the
Lenders and the Agent) suffered or incurred by such Lender as a result of any
failure of any Guaranteed Obligations to be the legal, valid and binding
obligations of the Subject Subsidiary Borrower enforceable against such Subject
Subsidiary Borrower in accordance with their terms.
9. Amendments. No amendment or waiver of any provision of this Guaranty,
nor consent to any departure therefrom by TBC, shall in any event be effective
unless the same shall be in writing and signed by TBC and the Agent, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
10. Headings, Definitions. Section and paragraph headings in this
Guaranty are included herein for convenience of reference only and shall not
modify, define, expand or limit any of the terms or provisions of this Guaranty.
Any term used in the Guaranty but not defined herein shall have the definition
given to it in the Credit Agreement.
11. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York, United States.
THE BOEING COMPANY
By: __________________________
Its: __________________________
EXHIBIT K
FORM OF OPINION OF IN-HOUSE COUNSEL TO TBC
[Date]
To each of the Lenders parties
to the Credit Agreement referred to
below, and to Citibank, N.A., as Agent
The Boeing Company
Gentlemen:
This opinion is furnished to you pursuant to Section 5.4(f) of the
364-Day Credit Agreement dated as of November 23, 2001, among The Boeing
Company, the lenders parties thereto, JPMorgan Chase Bank, as syndication agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and JPMorgan Securities, Inc., as joint lead arrangers
and joint book managers, and Citibank, N.A., as Agent for the lenders (as
amended or modified from time to time, the "Credit Agreement." The terms defined
in the Credit Agreement are used herein as therein defined.
I am counsel to the Company, and have acted in such capacity in
connection with the preparation, execution and delivery of the Borrower
Subsidiary Letter, dated as of [month, date, year], by the Company and
_______________________, a Subsidiary of the Company (the "Subsidiary Borrower"
and such letter, the "Borrower Subsidiary Letter") and the execution and
delivery of the Guaranty Agreement, dated as of [month, date, year], made by the
Company in favor of the Agent and the Lenders (the "Guaranty") in conjunction
with the initial Borrowing made by the Subsidiary Borrower under the Credit
Agreement.
In that connection, I have examined:
(1) The Credit Agreement.
(2) The Borrower Subsidiary Letter.
(3) The Guaranty.
(4) The Certificate of Incorporation of the Company and all
amendments thereto (the "Charter").
(5) The by-laws of the Company and all amendments thereto (the
"By-Laws").
In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates of
officers of the Company, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed below.
I am qualified to practice law in the State of Washington and I do not
purport to be an expert on any laws other than the laws of the State of
Washington, the General Corporation Law of the State of Delaware and the Federal
laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinions:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Borrower Subsidiary Letter and the Guaranty are within the
Company's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Charter
or the By-laws or (ii) any law, rule or regulation applicable to
the Company (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction binding on the Company. The
Borrower Subsidiary Letter and the Guaranty have been duly
executed and delivered on behalf of the Company.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Company of the Borrower Subsidiary Letter and the Guaranty [,
except for , all of which have been duly obtained or made and are
in full force and effect].
4. To the best of my knowledge, there are no pending overtly
threatened actions or proceedings against the Company or any of
its Subsidiaries before any court or administrative agency which
purport to affect the legality, validity, binding effect or
enforceability of the Borrower Subsidiary Letter or the Guaranty.
The opinions set forth above are subject to the following
qualifications:
My opinion in paragraph 4 above is subject to the
effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general
principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a
proceeding in equity or at law).
Very truly yours,
S