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 CITIGROUP …

Exhibit 10 (i)

 

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

 

CITIGROUP GLOBAL MARKETS INC.

and

J.P. MORGAN SECURITIES INC.,

as Joint LeadArrangers and Joint Book Managers

dated as of November 19, 2004


TABLE OF CONTENTS

 

Article and Section    Page



ARTICLE 1 DEFINITIONS

    

1.1

  

Definitions

   1

1.2

  

Use of Defined Terms; References

   9

1.3

  

Accounting Terms

   9

ARTICLE 2 AMOUNTS AND TERMS OF THE ADVANCES

    

2.1

  

Committed Advances

   10

2.2

  

Making Committed Advances

   10

2.3

  

Conversion to Term Loans, Repayment

   11

2.4

  

Interest Rate on Committed Advances

   12

2.5

  

Bid Advances

   12

2.6

  

Lender Assignment or Sale

   15

2.7

  

Fees

   15

2.8

  

Reduction of the Commitments

   16

2.9

  

Additional Interest on Eurodollar Rate Committed Advances

   16

2.10

  

Eurodollar Interest Rate Determination

   16

2.11

  

Voluntary Conversion of Committed Advances

   17

2.12

  

Prepayments

   17

2.13

  

Increases in Costs

   18

2.14

  

Taxes

   19

2.15

  

Illegality

   21

2.16

  

Payments and Computations

   21

2.17

  

Sharing of Payments, Etc.

   22

2.18

  

Evidence of Debt

   22

2.19

  

Alteration of Commitments and Addition of Lenders

   23

2.20

  

Assignments; Sales of Participations and Other Interests in Advances

   24

2.21

  

Extension of Termination Date

   26

2.22

  

Subsidiary Borrowers

   27

ARTICLE 3 REPRESENTATIONS AND WARRANTIES

    

3.1

  

Representations and Warranties by the Borrowers

   29

ARTICLE 4 COVENANTS OF TBC

    

4.1

  

Affirmative Covenants of TBC

   31

4.2

  

General Negative Covenants of TBC

   32

4.3

  

Financial Statement Terms

   33

4.4

  

Waivers of Covenants

   33

ARTICLE 5 CONDITIONS PRECEDENT TO BORROWINGS

    

5.1

  

Conditions Precedent to the Initial Borrowing of TBC

   34

5.2

  

Conditions Precedent to Each Committed Borrowing of TBC

   34

5.3

  

Conditions Precedent to Each Bid Borrowing of TBC

   34

5.4

  

Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower

   35

5.5

  

Conditions Precedent to Each Committed Borrowing of a Subsidiary Borrower

   36

5.6

  

Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower

   36

 

i


Article and Section    Page



ARTICLE 6 EVENTS OF DEFAULT

    

6.1

  

Events of Default

   38

6.2

  

Lenders’ Rights upon Borrower Default

   39

ARTICLE 7 THE AGENT

    

7.1

  

Authorization and Action

   40

7.2

  

Agent’s Reliance, Etc.

   40

7.3

  

Citibank, N.A. and its Affiliates

   40

7.4

  

Lender Credit Decision

   41

7.5

  

Indemnification

   41

7.6

  

Successor Agent

   41

7.7

  

Certain Obligations May Be Performed by Affiliates

   41

7.8

  

Other Agents

   41

ARTICLE 8 MISCELLANEOUS

    

8.1

  

Modification, Consents and Waivers

   42

8.2

  

Notices

   42

8.3

  

Costs, Expenses and Taxes

   44

8.4

  

Binding Effect

   44

8.5

  

Severability

   44

8.6

  

Governing Law

   45

8.7

  

Headings

   45

8.8

  

Execution in Counterparts

   45

8.9

  

Right of Set-Off

   45

8.10

  

Confidentiality

   45

8.11

  

Agreement in Effect

   45

 

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

 

ii


CREDIT AGREEMENT

 

Dated as of November 19, 2004

 

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),CITIGROUP GLOBAL MARKETS INC. and J.P. MORGAN 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:

 

“2003 Credit Agreement” means the364-Day Credit Agreement, dated as of November 21, 2003, 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. actingin 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 at388 Greenwich Street, New York, New York 10013, Account 36852248, Attention: Bank Loan Syndications.

 

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by oris 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 ofVoting 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’sDomestic 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 anotice 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 uponthe rating of the long-term senior unsecured debt of TBC then in effect:

 

Level    Public Debt Rating: S&P, Moody’s and Fitch    Applicable
Margin Through
the Termination
Date


    Applicable
Margin After the
Termination
Date


 

Level I

  

A+ by S&P, A1 by Moody’s or A+ by Fitch or above

   0.100 %   0.500 %

Level II

  

less than Level I

but at least A byS&P, A2 by Moody’s or A by Fitch

   0.240 %   0.650 %

Level III

  

less than Level II

but at least A- byS&P, A3 by Moody’s or A- by Fitch

   0.280 %   0.750 %

Level IV

  

less than Level III

but at least BBB+ byS&P, Baa1 by Moody’s or BBB+ by Fitch

   0.350 %   1.000 %

Level V

  

less than Level IV

   0.475 %   1.375 %

 

provided, however, that if the ratings from S&P, Moody’s and Fitch fall within different levels, (i) two of the ratings are at the same level and the other rating is one level higher or one level lower than the twosame ratings, the Applicable Margin will be based on the two ratings at the same level, (ii) two of the ratings are at the same level and the other rating is two or more levels above the two same ratings, the Applicable Margin will be based on therating that is one level above the two same ratings, (iii) two of the ratings are at the same level and the other rating is two or more levels below the two same ratings, the Applicable Margin will be based on the rating that is one level below thetwo same ratings and (iv) each of the three ratings fall within different levels, then the Applicable Margin will be determined based on the rating level that is in between the highest and the lowest ratings, and

 

provided further that if, at any time, no rating isavailable from S&P, Moody’s and Fitch 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 periodcommencing 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, Moody’sand Fitch become available shall be as agreed between TBC and the Majority Lenders, and TBC and the Majority Lenders shall use good faith efforts to reach such agreement within such thirty-day period, provided, however, that if no suchagreement 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, Moody’s or Fitch ceasing its business as arating agency, the Applicable Margin in effect immediately prior to such cessation or (b) otherwise, the Applicable Margin as set forth under Level V above.

 

“Applicable Percentage” means, for any date, a fluctuating per annum rate equal to the then-applicable rate setforth 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, Moody’s and Fitch    Applicable
Percentage
 

Level I

  

A+ by S&P, A1 by Moody’s or A+ by Fitch or above

   0.050 %

Level II

  

less than Level I

but at least A byS&P, A2 by Moody’s or A by Fitch

   0.060 %

Level III

  

less than Level II

but at least A- byS&P, A3 by Moody’s or A- by Fitch

   0.070 %

Level IV

  

less than Level III

but at least BBB+ byS&P, Baa1 by Moody’s or BBB+ by Fitch

   0.100 %

Level V

  

less than Level IV

   0.125 %

 

2


provided, however, that if the ratings from S&P, Moody’s and Fitch fallwithin different levels, (i) two of the ratings are at the same level and the other rating is one level higher or one level lower than the two same ratings, the Applicable Percentage will be based on the two ratings at the same level, (ii) two ofthe ratings are at the same level and the other rating is two or more levels above the two same ratings, the Applicable Percentage will be based on the rating that is one level above the two same ratings, (iii) two of the ratings are at the samelevel and the other rating is two or more levels below the two same ratings, the Applicable Percentage will be based on the rating that is one level below the two same ratings and (iv) each of the three ratings fall within different levels, then theApplicable Percentage will be determined based on the rating level that is in between the highest and the lowest ratings, and

 

provided further that if, at any time, no rating is available from S&P, Moody’s and Fitch or any other nationally recognizedstatistical rating organization designated by TBC and approved in writing by the Majority Lenders, the Applicable Percentage for each Interest Period or each other period commencing during the thirty days following such ratings becoming unavailableshall be the Applicable Percentage in effect immediately prior to such ratings becoming unavailable. Thereafter, the rating to be used until ratings from S&P, Moody’s and Fitch become available shall be as agreed between TBC and theMajority Lenders, and TBC and the Majority Lenders 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 ApplicablePercentage thereafter, until such agreement is reached, shall be (a) if any such rating has become unavailable as a result of S&P, Moody’s or Fitch ceasing its business as a rating agency, the Applicable Percentage in effect immediatelyprior 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 principal amount of outstanding Advances exceed25% 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, Moody’s and Fitch    Applicable
Utilization Fee
 

Level I

  

A+ by S&P, A1 by Moody’s or A+ by Fitch or above

   0.100 %

Level II

  

less than Level I but at least A by S&P, A2 by Moody’s or A by Fitch

   0.100 %

Level III

  

less than Level II but at least A- by S&P, A3 by Moody’s or A- by Fitch

   0.150 %

Level IV

  

less than Level III but at least BBB+ by S&P, Baa1 by Moody’s or BBB+ by Fitch

   0.225 %

Level V

  

less than Level IV

   0.275 %

 

provided, however, that if the ratings from S&P, Moody’s and Fitch fall within different levels, (i) two of the ratings are at the same level and the other rating is one level higher or one level lower than the twosame ratings, the Applicable Utilization Fee will be based on the two ratings at the same level, (ii) two of the ratings are at the same level and the other rating is two or more levels above the two same ratings, the Applicable Utilization Fee willbe based on the rating that is one level above the two same ratings, (iii) two of the ratings are at the same level and the other rating is two or more levels below the two same ratings, the Applicable Utilization Fee will be based on the ratingthat is one level below the two same ratings and (iv) each of the three ratings fall within different levels, then the Applicable Utilization Fee will be determined based on the rating level that is in between the highest and the lowest ratings, and

 

provided further that if, at any time, norating is available from S&P, Moody’s and Fitch 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 Interest Period oreach

 

3


other period commencing during the thirty days following such ratings becoming unavailable shall be the Applicable Utilization Fee in effect immediately prior to suchratings becoming unavailable. Thereafter, the rating to be used until ratings from S&P, Moody’s and Fitch become available shall be as agreed between TBC and the Majority Lenders, and TBC and the Majority Lenders shall use good faithefforts 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, Moody’s or Fitch ceasing its business as a rating agency, the Applicable Utilization Fee in effect immediately prior to such cessation or (b) otherwise, the ApplicableUtilization 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 CommittedAdvance 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 underthe 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 BidAdvance 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 (unlessand 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), assuch 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 toa Base Rate Advance or a Eurodollar Rate Committed Advance, each of which is a “Type” of Committed Advance.

 

4


“Committed Borrowing” means a borrowing consisting of simultaneousCommitted 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 theform 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.

 

“Confidential Information” meansinformation 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 orsuch 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 acreditor 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 ofDefault 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 theassignment 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(d).

 

“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 combinedcapital 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 CaymanIslands;

 

  (iii)  

the central bank of any country which is a member of the OECD;

 

  (iv)  

any Lender;

 

  (v)  

an Affiliate of any Lender; and

 

5


  (vi)  

so long as no Event of 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 regulationspromulgated 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 otheragreement 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 aCommitted 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 periodsubstantially 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 unavailablefor 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, ifsuch 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 Daysbefore 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 Borrowingand 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 afraction 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 sameBorrowing 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 twoBusiness 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 aBid 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 aBorrower in the case of a Bid Advance) over the Eurodollar Rate.

 

6


“Eurodollar Rate Bid Borrowing” has the meaning specified inSection 2.5(b).

 

“EurodollarRate 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 ofsuch 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 determiningthe 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 withrespect 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 theevents 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 eachday 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 suchtransactions received by the Agent from three Federal funds brokers of recognized standing selected by it.

 

“Fitch” means Fitch, Inc.

 

“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 orto be executed by it.

 

“Indemnified Costs” has the meaning specified in Section 7.5.

 

“Indemnified Party” has the meaning specified in Section 8.3(b).

 

“Interest Period” means, for eachEurodollar 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 onthe 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 periodselected 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 applicableBorrower 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

 

7


  (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 onthe 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 precedingBusiness 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 Lendershaving 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 TerminationDate 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 Moody’s Investor Services, Inc.

 

“Non-Extending Lender” has themeaning 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” hasthe 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, improvementsand machinery.

 

“ProposedIncreased Commitment” has the meaning specified in Section 2.19(c).

 

“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 meaningspecified 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 McGraw-Hill Companies, Inc.

 

“Subsidiary” means any Person in which more than 50% of the Voting Stock or the interest in the capital or profits is owned by TBC, by TBC and any one or more other Subsidiaries, or by any one or more otherSubsidiaries.

 

“SubsidiaryBorrower” 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 SubsidiaryBorrower”.

 

“TBC”means The Boeing Company, a Delaware corporation.

 

8


“Term Loan” means a term loan resulting from the conversion ofCommitted Advances on the Termination Date pursuant to Section 2.3.

 

“Term Loan Conversion Option” means the option under Section 2.3 for TBC to convert, as of the Termination Date, all or a part of the Committed Advances then outstanding into Term Loans.

 

“Terminated SubsidiaryBorrower” 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 18, 2005, as such datemay 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 capitalstock 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 mighthave 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. Anydefined 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 consistentlyapplied.

 

9


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 Borrowersfrom 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 amountof 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 Lendersratably 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 excessthereof.

 

(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 totheir 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) onthe 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 CommittedBorrowing”). Each such Notice of Committed Borrowing shall be in substantially the form of Exhibit B-l, 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 toevidence 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 itsApplicable 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 setforth 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 CommittedBorrowing specifies is to be composed of Eurodollar Rate Advances, the Borrower requesting such Committed Borrowing

 

10


 

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 suchCommitted 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 orreemployment of deposits or other funds acquired by such Lender to fund the Committed 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 thatsuch 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 accordancewith 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 portionavailable 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 ismade 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 aspart 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 anyother 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 otherLender 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 theTermination Date the aggregate principal amount of the Committed Advances then outstanding. TBC 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 principalamount 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 CommittedAdvances 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 shallbe 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; and

 

  (v)  

no Facility Fees or utilization fees shall accrue or be payable after the Termination Date.

 

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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 suchCommitted 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 theApplicable 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 (x) the Termination Date, or (y) if TBC has exercised the Term Loan Conversion Option, theMaturity 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 suchCommitted 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 thanthree 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 infull.

 

provided that in theevent and during the continuance of an Event of Default (x) 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 convertto a Base Rate Advance at the end of the Interest Period then in effect for such Eurodollar Rate Advance and (y) to the fullest extent permitted by law, the Borrower shall pay interest on the amount of any interest, fee or other amount payablehereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 1% abovethe Base Rate.

 

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 theTermination 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 (computedwithout 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, andsuch 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 thatLender’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 BidBorrowing”), 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 Borrowerspecifies 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

 

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  (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 consistof 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) atleast 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 Borrowingis 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 proposedBid 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 aspart 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 ifthe 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, ifthe 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 shallspecify 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 tothe 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 onwhich 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 presumethat 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 proposedBid 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 aEurodollar 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 BidAdvance (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

 

13


 

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 Section2.5(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 ratewill 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 shallgive 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 Agentshall 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 offersmade 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 theapplicable 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. (NewYork 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 available for the account of its Applicable Lending Office to the Agent at the Agent’sAccount 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 relevantBorrower 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 willterminate.

 

(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 orLenders, 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 datespecified 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 theliquidation 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 theconditions 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 threeBusiness Days of the date of any other Bid Borrowing.

 

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(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 ofBid 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 BidAdvance without the consent of the Lender which extended such 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 Advanceto 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 aEurodollar 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 interestpayment 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 unpaidprincipal 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 BidAdvance 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 beevidenced 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 orall 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 orthe 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 obligationsunder 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, withoutregard 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 suchearlier 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 duringthe term of this Agreement until and on the Termination Date. The amount of the Facility Fee payable on January 1, 2005 and on the Termination Date shall be prorated based on the actual number of days elapsed either since the

 

15


 

date hereof (in the case of the January 1, 2005 payment) or since the date on which the last payment in respect of the Facility Fee was made (in the case of thepayment 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 permanently terminate in whole or permanently reduceratably 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 theaggregate 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 ratabasis, 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 Boardof 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 Advanceof 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 forsuch 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 onwhich 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 thedefinition 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,” eachReference 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 timelyinformation 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 byeither 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 theBorrower 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 besuspended

 

16


 

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 anyInterest 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 sonotify 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 Borrowersand 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 RateCommitted 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 thelast 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 CommittedAdvances 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 theproposed 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 itsoutstanding 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 countersignedby 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 CommittedAdvances 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, andshall 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 firstBusiness 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 totalamount 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 BusinessDays’ prior written notice to

 

17


 

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 theCommitted 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 CommittedBorrowings 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 of any Eurodollar Rate Committed Advances, pay to the Agent for theaccount 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 berequired 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 withrespect 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 describedin 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 costincurred 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 suchincreased 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 stateunder 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 Agentfor 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 regulatoryrestrictions) 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, unlesssuch introduction, change, compliance or request shall have retroactive effect to a date prior to such 90th day. A certificate as to theamount 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.

 

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(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 othergovernmental 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 suchLender (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 ofsuch 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, tothe 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 andlegal 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 the90th 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 noDefault 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 theassignee 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 accordancewith 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 theAgent, 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 Lenderor 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 jurisdictionof 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 orunder 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 orthe 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,

 

19


 

(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 inaccordance 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 thatarise 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 ( “OtherTaxes”).

 

(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, andfor 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 itsaddress 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 orbranch 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 tofurnish, 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 ofthis 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 solong 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, toestablish 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 suchLender 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 formcertifying 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 aparty 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 towithholding 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 thissubsection 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 reasonablyconsiders 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 subsection2.14(e) (other than if such failure

 

20


 

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 subsection2.14(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 Taxesbecause 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 jurisdictionmakes 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 hereunderwith 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 tomake 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 suchsuspension 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, without counterclaim orsetoff, 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 ofprincipal 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 anyother 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 Section2.20, 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 appropriateadjustments 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 365or 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 caseof 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

 

21


 

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 maybe, but not later than the Termination Date or, if the Term Loan Conversion Option has been exercised, the Maturity Date; provided, however, if such extension would cause payment of interest on or principal of Eurodollar Rate Advancesto 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 suchBorrower 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 duedate 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 Lendertogether 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) onaccount 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 forthwithpurchase 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 orany 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 suchrecovery 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 orother 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 extentpermitted 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 eachBorrower 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. EachBorrower 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 orotherwise) 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 suchLender.

 

(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 subsidiaryaccount 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 applicablethereto,

 

22


  (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 oraccounts 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 caseof 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 suchaccount 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 andprovisions 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 inpart, 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 either (A) TBC’s long-term senior unsecured debt is rated by any two of S&P, Moody’s and Fitch, lower than A- by S&P, lower than A3 by Moody’s orlower than A- by Fitch or (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 theAgent 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 $2,000,000,000 or, pursuant to Section 2.19(c),$3,000,000,000.

 

(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 $25,000,000, up to a maximum aggregate of Commitments of $3,000,000,000, provided that, in addition tothe 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 Moody’s 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 theproposed 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

 

23


  (ii)  

third party financial institutions acceptable to the Agent, provided that the minimum commitment of each such institution equals or exceeds $25,000,000.

 

(d)  

Request for Alteration. The Agent shall give each Lender prompt notice of any such agreement becoming effective. All requests for Lender consent under theprovisions 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 forAlteration 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 forAlteration, 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 distributesuch 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 theCommitted 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 least3 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 (so long as no Event of Default has occurred and iscontinuing) 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 itsCommitment, 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 toone 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 noticeand 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 rightsand 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 withsuch 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, the Borrowers shall be deemed to consentto 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 theCommitted 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)  

Unless TBC consents, 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;

 

24


  (v)  

Unless TBC consents, the aggregate amount of the Commitment assigned pursuant to all such assignments of such Lender (after giving effect to such assignment) shall in noevent 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 19, 2004, or as set forth in the Register as theaggregate 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 principalamount 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 heretoand, 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 and (ii) the Lender assignor thereunder shall, to the extent that rightsand 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 suchassignment) 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 aparty hereto).

 

(c)  

Security Interest; Assignment to Lender Affiliate. Notwithstanding any other provision in this Agreement, any Lender may, upon prior or contemporaneous notice toTBC 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 inaccordance 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, theCommitted 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 registerfor 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 theRegister 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. TheRegister 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 substancesatisfactory 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 TBC to the extent required by Section 2.20(a) or has been effected pursuant to Section 2.21(c), (i) acceptsuch 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, withoutlimitation, all or a portion of its

 

25


 

Commitment, 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 inthe 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,

 

  (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 obligationsunder this Agreement, and

 

  (vii)  

no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to anydeparture by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to suchparticipation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.

 

(f)  

Confidential Borrower Information. Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to thisSection 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 suchdisclosure 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 ConfidentialInformation 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 applicableTermination Date; provided, however, that TBC 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 toeach 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 itssole 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

 

26


 

aggregate Commitments of the Continuing Lenders, together with the Commitments of the Replacement Lenders, are not less than 51% of the aggregate Commitments of theLenders 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 Daysafter 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 aggregateCommitments 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 deliveryof 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 withaccrued 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 theTermination 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 theCommitted 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 Dateapplicable 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 andwilling 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 withoutlimitation 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 amountof 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 owingto 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 shallmake 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 theform 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 aSubsidiary Borrower

 

27


 

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 tothe 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 “SubsidiaryBorrower 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;

 

  (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 aseries 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 Borrowershall 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 thatBorrower 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 theoutstanding 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 toexercise 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 forthe 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 anyother 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 arespecifically 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 liablefor 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.

 

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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 dulyorganized, 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, exceptwhere 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 theperformance 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 provision of the Certificate of Incorporation or By-Laws of any Borrower party thereto, or donot contravene any law or any contractual restriction binding on any Borrower party thereto, except where such contravention would not have a material adverse effect on the financial condition of TBC and its Subsidiaries, taken as a whole.

 

(c)  

Enforceability. This Agreement and the Notes, if any, when duly executed and delivered by each Borrower party thereto, will constitute legal, valid and bindingobligations 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 againstTBC 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 relatingto 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 administrativeagency that are reasonably likely to have a material adverse affect on the financial condition or operations of the Company which is likely to materially 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, 2003 and the related Consolidated statement of earnings and retainedearnings 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, 2004 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) correctlyset 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 Uissued 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. Followingapplication 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

 

29


 

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 anyBorrower 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 “principalunderwriter” 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, northe 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. Except as disclosed in filings with the Securities and Exchange Commission prior to the date hereof, there has been no material adversechange in the Company’s financial condition or results of operations since December 31, 2003 that is likely to impair the ability of the Company to repay the Advances.

 

30


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 isoutstanding, 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 theSubsidiaries 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 suchquarter, each certified by an authorized officer of TBC,

 

  (2)  

within 120 days after the close of each of TBC’s fiscal years, and with respect to any quarter thereof, if requested in writing by the Majority Lenders (with a copyto the Agent), within 60 days after the later of (x) the close of any of the first three quarters thereof subject of such request and (y) such request, a statement certified by an authorized officer of TBC showing in detail the computations requiredby the provisions of Sections 4.2(a) and 4.2(b), 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 nationallyrecognized standing, 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 TBCand 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 correspondingaudit 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, thatTBC 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 anynational 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 aresponsible 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.

 

TBC shall be deemed to have furnishedthe information specified in clauses (1), (3), (5) and (6) above on the date that such information is posted at the Company’s website on the Internet at www.boeing.com, at www.sec.gov or at such other website as notified to theAgent 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 chargesupon 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 orthe appropriate Subsidiary.

 

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(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 providedby TBC through its program of self insurance.

 

(d)  

Corporate Existence. Preserve and maintain its corporate existence.

 

(e)  

Material Compliance With Laws. Comply, and cause each Subsidiary to comply, in all material respects with all applicable laws (including ERISA and applicableenvironmental laws), except to the extent that failure to so comply would not have a material adverse effect on the financial condition or operations of the Company.

 

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 hereunderor 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, liensto 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 arebeing 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, oracquisition 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 suchliens 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 thepurchase 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 orconstruction (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

 

32


 

thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement, the lien shallnot 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)  

liens securing obligations of TBC or a Subsidiary incurred in conjunction with industrial revenue bonds or other instruments utilized in connection with incentivestructures for tax purposes issued for the benefit of TBC or a Subsidiary in connection with any Property, Plant and Equipment used by TBC or a Subsidiary;

 

  (11)  

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 allor any part of the property that secured the lien so extended, renewed or replace (plus improvements and construction on such property); and

 

  (12)  

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 doesnot 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” meansthe 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 wouldconstitute 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 suchpayment 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 oftransactions) all or substantially all of its assets (whether now owned or hereafter acquired) to any Person except that TBC may merge or consolidate with any Person so long as TBC is the surviving corporation and no Default has occurred and iscontinuing 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, thatno Event of Default has occurred and is continuing at the time of such proposed transaction or would result therefrom.

 

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’spublished 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 (i) any merger-relatedaccounting adjustments which are attributable to the merger with or acquisition of McDonnell Douglas Corporation by TBC and (ii) any repurchase by TBC of its common stock.

 

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 suchdeparture 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 properlyconsented to by the Majority Lenders shall not constitute an Event of Default under Section 6.1(c).

 

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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 orbefore 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, withrespect 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 theNotes, 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 mayconclusively 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 reasonablyrequest, which opinion TBC hereby expressly instructs such counsel to prepare and deliver;

 

  (d)  

Opinion of Agent’s Counsel. A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, substantially in the form of Exhibit H;

 

  (e)  

Termination of 2003 Credit Agreement. TBC shall have terminated in whole the commitments of the banks parties to the 2003 Credit Agreement; and

 

  (f)  

Satisfaction of 2003 Credit Agreement Obligations. TBC and its Subsidiaries shall have satisfied all of their respective obligations under the 2003 Credit Agreementincluding, 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 theapplicable 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 ofeach 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 initialBorrowing) 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 suchLender for each of the one

 

34


 

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 evidencedthereby 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 (or deemed provided) by TBC pursuant to Section 4.1(a)(1),(2) and (3); 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 Noticeof 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 ofeach 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 constitutes 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 inconnection 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, notmisleading.

 

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 SubsidiaryBorrower 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 tothe 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 andgovernmental 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 ofthe Subsidiary Borrower authorized to sign the Notes 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 whichcertificate 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 officersnamed 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 othermatters 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 suchSubsidiary Borrower, substantially in the form of Exhibit J, executed and delivered by TBC to the Agent; and

 

35


  (f)  

Opinion of TBC 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 mayreasonably 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 theoccasion 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 betrue, 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 suchdate 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 thatthe 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 andwarranties 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 theoccasion 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 prior to such Bid Borrowing, the Agent shall have received a Bid Note payable to the order of suchLender 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 forsuch 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 (or deemed provided) by TBC pursuant to Section 4.1(a)(1),(2) and (3); 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 theapplicable 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 andas 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 ofsuch Borrowing, before and after giving effect to such Borrowing;

 

36


  (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 theSubsidiary 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 ofthe 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 andaccurate 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 iscontinuing, or would result from the proposed Committed Borrowing which constitutes a Default.

 

37


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 notremedied 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 pursuanthereto 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 thereofhas 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) anyother monetary obligation if, in the case of either of clauses (i) or (ii), 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 isnot 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 inSection 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 trusteeappointed 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 cessation by TBC of the payment of its Debts as they mature,

 

  (2)  

the making of an assignment for the benefit of the creditors of TBC,

 

  (3)  

the appointment of a trustee or receiver or liquidator for TBC or for a substantial part of its property, or

 

38


  (4)  

the institution of bankruptcy, reorganization, arrangement, insolvency or similar proceedings by or against TBC under the laws of any jurisdiction in which TBC isorganized or has material business, operations or assets and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of theactions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property and assets)shall occur; or

 

(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 sostates 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 theMajority 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 theevent of an actual entry or, in the case of the institution by the Borrower of a proceeding described in Section 6.1(f)(4), a deemed entry, of an order for relief with respect to any Borrower under the Federal Bankruptcy Code (whether in connectionwith 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 shallautomatically 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.

 

39


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 thisAgreement 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 ofany 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 theMajority Lenders or as otherwise required by Section 8.1(b) 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 actionwhich 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 byit 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 anEligible 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 anyaction 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 anyBorrower 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 otherinstrument 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 rightsand 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., inits 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 Subsidiariesand 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.

 

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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 financialstatements 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 thisAgreement. 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 creditdecisions 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 principalamounts of the Committed Advances then outstanding 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 respectiveamounts 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, orasserted 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 beliable 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 anyout-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 toany 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 bythe 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 successorAgent, 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 bythe 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 therights, 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 provisionsof 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 obligationrequiring 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 thisAgreement.

 

7.8  

Other Agents. Each Lender hereby acknowledges that neither the documentation agent, syndication agent nor any other Lender designated as any“Agent” (other than the Agent) on the signature pages hereof has any liability hereunder other than in its capacity as a Lender.

 

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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 partialexercise 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 noticeor 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 inany event be effective unless such amendment, waiver or consent is in writing and signed by the Company and the Majority Lenders, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specificpurpose 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 or 5.4,

 

  (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 payablehereunder,

 

  (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 ofthem 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 consentshall, 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.

Two Penns Way, Suite 200

NewCastle, Delaware 19720

Attention: Bank Loans Syndications Department

 

facsimile number (212) 994 0961;

 

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if to any Borrower,

 

care of The Boeing Company

100 N. Riverside

Mail Code: 5003 3648

Chicago, Illinois

Attention:Assistant Treasurer, Corporate Finance and Banking

 

facsimile number (312) 544-2399

 

if to anyLender, 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, orconfirmed 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 asdelivery 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 bythe 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.

 

(d)  

Internet Distributions.

 

  (1)  

So long as Citibank or any of its Affiliates is the Agent, such materials as may be agreed between the Borrowers and the Agent may be delivered to the Agent in anelectronic medium in a format acceptable to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com. The Borrowers agree that the Agent may make such materials, as well as any other written information, documents, instruments and othermaterial relating to the Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “Communications”) available to theLenders by posting such notices on Intralinks, “e-Disclosure”, the Agent’s internet delivery system that is part of Fixed Income Direct, Global Fixed Income’s primary web portal, or a substantially similar electronic system (the“Platform”). The Borrowers acknowledge that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) thePlatform is provided “as is” and “as available” and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liabilityfor errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third partyrights or freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in connection with the Platform.

 

  (2)  

Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communications have been posted to the Platformshall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall deliver a copy of the Communications to such Lenderby email or telecopier. Each Lender agrees (i) to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lenderbecomes a party to this Agreement (and from time to time thereafter to ensure that the Agent

 

43


 

has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.

 

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 anyof 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 theenforcement 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 andother 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 maybe 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 “IndemnifiedParty”) 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 casearising 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 ofthe 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 willfulmisconduct 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 orany 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 onany theory of liability for special, indirect, consequential or punitive damages against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, arising out of or otherwiserelating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of Advances.

 

(c)  

Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Sections 2.13, 2.14 and8.3 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes for a period of seven years.

 

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 andassigns, 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 extentof 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.

 

44


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 Yorkand 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 thisAgreement.

 

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 whenso 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 amanually 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 provisionsof Section 6.2,

 

to the fullest extentpermitted 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 indebtednessat 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 anyNotes 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 bysuch 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 orprospective 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 or other financial institutitions.

 

Notwithstanding anything herein tothe contrary, each Borrower, the Agent and each Lender (and each employee, representative or other agent of each of the foregoing parties) may disclose to any and all Persons, without limitation of any kind, the U.S. tax treatment and tax structureof the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to any of the foregoing parties relating to such U.S. tax treatment and tax structure.

 

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 theAgent shall have been notified by each Lender listed on Schedule I that such Lender has executed it.

 

45


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers thereunto dulyauthorized as of the day and year first above written.

 

THE BOEING COMPANY
By    
Title:   Assistant Treasurer
CITIBANK, N.A., Individually and as Agent
By    
Name:    
Title:    

 

Syndication Agent

 

JPMORGAN CHASE BANK
By    
Name:    
Title:    

 

        Documentation Agents

 

BANK OF AMERICA, N.A.
By    
Name:    
Title:    

 

DEUTSCHE BANK AG NEW YORK BRANCH
By    
Name:    
Title:    
By    
Name:    
Title:    

 

WACHOVIA BANK, NATIONAL ASSOCIATION
By    
Name:    
Title:    

 

THE BANK OF TOKYO-MITSUBISHI, LTD.
By    
Name:    
Title:    

 


SUMITOMO MITSUI BANKING CORPORATION
By    
Name:    
Title:    

 

Senior Managing Agents

 

BARCLAYS BANK PLC
By    
Name:    
Title:    

 

CREDIT SUISSE FIRST BOSTON, acting through its CAYMAN ISLANDS BRANCH

By    
Name:    
Title:    

 

MERRILL LYNCH BANK USA
By    
Name:    
Title:    

 

MIZUHO CORPORATE BANK, LTD.
By    
Name:    
Title:    

 

MORGAN STANLEY BANK
By    
Name:    
Title:    

 

WILLIAM STREET COMMITMENT CORPORATION (Recourse only to assets of William Street Commitment Corporation)

By    
Name:    
Title:    

 

BNP PARIBAS
By    
Name:    
Title:    

 

2


By    
Name:    
Title:    

BAYERISCHE LANDESBANK, CAYMAN ISLAND BRANCH

By    
Name:    
Title:    
By    
Name:    
Title:    
UBS LOAN FINANCE LLC
By    
Name:    
Title:    
By    
Name:    
Title:    

 

Managing Agents

 

CALYON NEW YORK BRANCH
By    
Name:    
Title:    
THE ROYAL BANK OF SCOTLAND PLC
By    
Name:    
Title:    
PNC BANK, NATIONAL ASSOCIATION
By    
Name:    
Title:    
STANDARD CHARTERED BANK
By    
Name:    
Title:    
By    
Name:    
Title:    

 

3


Co-Agents

 

ABN AMRO BANK, N.V.
By    
Name:    
Title:    
BANCO BILBAO VIZCAYA ARGENTARIA
By    
Name:    
Title:    
BANK OF NEW YORK
By    
Name:    
Title:    
LLOYDS TSB BANK PLC
By    
Name:    
Title:    
THE NORTHERN TRUST COMPANY
By    
Name:    
Title:    
SOCIETE GENERALE
By    
Name:    
Title:    
U.S. BANK NATIONAL ASSOCIATION
By    
Name:    
Title:    
WESTPAC BANKING CORPORATION
By    
Name:    
Title:    
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By    
Name:    
Title:    

 

4


KEYBANK NATIONAL ASSOCIATION
By    

Name:

   
Title:    

STATE STREET BANK AND TRUST COMPANY

By    
Name:    
Title:    

 

Lenders

 

HARRIS NESBITT FINANCING, INC.
By    
Name:    
Title:    
KBC BANK, N.V.
By    
Name:    
Title:    
SANPAOLO IMI S.P.A.
By    
Name:    
Title:    
By    
Name:    
Title:    

 

5


SCHEDULE I

APPLICABLE LENDING OFFICES

 

Name of Initial Lender    Commitment    Domestic Lending Office    Eurodollar Lending Office
ABN Amro Bank, N.V.    $30,000,000   

208 South LaSalle

Suite 1500

Chicago, IL 60604

Attn: Dominic Blea

T: 312 992-5176

F: 312 992-5111

  

208 South LaSalle

Suite 1500

Chicago, IL 60604

Attn: Dominic Blea

T: 312 992-5176

F: 312 992-5111

Australia and New Zealand Banking Group Limited    $20,000,000   

1177 Avenue of the Americas

6th Floor

New York, NY 10036

Attn: Peter Gray

T: 212 801-9739

F: 212556-4839

  

1177 Avenue of the Americas

6th Floor

New York, NY 10036

Attn: Peter Gray

T: 212 801-9739

F: 212556-4839

Banco Bilbao Vizcaya Argerntaria    $30,000,000   

1345 Avenue of the Americas

45th Floor

New York, NY 10105

Attn: Santiago Hernandez

T: 212 728-1677

F: 212333-2904

  

1345 Avenue of the Americas

45th Floor

New York, NY 10105

Attn: Santiago Hernandez

T: 212 728-1677

F: 212333-2904

Bank of America, N.A.    $100,000,000   

1850 Gateway Blvd.

CA4-707-05-11

Concord, CA 94520

Attn: Vilma Tang

T: 925 675-7336

F: 925 969-2865

  

1850 Gateway Blvd.

CA4-707-05-11

Concord, CA 94520

Attn: Vilma Tang

T: 925 675-7336

F: 925 969-2865

Bank of New York    $25,000,000          
The Bank of Tokyo-Mitsubishi, Ltd.    $100,000,000   

900 Fourth Avenue

Suite 4000

Seattle, WA 98164

Attn: Ellen Yuson

T: 213 488-3796

F: 213 613-1136

  

900 Fourth Avenue

Suite 4000

Seattle, WA 98164

Attn: Ellen Yuson

T: 213 488-3796

F: 213 613-1136

Barclays Bank PLC    $90,000,000   

200 Park Avenue

New York, NY 10163

Attn: Eddie Cotto

T: 212 412 3710

F: 212 412 5306

  

200 Park Avenue

New York, NY 10163

Attn: Eddie Cotto

T: 212 412 3710

F: 212 412 5306

Bayerische Landesbank, Cayman Island Branch    $60,000,000   

560 Lexington Avenue

New York, NY 10022

Attn: James Fox

T: 212 310-9986

F: 212 310-9868

  

560 Lexington Avenue

New York, NY 10022

Attn: James Fox

T: 212 310-9986

F: 212 310-9868

BNP Paribas    $65,000,000   

209 South LaSalle Suite 500

Chicago, IL 60604

Attn: Catherine Lui

T: 312 977-2200

F: 312 977-1380

  

209 South LaSalle Suite 500

Chicago, IL 60604

Attn: Catherine Lui

T: 312 977-2200

F: 312 977-1380

 


Name of Initial Lender    Commitment    Domestic Lending Office    Eurodollar Lending Office
Calyon New York Branch    $50,000,000   

1301 Avenue of the Americas

New York, NY 10019

Attn: Bertrand Cousin

T: 212 261-7363

F: 212 261-7368

  

1301 Avenue of the Americas

New York, NY 10019

Attn: Bertrand Cousin

T: 212 261-7363

F: 212 261-7368

Citibank, N.A.    $120,000,000   

388 Greenwich Street

New York, NY 10013

Attn: Philippa Portnoy

T: 212 559-5812

F: 212 793-1246

  

388 Greenwich Street

New York, NY 10013

Attn: Philippa Portnoy

T: 212 559-5812

F: 212 793-1246

Credit Suisse First Boston Cayman Islands Branch    $90,000,000   

11 Madison Avenue

New York, NY 10010

Attn: Robert Finney

T: 212 325-9038

F: 212 325-8319

  

11 Madison Avenue

New York, NY 10010

Attn: Robert Finney

T: 212 325-9038

F: 212 325-8319

Deutsche Bank AG New York Branch    $100,000,000   

60 Wall Street

New York, NY 10005

Attn: Mary Zadroga

T: 201-593-2360

F: 201-593-2313

  

60 Wall Street

New York, NY 10005

Attn: Mary Zadroga

T: 201-593-2360

F: 201-593-2313

Harris Nesbitt Financing, Inc.    $15,000,000   

115 S. LaSalle Street, 12W

Chicago, IL 60603

Attn: Ellen Dancer

T: 312 750-3453

F: 312 750-6061

  

115 S. LaSalle Street, 12W

Chicago, IL 60603

Attn: Ellen Dancer

T: 312 750-3453

F: 312 750-6061

JPMorgan Chase Bank    $120,000,000   

270 Park Avenue

New York, NY 10017

Attn: Matt Massie

T: 212 270-5432

F: 212 270-5100

  

270 Park Avenue

New York, NY 10017

Attn: Matt Massie

T: 212 270-5432

F: 212 270-5100

KBC Bank, N.V.    $15,000,000   

125 West 55th Street

10th Floor

New York, NY 10019

Attn: Robert Pacifici

T: 212 541-0671

F: 212 956-5581

  

125 West 55th Street

10th Floor

New York, NY 10019

Attn: Robert Pacifici

T: 212 541-0671

F: 212 956-5581

KeyBank National Association    $20,000,000   

127 Public Square

Cleveland, OH 44114

Attn: Diane Cox

T: 216 689-4450

F: 216 689-4981

  

127 Public Square

Cleveland, OH 44114

Attn: Diane Cox

T: 216 689-4450

F: 216 689-4981

Lloyds TSB Bank Plc    $30,000,000   

1251 Avenue of the Americas

39th Floor

New York, NY 10020

Attn: Patricia Kilian

T: 212 930-8914

F: 212930-5098

  

1251 Avenue of the Americas

39th Floor

New York, NY 10020

Attn: Patricia Kilian

T: 212 930-8914

F: 212930-5098

 

2


Name of Initial Lender    Commitment    Domestic Lending Office    Eurodollar Lending Office
Merrill Lynch Bank USA    $90,000,000   

15 W. South Temple

Suite 300

Salt Lake City, UT 84101

Attn: Derek Befus

T: 801 526-8324

F: 801 531-7470

  

15 W. South Temple

Suite 300

Salt Lake City, UT 84101

Attn: Derek Befus

T: 801 526-8324

F: 801 531-7470

Mizuho Corporate Bank, Ltd.    $90,000,000   

Harborside Financial Center

1800 Plaza Ten, 16th Floor

Jersey City, NJ 07311

Attn: Nate Spivey

T: 201 626-9161

F: 201 626-9944

  

Harborside Financial Center

1800 Plaza Ten, 16th Floor

Jersey City, NJ 07311

Attn: Nate Spivey

T: 201 626-9161

F: 201 626-9944

Morgan Stanley Bank    $90,000,000   

750 Seventh Avenue

11th Floor

New York, NY 10020

Attn: Joseph DiTomaso

T: 212 762-2320

F: 212762-0346

  

750 Seventh Avenue

11th Floor

New York, NY 10020

Attn: Joseph DiTomaso

T: 212 762-2320

F: 212762-0346

The Northern Trust Company    $30,000,000   

801 S. Canal Street

Chicago, IL 60607

Attn: Linda Honda

T: 312 444-3532

F: 312 630-1566

  

801 S. Canal Street

Chicago, IL 60607

Attn: Linda Honda

T: 312 444-3532

F: 312 630-1566

PNC Bank, National Association    $53,000,000   

One PNC Plaza

249 Fifth Avenue, 2nd Floor

Mailstop P1-POPP-2-3

Pittsburgh, PA 15222

Attn: Philip K. Liebscher

T: (412) 762-3202

F: (412) 762-6484

  

One PNC Plaza

249 Fifth Avenue, 2nd Floor

Mailstop P1-POPP-2-3

Pittsburgh, PA 15222

Attn: Philip K. Liebscher

T: (412) 762-3202

F: (412) 762-6484

Royal Bank of Scotland plc    $50,000,000   

101 Park Avenue

New York, NY 10178

Attn: Li Yao Li

T: 212.401.1335

F: 212.401.1494

  

101 Park Avenue

New York, NY 10178

Attn: Li Yao Li

T: 212.401.1335

F: 212.401.1494

SANPAOLO IMI S.p.a.    $15,000,000   

245 Park Avenue

New York, NY 10167

Attn: Manuela Insana

T: 212 692-3128

F: 212 692-3178

  

245 Park Avenue

New York, NY 10167

Attn: Manuela Insana

T: 212 692-3128

F: 212 692-3178

Societe Generale    $30,000,000   

2001 Ross Avenue

Dallas, TX 75201

Attn: Deborah McNealey

T: 214 979-2762

F: 214 754-0171

  

2001 Ross Avenue

Dallas, TX 75201

Attn: Deborah McNealey

T: 214 979-2762

F: 214 754-0171

Standard Chartered Bank    $37,000,000   

One Evertrust Plaza

Jersey City, NJ 07302

Attn: Victoria Faltine

T: 201 633-3454

F: 201 536-04478

  

One Evertrust Plaza

Jersey City, NJ 07302

Attn: Victoria Faltine

T: 201 633-3454

F: 201 536-04478

State Street Bank and Trust Company    $25,000,000          

 

3


Name of Initial Lender    Commitment    Domestic Lending Office    Eurodollar Lending Office
Sumitomo Mitsui Banking Corporation    $100,000,000   

277 Park Avenue

New York, NY 10172

Attn: Noel Swift

T: 212 224-4328

F: 212 224-5197

  

277 Park Avenue

New York, NY 10172

Attn: Noel Swift

T: 212 224-4328

F: 212 224-5197

UBS Loan Finance LLC    $60,000,000   

677 Washington Blvd.

Stamford, Connecticut 06901

Attn: Marie Haddad

Banking Product Services

T: 203 719-5609

F: 203 719-3888

  

677 Washington Blvd.

Stamford, Connecticut 06901

Attn: Marie Haddad

Banking Product Services

T: 203 719-5609

F: 203 719-3888

U.S. Bank National Association    $30,000,000   

1420 Fifth Avenue, 11th Floor

Seattle, WA 98101

Attn: James Farmer

T: 206 587-5237

F: 206 344-3654

  

1420 Fifth Avenue, 11th Floor

Seattle, WA 98101

Attn: James Farmer

T: 206 587-5237

F: 206 344-3654

Wachovia Bank, National Association    $100,000,000   

191 Peachtree Street NE Atlanta, GA 30303

Attn: Joe Baschuite

T: 404 332-5178

F: 404 332-4136

  

191 Peachtree Street NE Atlanta, GA 30303

Attn: Joe Baschuite

T: 404 332-5178

F: 404 332-4136

Westpac Banking Corporation    $30,000,000   

GMO Nightshift Operations

255 Elizabeth Street, 3rd Floor

Sydney, Australia 2000

Attn: London Operations

T: 61 29 284-8241

F: 011 44 207 621-7608

  

GMO Nightshift Operations

255 Elizabeth Street, 3rd Floor

Sydney, Australia 2000

Attn: London Operations

T: 61 29 284-8241

F: 011 44 207 621-7608

William Street Commitment Corporation    $90,000,000   

85 Broad Street, 6th Floor

New York, NY 10004

Attn: Pedro Ramirez

T: 212 343-8319

F: 212 357-6240

  

85 Broad Street, 6th Floor

New York, NY 10004

Attn: Pedro Ramirez

T: 212 343-8319

F: 212 357-6240

 

Total of Commitments:$2,000,000,000

 

4


SCHEDULE I

APPLICABLE LENDING OFFICES

 

Name of Initial Lender    Commitment    Domestic Lending Office    Eurodollar Lending Office
Citibank, N.A.    $   

388 Greenwich Street

New York, NY 10013

Attn: Philippa Portnoy

T: 212 559-5812

F: 212 793-1246

  

388 Greenwich Street

New York, NY 10013

Attn: Philippa Portnoy

T: 212 559-5812

F: 212 793-1246

JPMorgan Chase Bank    $   

270 Park Avenue

New York, NY 10017

Attn: Matt Massie

T: 212 270-5432

F: 212 270-5100

  

270 Park Avenue

New York, NY 10017

Attn: Matt Massie

T: 212 270-5432

F: 212 270-5100

 

Total of Commitments:$2,000,000,000