EXHIBIT 10.1
THE BOEING COMPANY
AMENDED AND RESTATED
364-DAY
BANK CREDIT AGREEMENT
among
THE BOEING COMPANY
and the Subsidiaries which are or shall become party hereto,
as Borrower
THE BANKS PARTY HERETO
CITIBANK, N.A.,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
and
SALOMON SMITH BARNEY INC.
and
CHASE SECURITIES, INC.
as
Joint Lead Arrangers and Joint Book Managers
dated as of September 29, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE 1
<S> <C> <C>
Section Page
Section 1.02. Use of Defined Terms.....................................................................80
Section 1.03. Accounting Terms.........................................................................81
ARTICLE 2
Section 2.01. The A Advances...........................................................................81
Section 2.02. Making the A Advances....................................................................82
Section 2.03. Conversion to Term Loan, Repayment.......................................................85
Section 2.04. Interest Rate on A Advances..............................................................86
Section 2.05. The B Advances............................................................................86
Section 2.06. Fees.....................................................................................94
Section 2.07. [intentionally omitted.].................................................................95
Section 2.08. Reduction of the Commitments.............................................................95
Section 2.09. Additional Interest on Eurodollar Rate A Advances........................................96
Section 2.10. Eurodollar Interest Rate Determination...................................................97
Section 2.11. Voluntary Conversion of A Advances.......................................................99
Section 2.12. Prepayments.............................................................................100
Section 2.13. Increases in Costs......................................................................102
Section 2.14. Illegality..............................................................................108
Section 2.15. Payments and Computations...............................................................109
Section 2.16. Sharing of Payments, Etc................................................................111
Section 2.17. Alteration of Commitments and Addition of Banks.........................................112
Section 2.18. Assignments; Sales of Participations and Other Interests in Notes........................114
Section 2.19. Extension of Termination Date...........................................................120
Section 2.20. Subsidiary Borrowers....................................................................122
ARTICLE 3
Section 3.01. Representations and Warranties by the Borrowers.........................................126
Section 3.02. Representation by the Banks.............................................................128
ARTICLE 4
Section 4.01. Affirmative Covenants of TBC............................................................129
Section 4.02. General Negative Covenants of TBC.......................................................131
Section 4.03. Financial Statement Terms...............................................................133
Section 4.04. Waivers of Covenants....................................................................134
ARTICLE 5
Section 5.01. Conditions Precedent to the Initial Borrowing of TBC....................................135
Section 5.02. Conditions Precedent to Each A Borrowing of TBC.........................................136
Section 5.03. Conditions Precedent to Each B Borrowing of TBC.........................................137
Section 5.04. Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower..................139
Section 5.05. Conditions Precedent to Each A Borrowing of a Subsidiary Borrower.......................141
Section 5.06. Conditions Precedent to Each B Borrowing of a Subsidiary Borrower.......................142
ARTICLE 6
Section 6.01. Events of Default.......................................................................145
ARTICLE 7
Section 7.01. Authorization and Action................................................................149
Section 7.02. Administrative Agent's Reliance, Etc....................................................150
Section 7.03. Citibank, N.A. and its Affiliates.......................................................151
Section 7.04. Bank Credit Decision....................................................................151
Section 7.05. Indemnification.........................................................................152
Section 7.06. Successor Administrative Agent..........................................................153
Section 7.07. Certain Obligations May be Performed by Affiliates......................................154
ARTICLE 8
Section 8.01. Modification, Consents and Waivers......................................................154
Section 8.02. Addresses for Notices...................................................................156
Section 8.03. Costs, Expenses and Taxes...............................................................156
Section 8.04. Binding Effect..........................................................................157
Section 8.05. Severability............................................................................157
Section 8.06. Governing Law...........................................................................157
Section 8.07. Headings................................................................................158
Section 8.08. Execution in Counterparts...............................................................159
Section 8.09. Right of Set-Off........................................................................159
Section 8.10. Agreement in Effect.....................................................................160
Exhibit A-1 - Base Rate Advance A Note
Exhibit A-2 - Eurodollar Rate A Note
Exhibit A-3 - Fixed Rate B Note
Exhibit A-4 - Eurodollar Rate B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Request for Alteration
Exhibit D - Borrower Subsidiary Letter
Exhibit E - Extension Request
Exhibit F - Continuation Note
Exhibit G - Opinion of Chief Legal Officer of Borrower
Exhibit H - Opinion of Counsel for Administrative Agent
Exhibit I - Opinion of in-house counsel to Subsidiary Borrower
Exhibit J - Guaranty of TBC
Schedule I - Commitments
</TABLE>
<PAGE>
THIS BANK CREDIT AGREEMENT (the "Agreement") dated as of
September 29, 1999, is by and among: THE BOEING COMPANY, a Delaware corporation
("TBC" or the "Company"); the BORROWERS (as defined below); the BANKS (as
defined below); CITIBANK, N.A., in its capacity as administrative agent for the
Banks (in such capacity, the "Administrative Agent"); and THE CHASE MANHATTAN
BANK, in its capacity as syndication agent for the Banks (in such capacity, the
"Syndication Agent").
RECITALS
TBC is party to an Amended and Restated 364-Day Bank Credit
Agreement dated as of September 30, 1998 (the "Existing Credit Agreement") with
the banks, financial institutions and other institutional lenders party thereto
and Citibank, N.A., as Administrative Agent for the Banks and such other
lenders.
The parties to this Amendment and Restatement desire to amend
the Existing Credit Agreement in its entirety to read as set forth below:
ARTICLE 1
Definitions
Section 1.01. Definitions.
As used in this Agreement, the following terms shall have
the meanings set out respectively after each:
"A Advance"--An advance made by a Bank to a Borrower as part
of an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate A
Advance, each of which shall be a "Type" of A Advance.
"A Borrowing"--A borrowing consisting of simultaneous A
Advances of the same Type made by each of the Banks pursuant to Section 2.01.
"A Note"--A promissory note of a Borrower payable to the order
of any Bank, in substantially the form of Exhibit A-1 or A-2 hereto, evidencing
the indebtedness of that Borrower to such Bank resulting from the aggregate of
all Base Rate Advances and the aggregate of all Eurodollar Rate A Advances,
respectively, made by such Bank to that Borrower.
"Administrative Agent"--Citibank, N.A. acting in its capacity
as administrative agent for the Banks, or any successor Administrative Agent
appointed pursuant to Section 7.06.
"Administrative Agent's Account"--The account of the
Administrative Agent maintained by the Administrative Agent with Citibank,
N.A., at its office at 2 Pennsway, Corporate Commons, Suite 200, New Castle,
Delaware 19720, Account No. 35852248, Attention: Jay Moffitt.
"Advance"--An A Advance or a B Advance.
"Agent"--Individually and collectively, as the context shall
require, the Administrative Agent and the Syndication Agent.
"Agreement"--This agreement, as it may be amended or otherwise
modified from time to time, and any written additions or supplements hereto.
"Applicable Lending Office"--With respect to each Bank, such
Bank's Domestic Lending Office in the case of a Base Rate Advance, and such
Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a B Advance, the office of such Bank notified by such Bank to the
Administrative Agent as its Applicable Lending Office with respect to such B
Advance.
"Applicable Margin"--Means
with respect to Base Rate Advances, 0% per annum;
with respect to Eurodollar Rate Advances which have not been
Converted to Term Loans, 0.11% per annum;
with respect to Eurodollar Rate Advances which have been
Converted to Term Loans, a fluctuating per annum amount,
commencing on the date of the Conversion and ending on the
Maturity Date, equal at any time to 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:
<TABLE>
<CAPTION>
<S> <C> <C>
-------------------------------------------------------- ----------------------------------
Public Debt Rating
S&P/Moody's Applicable Margin
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
Level I
A by S&P or A2 by Moody's or above 0.15%
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
Level II
less than level I but at least A- by S&P or A3 by 0.20%
Moody's
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
Level III
less than level II but at least BBB+ by S&P or Baa1 by 0.25%
Moody's
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
Level IV
less than level III 0.375%
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
-------------------------------------------------------- ----------------------------------
</TABLE>
provided, however, that in the event and during the
continuance of an Event of Default which is described in
Section 6.01(a), the Applicable Margin shall immediately
increase by 1.0% above the Applicable Margin then in effect,
and, in the case of a Eurodollar Rate Advance, such Advance
shall automatically convert to a Base Rate Advance at the end
of the Interest Period then in effect for such Eurodollar Rate
Advance. If the ratings from S&P and Moody's shall fall within
different levels, then the Applicable Margin shall be
determined by the higher of the two ratings except that, if
the lower of such rating is more than one level below the
higher of such ratings, the Applicable Margin shall be
determined based on the level above the lower of such ratings.
If at any time no rating is available from S&P and Moody's or
any other nationally recognized statistical rating
organization designated by TBC and approved in writing by the
Majority Banks, the Applicable Margin for each Interest Period
or each other period commencing during the thirty days
following such ratings becoming unavailable shall be the
Applicable Margin in effect immediately prior to such ratings
becoming unavailable. Thereafter the rating to be used for
purposes of this Agreement until ratings from S&P and Moody's
become available shall be as agreed between TBC and the
Administrative Agent, and TBC and the Administrative Agent
shall use good faith efforts to reach such agreement within
such thirty day period, provided, however, that if no such
agreement is reached within such thirty day period the
Applicable Margin thereafter, until such agreement shall have
been reached, shall be (A) if any such rating shall have
become unavailable as a result of S&P or Moody's ceasing its
business as a rating agency, the Applicable Margin in effect
immediately prior to such cessation or (B) otherwise, the
Applicable Margin as set forth under Level IV above.
"Available Commitment" -- As of any date of determination, (a)
the aggregate Commitments of the Banks, 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.
"B Advance"--An advance by a Bank to a Borrower as part of a B
Borrowing resulting from the auction bidding procedure described in Section 2.05
and refers to a Fixed Rate Advance or a Eurodollar Rate B Advance, each of which
shall be a "Type" of B Advance.
"B Borrowing"--A borrowing consisting of simultaneous B
Advances from each of the Banks whose offer to make one or more B Advances as
part of such borrowing has been accepted by a Borrower under the auction bidding
procedure described in Section 2.05.
"B Note"--A Promissory note of a Borrower payable to the order
of any Bank, in substantially the form of Exhibit A-3 or A-4 hereto, evidencing
the indebtedness of that Borrower to such Bank resulting from the aggregate of
all Fixed Rate Advances and the aggregate of all Eurodollar Rate B Advances,
respectively, made by such Bank to such Borrower.
"B Reduction"--As defined in Section 2.01.
"Bank"--Subject to the provisions of Section 2.18, any of the
banking institutions that is a signatory hereto or that, pursuant to Section
2.13, 2.17, 2.18 or 2.19 shall become a "Bank" hereunder.
"Base Rate"--The rate of interest announced publicly by
Citibank, N.A., in New York, New York, from time to time, as Citibank's base
rate.
"Base Rate Advance"--An A Advance which bears interest at the
Base Rate.
"Base Rate A Note"--An A Note evidencing Base Rate Advances.
"Borrower"--Individually and collectively, as the context
shall require, TBC and each Subsidiary Borrower (unless and until it becomes a
"Terminated Subsidiary Borrower" pursuant to Section 2.20).
"Borrower Subsidiary Letter" -- With respect to any Subsidiary
Borrower, a letter in the form of Exhibit D hereto, signed by such Subsidiary
Borrower and TBC.
"Borrowing"--An A Borrowing or a B Borrowing.
"Business Day"--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 Advances, on which dealings are
carried on in the London interbank market.
"Commitment"--For each Bank, the full amount set forth
opposite the name of such Bank in Schedule I attached hereto, or, if such Bank
is a Replacement Bank or a Bank that has entered into one or more assignments
pursuant to Section 2.18 or Section 2.19, the amount set forth for such Bank in
the Register maintained by the Administrative Agent pursuant to Section 2.18(b),
as such amount may be reduced pursuant to Section 2.03, Section 2.08 or Section
2.17 or increased pursuant to Section 2.17.
"Company"--The Boeing Company, a Delaware corporation
(usually referred to herein as "TBC").
"Consolidated"--Indicating, as to any accounting concept or
statement, the consolidation of such concept or statement with the same concepts
or statements of all other members of a class made up of TBC and the
Subsidiaries.
"Continuing Bank" -- As defined in Section 2.19(a).
"Convert," "Conversion" and "Converted"--Each refers to a
conversion of A Advances of one Type into A Advances of another Type pursuant to
Section 2.10, 2.11 or 2.14, or to the conversion of A Advances to a Term Loan
pursuant to Section 2.03 (as the context shall require).
"Debt " (i) Indebtedness for borrowed money or for the
deferred purchase price of property or services; (ii) the financial obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii)
financial obligations as lessee under leases which shall have been or should be,
in accordance with generally accepted accounting principles, recorded as capital
leases; and (iv) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
financial obligations of others of the kind referred to in clauses (i) through
(iii) above.
"Domestic Lending Office"--With respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite its name
on Schedule I hereto, or in the assignment or other agreement pursuant to which
it became a Bank, or such other office of such Bank as such Bank may from time
to time specify to the Borrowers and the Administrative Agent.
"Effective Date"--As defined in Section 2.17.
"Eligible Assignee"-- (i) a commercial bank organized under
the laws of the United States, or any State thereof, and having a
combined capital and surplus in excess of $3,000,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the OECD, or a political subdivision of any such country,
and having a combined capital and surplus in excess of $3,000,000,000,
provided that such bank is acting through a branch or agency located in
the country in which it is organized or another country which is also a
member of the OECD or the Cayman Islands; (iii) the central bank of any
country which is a member of the OECD; (iv) any Bank; (v) an affiliate
of any Bank; and (vi) any other Person approved in writing by TBC,
which approval shall be notified to Citibank, as Administrative Agent.
"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 A Note"--An A Note evidencing Eurodollar Rate A
Advances.
"Eurodollar B Note"--A B Note evidencing Eurodollar Rate B
Advances.
"Eurodollar Lending Office"--With respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto (or, if no such office is specified, its Domestic
Lending Office), or in the assignment or other agreement pursuant to which it
became a Bank, or such other office of such Bank as such Bank may from time to
time specify to the Borrowers and the Administrative Agent.
"Eurodollar Rate"--For any Interest Period for each Eurodollar
Rate A Advance comprising part of the same Borrowing, and for the relevant
period specified in the applicable Notice of B Borrowing for each Eurodollar
Rate B Advance, an interest rate per annum equal to the offered rate for
deposits in U.S. dollars for a period substantially equal to the relevant
Interest Period (if an A Advance) or the relevant period specified in the
applicable Notice of B Borrowing (if a B Advance), appearing on Telerate Page
3750 (or, if unavailable for any reason by Telerate, then by reference to
Reuters Screen) as of 11:00 a.m. (London time) two business days before the
first day of such Interest Period or the first day of the relevant period
specified in such Notice of B Borrowing; provided, that if the foregoing rate is
unavailable from Telerate or the Reuters Screen for any reason, then such rate
shall be an interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars 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) two Business Days before the first
day of such Interest Period or the first day of the relevant period specified in
such Notice of B Borrowing (i) in an amount, for such Eurodollar A Advance,
substantially equal to such Reference Bank's Eurodollar Rate Advance comprising
part of such A Borrowing and for a period equal to such Interest Period or, (ii)
in an amount, for such Eurodollar Rate B Advance, substantially equal to the
amount of the Eurodollar Rate B Borrowing which includes such B Advance
multiplied by a fraction equal to such Reference Bank's ratable portion of the
Commitments and for a period equal to the relevant period specified in such
Notice of B Borrowing. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate A Advance comprising part of the same Borrowing and for the
relevant period specified in a Notice of B Borrowing for each Eurodollar Rate B
Advance shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest Period
or period, as the case may be, subject, however, to the provisions of Section
2.10.
"Eurodollar Rate Advance"--An A Advance (a "Eurodollar Rate A
Advance") or a B Advance (a "Eurodollar Rate B Advance") which bears interest at
a rate of interest quoted as a margin (which shall be the Applicable Margin in
the case of an A Advance or as offered by a Bank and accepted by a Borrower in
the case of a B Advance) over the Eurodollar Rate.
"Eurodollar Rate B Borrowing"--As defined in Section 2.05(a)
(i).
"Eurodollar Rate Reserve Percentage"--Of any Bank for any
Interest Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Event of Default"--Any of the events described in Section
6.01 hereof.
"Facility Fee"--As defined in Section 2.06.
"Federal Funds Rate"--For any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fixed Rate Advance"--An Advance made by a Bank to a Borrower
as part of a Fixed Rate Borrowing.
"Fixed Rate Borrowing"--As defined in Section 2.05(a)(i).
"Guaranty"--Each Guaranty Agreement, dated as of even date
herewith, executed by TBC in favor of the Administrative Agent and the Banks,
unconditionally guaranteeing the payment of all obligations of a Subsidiary
Borrower hereunder and under the Notes executed or to be executed by them.
"Interest Period"--For each Eurodollar Rate A Advance
comprising part of the same Borrowing, the period commencing on the date of such
A Advance or the date of the Conversion of any A Advance into such a Eurodollar
Rate A Advance and ending on the last day of the period selected by a Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the 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 Banks funding
those particular Advances), as a Borrower may, upon notice received by the
Administrative 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 an A Advance which is Converted to
a term loan pursuant to Section 2.03, the Maturity Date);
(ii) Interest Periods commencing on the same date for
A Advances comprising part of the same A Borrowing shall be of the
same duration; and
(iii) Whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of the Interest Period shall occur on the next preceding
Business Day.
"Majority Banks"--Banks holding greater than 50% of the then
aggregate unpaid principal amount of the A Notes held by Banks, or, if no such
principal amount is then outstanding, Banks having greater than 50% of the
Commitments (provided that, for purposes hereof, none of the Borrowers, and none
of their affiliates, if a Bank, shall be included in (i) the Banks holding such
amount of the A Advances or having such amount of the Commitments or (ii)
determining the aggregate unpaid principal amount of the A Advances or the total
Commitments).
"Maturity Date" -- The Termination Date, or, if the Term Loan
Conversion Option described in Section 2.03 has been exercised, the date that is
the three-year anniversary of the Termination Date.
"Moody's"--Moody's Investor Services, Inc.
"Non-Extending Bank" -- As defined in Section 2.19(a).
"Note"--An A Note or a B Note.
"Notice of A Borrowing"--As defined in Section 2.02(a).
"Notice of B Borrowing"--As defined in Section 2.05(a)(i).
"Notice of Borrowing"--A Notice of A Borrowing or a Notice of
B Borrowing.
"Person" -- 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"--Any item of real property, or
any interest therein, buildings, improvements and machinery.
"Reference Banks"--The Chase Manhattan Bank, Citibank, N.A.,
BankBoston, N.A., Bank of New York, and National Westminster Bank plc.
"Register"--As defined in Section 2.18.
"Replacement Banks" -- As defined in Section 2.19(c).
"Required Assignment"--As defined in Section 2.18.
"Request for Alteration"--A document substantially in the form
of Exhibit C hereto, duly executed by TBC, pursuant to the provisions of Section
2.17.
"S&P"--Standard & Poor's Corporation.
"Subsidiary"--Any corporation in which more than 50% of the
Voting Stock is owned by TBC, by TBC and any one or more other Subsidiaries, or
by any one or more other Subsidiaries.
"Subsidiary Borrower"--Individually and collectively, as the
context shall require, each Subsidiary in which 100% of the Voting Stock is
owned by TBC, by TBC and any one or more other Subsidiaries, or by any one or
more other Subsidiaries, that is or shall become a "Borrower" hereunder in
accordance with Section 2.20; in each case, unless and until it becomes a
"Terminated Subsidiary Borrower."
"Syndication Agent"--The Chase Manhattan Bank, acting in its
capacity as syndication agent for the Banks.
"TBC"--The Boeing Company, a Delaware corporation.
"Term Loan Conversion Option"--The option described under
Section 2.03 for a Borrower to Convert, as of the Termination Date, all A
Advances then outstanding into a term loan.
"Terminated Subsidiary Borrower"--Individually and
collectively, as the context shall required, a Subsidiary Borrower who has
ceased to be a "Borrower" for purposes of this Agreement in accordance with
Section 2.20.
"Termination Date"--The earlier to occur of (i) September 27,
2000, as such date may be extended from time to time pursuant to Section 2.19,
and (ii) the date of termination in whole of the Commitments pursuant to Section
2.08 or Section 6.01.
"Voting Stock"--All the issued and outstanding capital stock
of any corporation having general voting power under ordinary circumstances to
elect a majority of the Board of Directors of such corporation (irrespective of
whether or not any capital stock of any other class or classes shall or might
have voting power upon the occurrence of any contingency).
Section 1.02. Use of Defined Terms. Any defined term used in
the plural preceded by the definite article shall be taken to encompass all
members of the relevant class. Any defined term used in the singular preceded by
"any" shall be taken to indicate any number of the members of the relevant
class.
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied.
ARTICLE 2
Amounts and Terms of the Advances
Section 2.01. The A Advances. Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrowers from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate principal amount at any time
outstanding not to exceed such Bank's Commitment, provided that the aggregate
amount of the Commitments of the Banks shall be deemed used from time to time to
the extent of the aggregate amount of the B Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be applied to the
Banks ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, if less, an aggregate amount equal
to the difference between the aggregate amount of a proposed B Borrowing
requested by a Borrower and the aggregate amount of B Advances offered to be
made by the Banks and accepted by the Borrower in respect of such B Borrowing,
if notice of such A Borrowing is given by the Borrower within two Business Days
of the date of such B Borrowing) and shall consist of A Advances of the same
Type made on the same day by the Banks ratably according to their respective
Commitments. Within the limits of each Bank's Commitment, the Borrowers may from
time to time borrow, prepay pursuant to Section 2.12, and reborrow under this
Section 2.01.
Section 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given by a Borrower to the Administrative Agent not
later than 11:00 a.m. (New York City time) on the day of the proposed A
Borrowing in the case of a Base Rate Borrowing and on the third Business Day
prior to the date of the proposed A Borrowing in the case of a Eurodollar Rate
Borrowing. The Administrative Agent thereupon shall give to each Bank prompt
notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing
(a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed
immediately in writing, in substantially the form of Exhibit B-l hereto,
specifying therein the requested (i) date of such A Borrowing, (ii) Type of A
Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate
Advances, initial Interest Period for each such A Advance. Every Notice of A
Borrowing given by a Subsidiary Borrower must be countersigned by an authorized
representative of TBC, in order to evidence the consent of TBC, in its sole
discretion, to that proposed A Borrowing. Each Bank shall, before 1:00 p.m. (New
York City time) on the date of such A Borrowing, make available for the account
of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Bank's ratable portion
of such A Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article 5, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Each Notice of A Borrowing shall be irrevocable and
binding. In the case of any A Borrowing which the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
requesting such A Borrowing shall indemnify each Bank against any loss, cost or
expense incurred by such Bank on account of any failure to fulfill on or before
the date specified for such A Borrowing in such Notice of A Borrowing the
applicable conditions set forth in Article 5, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund the A Advance to be made by such Bank as part of such A Borrowing
when such A Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to 1:00 p.m. (New York City time) on the day of any A
Borrowing that such Bank will not make available to the Administrative Agent
such Bank's ratable portion of such A Borrowing, the Administrative Agent may
assume that such Bank has made such portion available to the Administrative
Agent on the date of such A Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If and to
the extent that such Bank shall not have so made such ratable portion available
to the Administrative Agent, such Bank and such Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of a Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's A Advance as part of such A Borrowing for purposes of
this Agreement.
(d) The failure of any Bank to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Bank shall be responsible for the failure of any other Bank to
make the A Advance to be made by such other Bank on the date of any A Borrowing.
Section 2.03. Conversion to Term Loan, Repayment. TBC may,
upon notice given to the Administrative Agent not later than 11:00 a.m. (New
York City time) on the Termination Date, Convert the aggregate unpaid principal
amount of the A Advances outstanding as of the Termination Date into a term
loan. If this Conversion option is exercised, then, on the Termination Date,
immediately prior to the time when the aggregate unpaid principal amount of the
A Advances would otherwise be due, the aggregate unpaid principal amount of the
A Advances then outstanding shall automatically convert into a term loan which
each Borrower shall repay to the Administrative Agent for the ratable account of
the Banks on the Maturity Date. The amounts so converted shall be treated for
all purposes of this Agreement as A Advances except that after the Termination
Date:
(a) the Borrowers may not make any additional borrowings;
(b) any amounts paid or prepaid may not be reborrowed;
(c) the amount of each Bank's Commitment shall be equal
at all times to the principal amount of the A Borrowing payable to such
Bank from time to time;
(d) the provisions of Section 2.17 shall not be effective;
(e) no Bank shall have the right to assign its rights in
any A Advances outstanding; and
(f) no Facility Fees shall accrue or be payable after the
Termination Date.
Section 2.04. Interest Rate on A Advances. The Borrowers shall
pay interest on the unpaid principal amount of each A Advance made by each Bank
from the date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum: (i) during each period in which such A
Advance is a Base Rate Advance, at a rate per annum equal at all times to the
Base Rate in effect from time to time, plus the Applicable Margin, payable
quarterly in arrears on the first day of each January, April, July and October
and on the Termination Date, or, if the Conversion option described in Section
2.03 is exercised, the Maturity Date, and (ii) during each period in which such
A Advance is a Eurodollar Rate Advance, at a rate per annum equal at all times
during each relevant Interest Period for such A Advance to the Eurodollar Rate
for such Interest Period plus the Applicable Margin, payable on the last day of
each such Interest Period, and on the date such A Advance is Converted or paid
in full.
Section 2.05. The B Advances. (a) Each Bank severally agrees
that the Borrowers may make B Borrowings under this Section 2.05 from time to
time on any Business Day during the period from the date hereof until the
Termination Date in the manner set forth below, provided that, following the
making of each B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Banks. As provided in Section 2.01 above, the aggregate amount of the
Commitments of the Banks shall be deemed used from time to time to the extent of
the aggregate amount of the B Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be applied to the Banks ratably
according to their respective Commitments; provided, however, that any Bank's B
Advances shall not otherwise reduce that Bank's obligation to lend its pro rata
share of the remaining Available Commitment.
(i) Any Borrower may request a B Borrowing under this Section
2.05 by delivering to the Administrative Agent, by telecopier, telex or
cable, confirmed immediately in writing, a notice of a B Borrowing (a
"Notice of B Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying the date and aggregate amount of the proposed B
Borrowing, the maturity date for repayment of each B Advance to be made
as part of such B Borrowing (which maturity date 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 B Advance if the Borrower shall
specify in the Notice of B Borrowing that the rates of interest to be
offered by the Banks shall be fixed rates per annum (a "Fixed Rate
Borrowing"), and either 1, 2, 3, 6 or 9 months from the date of such B
Borrowing if the Borrower shall specify in the Notice of B Borrowing
that such B Borrowing is to be a Borrowing consisting of Eurodollar
Rate B Advances (a "Eurodollar Rate B Borrowing")), the interest
payment date or dates relating thereto, and any other terms to be
applicable to such B Borrowing, not later than 11:00 a.m. (New York
City time) (A) at least one Business Day prior to the date of the
proposed B Borrowing if the Borrower shall specify in the Notice of B
Borrowing that such B Borrowing is to be a Fixed Rate Borrowing, and
(B) at least four Business Days prior to the date of the proposed B
Borrowing, if the Borrower shall instead specify in the Notice of B
Borrowing that such B Borrowing is to be a Eurodollar Rate B Borrowing.
Every Notice of B Borrowing given by a Subsidiary Borrower must be
countersigned by an authorized representative of TBC, in order to
evidence the consent of TBC, in its sole discretion, to that proposed B
Borrowing. The Administrative Agent shall in turn promptly notify each
Bank of each request for a B Borrowing received by it from the Company
by sending such Bank a copy of the related Notice of B Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more B Advances to a Borrower as
part of such proposed B Borrowing at a rate or rates of interest
specified by such Bank in its sole discretion (such rate of interest to
be a fixed rate if the Borrower requested Fixed Rate Advances, or a
margin over the Eurodollar Rate if the Borrower requested Eurodollar
Rate B Advances), by notifying the Administrative 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 B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant to
clause (A) of paragraph (i) above and (B) three Business Days before
the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i) above, of
the minimum amount and maximum amount of each B Advance which such Bank
would be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of this
Section 2.05(a), exceed such Bank's Commitment), the rate or rates of
interest therefor (specified as stated in this paragraph (ii)) and such
Bank's Applicable Lending Office with respect to such B Advance;
provided that if the Administrative Agent in its capacity as a Bank
shall, in its sole discretion, elect 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 Administrative Agent by the other Banks. If, by 10:00
a.m. (New York City time) on the date on which notice of a Bank's
election under this Section 2.05(a)(ii) is to be made, the
Administrative Agent fails to receive, at its address referred to in
Section 8.02, the notice from a Bank provided for in this Section
2.05(a)(ii), the Administrative Agent may conclusively presume that
such Bank has elected not to offer to make any B Advances to such
Borrower with respect to the related Notice of B Borrowing.
(iii) Such Borrower shall, in turn, (A) before 11:00 a.m. (New
York City time) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above, and (B) before 12:00 noon (New York City time)
three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, either:
(x) cancel such B Borrowing by giving the Administrative
Agent notice to that effect, or
(y) accept one or more of the offers made by any Bank or
Banks pursuant to Section 2.05(a)(ii), in its sole
discretion, by giving notice to the Administrative Agent
of the amount of each B Advance (which amount shall be
equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the
Borrower by the Administrative Agent on behalf of such
Bank for such B Advance pursuant to Section 2.05(a)(ii)
above) to be made by each Bank as part of such B
Borrowing, and reject any remaining offers made by Banks
pursuant to Section 2.05(a)(ii) above by giving the
Administrative 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
Banks bid at same rate, the B Borrowing will be
allocated among such Banks in proportion to the amount
bid by each such Bank.
(iv) If the Borrower notifies the Administrative Agent that
such B Borrowing is canceled pursuant to Section 2.05(a)(iii)(x) above,
the Administrative Agent shall give prompt notice thereof to the Banks
and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Bank or Banks pursuant to Section 2.05(a)(iii)(y) above, the
Administrative Agent shall in turn promptly (A) notify each Bank that
has made an offer as described in Section 2.05(a)(ii) above, of the
date and aggregate amount of such B Borrowing and whether or not any
offer or offers made by such Bank pursuant to Section 2.05(a)(ii) above
have been accepted by the Borrower , (B) notify each Bank that is to
make a B Advance as part of such B Borrowing, of the amount of each B
Advance to be made by such Bank as part of such B Borrowing, and (C)
upon satisfaction of the conditions set forth in 5.03 or 5.06, as
applicable, notify each Bank that is to make a B Advance as part of
such B Borrowing that the applicable conditions set forth in Article 5
appear to have been satisfied. Each Bank that is to make a B Advance as
part of such B Borrowing shall, before 1:00 p.m. (New York City time)
on the date of such B Borrowing specified in the notice received from
the Administrative Agent pursuant to clause (A) of the preceding
sentence and when such Bank shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account such Bank's
portion of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article 5 and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Company at the Administrative Agent's
Account. Promptly after each B Borrowing the Administrative Agent will
notify each Bank of the amount of the B Borrowing, the consequent B
Reduction and the dates upon which such B Reduction commenced and will
terminate.
(b) Each Notice of B Borrowing shall request an aggregate
amount of B Advances not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof provided that the Borrowers 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 following the making of each B
Borrowing, the Borrowers shall be in compliance with the limitation set forth in
the proviso to the first sentence of subsection (a) above. Within the limits and
on the conditions set forth in this Section 2.05, the Borrowers may from time to
time borrow under this Section 2.05, repay or prepay pursuant to Section
2.05(c), and reborrow under this Section 2.05, provided that a B Borrowing shall
not be made within three Business Days of the date of any other B Borrowing.
(c) On the maturity date of each B Advance (such maturity date
being that specified by the Borrower for repayment of such B Advance in the
related Notice of B Borrowing delivered pursuant to Section 2.05(a)(i)) the
Borrower shall repay to the Administrative Agent for the account of the Bank
which has made such B Advance the then unpaid principal amount of such B
Advance. The Borrowers shall have no right to prepay any principal amount of any
B Advance.
(d) The Borrowers shall pay interest on the unpaid principal
amount of each B Advance, from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the fixed rate of
interest for such B Advance (in the case of a Fixed Rate B Advance) specified by
the Bank making such B Advance in its notice with respect thereto delivered
pursuant to Section 2.05(a)(ii) above or (in the case of a Eurodollar Rate B
Advance) the margin specified by the Bank making such B Advance in its notice
with respect thereto delivered pursuant to Section 2.05(a)(ii) above plus the
Eurodollar Rate determined with respect to such B Borrowing pursuant to Section
2.10, payable on the interest payment date or dates specified by the Borrowers
for such B Advance in the related Notice of B Borrowing delivered pursuant to
Section 2.05(a)(i) above.
(e) The indebtedness of each Borrower resulting from all B
Advances made by a Bank shall be evidenced by a single B Note made by such
Borrower and payable to the order of such Bank covering all Fixed Rate Advances,
and a single B Note made by such Borrower and payable to the order of such Bank
covering all Eurodollar B Advances, made by such Bank to such Borrower.
(f) Any Bank may, without the prior written consent of the
Borrowers , sell or assign all or any part of such Bank's rights in any or all
of the B Advances made by such Bank or the B Notes in connection with such B
Advances as a participation, provided, however, that (i) any such sale or
assignment shall not require the Borrowers to file a registration statement with
the Securities and Exchange Commission or apply to qualify the Notes under the
blue sky laws of any state and the selling or assigning Bank 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 "Bank" for any purpose under this Agreement, (iii) such Bank's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (iv) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, and (v) the Borrowers, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
Section 2.06. Fees. TBC agrees to pay to the Administrative
Agent for the account of each Bank a facility fee ("Facility Fee") on such
Bank's Commitment, without regard to usage. Such fee shall be payable for the
periods from the date hereof in the case of each Bank named in Schedule I
attached hereto, and from the effective date on which any other Bank becomes
party hereto, until the Termination Date at the rate of .04% per annum;
provided, however, that if the Term Loan Conversion Option has been exercised,
no Facility Fees shall accrue or be payable during the period following the
effective date of that Conversion. Facility Fees shall be payable in arrears on
each January 1, April 1, July 1 and October 1 during the term of this Agreement
and on either the Termination Date (in the event the Term Loan Conversion Option
has not been exercised) or the date that the Conversion takes effect (in the
event the Term Loan Conversion Option has been exercised). The Facility Fee
shall be calculated based on a 360-day year. The amount of the Facility Fee
payable on October 1, 1999 and on either the Termination Date or the date that
the Conversion takes effect, as applicable, shall be prorated based on the
actual number of days elapsed either since the date hereof (in the case of
October 1, 1999 payment) or since the date on which the last payment in respect
of the Facility Fee was made (in the case of the payment made on either the
Termination Date or the date that the Conversion takes effect, as applicable).
Section 2.07. [intentionally omitted.]
Section 2.08. Reduction of the Commitments. (a) Optional
Reductions. TBC shall have the right, upon at least 3 Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the Commitments of the Banks, provided that each partial
reduction shall be in a minimum amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, and provided further that the aggregate amount of
the Commitments of the Banks shall not be reduced to an amount which is less
than the aggregate principal amount of the B Advances then outstanding.
(b) Mandatory Reduction. At the close of business on the
Termination Date, the aggregate Commitments of the Banks shall be automatically
and permanently reduced, on a pro rata basis, by an amount equal to the amount
by which the aggregate Commitments immediately prior to giving effect to such
reduction exceeds the aggregate unpaid principal amount of the A Advances then
outstanding.
Section 2.09. Additional Interest on Eurodollar Rate A
Advances. The Borrowers shall pay to each Bank, so long as such Bank shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate A Advance of such Bank, from the date
of such A Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the Interest Period for such A 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 Bank for such Interest
Period, payable on each date on which interest is payable on such A Advance.
Such additional interest shall be determined by such Bank and notified to the
Borrowers through the Administrative Agent.
Section 2.10. Eurodollar Interest Rate Determination. (a) The
Administrative Agent shall determine each Eurodollar Rate by using the methods
described in the definition of the term "Eurodollar Rate," and shall give prompt
notice to the Borrowers and the Banks of each such Eurodollar Rate.
(b) In the event the rate cannot be determined by the first
method described in the definition of "Eurodollar Rate," each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each such Eurodollar Rate in accordance with the second method
described therein. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks. In the event the rate cannot be determined by the either of the
methods described in the definition of "Eurodollar Rate," then:
(i) the Administrative Agent shall forthwith notify the
Borrowers and the Banks that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such Advance, if an A Advance, will automatically, on
the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if the Borrower was attempting to Convert
a Base Rate Advance into a Eurodollar Rate A Advance, such Advance will
continue as a Base Rate Advance), and
(iii) the obligation of the Banks to make Eurodollar Rate B
Advances, or to make, or to Convert A Advances into, Eurodollar Rate A
Advances shall be suspended until the Administrative Agent shall notify
the Borrowers and the Banks that the circumstances causing such
suspension no longer exist.
(c) If, with respect to any Eurodollar Rate A Advances, the
Majority Banks notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such A Advances will not adequately reflect the cost to such
Majority Banks of making, funding or maintaining their respective Eurodollar
Rate A Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrowers and the Banks, whereupon
(i) each Eurodollar Rate A 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 Banks to make, or to Convert A
Advances into, Eurodollar Rate A Advances shall be suspended until the
Administrative Agent shall notify the Borrowers and such Banks that the
circumstances causing such suspension no longer exist.
(d) If a Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate A Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Banks and
such A Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
Section 2.11. Voluntary Conversion of A Advances. Any Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 a.m. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.10 and
2.14, Convert all A Advances of one Type comprising the same A Borrowing into
Advances of another Type; provided, however, that any Conversion of any
Eurodollar Rate A Advances into Base Rate Advances shall be made on, and only
on, the last day of an Interest Period for such Eurodollar Rate A Advances. Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the A Advances to be Converted,
and (iii) if such Conversion is into Eurodollar Rate A Advances, the duration of
the Interest Period for each such A Advance.
Section 2.12. Prepayments. Any Borrower shall have the right
at any time and from time to time, upon prior written notice from the Borrower
to the Administrative Agent, to prepay its outstanding principal obligations
evidenced by its A Notes in whole or ratably (except as provided in Section 2.14
or 2.17) in part and may be obligated to make certain prepayments of obligations
evidenced by one or more A Notes subject to and in accordance with the following
(provided that every notice of prepayment given by a Subsidiary Borrower must be
countersigned by an authorized representative of TBC, in order to evidence the
consent of TBC, in its sole discretion, to that prepayment):
(a) With respect to Base Rate Borrowings, such prepayment
shall be without premium or penalty, upon notice given to the Administrative
Agent, and shall be made not later than 11:00 a.m. (New York City time) on the
date of such prepayment. The Borrower shall designate in such notice the amount
and date of such prepayment. Accrued interest on the amount so prepaid shall be
payable on the first Business Day of the calendar quarter next following the
prepayment. The minimum amount of Base Rate Borrowings which may be prepaid on
any occasion shall be $10,000,000 or an integral multiple of $1,000,000 in
excess thereof or, if less, the total amount of Base Rate Advances then
outstanding for that Borrower.
(b) With respect to Eurodollar Rate A Borrowings, such
prepayment shall be made on at least 3 Business Days' prior written notice. The
Borrower shall designate in such notice the amount and date of such prepayment
and the Eurodollar Rate A Borrowings against which each portion of each
prepayment shall be applied, which portion shall be ratable as among the Banks.
The minimum amount of Eurodollar Rate A Borrowings which may be prepaid on any
occasion shall be $10,000,000 or an integral multiple of $1,000,000 in excess
thereof or, if less, the total amount of Eurodollar Rate A Advances then
outstanding for that Borrower. The Borrower shall, on the date of the
prepayment, pay to the Administrative Agent for the account of each Bank
interest accrued to such date of prepayment on the principal amount prepaid
plus, in the case only of a prepayment on any date which is not the last day of
an applicable Eurodollar Interest Period, any amounts which may be required to
compensate such Bank 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 Bank as a result of such prepayment, provided that
such Bank shall exercise reasonable efforts to minimize any such losses, costs
and expenses.
(c) If due to any prepayment pursuant to Section 2.14 or to
the acceleration of any of the A Notes pursuant to Section 6.01 or otherwise,
any Bank receives payment of its portion of, or is subject to any Conversion
from, any Eurodollar Rate A Advance on any day other than the last day of an
Interest Period with respect to such A Advance, the Borrowers will pay to the
Administrative Agent for the account of such Bank any amounts which may be
payable to such Bank by the Borrower by reason of payment on such day as
provided in Section 2.12(b).
Section 2.13. Increases in Costs. (a) 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 increase of reserve requirements
referred to in Section 2.09) in, or new interpretation of, any law or regulation
effective at any time and from time to time on or after December 8, 1997 or (2)
the compliance with any request from or by any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the costs incurred by any Bank in agreeing to make or making,
funding or maintaining any Eurodollar Rate A Advance then or at any time
thereafter outstanding, then the Borrowers shall from time to time, upon demand
of such Bank (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Bank such amounts as shall be
required to compensate such Bank for such increased cost, provided that such
Bank shall exercise reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to minimize any such increased cost. A
certificate as to the amount of such increase in costs, submitted to the
Borrowers and the Administrative Agent by such Bank, shall be conclusive and
binding for all purposes under this Section 2.13(a), absent manifest error.
(b) If any Bank determines that compliance with any law or
regulation or any guidelines or request from any central bank or other
governmental authority (whether or not having the force of law) which is
enacted, adopted or issued at any time and from time to time after December 8,
1997 affects or would affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and that the
amount of such capital is increased by or based upon the existence of such
Bank's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Bank (with a copy of such demand to the Administrative
Agent), the Borrowers shall immediately pay to the Administrative Agent for the
account of such Bank, from time to time as specified by such Bank, additional
amounts sufficient to compensate such Bank in the light of such circumstances,
to the extent that such Bank reasonably determines such increase in capital to
be allocable to the existence of such Bank's commitment to lend hereunder,
provided that such Bank shall exercise reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to minimize any such
compensation payable by the Borrowers hereunder. A certificate as to such
amounts submitted to the Borrowers and the Administrative Agent by such Bank,
shall be conclusive and binding for all purposes, absent manifest error.
(c) (1) Any and all payments by any Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.15, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deduction, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Administrative Agent, taxes
that are imposed on its overall net income by the United States and taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such Bank
or the Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes that are imposed on its
overall net income ( and franchise taxes imposed in lieu thereof) by the state
or foreign jurisdiction of such Bank'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 under the Notes being 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 under any Note to any Bank or the Administrative 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 2.13(c)) such Bank or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(2) In addition, each Borrower shall pay any present or
future stamp, documentary, excise, property or similar taxes,
charges, or levies that arise from any payment made hereunder
or under the Notes or from the execution, delivery or
registration of, performing under, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
(3) Each Borrower shall indemnify each Bank and the
Administrative Agent for and hold it harmless against the full
amount of Taxes and Other Taxes, and for the full amount of
taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.13(c), imposed on or paid by such
Bank or the Administrative Agent (as the case may be) and any
liability ( including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such
Bank or the Administrative Agent (as the case may be) makes
written demand therefor.
(4) Within 30 days after the date of any payment of
Taxes, the Borrower which paid such Taxes shall furnish to the
Administrative Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing
such payment. In the case of any payment hereunder or under the
Notes by or on behalf of any Borrower through an account or
branch outside the United States or by or on behalf of any
Borrower by a payor that is not a United States person, if the
Borrower determines that no taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor
to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of
this subsection (4) and subsection (5), the terms "United
States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(5) Each Bank organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement (in the case of each
Bank listed in Schedule I attached hereto), and from the date
on which any other Bank becomes party hereto (in the case of
each other Bank), and from time to time thereafter as requested
in writing by TBC (but only so long thereafter as such Bank
remains lawfully able to do so), provide each of the
Administrative Agent and TBC with two original Internal Revenue
Service forms 1001 or 4224, as appropriate, or any successor of
other form prescribed by the Internal Revenue Service,
certifying that such Bank is exempt from or entitled to a
reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes. If the forms provided
by a Bank at the time such Bank 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 Bank
provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by
such form; provided, however, that, if at the date on which a
Bank becomes a party to this Agreement, the Bank assignor was
entitled to payments under subsection (1) above in respect of
United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the
Bank assignee on such date. If any form or document referred to
in this subsection (5) 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 1001 or 4224, that the Bank reasonably considers
to be confidential, the Bank shall give notice thereof to the
Borrower and shall not be obligated to include in such form or
document confidential information.
(6) For any period with respect to which any Bank has
failed to provide TBC with the appropriate form described in
subsection (5) above (other than if such failure is due to a
change in law occurring after the date on which a form
originally was required to be provided or if such form
otherwise is not required under subsection (5) above), such
Bank shall not be entitled to indemnification under subsection
(1) or (3) with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a
Bank become subject to Taxes because of its failure to deliver
a form required hereunder, TBC shall take such steps as such
Bank shall reasonably request to assist such Bank to recover
such Taxes.
(d) Upon receipt of notice from any Bank claiming compensation
pursuant to this Section 2.13 and as long as no Event of Default and no event
which with notice or lapse of time or both would constitute an Event of Default
shall have occurred and be continuing, TBC shall have the right, on or before
the 30th day after the date of receipt of such notice, (i) to arrange for one or
more Banks or other commercial banks to assume the Commitment of such Bank;
subject, however, to payment to Administrative Agent by assignor or assignee of
a processing and recording fee of $3,500, in the event the replacement bank is
not a Bank; or (ii) to arrange for the Commitment of such Bank to be terminated
and all A Advances owed to such Bank 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 Bank immediately
prior to the assignment or termination of the Commitment of such Bank.
Section 2.14. Illegality. If there is any introduction of, or
change in, or in the interpretation of, any law or regulation, which in the
opinion of counsel for the Administrative Agent in the relevant jurisdiction
shall make it unlawful, or if any central bank or other governmental authority
shall assert that it is unlawful, for any Bank to continue to fund or maintain
any Eurodollar Rate Advances or to perform its obligations with respect to
Eurodollar Rate Advances as provided hereunder, upon the issuance of such
opinion of counsel or such assertion by a central bank or other governmental
authority and notice given to the Borrowers (accompanied by such opinion, if
applicable) by the Administrative Agent, the Borrowers shall forthwith either
(1) prepay in full all Eurodollar Rate A Advances made by such Bank as a part of
Eurodollar Rate A Borrowings, with accrued interest thereon and all other
amounts which may be payable to such Bank by the Borrowers as provided in
Section 2.12(b) or (2) Convert all such Eurodollar Rate A Advances made by such
Bank into A Borrowings of another Type as provided in Section 2.11. Upon such
demand or such notice of prepayment or Conversion, the obligation of such Bank
to make or to Convert A Advances into, Eurodollar Rate A Advances shall be
suspended until such time as the event giving rise to such prepayment or
Conversion shall no longer apply, at which time the Commitment of such Bank to
make A Advances for the funding of, or Conversion to, Eurodollar Rate A
Borrowings shall be reinstated, subject to its then available Commitment.
Section 2.15. Payments and Computations. (a) The Borrowers
shall make each payment hereunder and under the Notes not later than 11:00 a.m.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.05, 2.09, 2.13, 2.14, or 2.17) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. From and after the effective date of an assignment
pursuant to Section 2.18, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Bank assignee thereunder, and the parties to such assignment shall make all
appropriate adjustments in such payments for the periods prior to such effective
date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of Facility Fees shall be made by the
Administrative Agent, and all computations of interest pursuant to Section 2.09
shall be made by a Bank, 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 Administrative Agent (or, in the case of Section 2.09, by a
Bank) of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fee, as the case
may be; provided, however, if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the Banks
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
such Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
Section 2.16. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances made by it (other
than pursuant to Sections 2.09, 2.13, 2.14 or 2.17), in excess of its ratable
share of payments on account of the A Advances obtained by all the Banks, such
Bank shall forthwith purchase from the other Banks such participations in the A
Advances made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them, provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable share (according
to the proportion of (i) the amount of such Bank's required repayment to (ii)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrowers agree that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.16 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Bank were a creditor of the
Borrowers in the amount of such participation.
Section 2.17. Alteration of Commitments and Addition of
Banks. By a written agreement executed only by TBC, the Administrative Agent
and the Bank or bank affected:
(i) Increased Commitment: the Commitment of such Bank
may be increased to the amount set forth in such agreement;
(ii) Addition of a Bank: such bank may be added as a
Bank with a Commitment as set forth in such agreement provided that it agrees
to be bound by all the terms and provisions of this Agreement; and
(iii) Reduction or Termination of Commitment: the unused
portion of the Commitment of such Bank may be reduced or terminated and the
A Advances owing to such Bank may be prepaid in whole or in part, all as set
forth in such agreement.
The Administrative Agent may execute any such agreement
without the prior consent of any Bank (other than the Bank or bank affected),
except that if at the time the Administrative Agent proposes to execute such
agreement either (A) TBC's long-term senior unsecured debt is rated lower than
BBB by S&P or lower than Baa2 by Moody's or (B) an Event of Default, or an event
which with notice or lapse of time or both would constitute an Event of Default,
shall have occurred and be continuing, then the Administrative Agent shall not
execute any such agreement unless it has first obtained the prior written
consent of the Majority Banks and provided that the Administrative Agent shall
not execute any such agreement without the prior written consent of the Majority
Banks if such agreement would increase the total of the Commitments to an amount
in excess of $1,600,000,000. The Administrative Agent shall give each Bank
prompt notice of any such agreement becoming effective. All requests for Bank
consent under the provisions of this Section 2.17 shall specify the date upon
which any such increase, addition, reduction, termination, or prepayment shall
become effective (the "Effective Date") and shall be made by means of a Request
for Alteration substantially in the form as set forth in Exhibit C. On the
Effective Date on which the Commitment of any Bank is increased, decreased,
terminated or created or on which prepayment is made, all as described in such
Request for Alteration, the Borrowers or such Bank, as the case may be, shall
make available to the Administrative 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 Administrative Agent shall distribute such funds received by
it to the Borrowers or to such Banks, as the case may be) so that at the close
of business on such date the sum of the A Advances of each Bank then outstanding
shall be in the same proportion to the total of the A Advances of all the Banks
then outstanding as the Commitment of each Bank is to the total of the
Commitments. The Administrative Agent shall give each Bank notice of the amount
to be made available by, or to be distributed to, such Bank at least 5 Business
Days before such payment is made.
Section 2.18. Assignments; Sales of Participations and Other
Interests in Notes. (a) From time to time each Bank may with the prior written
consent of TBC and the affected Borrowers and subject to the qualifications set
forth below, assign to one or more Banks or an Eligible Assignee all or any
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the A Advances owing to it and
all A Notes held by it) and will, at any time, if arranged by the Company
pursuant to clause (A) of this sentence upon at least 30 days' notice to such
Bank and the Administrative Agent, assign to one or more Eligible Assignees all
of its rights and obligations under this Agreement (including without
limitation, all of its Commitment, the A Advances owing to it and all A Notes
held by it); provided, however, that if such Bank shall notify TBC, the affected
Borrowers and the Administrative Agent of its intent to request the consent of
TBC and the affected Borrowers to an assignment, TBC shall have the right, for
30 days after receipt of such notice and so long as no Event of Default shall
have occurred and be continuing, in its sole discretion either (A) to arrange
for one or more Eligible Assignees to accept such assignment (a "Required
Assignment") or (B) to arrange for the rights and obligations of such Bank
(including, without limitation, such Bank's Commitment), and the total
Commitments of the Banks to be reduced by an amount equal to the amount of such
Bank's Commitment to be assigned and in connection with such reduction, to
prepay that portion of the A Advances owing to such Bank which it proposes to
assign; provided further that if TBC fails to notify such Bank that it has
arranged for an assumption or reduction of the portion of Commitment to be
assigned within 30 days of the receipt by TBC of such Bank's request for consent
to assignment, the Borrowers shall be deemed to consent to the proposed
assignment; provided further that (i) any such assignment shall not require the
Borrowers to file a registration statement with the Securities and Exchange
Commission or apply to qualify the A Notes under the blue sky laws of any state
and the assigning Bank shall otherwise comply with all federal and state
securities laws applicable to such assignment; (ii) the amount of the Commitment
of the assigning Bank being assigned pursuant to each 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, and (iii) the aggregate amount of the Commitment of the assigning Bank
assigned pursuant to all such assignments of such Bank (after giving effect to
such assignment) shall in no event exceed 50% (except in the case of a Required
Assignment) of all such Bank's Commitment (as set forth in Schedule I, in the
case of each Bank that is a party hereto as of September 29, 1999, or as set
forth in the Register as the aggregate Commitment assigned to such Bank pursuant
to one or more assignments, in the case of any assignee). No Bank shall be
obligated to make a Required Assignment unless such Bank shall have received
payments in an aggregate amount at least equal to the outstanding principal
amount of all A Advances being assigned, together with accrued interest thereon
to the date of payment of such principal amount and all other amounts payable to
such Bank under this Agreement (including without limitation Section 2.12(c)
provided that such Bank shall receive its pro rata share of the Facility Fee on
the next date on which the Facility Fee is payable). From and after the
effective date of any assignment pursuant to this Section 2.18(a), (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such assignment have
the rights and obligations of a Bank hereunder except that such assignee may not
elect to assign any of its rights and obligations under this Agreement acquired
by any assignment pursuant to this Section 2.18(a) for a period of nine months
following the effective date specified in such assignment and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such assignment relinquish its rights 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 Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto). Notwithstanding any other provision in this Agreement, any Bank may at
any time (aa) 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) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System, and (bb)
assign all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the A
Advances owing to it and all A Notes held by it) to an affiliate of such Bank,
except if the result of the assignment is to increase the cost to the Borrowers
of requesting, borrowing, continuing, maintaining, paying or converting any
Advances, provided in each case that such Bank gives prior or contemporaneous
notice to TBC, the affected Borrowers and Administrative Agent of the
assignment.
(b) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each assignment delivered to and accepted
by it and a register for the recordation of the names and addresses of the Banks
and the Commitment of, and principal amount of the A Advances of each Borrower
owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Administrative Agent and the Banks may treat each
entity whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Bank at any reasonable time and from time to time upon
reasonable prior notice. Upon receipt by the Administrative Agent from the
assigning Bank of an assignment in form and substance satisfactory to the
Administrative Agent executed by an assigning Bank and an assignee representing
that it is an Eligible Assignee, together with each A Note subject to such
assignment, and a processing and recording fee of $3,500 (payable by either the
assignor or the assignee), the Administrative Agent shall, if such assignment is
a Required Assignment or has been consented to by the Borrowers to the extent
required by Section 2.18(a) or has been effected pursuant to Section 2.19(c),
(i) accept such assignment, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to TBC and the affected Borrowers.
Within five Business Days after its receipt of such notice, the Company, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for each surrendered A Note a new A Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it pursuant to such assignment,
and if the assigning Bank has retained a Commitment hereunder, a new A Note to
the order of the assigning Bank in an amount equal to the Commitment retained by
it hereunder. Such new A Note or A Notes shall be in an aggregate principal
amount equal to the principal amount of such surrendered A Note, shall be dated
the effective date of such assignment and shall otherwise be substantially in
the form of Exhibit A-1 or A-2 hereto, as appropriate.
(c) Each Bank may sell participations in all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and the Notes held
by it) to one or more affiliates of such Bank or to one or more other commercial
banks; provided, however, that (i) any such participation shall not require the
Borrowers to file a registration statement with the Securities and Exchange
Commission or apply to qualify the Notes under the blue sky laws of any state
and the Bank 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 "Bank" for any
purpose under the Agreement, (iii) such Bank's obligations under this Agreement
(including, without limitation, its Commitment to the Borrowers hereunder) shall
remain unchanged, (iv) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (v) such Bank shall
remain the holder of such Notes for all purposes of this Agreement, and (vi) the
Borrowers, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement.
(d) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
2.18, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Bank by
or on behalf of the Borrowers; provided, however, that, prior to any such
disclosure of information that is not publicly available, such Bank 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 information received by it from such Bank except as disclosure may be
required or appropriate to governmental authorities, pursuant to legal process
or by law or governmental regulation or authority.
Section 2.19. Extension of Termination Date. (a) TBC may, on
behalf of itself and the Subsidiary Borrowers, by written notice to the
Administrative Agent in the form of Exhibit E (each such notice being an
"Extension Request") given no earlier than 45 days and no later than 30 days
prior to the then applicable Termination Date, request that the then applicable
Termination Date be extended to a date 364 days after the then applicable
Termination Date. Such extension shall be effective with respect to each Bank
which, by a written notice in the form of Exhibit F (a "Continuation Notice") to
TBC and the Administrative Agent given no earlier than 30 days and no later than
20 days prior to the then applicable Termination Date, consents, in its sole
discretion, to such extension (each Bank giving a Continuation Notice being
referred to sometimes as a "Continuing Bank" and each Bank other than a
Continuing Bank being a "Non-Extending Bank") provided, however, that such
extension shall be effective only if the aggregate Commitments of the Continuing
Banks are not less than 66-2/3% of the aggregate Commitments of the Banks on the
date of the Extension Request. No Bank shall have any obligation to consent to
any such extension of the Termination Date. The Administrative Agent shall
notify each Bank of the receipt of an Extension Request within three (3)
Business Days after receipt thereof. The Administrative Agent shall notify the
Company and the Banks no later than 15 days prior to the applicable Termination
Date whether the Administrative Agent has received Continuation Notices from
Banks holding at least 66-2/3% of the Aggregate Commitments on the date of the
Extension Request.
(b) The Commitment of each Non-Extending Bank shall terminate
at the close of business on the Termination Date in effect prior to the delivery
of such Extension Request without giving any effect to such proposed extension,
and on such Termination Date TBC shall take one of the following three actions:
(i) Replace the Non-Extending Banks pursuant to
Section 2.19(c); or
(ii) Pay or cause to be paid to the Administrative Agent, for
the account of the Non-Extending Banks, an amount equal to the
Non-Extending Banks' A Advances, together with accrued but unpaid
interest and fees thereon and all other amounts then payable hereunder;
or
(iii) By giving notice to the Administrative Agent no later
than three days prior to the Termination Date, elect not to extend the
Termination Date beyond the then applicable Termination Date and in
this event the Borrowers may in their sole discretion repay any amount
of the A Advances then outstanding or make an A Borrowing pursuant to
Article 2 and the amount of the A Advances outstanding thereafter shall
convert to a term loan pursuant to Section 2.03.
(c) A Non-Extending Bank shall be obligated, at the request of
TBC to assign at any time prior to the close of business on the Termination Date
applicable to such Non-Extending Bank all of its rights (other than rights that
would survive the termination of the Agreement pursuant to Section 8.03) and
obligations hereunder to one or more Banks or other commercial banks nominated
by TBC and willing to become Banks in place of such Non-Extending Bank (the
"Replacement Banks"). In order to qualify as a Replacement Bank, a Bank or bank
must satisfy all of the requirements of this Agreement (including without
limitation the terms of Section 2.18 relating to Required Assignments). Such
obligation of the Non-Extending Banks is subject to such Non-Extending Bank
receiving (i) payment in full from the Replacement Banks of the principal amount
of all Advances owing to such Non-Extending Bank immediately prior to an
assignment to the Replacement Banks and (ii) payment in full from the Borrowers
of all accrued interest and fees and other amounts payable hereunder and then
owing to such Non-Extending Bank immediately prior to the assignment to the
Replacement Banks. Upon such assignment, the Non-Extending Bank shall no longer
be a Bank, such Replacement Banks shall become Continuing Banks, and the
Administrative Agent shall make appropriate entries in the Register to reflect
the foregoing.
Section 2.20. Subsidiary Borrowers. (a) TBC may at any time,
and from time to time, by delivery to the Administrative Agent of a Borrower
Subsidiary Letter substantially in the form of Exhibit D hereto, 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
Administrative Agent shall promptly notify each Bank of each such designation by
TBC and the identity of the respective Subsidiary.
(b) No Advances shall be made to a Subsidiary Borrower, and no
Conversion of any Advances at the request of a Subsidiary Borrower shall be
effective, without, in each and every instance, the prior consent of TBC, in its
sole discretion, which shall be evidenced by the countersignature of TBC to the
relevant Notice of Borrowing or notice of Conversion. In addition, no notices
which are to be delivered by a Borrower hereunder shall be effective, with
respect to any Subsidiary Borrower, unless the notice is countersigned by TBC.
(c) The occurrence of any of the following events with respect
to any Subsidiary Borrower shall constitute a "Subsidiary Borrower Termination
Event" with respect to such Subsidiary Borrower:
(i) such Subsidiary Borrower shall cease to be a Subsidiary,
as defined under this Agreement;
(ii) such Subsidiary Borrower shall liquidate or dissolve;
(iii) such Subsidiary Borrower shall fail to preserve and
maintain its existence, or shall make any material change in the nature
of its business as carried out on the date such Subsidiary Borrower
becomes a Borrower hereunder;
(iv) such Subsidiary Borrower shall merge or consolidate with
or into, or convey, transfer, lease, or otherwise dispose of (whether
in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to any
Person (except that a Subsidiary Borrower may merge into or dispose of
assets to another Borrower); or
(vii) any of the "Events of Default" described in Section 6.01
shall occur to or with respect to such Subsidiary Borrower as if such
Subsidiary Borrower were TBC.
(d) Upon the occurrence of a Subsidiary Borrower Termination
Event with respect to any Subsidiary Borrower, such Subsidiary Borrower (the
"Terminated Subsidiary Borrower") shall cease to be a Borrower for purposes of
this Agreement and shall no longer be entitled to request or borrow Advances
hereunder. All outstanding Advances of a Terminated Subsidiary Borrower shall be
automatically due and payable as of the date on which the Subsidiary Borrower
Termination Event of such Terminated Subsidiary Borrower occurred, together with
accrued interest thereon and any other amounts then due and payable by that
Borrower hereunder, unless, in the case of a Subsidiary Borrower Termination
Event described in paragraph (iv) of Section 2.20(c), the other Person party to
the transaction is a Borrower and such other Borrower has assumed in writing all
of the outstanding Advances and other obligations under this Agreement and under
the Notes of the Terminated Subsidiary Borrower.
(e) Each of the Subsidiary Borrowers hereby appoint and
authorize TBC to take such action as agent on their behalf and to exercise such
powers under this Agreement as are delegated to TBC by the terms hereof,
together with such powers as are reasonably incidental thereto.
(f) Notwithstanding anything in this Agreement to the
contrary, each of the Subsidiary Borrowers shall be severally liable for the
liabilities and obligations of such Subsidiary Borrower under this Agreement and
its Notes, and no Subsidiary Borrower shall be liable for the obligations of any
other Borrower under this Agreement and such other Borrower's Notes. 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 amount
due hereunder that is specifically allocable to such Subsidiary Borrower or the
Advances of such Subsidiary Borrower. With respect to any amount due hereunder,
including fees, that is not specifically allocable to any particular Borrower,
each Borrower shall be liable for such amount pro rata in the same proportion as
such Borrower's outstanding Advances bear to the total of then-outstanding
Advances to all Borrowers.
ARTICLE 3
Representations, Warranties and Certain Covenants
Section 3.01. Representations and Warranties by the Borrowers.
Each of the Borrowers represent and warrant as follows:
(a) TBC is a duly organized corporation existing in good
standing under the laws of the State of Delaware. Each Subsidiary Borrower is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and each of TBC and each Subsidiary Borrower
is qualified to do business in every jurisdiction where such qualification is
required, except where the failure to so qualify would not have a material
adverse effect on the financial condition of TBC and the Subsidiary Borrowers as
a whole.
(b) The execution and delivery and the performance of the
terms of this Agreement, the Notes and each Guaranty are within the corporate
powers of each Borrower party thereto, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval
(which approval remains in full force and effect), and do not contravene any
law, any provision of the Certificate of Incorporation or By-Laws of any
Borrower party thereto or any contractual restriction binding on any Borrower
party thereto.
(c) This Agreement and the Notes, when duly executed and
delivered by each Borrower party thereto, will constitute legal, valid and
binding obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms, and each Guaranty, when duly executed
and delivered by TBC, will constitute a legal, valid and binding obligation of
TBC, enforceable against TBC in accordance with its terms.
(d) In TBC's opinion, there are no pending or threatened
actions or proceedings before any court or administrative agency which can
reasonably be expected to materially adversely affect the financial condition or
operations of the Company or of the Company and its Subsidiaries, taken as a
whole.
(e) The Consolidated statement of financial position as of
December 31, 1998 and the related Consolidated statement of earnings and
retained earnings for the year then ended (copies of which have been furnished
to each Bank) 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, and since such date there has been no material adverse
change in such condition or operations which is likely to impair the ability of
TBC to repay the Advances.
(f) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System, and
no proceeds of any Advance will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock. Following application of the proceeds of each Advance, not more than 25
percent of the value of the assets (either of any Borrower only or of each
Borrower and its subsidiaries on a consolidated basis) subject to the provisions
of Section 4.02(a) will be margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System).
(g) No Borrower is an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances, nor the application of the proceeds
or repayment thereof by any Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
Section 3.02. Representation by the Banks. Each Bank
represents that its present intent is that it will acquire the A Notes drawn to
its order for its own account and that each such A Note is being acquired for
the purpose of investment and not with a view to distribution or resale thereof,
subject, nevertheless, to the necessity that such Bank remain in control at all
times of the disposition of property held by it for its own account.
ARTICLE 4
Covenants of TBC
Section 4.01. Affirmative Covenants of TBC. From the date of
this Agreement and so long as any amount shall be payable by the Borrowers to
any Bank hereunder or any Commitment shall be outstanding, TBC will:
(a) Furnish to the Banks: (1) within 60 days after the close
of each of the first three quarters of each of TBC's fiscal years, a
Consolidated statement of financial position of TBC and the Subsidiaries as of
the end of such quarter and a Consolidated comparative statement of earnings and
retained earnings of TBC and the Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, each
certified by an authorized officer of TBC, (2) within 120 days after the close
of each of TBC's fiscal years, and if requested by the Administrative Agent,
within 60 days after the close of each of the first three quarters thereof, a
statement certified by an authorized officer of TBC showing in detail the
computations required by the provisions of Sections 4.02(a), 4.02(b), 4.02(c)
and 4.02(d), hereof, based on the figures which appear on the books of account
of TBC and the Subsidiaries at the close of such quarters, (3) within 120 days
after the close of each of TBC's fiscal years, a copy of the annual audit report
of TBC, certified by independent public accountants of recognized standing
acceptable to the Administrative Agent, together with financial statements
consisting of a Consolidated statement of financial position of TBC and the
Subsidiaries as of the end of such fiscal year and a Consolidated statement of
earnings and retained earnings of TBC and the Subsidiaries for such fiscal year,
(4) within 120 days after the close of each of TBC's fiscal years, a statement
certified by the independent public accountants who shall have prepared the
corresponding audit report furnished to the Banks pursuant to the provisions of
clause (3) of this subsection (a), to the effect that, in the course of
preparing such audit report, such accountants had obtained no knowledge, except
as specifically stated, that TBC had been in violation of the provisions of any
one of the following Sections: Sections 4.02(a), 4.02(b), 4.02(c) and 4.02(d),
at any time during such fiscal year, (5) promptly upon their becoming available,
all financial statements, reports and proxy statements which TBC may send to its
stockholders, (6) promptly upon their becoming available, all regular and
periodic financial reports which TBC or any Subsidiary shall file with the
Securities and Exchange Commission or any national securities exchange, (7)
within 3 Business Days after the discovery of the occurrence of any event which
constitutes an Event of Default or would constitute an Event of Default with the
passage of time or the giving of notice, or both, notice of such occurrence
together with a detailed statement by a responsible officer of TBC of the steps
being taken by TBC or the appropriate Subsidiary to cure the effect of such
event and (8) such other information respecting the financial condition and
operations of TBC or the Subsidiaries as the Administrative Agent may from time
to time reasonably request.
(b) Duly pay and discharge, and cause each Subsidiary duly to
pay and discharge, all material taxes, assessments and governmental charges upon
it or against its properties prior to a date which is 5 Business Days after the
date on which penalties are attached thereto, except and to the extent only that
the same shall be contested in good faith and by appropriate proceedings by TBC
or the appropriate Subsidiary.
(c) Maintain, and cause each Subsidiary to maintain, with
financially sound and reputable insurance companies or associations, insurance
of the kinds, covering the risks and in the relative proportionate amounts
usually carried by companies engaged in businesses similar to that of TBC or
such Subsidiary, except, to the extent consistent with good business practices,
such insurance may be provided by TBC through its program of self insurance.
(d) Preserve and maintain its corporate existence.
Section 4.02. General Negative Covenants of TBC. From the date
of this Agreement and so long as any amount shall be payable by TBC to any Bank
hereunder or any Commitment shall be outstanding, TBC will not:
(a) Create, incur, assume or suffer to exist any mortgage,
pledge, lien, security interest or other charge or encumbrance (including the
lien or retained security title of a conditional vendor) upon or with respect to
any of its Property, Plant and Equipment, or upon or with respect to the
Property, Plant and Equipment of any Subsidiary, or assign or otherwise convey,
or permit any Subsidiary to assign or otherwise convey, any right to receive
income from or with respect to its Property, Plant and Equipment, except (1)
liens in connection with workmen's compensation, unemployment insurance or other
social security obligations, (2) liens securing the performance of bids,
tenders, contracts (other than for the repayment of borrowed money), leases,
statutory obligations, surety and appeal bonds, liens to secure progress or
partial payments made to TBC or such Subsidiary and other liens of like nature
made in the ordinary course of business, (3) mechanics', workmen's,
materialmen's or other like liens arising in the ordinary course of business in
respect of obligations which are not due or which are being contested in good
faith, (4) liens for taxes not yet due or being contested in good faith and by
appropriate proceedings by TBC or the affected Subsidiary, and (5) other liens,
charges and encumbrances, so long as the aggregate amount of the Consolidated
Debt for which all such liens, charges and encumbrances serve as security does
not exceed 15% of Consolidated net Property, Plant and Equipment.
(b) Permit Consolidated Debt to be at any time more than 60%
of Total Capital, where "Total Capital" means the sum of Shareholders' Equity
and Consolidated Debt.
(c) Make any payment, or permit any Subsidiary to make any
payment, of principal or interest on any Debt which payment would constitute a
violation of the terms of this Agreement or of the terms of any indenture or
agreement binding on such corporation or to which such corporation is a party
except, in the case of any payment made by a Subsidiary, to the extent such
payment is not likely to impair the ability of TBC to repay the Advances.
(d) Merge or consolidate with or into, or convey, transfer,
lease, or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person except that the Borrower may merge or
consolidate with any Person so long as the Borrower is the surviving corporation
and no Event of Default, or event or circumstance that with notice or time
elapse or both would become an Event of Default, has occurred and is continuing
or would result therefrom.
(e) Make any material change in the nature of its business as
carried out on the date hereof.
Section 4.03. Financial Statement Terms. For purposes of
Section 4.02(b) above, all capitalized terms shall be as they appear on TBC's
published Consolidated financial statements and calculated under the generally
accepted accounting principles and practices applied by TBC on the date hereof
in the preparation of such financial statements. However, notwithstanding the
foregoing, Total Capital shall exclude the effects of any repurchase by TBC of
its common stock and any merger-related accounting adjustments which are
attributable to the merger with or acquisition of the McDonnell Douglas
Corporation by TBC.
Section 4.04. Waivers of Covenants. The departure by TBC or
any Subsidiary from the requirements of any of the provisions of this Article 4
shall be permitted only if such departure shall have been consented to in
advance in a writing signed by Banks representing 66-2/3% or more of the then
outstanding aggregate principal amount of the A Notes or, if no such principal
or face amount is outstanding, Banks having at least 66-2/3% of the total of the
Commitments, and such writing shall be effective as a consent only to the
specific departure described in such writing. Such departure by TBC or any
Subsidiary when properly consented to by the required number of Banks as set out
in the preceding sentence shall not constitute an Event of Default under Section
6.01(c).
ARTICLE 5
Conditions Precedent to Borrowings
Section 5.01. Conditions Precedent to the Initial Borrowing of
TBC. The obligation of each Bank to make its initial Advance to TBC is subject
to the fulfillment of all of the following conditions:
The Administrative Agent shall have received on or before the
day of the initial Borrowing all of the following, each dated the day of the
initial Borrowing, in form and substance satisfactory to the Administrative
Agent and its counsel.
(a) A Base Rate A Note, a Eurodollar A Note, a Fixed Rate B
Note and a Eurodollar B Note drawn to the order of each Bank executed and
delivered by TBC to the Administrative Agent for delivery to each Bank.
(b) Copies of all documents, certified by an officer of TBC,
evidencing necessary corporate action by TBC and governmental approvals, if any,
with respect to this Agreement and the Notes.
(c) A certificate of the Secretary or an Assistant Secretary
of TBC which shall certify the names of the officers of TBC 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. Each Bank may conclusively rely on
such certificate until it shall have received a further certificate of the
Secretary or an Assistant Secretary of TBC canceling or amending the prior
certificate and submitting signatures of the officers named in such further
certificate.
(d) A favorable opinion of the chief legal officer of TBC
substantially in the form of Exhibit G hereto and as to such other matters as
the Administrative Agent may reasonably request, which opinion TBC hereby
expressly instructs such chief legal officer to prepare and deliver.
(e) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, substantially in the form of Exhibit H hereto.
(f) TBC shall have terminated in whole the commitments of the
banks parties to the Existing Credit Agreement .
(g) TBC and its Subsidiaries shall have satisfied all of their
respective obligations under the Existing Credit Agreement including, without
limitation, the payment of all fees under such agreement.
Section 5.02. Conditions Precedent to Each A Borrowing of TBC.
The obligation of each Bank to make an A Advance on the occasion of each A
Borrowing (including the initial Borrowing) is subject to the further conditions
precedent that on the date of such request and the date of such Borrowing, the
following statements shall be true, and each of the giving of the applicable
Notice of A Borrowing and the acceptance by TBC of the proceeds of such A
Borrowing shall be a representation by TBC that:
(i) the representations and warranties contained in Section
3.01 hereof are true and accurate on and as of each such date as though
made on and as of each such date (except to the extent that such
representations and warranties relate solely to an earlier date); and
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed A Borrowing which
constitutes an Event of Default or would constitute such an Event of
Default but for the requirement that notice be given or time elapse or
both.
Section 5.03. Conditions Precedent to Each B Borrowing of TBC.
The obligation of each Bank to make a B Advance on the occasion of each B
Borrowing (including the initial Borrowing) is subject to the further conditions
precedent that (1) TBC shall have furnished to the Administrative Agent in
connection with such B Borrowing, (x) a Consolidated statement of financial
position of TBC and the Subsidiaries as of the end of each of the first three
quarters of TBC's fiscal year (other than a quarter ending within sixty days
prior to the date of the related Notice of B Borrowing) and a Consolidated
comparative statement of earnings and retained earnings of TBC and the
Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, each certified by an authorized officer
of TBC and (y) a copy of the annual audit report of TBC, certified by
independent public accountants of recognized standing acceptable to the
Administrative Agent, together with financial statements consisting of a
Consolidated statement of the financial position of TBC and the Subsidiaries as
of the end of the applicable fiscal year and a Consolidated statement of
earnings and retained earnings of TBC and the Subsidiaries for such fiscal year
(the applicable fiscal year being the most recent year with respect to which the
annual audit report of TBC is due pursuant to Section 4.01(a)(3)) and (2) on the
date of such request and the date of such Borrowing, the following statements
shall be true, and each of the giving of the applicable Notice of B Borrowing
and the acceptance by TBC of the proceeds of such B Borrowing shall be a
representation by TBC that:
(i) the representations and warranties contained in Section
3.01 hereof are true and accurate on and as of each such date as though
made on and as of each such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed B Borrowing which
constitutes an Event of Default or would constitute such an Event of
Default but for the requirement that notice be given or time elapse or
both; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning TBC that has been provided
by TBC to the Administrative Agent or the Banks in connection with such
B Borrowing would include an untrue statement of a material fact or
omit to state any material fact or any fact necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading.
Section 5.04. Conditions Precedent to the Initial Borrowing of
a Subsidiary Borrower. The obligation of each Bank to make its initial Advance
to any particular Subsidiary Borrower is subject to the receipt by the
Administrative Agent, on or before the day of the initial Borrowing by such
Subsidiary Borrower, all of the following, each dated the day of the initial
Borrowing, in form and substance satisfactory to the Administrative Agent and
its counsel:
(i) A Borrower Subsidiary Letter, substantially in the form
of Exhibit D hereto, executed by such Subsidiary Borrower and TBC;
(ii) A Base Rate A Note, a Eurodollar A Note, a Fixed Rate B
Note and a Eurodollar B Note drawn to the order of each Bank executed
and delivered by the Subsidiary Borrower to the Administrative Agent
for delivery to each Bank.
(iii) Copies of all documents, certified by an officer of the
Subsidiary Borrower, evidencing necessary corporate action by the
Subsidiary Borrower and governmental approvals, if any, with respect to
this Agreement and the Notes.
(iv) A certificate of the Secretary or an Assistant Secretary
of TBC or the Subsidiary Borrower which shall certify the names of the
officers of the 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. Each Bank may
conclusively rely on such certificate until it shall have received a
further certificate of the Secretary or an Assistant Secretary of TBC
or the Subsidiary Borrower canceling or amending the prior certificate
and submitting signatures of the officers named in such further
certificate.
(v) A favorable opinion of in-house counsel to the Subsidiary
Borrower, substantially in the form of Exhibit I hereto and as to such
other matters as the Administrative Agent may reasonably request, which
opinion TBC and each Subsidiary Borrower hereby expressly instruct such
counsel to prepare and deliver.
(vi) The Guaranty of TBC, which unconditionally guarantees the
payment of all obligations of such Subsidiary Borrower hereunder and
under the Notes of such Subsidiary Borrower, substantially in the form
of Exhibit J hereto, executed and delivered by TBC to the
Administrative Agent.
Section 5.05. Conditions Precedent to Each A Borrowing of a
Subsidiary Borrower. The obligation of each Bank to make an A Advance to a
Subsidiary Borrower on the occasion of each A Borrowing (including the initial
Borrowing) is subject to the further conditions precedent that on the date of
such request and the date of such Borrowing, the following statements shall be
true, and each of the giving of the applicable Notice of A Borrowing and the
acceptance by that particular Subsidiary Borrower of the proceeds of such A
Borrowing shall be (a) a representation by such Subsidiary Borrower that:
(i) the representations and warranties of that Subsidiary
Borrower contained (A) in Section 3.01 are true and accurate on and as
of each such date as though made on and as of each such date (except to
the extent that such representations and warranties relate solely to an
earlier date), and (B) in its Borrower Subsidiary Letter are true and
correct on and as of the date of such borrowing, before and after
giving effect to such borrowing; and
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed A Borrowing which
constitutes an Event of Default or would constitute such an Event of
Default but for the requirement that notice be given or time elapse or
both;
and (b) a representation by TBC that the representations and warranties of TBC
contained in Section 3.01 are true and accurate on and as of each such date as
though made on and as of each such date (except to the extent that such
representations and warranties relate solely to an earlier date), and that, as
of each such date, no event has occurred and is continuing, or would result from
the proposed A Borrowing which constitutes an Event of Default or would
constitute such an Event of Default but for the requirement that notice be given
or time elapse or both.
Section 5.06. Conditions Precedent to Each B Borrowing of a
Subsidiary Borrower. The obligation of each Bank to make a B Advance to any
particular Subsidiary Borrower on the occasion of each B Borrowing (including
the initial Borrowing) is subject to the further conditions precedent that (1)
TBC shall have furnished to the Administrative Agent in connection with such B
Borrowing, (x) a Consolidated statement of financial position of TBC and its
Subsidiaries as of the end of each of the first three quarters of TBC's fiscal
year (other than a quarter ending within sixty days prior to the date of the
related Notice of B Borrowing) and a Consolidated comparative statement of
earnings and retained earnings of TBC and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, each certified by an authorized officer of TBC and (y) a copy of
the annual audit report of TBC, certified by independent public accountants of
recognized standing acceptable to the Administrative Agent, together with
financial statements consisting of a Consolidated statement of the financial
position of TBC and its Subsidiaries as of the end of the applicable fiscal year
and a Consolidated statement of earnings and retained earnings of TBC and its
Subsidiaries for such fiscal year (the applicable fiscal year being the most
recent year with respect to which the annual audit report of TBC is due pursuant
to Section 4.01(a)(3)) and (2) on the date of such request and the date of such
Borrowing, the following statements shall be true, and each of the giving of the
applicable Notice of B Borrowing and the acceptance by the Subsidiary of the
proceeds of such B Borrowing shall be (a) a representation by such Subsidiary
Borrower that:
(i) the representations and warranties contained (A) in Section
3.01 hereof with respect to such Subsidiary Borrower are true and
accurate on and as of each such date as though made on and as of each
such date (except to the extent that such representations and
warranties relate solely to an earlier date), and (B) in its Borrower
Subsidiary Letter are true and correct on and as of the date of such
borrowing, before and after giving effect to such borrowing;
(ii) as of each such date no event has occurred and is
continuing, or would result from the proposed B Borrowing which
constitutes an Event of Default or would constitute such an Event of
Default but for the requirement that notice be given or time elapse or
both; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning TBC or the Subsidiary
Borrower that has been provided by TBC or the Subsidiary Borrower to
the Administrative Agent or the Banks in connection with such B
Borrowing would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading;
and (b) a representation by TBC that the representations and warranties of TBC
contained in Section 3.01 are true and accurate on and as of each such date as
though made on and as of each such date (except to the extent that such
representations and warranties relate solely to an earlier date), and that, as
of each such date, no event has occurred and is continuing, or would result from
the proposed A Borrowing which constitutes an Event of Default or would
constitute such an Event of Default but for the requirement that notice be given
or time elapse or both.
ARTICLE 6
Events of Default
Section 6.01. Events of Default. The following shall
constitute the Events of Default:
(a) Failure by TBC to make when due any payment of principal
of or interest on any Note or the Guaranty when the same becomes due and payable
and such failure is not remedied within 5 Business Days thereafter.
(b) When any representation or warranty made by TBC in
connection with the execution and delivery of this Agreement, the Notes or the
Guaranty or otherwise furnished pursuant hereto shall prove to be at any time
incorrect 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
15 days after written notice thereof shall have been given to TBC by the
Administrative Agent, at the request, or with the consent, of Banks representing
33-1/3% or more of the total of the Commitments.
(d) Failure of TBC to pay when due on any regularly scheduled
payment date any obligation for the payment of borrowed money or following
acceleration thereof or of any other monetary obligation, if the aggregate
unpaid principal amount of the obligation with respect to which such failure to
pay or acceleration occurred equals or exceeds $50,000,000 and such failure is
not remedied within 5 Business Days after notice thereof is received from the
Administrative Agent or the creditor on such obligation.
(e) TBC or any of its Subsidiaries
(1) shall incur 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 the
Employee Retirement Income Security Act of 1974
("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) shall have or shall be likely to have a lien imposed
on its property and rights to property under Section
4068 of ERISA on account of a liability in excess of
$37,500,000 in the aggregate; or
(3) shall incur or shall be likely to incur liability
under Title IV of ERISA
(A) in excess of $37,500,000 in the aggregate as
a result of the Company or any Subsidiary or any
Person that is a member of the "controlled group"
(as defined in Section 4001(a)(14) of ERISA) of
the Company or any Subsidiary having filed a
notice of intent to terminate any employee
pension benefit plan under the "distress
termination" provision of Section 4041 of ERISA
or
(B) in excess of $37,500,000 in the aggregate as
a result of the Pension Benefit Guaranty
Corporation having instituted proceedings to
terminate, or to have a trustee appointed to
administer, any such plan.
(f) The happening of any of the following events, provided the
same has not then been cured or stayed: (1) the insolvency or bankruptcy of TBC,
(2) the cessation by TBC of the payment of its debts as they mature, (3) the
making of an assignment for the benefit of the creditors of TBC, (4) the
appointment of a trustee or receiver or liquidator for TBC or for a substantial
part of its property, or (5) the institution of bankruptcy, reorganization,
arrangement, insolvency or similar proceedings by or against TBC under the laws
of any jurisdiction in which TBC is organized or has material business,
operations or assets.
(g) So long as any Subsidiary is a Borrower hereunder, the
Guaranty with respect to such Subsidiary Borrower shall for any reason cease to
be valid and binding on TBC or TBC shall so state in writing.
If an Event of Default shall occur or be continuing, then, the
Administrative Agent shall at the request, or may with the consent, of Banks
having at least 33-1/3% of the total of the Commitments, by notice to TBC and
the affected Borrowers, (A) declare the obligation of each Bank to make further
Advances to be terminated, whereupon the same shall forthwith terminate, and (B)
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrowers provided, however, that in the
event of any order for relief with respect to the Borrowers under the Federal
Bankruptcy Code (whether in connection with a voluntary or an involuntary case),
(A) the obligation of each Bank to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrowers.
ARTICLE 7
The Administrative Agent
Section 7.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including without limitation, enforcement or collection of the
Notes), the Administrative 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 holders of more than 50% in principal amount of the A
Notes then outstanding (or if no A Notes are at the time outstanding, upon the
instructions of Banks having greater than 50% of the Commitments), and such
instructions shall be binding upon all Banks and all holders of Notes; provided,
however, that the Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or which is
contrary to this Agreement or applicable law. The Administrative Agent agrees to
give to each Bank prompt notice of each notice given to it by the Borrowers
pursuant to the terms of this Agreement.
Section 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an assignment
entered into by the Bank which is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 2.18; (b) may consult
with legal counsel (including counsel for the Borrowers ), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or other experts; (c) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (d) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or to inspect the
property (including the books and records) of any Borrower; (e) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (f) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
Section 7.03. Citibank, N.A. and its Affiliates. With respect
to its Commitment, the Advances made by it, and the Notes issued to it,
Citibank, N.A., shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not an Agent
hereunder; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Citibank, N.A., in its individual capacity. Citibank, N.A.
and its Affiliates may accept deposits from, lend money to, accept drafts drawn
by, act as trustee under indentures of, and generally engage in any kind of
business with, the Company, any of its subsidiaries and any person or entity who
may do business with or own securities of the Company or any subsidiary, all as
if Citibank, N.A. was not the Agent hereunder and without any duty to account
therefor to the other Banks.
Section 7.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Bank and based on the financial statements referred to in Section
3.01(e) and the representations and warranties contained in Sections 3.01 and
3.02 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
Section 7.05. Indemnification. The Banks agree to indemnify
the Administrative Agent (to the extent not reimbursed by TBC or any other
Borrower), ratably according to the respective principal amounts of the A Notes
then held by each of them (or if no A Notes are at the time outstanding or if
any A Notes are held by persons which are not Banks, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative 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 Administrative Agent is not reimbursed for such expenses
by TBC or any other Borrower.
Section 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks and TBC and may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the Majority Banks shall
have the right to appoint a successor Administrative Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the removal of the retiring Administrative Agent as provided
herein, then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent which meets the requirements set out in
the previous sentence. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article 7 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
Section 7.07. Certain Obligations May be Performed by
Affiliates. The Administrative Agent may appoint any of its Affiliates to
perform its obligations hereunder other than any obligation requiring the
Administrative Agent to receive, pay, or otherwise handle funds or Notes and
provided that the Administrative Agent shall continue to be responsible to the
Borrowers and the Banks for the due performance of the Administrative Agent's
obligations under this Agreement.
ARTICLE 8
Miscellaneous
Section 8.01. Modification, Consents and Waivers. No failure
or delay on the part of any Bank in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power preclude any other or further exercise thereof or the
exercise of any other right or power hereunder. No notice to or demand on the
Borrowers in any case shall entitle the Borrowers to any other or further notice
or demand in similar or other circumstances. No amendment or waiver of any
provision of this Agreement or of the A Notes, nor consent to any departure by
the Borrowers therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Majority Banks, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following: (a)
waive any of the conditions specified in Section 5.01, 5.02, or 5.03, (b) except
as provided in Section 2.17 or Section 2.19, increase the Commitments of the
Banks or subject the Banks to any additional obligations, (c) reduce the
principal of, or interest on, the A Notes or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the A Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Notes or the number of Banks required for the Banks or any of
them to take any action hereunder, (f) amend this Section 8.01 or (g) release
TBC from any of its obligations under any Guaranty; and provided further, that
no amendment, waiver, or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note. Notwithstanding the foregoing, this Section 8.01 shall
not affect the provisions of Section 4.04 or 6.01.
Section 8.02. Addresses for Notices. All communications and
notices provided for hereunder shall be by telex or in writing and, if to the
Administrative Agent, mailed, telexed, faxed or delivered to it, addressed to it
at its office at Citibank, N.A., Global Aviation, 399 Park Avenue, New York, New
York 10043, facsimile number (212) 793-3734, Attention: Relationship Manager,
and, if to any Borrower, mailed, telexed or delivered to it, addressed to such
Borrower, care of The Boeing Company, at its office at 7755 East Marginal Way
South, Seattle, Washington 98108, facsimile number (206) 655-0799, Attention:
Treasurer, and, if to any Bank, to its office at the address given on the
signature pages of this Agreement; or, as to each party, at such other address
as shall have been designated by such party in a written notice to each other
party referring specifically to this Agreement.
Section 8.03. Costs, Expenses and Taxes. TBC agrees to pay all
reasonable costs and expenses in connection with the preparation, execution and
delivery of this Agreement, the Notes and the Guaranty (including printing costs
and the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent) and costs and expenses, if any, in connection with the
enforcement of this Agreement, the Notes and the Guaranty (whether through
negotiations, legal proceedings or otherwise and including, without limitation,
the reasonable fees and out-of pocket expenses of counsel), as well as any and
all stamp and other taxes, and to save the Banks and other holders of the Notes
harmless from any and all liabilities with respect to or resulting from any
delay by or omission of the Borrowers to pay such taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of this Agreement, the Notes and the Guaranty.
Section 8.04. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Banks and the Administrative
Agent, and their respective successors and assigns, except that the Borrowers
may not assign or transfer their rights hereunder without the prior written
consent of the Banks.
Section 8.05. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 8.06. Governing Law. This Agreement, the Notes, the
Guaranty and each Borrower Subsidiary Letter shall be deemed to be contracts
under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of such State.
Section 8.07. Headings. The Table of Contents and Article
and Section headings used in this Agreement are for convenience only and shall
not affect the construction of this Agreement.
<PAGE>
Section 8.08. Execution in CounterpartsSection 8.08. Execution
in Counterparts. This Agreement may be executed by the parties hereto
individually or in any combinations of the parties hereto in several separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
Section 8.09. Right of Set-Off. 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 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Bank is hereby authorized at any time and from
time to time to the fullest extent permitted by law, without notice to any
Borrower (any such notice being expressly waived by each Borrower), to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
to or for the credit or the account of any Borrower against any and all of the
obligations to such Bank of such Borrower now or hereafter existing under this
Agreement and the Notes held by such Bank, irrespective of whether or not such
Bank shall have made any demand under this Agreement or such Notes and although
such obligations may be unmatured. Each Bank shall promptly notify any Borrower
after any such setoff and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
which such Bank may have.
Section 8.10. Agreement in Effect. This Agreement shall become
effective upon its execution and delivery, respectively, to the Administrative
Agent and TBC by TBC, the Administrative Agent, and each Bank listed in Section
1.02.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly authorized as of the
day and year first above written.
THE BOEING COMPANY
By /S/ R. PAUL KINSCHERFF
Title: Assistant Treasurer
CITIBANK, N.A., Individually and
as Administrative Agent
By /S/ PHILIPPE PORTNOY
Name: Philippe Portnoy
Title: Vice President
THE CHASE MANHATTAN BANK,
Individually and as Syndication Agent
By /S/ MATTHEW H. MASSIE
Name: Matthew H. Massie
Title: Managing Director
ABN AMRO BANK N.V.
By /S/ DAVID J. THOMAS
Name: David J. Thomas
Title: Group Vice President
By /S/ CARLA S. WAGGONER
Name: Carla S. Waggoner
Title: Assistant Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By /S/ PETER N. GRAY
Name: Peter N. Gray
Title: Vice President
BANCA COMMERCIALE ITALIANA
By /S/ CHARLES DOUGHERTY
Name: Charles Dougherty
Title: Vice President
By /S/ T. GALLONETTO
Name: T. Gallonetto
Title: Assistant Vice President
THE BANK OF NEW YORK
By /S/ ROBERT LOUK
Name: Robert Louk
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /S/ EIICHI MICHIZOE
Name: Eiichi Michizoe
Title: Deputy General Manager
BANKBOSTON, N.A.
By /S/ JOHN P. O'LOUGHLIN
Name: John P. O'Loughlin
Title: Vice President
BANQUE NATIONALE DE PARIS
By /S/ KATHERINE WOLFE
Name: Katherine Wolfe
Title: Vice President
By /S/ SANDRA F. BERTRAM
Name: Sandra F. Bertram
Title: Assistant Vice President
CREDIT LYONNAIS
By /S/ PHILPPE SOUSTRA
Name: Philppe Soustra
Title: Senior Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /S/ JOEL MAKOWSKY
Name: Joel Makowsky
Title: Vice President
By /S/ VIRGINIA MAHLER COSENZA
Name: Virginia Mahler Cosenza
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /S/ VICENTE L. TIMIRAOS
Name: Vicente L. Timiraos
Title: Senior Vice President & SDGM
DEUTSCHE VERKEHRSBANK AG
By_/S/ JUSTIN PATRICK
Name: Justin Patrick
Title: Vice President
By /S/ PAULA TRA NAH
Name: Paula Tra Nah
Title: Assistant Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /S/ SCOTT J. PAIGE
Name: Scott J. Paige
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By /S/ SIMON CLARK
Name: Simon Clark
Title: Regional Financial Officer
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By /S/ SIMON CLARK
Name: Simon Clark
Title: Regional Financial Officer
BANK OF AMERICA, N.A.
By /S/ DEANNE PRUST ALLEN
Name: Deanne Prust Allen
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /S/ PHILIP K. LIEBSCHER
Name: Philip K. Liebscher
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /S/ BOB GRANFELT
Name: Bob Granfelt
Title: Vice President and Manager
WACHOVIA BANK, N.A.
By___________________________________
Name:
Title:
<PAGE>
SCHEDULE I TO THE AMENDMENT AND RESTATEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Name of Bank Commitment Domestic Lending Office Eurodollar Lending Office
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
ABN Amro Bank N.V. $52,000,000 208 South LaSalle Street, Suite 1500 208 South LaSalle Street, Suite
Chicago, IL 60604-1003 1500
Attn: Loan Chicago, IL 60604-1003
Administration Attn: Loan
Tel: (312) 992-5151 Administration
Fax: (312) 992-5156 Tel: (312) 992-5151
Fax: (312) 992-5156
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
ANZ Bank $35,000,000 1177 Avenue of the Americas 1177 Avenue of the Americas
6th Floor 6th Floor
New York, NY 10036-2798 New York, NY 10036-2798
Attn: Peter Gray Attn: Peter Gray
Tel: (212) 801-9739 Tel: (212) 801-9739
Fax: (212) 556-4839 Fax: (212) 556-4839
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Banca Commerciale $35,000,000 555 Flower Street 555 Flower Street
Italiana 43rd Floor 43rd Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Jack Wityak Attn: Jack Wityak
Tel: (213) 624-0440 Tel: (213) 624-0440
Fax: Fax:
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Bank of New York $80,000,000 10990 Wilshire Blvd One Wall Street
Suite 1125 22nd Floor
Los Angeles, CA 90024 New York, NY 10286
Attn: Robert J. Louk Attn: Sandra Morgan
Tel: (310) 996-8663 Tel: (212) 636-6743
Fax: (310) 996-8667 Fax: (212) 635-6877
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo- $126,000,000 1201 Third Avenue 1201 Third Avenue
Mitsubishi, Ltd Suite 1100 Suite 1100
Seattle, WA 98101 Seattle, WA 98101
Attn: David M. Purcell Attn: Ken Johnson
Tel: (206) 382-6049 Tel: (206) 382-6021
Fax: (206) 382-6067 Fax: (206) 382-6067
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
BankBoston, N.A. $66,000,000 100 Federal Street 100 Federal Street
Large Corporate 01-09-05 Large Corporate 01-09-05
Boston, MA 02110 Boston, MA 02110
Attn: Judith Kelly Attn: Denise M. Dowd
Tel: (617) 434-5280 Tel: (617) 434-7462
Fax: (617) 434-6685 Fax: (617) 434-9933
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Banque Nationale de $40,000,000 180 Montgomery Street 180 Montgomery Street
Paris 3rd Floor 3rd Floor
San Francisco, CA 94194 San Francisco,CA 94194
Attn: D. Guy Gibb Attn: Don Hart
Tel: (415) 956-0707 Tel: (415) 956-2511
Fax: (415) 296-8954 Fax: (415) 989-9041
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $153,000,000 270 Park Avenue 270 Park Avenue
New York, NY 10019 New York, NY 10019
Attn: Matthew Massie Attn: Matthew Massie
Tel: (212) 270-5432 Tel: (212) 270-5432
Fax: (212) 270-5100 Fax: (212) 270-5100
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $153,000,000 399 Park Avenue 399 Park Avenue
12th Floor, Zone 2 12th Floor, Zone 2
New York, NY 10043 New York, NY 10043
Attn: Philippa Portnoy Attn: Philippa Portnoy
Tel: (212) 559-5812 Tel: (212) 559-5812
Fax: (212) 793-1246 Fax: (212) 583-7185
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Credit Lyonnais $100,000,000 1301 Avenue of the 1301 Avenue of the
Americas Americas
New York, NY 10019 New York, NY 10019
Attn: Bertrand Cousin Attn: Kenia A. Perez
Tel: (212) 261-7363 Tel: (212) 261-7313
Fax: (212) 261-7368 Fax: (212) 261-7368
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG New $106,000,000 31 West 52nd Street 31 West 52nd Street
York and/or Cayman New York, NY 10019 New York, NY 10019
Islands Branches Attn: Joel D. Makowsky Attn: Noble Samuel
Tel: (212) 469-7896 Tel: (212) 469-4091
Fax: (212) 469-8212 Fax: (212) 469-4139
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Industrial Bank of $100,000,000 350 South Grand Avenue 1251 Avenue of the Americas,
Japan, Limited Suite 1500 31st Floor
Los Angeles, CA 90071 New York, NY 10020-1104
Attn: Blake Seaton Attn: Svayan Ghosh-Mazumdar
Tel: (213) 893-6448 Tel: (212) 282-4093
Fax: (213) 488-9840 Fax: (212) 282-4480
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
International Transport $20,000,000 609 Fifth Avenue 609 Fifth Avenue
Finance Ltd.-Deutsche New York, NY 10017-1021 New York, NY 10017-1021
VerkehrsBank Attn: Constance Laudenschlager Attn: Constance Laudenschlager
Tel: (917) 322-3949 Tel: (917) 322-3949
Fax: (212) 588-8936 Fax: (212) 588-8936
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Mitsubishi Trust $133,000,000 520 Madison Avenue 520 Madison Avenue
and Banking Corporation New York, NY 10022 New York, NY 10022
Attn: Joe Shammas Attn: Ming Hwa Chou
Tel: (212) 891-8451 Tel: (212) 891-8263
Fax: (212) 644-6825 Fax: (212) 755-2349
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
National $52,000,000 65 East 55th Street 65 East 55th Street
Westminster Bank Plc New York, NY 10022 New York, NY 10022
Attn: Commercial Loan Dept. Attn: Commercial Loan Dept.
Tel: (212) 401-1424 Tel: (212) 401-1424
Fax: (212) 401-1494 Fax: (212) 401-1494
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Bank of America $133,000,000 444 South Flower Street, 901 Main Street
Suite 400 Dallas, TX 75202
Los Angeles, CA 90071 Attn: Karen Puente
Attn: George V. Hausler Tel: (214) 508-3089
Tel: (213) 236-4925 Fax: (214) 508-0944
Fax: (213) 624-5815
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
PNC Bank, National $66,000,000 One PNC Plaza, 2nd Fl. One PNC Plaza, 6th Fl.
Association 249 Fifth Avenue 249 Fifth Avenue
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: Philip K. Liebshcer Attn: Sally Hunter
Tel: (412) 762-3202 Tel: (412) 768-3807
Fax: (412) 762-6484 Fax: (412) 768-4586
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, $70,000,000 777 South Figueroa 777 South Figueroa
Limited Suite 2600 Suite 2600
Los Angeles, CA 90017 Los Angeles, CA 90017
Attn: Miriam Delgado Attn: Miriam Delgado
Tel: (213) 955-0883 Tel: (213) 955-0883
Fax: (213) 623-6832 Fax: (213) 623-6832
--------------------------------------------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. $80,000,000 191 Peachtree Street, NE 191 Peachtree Street, NE
Atlanta, GA 30303 Atlanta, GA 30303
Attn: John Whitner Attn: Gloria Freeman
Tel: (404) 332-6738 Tel: (404) 332-6485
Fax: (404) 332-6898 Fax: (404) 332-6898
--------------------------------------------------------------------------------------------------------------------
TOTAL OF $1,600,000,000
COMMITMENTS
</TABLE>
