SERVICES CORPORATION AND ITS
SUBSIDIARIES AND BOEING FINANCIAL CORPORATION, A
35
DELAWARE CORPORATION; AND (B) TOTAL CAPITAL SHALL EXCLUDE THE EFFECTS OF ANY
REPURCHASE BY TBC OF ITS COMMON STOCK AND ANY MERGER-RELATED ACCOUNTING
ADJUSTMENTS WHICH ARE ATTRIBUTABLE TO THE MERGER WITH OR ACQUISITION OF
MCDONNELL DOUGLAS CORPORATION BY TBC.
4.4
WAIVERS OF COVENANTS.
THE DEPARTURE BY TBC OR
ANY SUBSIDIARY FROM THE REQUIREMENTS OF ANY OF THE PROVISIONS OF THIS ARTICLE 4
SHALL BE PERMITTED ONLY IF SUCH DEPARTURE HAS BEEN CONSENTED TO IN ADVANCE IN A
WRITING SIGNED BY THE MAJORITY LENDERS, AND SUCH WRITING SHALL BE EFFECTIVE AS A
CONSENT ONLY TO THE SPECIFIC DEPARTURE DESCRIBED IN SUCH WRITING.
SUCH
DEPARTURE BY TBC OR ANY SUBSIDIARY WHEN PROPERLY CONSENTED TO BY THE MAJORITY
LENDERS SHALL NOT CONSTITUTE AN EVENT OF DEFAULT UNDER SECTION 6.1(C).
ARTICLE 5
CONDITIONS PRECEDENT TO BORROWINGS
5.1
CONDITIONS PRECEDENT TO THE INITIAL BORROWING
OF TBC.
THE OBLIGATION OF EACH LENDER TO MAKE ITS INITIAL ADVANCE TO TBC IS
SUBJECT TO RECEIPT BY THE AGENT ON OR BEFORE THE DAY OF THE INITIAL BORROWING OF
ALL OF THE FOLLOWING, EACH DATED AS OF THE DAY HEREOF, IN FORM AND SUBSTANCE
SATISFACTORY TO THE AGENT AND ITS COUNSEL:
(A)
DOCUMENTATION.
COPIES OF ALL DOCUMENTS,
CERTIFIED BY AN OFFICER OF TBC, EVIDENCING NECESSARY CORPORATE ACTION BY TBC AND
GOVERNMENTAL APPROVALS, IF ANY, WITH RESPECT TO THIS AGREEMENT, TO THE NOTES, IF
ANY, AND TO GUARANTIES TO BE DELIVERED BY TBC PURSUANT TO SECTION 5.4(E);
(B)
OFFICER'S CERTIFICATE.
A CERTIFICATE OF THE
SECRETARY OR AN ASSISTANT SECRETARY OF TBC WHICH CERTIFIES THE NAMES OF THE
OFFICERS OF TBC AUTHORIZED TO SIGN THE NOTES, IF ANY, AND THE OTHER DOCUMENTS TO
BE DELIVERED HEREUNDER, TOGETHER WITH TRUE SPECIMEN SIGNATURES OF SUCH OFFICERS
AND FACSIMILE SIGNATURES OF OFFICERS AUTHORIZED TO SIGN BY FACSIMILE SIGNATURE
(ON WHICH CERTIFICATE EACH LENDER MAY CONCLUSIVELY RELY UNTIL IT RECEIVES A
FURTHER CERTIFICATE OF THE SECRETARY OR AN ASSISTANT SECRETARY OF TBC CANCELING
OR AMENDING THE PRIOR CERTIFICATE AND SUBMITTING SPECIMEN SIGNATURES OF THE
OFFICERS NAMED IN SUCH FURTHER CERTIFICATE);
(C)
OPINION OF COMPANY COUNSEL.
A FAVORABLE
OPINION OF COUNSEL FOR TBC SUBSTANTIALLY IN THE FORM OF EXHIBIT G AND AS TO SUCH
OTHER MATTERS AS THE AGENT MAY REASONABLY REQUEST, WHICH OPINION TBC HEREBY
EXPRESSLY INSTRUCTS SUCH COUNSEL TO PREPARE AND DELIVER;
(D)
OPINION OF AGENT'S COUNSEL.
A FAVORABLE
OPINION OF SHEARMAN & STERLING LLP, COUNSEL FOR THE AGENT, SUBSTANTIALLY IN THE
FORM OF EXHIBIT H;
(E)
TERMINATION OF 2002 AGREEMENT.
TBC SHALL
HAVE TERMINATED IN WHOLE THE COMMITMENTS OF THE BANKS PARTIES TO THE 2002 CREDIT
AGREEMENT; AND
(F)
SATISFACTION OF 2002 AGREEMENT
OBLIGATIONS.
TBC AND ITS SUBSIDIARIES SHALL HAVE SATISFIED ALL OF THEIR
RESPECTIVE OBLIGATIONS UNDER THE 2002 CREDIT AGREEMENT INCLUDING, WITHOUT
LIMITATION, THE PAYMENT OF ALL FEES UNDER SUCH AGREEMENT.
5.2
CONDITIONS PRECEDENT TO EACH COMMITTED
BORROWING OF TBC.
THE OBLIGATION OF EACH LENDER TO MAKE A COMMITTED ADVANCE ON
THE OCCASION OF EACH COMMITTED BORROWING (INCLUDING THE INITIAL