EXHIBIT 10
AMENDED AND RESTATED OPERATING AGREEMENT
THIS AGREEMENT, dated effective as of August 1, 1997 by and between
Boeing Capital Services Corporation ("BCSC"), formerly XxXxxxxxx Xxxxxxx
Financial Services Corporation ("MDFS"), a Delaware corporation, and Boeing
Capital Corporation ("BCC"), formerly XxXxxxxxx Xxxxxxx Finance Corporation
("MDFC"), a Delaware corporation, is hereby amended to read as follows;
"THIS AGREEMENT, dated effective as of August 1, 1997 by and between
Boeing Capital Services Corporation ("BCSC"), formerly XxXxxxxxx Xxxxxxx
Financial Services Corporation ("MDFS"), a Delaware corporation, and Boeing
Capital Corporation ("BCC"), formerly XxXxxxxxx Xxxxxxx Finance Corporation
("MDFC"), a Delaware corporation;
W I T N E S S E T H:
WHEREAS, XxXxxxxxx Xxxxxxx Corporation ("MDC") and the parties hereto
have entered into an Amended and Restated Operating Agreement dated effective as
of April 12, 1993 (the "Operating Agreement"), which provides that MDC shall pay
MDFS for certain tax savings realized by MDC as a result of including MDFS and
its subsidiaries in its consolidated return and that MDFS shall pay MDC for
certain additional taxes incurred by MDC as a result of including MDFS and its
subsidiaries in such return.
WHEREAS, The Boeing Company ("Boeing") and BCSC have entered into a
Supplemental Operating Agreement dated effective as of August 1, 1997 (the
"Supplemental Operating Agreement"), which provides that Boeing shall pay BCSC
for certain tax savings realized by Boeing as a result of including BCSC and its
subsidiaries in its consolidated return and that BCSC shall pay Boeing for
certain additional taxes incurred by Boeing as a result of including BCSC and
its subsidiaries in such return.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Federal Income Taxes. Pursuant to the Supplemental Operating
Agreement, it is the intention of Boeing to continue to file its Federal income
tax returns on a consolidated basis with MDC and BCSC and its subsidiaries in
accordance with the income tax regulations under Section 1502 of the Internal
Revenue Code of 1986, as amended. With respect to each taxable year for which
such practice remains in effect, BCSC agrees to pay to BCC an amount equal to
the excess of (i) the amount of Boeing consolidated Federal income taxes which
would be due for such taxable year if such taxes were computed by excluding BCC
and its subsidiaries, over (ii) the amount of Boeing consolidated Federal income
tax which would be due for such taxable year if such taxes were computed
including BCC and its subsidiaries. If for any such taxable year the amount of
taxes computed in accordance with clause (ii) hereof shall exceed the amount of
taxes computed under clause (i), BCC shall pay BCSC an amount equal to the
excess of the clause (ii) amount over the clause (i) amount. If subsequent to
any payments made by BCSC (or BCC) pursuant to this Section 1, Boeing or BCSC
(or BCC) shall incur Federal income tax losses which under applicable law could
be carried back to the taxable year for which such payments were made, BCC (or
BCSC) will nevertheless be under no obligation to repay to BCSC (or BCC) any
portion of such payments.
Section 2. Miscellaneous.
2.1 This Agreement is not and does not constitute a direct or
indirect guarantee by BCSC of any obligation or debt of BCC.
2.2 This Agreement may be amended, waived or terminated at any
time by written agreement of the parties.
2.3 In no event shall BCC receive an amount under this Agreement
which is materially less (or be obligated to pay an amount which is materially
greater) than the amount that BCC would have received, or have been
obligated to pay, under Section 4 of the Operating Agreement dated as of
January 15, 1975 between MDC and MDFC in the form attached hereto as Exhibit A.
2.4 BCSC hereby assigns to BCC its rights and obligations under
Sections 1, 2 and 3 of the Operating Agreement. 2.5 The Operating
Agreement between MDFS and MDFC dated February 8, 1989 with regard to
Federal Income Taxes is hereby terminated."
BOEING CAPITAL SERVICES CORPORATION
By /S/ XXXXXX X. XXXXXXXXX
Its President
BOEING CAPITAL CORPORATION
By /S/ XXXXXXX X. XXXXXXX
Its Vice President
