EXHIBIT 10.28
EXECUTION VERSION
PAYOFF LETTER, CONSENT AND AMENDMENT AGREEMENT
This PAYOFF LETTER, CONSENT AND AMENDMENT AGREEMENT, dated as of
November 6, 2002 (this "Agreement"), is among RAYTHEON AIRCRAFT RECEIVABLES
CORPORATION, a Kansas corporation (the "Seller"), RAYTHEON AIRCRAFT CREDIT
CORPORATION, a Kansas corporation, as Servicer (in such capacity, the
"Servicer"), RAYTHEON AIRCRAFT COMPANY, a Kansas corporation ("RAC"), RAYTHEON
COMPANY, a Delaware corporation ("Raytheon"), the financial institutions and
special purpose corporations (the "Purchasers") from time to time party to the
Purchase Agreement (as defined below), BANK OF AMERICA, N.A., as Managing
Facility Agent for the Purchasers (in such capacity, the "Managing Facility
Agent"), JPMORGAN CHASE BANK and BANK OF AMERICA, N.A., as Co-Administrative
Agents for the Purchasers (each in such capacity, a "Co-Administrative Agent"),
X.X. XXXXXX SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Co-Arrangers
and Joint Bookrunners (the "Co-Arrangers"), X.X. XXXXXX SECURITIES INC., as
Syndication Agent (in such capacity, the "Syndication Agent"), CITIBANK, N.A.,
CREDIT SUISSE FIRST BOSTON and FLEET SECURITIES, INC., as Co-Documentation
Agents (each in such capacity, a "Co-Documentation Agent"), and each
Administrative Agent referred to in the Purchase Agreement (in such capacity, an
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto include the parties to that certain Fourth
Amended and Restated Purchase and Sale Agreement, dated as of March 8, 2002 (as
amended and supplemented to date, the "Purchase Agreement");
WHEREAS, the Seller desires to terminate the Commitments of the
Purchasers, other than the Remaining Committed Purchaser referred to below (the
Purchasers having Commitments, other than the Remaining Committed Purchaser, may
be referred to collectively as the "Terminating Committed Purchasers"; all of
the Purchasers, other than the Remaining Committed Purchaser and the Remaining
Conduit Purchaser (referred to below), may be referred to collectively as the
"Terminating Purchasers"), under the Purchase Agreement;
WHEREAS, all of the Purchasers (other than the Remaining Committed
Purchaser and Receivables Capital Corporation (the "Remaining Conduit
Purchaser")) desire to sell to the Seller their respective undivided interests
in the Receivables purchased under the Purchase Agreement and to terminate their
respective Commitments under the Purchase Agreement;
WHEREAS, Bank of America, N.A., in its capacity as a Purchaser (the
"Remaining Committed Purchaser"; the Remaining Committed Purchaser and the
Remaining Conduit Purchaser may be referred to collectively as the "Remaining
Purchasers"), desires to continue to be a Purchaser under the Purchase Agreement
and to reduce its Commitment under
the Purchase Agreement to the amount set forth on Schedule I hereto and in
accordance with the terms set forth below;
WHEREAS, the Remaining Conduit Purchaser desires to continue to be a
Purchaser under the Purchase Agreement and to transfer and convey to the Seller
a portion of the Remaining Conduit Purchaser's undivided interest in the
Receivables, so that the Remaining Conduit Purchaser maintains an undivided
interest in the Receivables (the "Remaining Conduit Purchaser's Retained
Interest") with an Outstanding Purchase Price set forth on Schedule II hereto;
and
WHEREAS, the parties hereto desire that the Purchase Agreement be
amended as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do covenant and agree as follows:
1. Capitalized terms defined in the Purchase Agreement and used but
not otherwise defined herein shall have the respective meanings assigned to them
in the Purchase Agreement (such definitions to be equally applicable to both the
singular and the plural forms of the terms defined). Any term defined by
reference to an agreement, instrument or other document shall have the meaning
so assigned to it whether or not such document is in effect. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement.
2. On the date hereof and on the Repurchase Effective Date referred
to below, each Terminating Purchaser represents and warrants, with respect to
itself only, for the benefit of the other parties hereto that such Terminating
Purchaser has not assigned any or all of its respective undivided interests,
Commitment or other interests under the Purchase Agreement to any other Person,
except as reflected on Annex 1 to this Agreement.
3. The "Repurchase Effective Date" shall be the date of receipt by
the Managing Facility Agent of (i) an executed counterpart of this Agreement
from the Seller, the Servicer, RAC, Raytheon, all of the Purchasers, the
Co-Administrative Agents, the Co-Arrangers, the Joint Bookrunners, the
Syndication Agent, the Co-Documentation Agents and the Old Administrative Agent,
(ii) an amount (the "Repurchase Price"), in immediately available funds from (or
at the direction of) the Seller equal to the sum of (A) the aggregate amount of
the Outstanding Purchase Price under the Purchase Agreement, as set forth on
Schedule III hereto (other than the Outstanding Purchase Price set forth on
Schedule II hereto that will remain outstanding and owing to the Remaining
Purchasers), plus (B) interest accrued and to accrue thereon until (but not
including) the Repurchase Effective Date, which interest shall accrue on and
after the date hereof, at a two-week LIBO Rate (the "Designated LIBO Rate") to
be set by the Managing Facility Agent on or about the second Business Day prior
to November 8, 2002 for the period from and including November 8, 2002 to the
expected Repurchase Effective Date of November 25, 2002, plus (C) fees accrued
and to accrue through the Repurchase Effective Date,
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in the amount as set forth on Schedule III hereto and (iii) an executed letter
agreement, dated of even date herewith, in form and substance satisfactory to
the Managing Facility Agent (in its sole and absolute discretion), among the
Remaining Purchasers, the Managing Facility Agent, the Seller, the Servicer, RAC
and Raytheon. This Section 3 is subject to Section 5 hereof. On the Repurchase
Effective Date, (i) each Terminating Purchaser hereby agrees that all
outstanding amounts due and owing to such Terminating Purchaser related to the
Purchase Agreement shall have been paid in full and each Terminating Purchaser
shall be automatically released from any and all obligations and liabilities
thereunder and (ii) each Terminating Purchaser hereby transfers and reconveys to
the Seller, without recourse and without representation or warranty other than
as set forth in Section 2 above, all of its respective right, title and interest
in, to and under all Receivables, and the Remaining Conduit Purchaser hereby
transfers and reconveys to the Seller, without recourse and without
representation or warranty, all of its right, title and interest (other than the
Remaining Conduit Purchaser's Retained Interest) in, to and under the
Receivables (the interests reconveyed pursuant to this clause (ii) may be
referred to collectively as, the "Reconveyed Interest"). The Seller hereby
accepts the transfer and reconveyance of the Reconveyed Interest.
Notwithstanding any term or provision of this Agreement, nothing in this
Agreement shall terminate the security interests (a) granted under Section 11.11
of the Purchase Agreement or (b) otherwise arising under the Purchase Agreement.
4. The Managing Facility Agent hereby agrees (a) to pay to the
respective Terminating Purchasers and the Remaining Purchasers, promptly
following the Managing Facility Agent's receipt of the Repurchase Price, the
applicable amounts set forth under the names of the Terminating Purchasers and
the Remaining Purchasers on Annex 1 to this Agreement and (b) promptly to notify
each of the Purchasers, the Co-Administrative Agents, the Co-Arrangers, the
Joint Bookrunners, the Syndication Agent, the Co-Documentation Agents and the
Old Administrative Agent of the occurrence of the Repurchase Effective Date.
5. Each of the parties hereto agrees, acknowledges and consents to
(a) the payment by the Seller to the Managing Facility Agent of the Repurchase
Price on the Repurchase Effective Date, notwithstanding any of the provisions of
the Purchase Agreement, (b) the termination of the respective Commitment of each
of the Terminating Purchasers on the Repurchase Effective Date and the reduction
of the Commitment of the Remaining Committed Purchaser on the Repurchase
Effective Date, notwithstanding any of the provisions of the Purchase Agreement,
including Section 2.9 thereof and (c) maintain its respective Commitment and
Outstanding Purchase Price from the date of this Agreement until the Repurchase
Effective Date with interest to accrue thereon at the Designated LIBO Rate,
notwithstanding any of the provisions of the Purchase Agreement; provided,
however that if the Repurchase Effective Date does not occur on or prior to the
expected Repurchase Effective Date of November 25, 2002, interest will accrue at
the Base Rate from (and including) November 25, 2002 until the occurrence of the
Repurchase Effective Date, notwithstanding any of the provisions of the Purchase
Agreement. It is expressly agreed to and understood by the parties hereto that
if the Repurchase Effective Date does not occur on the expected Repurchase
Effective Date of November 25, 2002, then the Repurchase Price shall be
increased accordingly to reflect the interest to accrue (at the Base Rate) and
fees to accrue from (and including) November 25, 2002 until the occurrence of
the Repurchase Effective Date.
3
6. Upon the occurrence of the Repurchase Effective Date, the
Purchase Agreement shall automatically be amended so that (a) the Purchasers
(other than the Remaining Purchasers), the Co-Administrative Agents, the
Co-Arrangers, the Joint Bookrunners, the Syndication Agent and the
Co-Documentation Agents are removed as parties to the Purchase Agreement and
such parties shall no longer have any rights or obligations thereunder (other
than those rights which by their terms survive the termination of the Purchase
Agreement), (b) the Seller shall not request and the Remaining Purchasers shall,
in no event, be under any obligation to purchase any Receivable or any interest
in any Receivable from the Seller (and shall, in no event, be liable for
declining any such request), without the prior written consent of the Remaining
Purchasers, and (c) Schedule I of the Purchase Agreement is amended and replaced
in its entirety by Schedule I to this Agreement.
7. Each of the parties hereto agrees that it shall from time to
time on and after the date hereof, at the sole expense of the Seller, take all
such actions (and execute and deliver all such documents and instruments) as are
reasonably necessary to carry out the purposes and intent of this Agreement.
8. This Agreement shall be binding upon the successors and assigns
of each of the parties hereto and shall inure to the benefit of each of the
parties to the Purchase Agreement, as applicable, and their respective
successors and permitted assigns.
9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ITS CONFLICTS OF LAW
PRINCIPLES).
10. This Agreement may be executed in any number of counterparts,
all such counterparts together constituting but one and the same instrument.
Executed counterparts of this Agreement may be delivered to the Managing
Facility Agent by facsimile transmission. Except as specifically amended hereby,
the Purchase Agreement shall remain in full force and effect. All references to
the Purchase Agreement shall be deemed to mean the Purchase Agreement as amended
and modified hereby. This Agreement shall not constitute a novation of the
Purchase Agreement, but shall constitute an amendment thereof.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above set forth.
RAYTHEON AIRCRAFT RECEIVABLES CORPORATION,
as Seller
By:
----------------------------------------------------
Name:
Title:
RAYTHEON AIRCRAFT CREDIT CORPORATION,
as Servicer
By:
----------------------------------------------------
Name:
Title:
RAYTHEON AIRCRAFT COMPANY
By:
----------------------------------------------------
Name:
Title:
RAYTHEON COMPANY
By:
----------------------------------------------------
Name:
Title:
S-1
BANK OF AMERICA, N.A.
as Managing Facility Agent, Co-Administrative Agent and
Administrative Agent
By:
----------------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Co-Administrative Agent
By:
----------------------------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.,
as Co-Arranger, Syndication Agent and
Joint Bookrunner
By:
----------------------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as Co-Arranger and Joint Bookrunner
By:
----------------------------------------------------
Name:
Title:
S-2
UBS AG, STAMFORD BRANCH,
solely as Administrative Agent
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
----------------------------------------------------
Name:
Title:
S-3
SPC: RECEIVABLES CAPITAL CORPORATION
By:
----------------------------------------------------
Name:
Title:
SPC BANK: BANK OF AMERICA, N.A.
By:
----------------------------------------------------
Name:
Title:
S-4
SPC: CHARTA CORPORATION.
By: CITICORP NORTH AMERICA, INC.,
as Attorney-in-Fact
By:
----------------------------------------------------
Name:
Title:
SPC BANK: CITIBANK, N.A.
By:
----------------------------------------------------
Name:
Title:
S-5
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLAND BRANCH
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-6
SPC: EAGLEFUNDING CAPITAL CORP.
By: FLEET SECURITIES, INC.
By:
----------------------------------------------------
Name:
Title:
SPC BANK: FLEET NATIONAL BANK
By:
----------------------------------------------------
Name:
Title:
S-7
SPC: XXXXXXXX FUNDING CORPORATION
By:
----------------------------------------------------
Name:
Title:
SPC BANK: BNP PARIBAS, NEW YORK BRANCH
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-8
SPC: ATLANTIC ASSET SECURITIZATION CORP.
By: CREDIT LYONNAIS NEW YORK BRANCH,
as Attorney-in-Fact
By:
----------------------------------------------------
Name:
Title:
SPC BANK: CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------------------------
Name:
Title:
S-9
MIZUHO CORPORATE BANK, LTD., formerly known as The
Industrial Bank of Japan, Limited
By:
----------------------------------------------------
Name:
Title:
X-00
XXX XXXXX XXXX XX XXXXXXXX PLC
By:
----------------------------------------------------
Name:
Title:
S-11
SOCIETE GENERALE
By:
----------------------------------------------------
Name:
Title:
S-12
WACHOVIA BANK, NATIONAL ASSOCIATION, formerly
known as First Union National Bank
By:
----------------------------------------------------
Name:
Title:
S-13
SPC: THREE RIVERS FUNDING CORPORATION
By:
----------------------------------------------------
Name:
Title:
S-14
SPC: VICTORY RECEIVABLES CORPORATION
By:
----------------------------------------------------
Name:
Title:
SPC BANK: THE BANK OF TOKYO - MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
----------------------------------------------------
Name:
Title:
S-15
SPC: FALCON ASSET SECURITIZATION CORPORATION
By:
----------------------------------------------------
Name:
Title:
SPC BANK: BANK ONE, NA
By:
----------------------------------------------------
Name:
Title:
S-16
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLAND BRANCH
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-17
SPC: BAVARIA UNIVERSAL FUNDING CORPORATION
By:
----------------------------------------------------
Name:
Title:
SPC BANK: BAYERISCHE HYPO- UND VEREINSBANK AG
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-18
KBC BANK NV
By:
----------------------------------------------------
Name:
Title:
X-00
XXX XXXX XX XXX XXXX
By:
----------------------------------------------------
Name:
Title:
X-00
XXX XXXX XX XXXX XXXXXX
By:
----------------------------------------------------
Name:
Title:
S-21
SPC: PARADIGM FUNDING LLC
By:
----------------------------------------------------
Name:
Title:
SPC BANK: WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-22
BANCA NAZIONALE DEL LAVORO S.p.A.
New York Branch
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
S-23
ANNEX 1 TO THE
PAYOFF LETTER, CONSENT AND
AMENDMENT AGREEMENT
EXISTING COMMITMENT INFORMATION
RECEIVABLES
PURCHASERS COMMITMENTS OUTSTANDING PERCENTAGE
----------------------------------------------------------------------------------------------------------------------
Banca Nazionale del Lavoro S.p.A. 25,000,000.00 18,372,000.17 1.785714285%
Bank of America (Receivables Capital Corp.) 91,200,000.00 67,021,056.61 6.514285714%
Bank of New York (The) 27,000,000.00 19,841,760.20 1.000000000%
Bank of Nova Scotia (The) 27,000,000.00 19,841,760.20 1.928571429%
Bank of Tokyo-Mitsubishi Ltd. (The) (Gotham Funding) 50,000,000.00 36,744,000.38 3.571428572%
Bank One (Falcon Asset Securitization Corp.) 50,000,000.00 36,744,000.38 3.571428572%
Bayerische Hypo-und Vereinsbank (Bavaria Fund) 50,000,000.00 36,744,000.38 3.571428572%
Bayerische Landesbank 50,000,000.00 36,744,000.38 3.571428572%
BNP Paribas (Xxxxxxxx Funding) 75,000,000.00 55,116,000.54 5.357142857%
Citibank N.A. (Charta Corporation) 116,200,000.00 85,393,056.84 8.300000000%
Credit Lyonnais (Atlantic Asset Securitization) 75,000,000.00 55,116,000.54 5.357142857%
Credit Suisse First Boston (Alpine Securitization) 116,200,000.00 85,393,056.84 8.300000000%
Fleet National Bank (Eagle Funding Capital Corp.) 116,200,000.00 85,393,056.84 8.300000000%
JPMorgan Chase Bank 116,200,000.00 85,393,056.84 8.300000000%
KBC Bank 30,000,000.00 22,046,400.21 2.142857143%
Mizuho Corporate Bank, Ltd. (fka IBJ) 75,000,000.00 55,116,000.54 5.357142857%
Royal Bank of Scotland plc (The) 75,000,000.00 55,116,000.54 5.357142857%
Societe Generale 75,000,000.00 55,116,000.54 5.357142857%
Three Rivers Funding Corp. 60,000,000.00 44,092,800.44 4.285714286%
Wachovia Bank 75,000,000.00 55,116,000.54 5.357142857%
Westdeutsche Landesbank (Paradigm Funding LLC) 25,000,000.00 18,372,000.19 1.785714286%
----------------------------------------------------------------------------------------------------------------------
TOTAL 1,400,000,000.00 1,028,832,010.14 100.0000%
======================================================================================================================
1,400,000,000.00 1,028,832,010.14
Annex-1
SCHEDULE I TO THE
PAYOFF LETTER, CONSENT AND
AMENDMENT AGREEMENT
SCHEDULE I
COMMITMENTS AND PURCHASER INFORMATION
Amount of Commitment
Purchaser Commitment Percentage
--------------------------- -------------- ----------
Bank of America, N.A. $ 1,000,000.00 100%
IL1-231-16-02
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx Xxxx
TOTAL $ 1,000,000.00
Schl-1
SCHEDULE II TO THE
PAYOFF LETTER, CONSENT AND
AMENDMENT AGREEMENT
REMAINING CONDUIT PURCHASER'S
RETAINED INTEREST
Remaining Conduit Purchaser's
Remaining Conduit Purchaser Retained Interest
------------------------------- -----------------------------
Receivables Capital Corporation $ 1,000,000.00
x/x Xxxx xx Xxxxxxx, X.X.
XX0-000-00-00
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx Xxxx
Schl-1
SCHEDULE III TO THE
PAYOFF LETTER, CONSENT AND
AMENDMENT AGREEMENT
OUTSTANDING PURCHASE PRICE AND FEES
1.) Outstanding Purchase Price $ 1,028,832,010.14
2.) Fees $ 1,425,026.07
Schl-1
