Exhibit 10.1
EXECUTION COPY
THIRD AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
among
RAYTHEON AIRCRAFT CREDIT CORPORATION,
as Servicer,
RAYTHEON AIRCRAFT RECEIVABLES CORPORATION,
as Seller,
THE PURCHASERS REFERRED TO HEREIN,
BANK OF AMERICA, N.A.,
as Managing Facility Agent and Documentation Agent,
THE CHASE MANHATTAN BANK,
and
BANK OF AMERICA, N.A.,
as Co-Administrative Agents,
XX XXXXXX,
A DIVISION OF CHASE SECURITIES INC.,
and
BANC OF AMERICA SECURITIES LLC,
as Co-Arrangers
and
Joint Bookrunners,
XX XXXXXX,
A DIVISION OF CHASE SECURITIES INC.,
as Syndication Agent,
CITIBANK, N.A.
and
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agents,
and
EACH ADMINISTRATIVE AGENT REFERRED TO HEREIN
Dated as of March __, 2001
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.................................................... 2
1.1 Defined Terms.................................................. 2
1.2 Other Definitional Provisions.................................. 42
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................ 42
2.1 Agreement to Purchase and Sell; Special Purpose Purchasers;
Initial Utilization and Pro Ration............................. 42
2.2 Procedures for Making Purchases................................ 43
2.3 Special Settlement Dates....................................... 44
2.4 Participated Receivables....................................... 44
2.5 Extended Term Receivables...................................... 45
2.6 Certain Actions Following a Rating Event and a Discount Event.. 45
2.7 Concentration Limits........................................... 47
2.8 Term of Revolving Period....................................... 49
2.9 Termination or Reduction of Commitments........................ 51
2.10 Defaulted Receivables; Application of Lease Security Deposits.. 51
2.10A Delinquent Receivables......................................... 51
2.11 Ineligible Receivables......................................... 53
2.12 Rebated Receivables............................................ 53
2.13 Substitution of Receivables.................................... 54
2.14 Accounts....................................................... 56
2.15 Remittance and Allocation of Collections....................... 60
2.16 Distribution and Application of Collections.................... 61
2.17 Interest and Fees.............................................. 63
2.18 Yield Adjustment............................................... 64
2.19 Computations and Payments...................................... 65
2.20 Pro Rata Treatment............................................. 65
2.21 Illegality..................................................... 66
2.22 Requirements of Law............................................ 66
2.23 Taxes.......................................................... 67
2.24 Reemployment Costs............................................. 68
2.25 Seller's Obligations Absolute and Unconditional................ 68
2.26 Mitigation Obligations; Replacement of Purchaser............... 68
2.27 Designation of Affiliate Receivables and Foreign Receivables... 69
SECTION 3. THE SERVICER AND SERVICING OF PURCHASED RECEIVABLES............ 75
3.1 Designation of Servicer; Removal............................... 75
3.2 Duties of Servicer............................................. 75
3.3 Servicer Reports............................................... 76
3.4 Servicing Fee.................................................. 77
3.5 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer............................................... 77
3.6 Limitation on Liability of the Servicer and Others............. 78
PAGE
3.7 Indemnification of the Seller, the Managing Facility Agent,
the Administrative Agent, the Co-Administrative Agents and
each Purchaser................................................. 78
3.8 The Servicer Not to Resign..................................... 79
3.9 Access to Certain Documentation and Information Regarding
the Contracts.................................................. 79
3.10 Marking of Records............................................. 79
3.11 Additional Covenants of the Servicer........................... 79
(a) Contract Files........................................... 79
(b) Compliance with Law...................................... 79
(c) Preservation of Security Interest........................ 80
(d) Obligations with Respect to Contracts; Modifications..... 80
(e) No Bankruptcy Petition................................... 80
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................. 80
4.1 Representations and Warranties Relating to the Seller.......... 80
(a) Corporate Existence; Compliance with Law................. 80
(b) Corporate Power; Authorization; Enforceable Obligations.. 81
(c) No Legal Bar............................................. 81
(d) No Material Litigation................................... 81
(e) No Default............................................... 81
(f) Federal Regulations...................................... 82
(g) ERISA.................................................... 82
(h) Investment Company Act; Other Regulations................ 82
(i) Place of Business........................................ 82
(j) Information.............................................. 82
4.2 Representations and Warranties Relating to the Receivables..... 82
(a) Eligible Receivables..................................... 83
(b) Ownership or Perfected First Security Interest........... 83
(c) Assignment............................................... 83
(d) No Material Adverse Change............................... 83
(e) Substituted Receivables.................................. 84
(f) No Violation............................................. 84
(g) Entitlement to Section 1110 Benefits..................... 84
(h) Stipulated Aircraft Value................................ 84
(i) Finance Charge Collections............................... 84
4.3 Representations and Warranties Relating to the Servicer........ 84
(a) Corporate Existence; Compliance with Law................. 84
(b) Corporate Power; Authorization; Enforceable Obligations.. 85
(c) No Legal Bar............................................. 85
(d) No Material Litigation................................... 85
(e) No Default............................................... 85
(f) ERISA.................................................... 85
(g) Investment Company Act; Other Regulations................ 86
(h) Place of Business........................................ 86
(i) Information.............................................. 86
SECTION 5. CONDITIONS PRECEDENT............................................ 86
5.1 Conditions to Effectiveness..................................... 86
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PAGE
(a) Purchase and Other Documents............................. 86
(b) Corporate Proceedings and Contracts...................... 86
(c) Corporate Documents; Good Standing Certificates.......... 87
(d) Evidence of Incumbency................................... 87
(e) Officer's Certificates................................... 87
(f) Legal Opinions........................................... 87
(g) Fees..................................................... 88
(h) Amendment to the Intercompany Purchase Agreement......... 88
5.2 Conditions to Each Purchase or Substitution..................... 88
(a) Representations and Warranties........................... 88
(b) Amortization Event....................................... 88
(c) Settlement Statement..................................... 88
(d) Assignments.............................................. 88
(e) Perfection Matters....................................... 89
(f) Certificates............................................. 90
(g) Marking Records.......................................... 90
(h) L/C Receivables.......................................... 90
(i) Refinanced Aircraft...................................... 90
(j) Purchase Report.......................................... 91
(k) Additional Documents..................................... 91
(l) Additional Matters....................................... 91
5.3 Reallocation of Commitments; Addition of New Purchasers......... 91
SECTION 6. AFFIRMATIVE COVENANTS........................................... 92
6.1 Affirmative Covenants of the Seller............................. 92
(a) Reporting Requirements................................... 92
(b) Compliance with Laws, Etc................................ 94
(c) Conduct of Business and Maintenance of Existence......... 94
(d) Maintenance of Property; Insurance....................... 94
(e) Keeping of Records and Books of Account.................. 95
(f) Location of Records...................................... 95
(g) Access................................................... 95
(h) Marking of Records....................................... 95
(i) Credit and Collection Policy............................. 95
(j) Performance and Compliance with Receivables and
Contracts................................................ 96
(k) [Intentionally omitted.]................................. 96
(l) Further Action Evidencing Interests of Administrative
Agent and Purchasers........................................ 96
(m) Separate Corporate Existence............................. 96
(n) Existing Receivables Perfection Matters.................. 97
6.2 Affirmative Covenants of the Servicer........................... 98
(a) Compliance with Laws, Etc................................ 98
(b) Conduct of Business and Maintenance of Existence......... 98
(c) Maintenance of Property; Insurance....................... 98
(d) Keeping of Records and Books of Account.................. 98
(e) Location of Records...................................... 99
(f) Access................................................... 99
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PAGE
(g) Credit and Collection Policy............................. 99
(h) Ownership of Affiliate Obligors.......................... 99
SECTION 7. NEGATIVE COVENANTS.............................................. 99
7.1 Negative Covenants of the Seller................................ 99
(a) Sales, Liens, Etc........................................100
(b) Extension or Amendment of Purchased Receivables..........100
(c) Change in Business or Credit and Collection Policy.......101
(d) No Actions against Obligors..............................101
(e) Security Interest to Remain in Force.....................101
(f) Limitations on Fundamental Changes.......................102
(g) Transactions with Affiliates.............................102
(h) Fiscal Year..............................................102
(i) Assignment of Contracts..................................102
(j) Substitution of Engines..................................102
(k) Indebtedness.............................................103
(l) Guarantees...............................................103
(m) Investments..............................................103
(n) Distributions............................................103
(o) Agreements...............................................103
(p) Intercompany Purchase Agreement..........................103
7.2 Negative Covenants of the Servicer..............................103
(a) No Actions against Obligors..............................104
(b) Security Interest to Remain in Force.....................104
(c) Limitations on Fundamental Changes.......................104
(d) Transactions with Affiliates.............................104
(e) Assignment of Contracts..................................104
(f) Change in Credit and Collection Policy...................104
SECTION 8. AMORTIZATION EVENTS.............................................104
8.1 Amortization Events............................................104
8.2 Rights and Remedies............................................108
8.3 Waivers........................................................110
SECTION 9. INDEMNIFICATIONS................................................110
9.1 Indemnities of the Seller......................................110
9.2 Limitations of Seller's Liability..............................112
9.3 Proceedings against Indemnified Person.........................113
SECTION 10. THE MANAGING FACILITY AGENT AND ADMINISTRATIVE AGENT............114
10.1 Appointment....................................................114
10.2 Delegation of Duties...........................................114
10.3 Exculpatory Provisions.........................................114
10.4 Reliance by Managing Facility Agent and Administrative Agent...115
10.5 Notice of Certain Events.......................................115
10.6 Non-Reliance on Managing Facility Agent, the Administrative
Agent, the Co-Administrative Agents and the Purchasers.........116
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PAGE
10.7 Indemnification................................................116
10.8 Managing Facility Agent and Administrative Agent in Their
Individual Capacities..........................................117
10.9 Successor Managing Facility Agent or Administrative Agent......117
SECTION 11. MISCELLANEOUS...................................................117
11.1 Amendments and Waivers.........................................117
11.2 Notices........................................................119
11.3 No Waiver; Cumulative Remedies.................................120
11.4 Survival of Representations and Warranties.....................120
11.5 Payment of Expenses and Taxes..................................120
11.6 Successors and Assigns; Participations; Purchasing Parties.....121
11.7 Adjustments; Set-off...........................................123
11.8 Responsibilities of the Seller.................................124
11.9 Optional Repurchase............................................124
11.10 Reassignments..................................................125
11.11 Intention of the Parties; Lien on Intercompany Purchase
Agreement......................................................126
11.12 Leases; Grant of Security Interest.............................128
11.13 Power of Attorney..............................................130
11.14 Counterparts...................................................131
11.15 Severability; Headings.........................................131
11.16 Integration....................................................132
11.17 GOVERNING LAW..................................................132
11.18 Submission To Jurisdiction; Waivers............................132
11.19 Acknowledgements...............................................133
11.20 WAIVERS OF JURY TRIAL..........................................133
11.21 Bankruptcy Petition............................................133
11.22 Confidentiality................................................133
11.23 Claims Against SPCs............................................134
11.24 Resales........................................................134
11.25 Repurchase of Delinquent Receivables...........................136
11.26 Amendment to Guarantee.........................................136
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SCHEDULES AND EXHIBITS
Schedule I Commitments and Purchaser Information
Schedule II UCC Filing Locations
Schedule III Prohibited Foreign Jurisdictions
Exhibit A-1 Form of Assignment
Exhibit A-2 Form of FAA Assignment (Used on the Closing Date - Loans)
Exhibit A-3 Form of FAA Assignment (To Be Used on Settlement Dates after the
Effective Date - Loans)
Exhibit A-4 Form of FAA Assignment (Used on Closing Date - Leases)
Exhibit A-5 Form of FAA Assignment (To Be Used on Settlement Dates after the
Effective Date - Leases)
Exhibit B-1 Form of Amended and Restated Guarantee
Exhibit B-2 Form of Guarantee Amendment and Reaffirmation
Exhibit C Form of Settlement Statement
Exhibit D Form of Transfer Supplement
Exhibit E-1 Form of Legal Opinion of General Counsel to the Seller, Raytheon
Credit and RAC
Exhibit E-2 Form of Legal Opinion of General Counsel of Raytheon
Exhibit F-1 Form of Bailment Agreement
Exhibit F-2 Form of Bailment Agreement
Exhibit G-1 Form of Amended and Restated Repurchase Agreement
Exhibit G-2 Form of Repurchase Agreement Reaffirmation
Exhibit H Form of Special Settlement Date Notice
Exhibit I Form of Purchase Report
Exhibit J Form of Amendment to Intercompany Purchase Agreement
-vi
THIRD AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, dated as of
March __, 2001, among RAYTHEON AIRCRAFT RECEIVABLES CORPORATION, a Kansas
corporation (the "Seller"), RAYTHEON AIRCRAFT CREDIT CORPORATION ("Raytheon
Credit"), as Servicer (as defined herein), the financial institutions and
special purpose corporations from time to time parties to this Agreement (the
"Purchasers"), BANK OF AMERICA, N.A., as Managing Facility Agent for the
Purchasers (in such capacity, the "Managing Facility Agent"), THE CHASE
MANHATTAN BANK and BANK OF AMERICA, N.A., as Co-Administrative Agents for the
Purchasers (in such capacity, a "Co-Administrative Agent"), XX XXXXXX, A
DIVISION OF CHASE SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Co-
Arrangers and Joint Bookrunners, XX XXXXXX, A DIVISION OF CHASE SECURITIES INC.,
as Syndication Agent (in such capacity, the "Syndication Agent"), CITBANK, N.A.
and CREDIT SUISSE FIRST BOSTON, as Co-Syndication Agents (in such capacity, a
"Co-Syndication Agent"), and each Administrative Agent referred to herein.
W I T N E S S E T H :
---------------------
WHEREAS, the Seller, Raytheon Credit and certain of the Purchasers
herein are parties to the Second Amended and Restated Purchase and Sale
Agreement, dated as of March 10, 2000, (as heretofore amended, supplemented or
otherwise modified, the "2000 Agreement") pursuant to which such Purchasers have
agreed to purchase, and have purchased, certain Receivables from the Seller;
WHEREAS, the parties hereto desire to amend the 2000 Agreement to,
among other things, permit certain resales of receivables as described herein,
abide by certain accounting rules as described herein, modify the commitment fee
and certain of the concentration limits provided in the 2000 Agreement and
extend the Expiration Date;
WHEREAS, certain of the Purchasers under the 2000 Agreement (the
"Withdrawing Purchasers") desire to sell their undivided interests in the
Receivables purchased thereunder and to terminate their respective Commitments
under the 2000 Agreement on the Amendment Effective Date;
WHEREAS, the Purchasers under the 2000 Agreement other than the
Withdrawing Purchasers (the "Extending Purchasers") desire to extend the
Expiration Date;
WHEREAS, certain new financial institutions and special purpose
corporations (such other financial institutions and corporations, the "New
Purchasers") desire to become "Purchasers" under the 2000 Agreement as amended
and restated hereby;
WHEREAS, each of the Extending Purchasers and the New Purchasers
desires to extend, increase or decrease its Commitment such that, on the
Amendment Effective Date, the Commitment of each such Purchaser will be as shown
on Annex A hereto opposite the name of such Purchaser; and
2
WHEREAS, the parties hereto desire to restate the 2000 Agreement as so
amended, modified and supplemented, in its entirety;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"Acceptable L/C Issuer": a financial institution whose senior long-
term unsecured debt is rated at least A and A2 by S&P and Xxxxx'x,
respectively, if rated by both such agencies, or at least A or A2 by S&P or
Xxxxx'x respectively, if rated by only one such agency, or if such senior,
long-term, unsecured debt is not rated, is issued by a bank whose long-term
deposits are rated at least A+ and A1 by S&P and Xxxxx'x, respectively, if
rated by both such agencies, or A+ or A1 by S&P or Xxxxx'x, respectively,
if rated by only one such agency.
"Accrual Period": (i) with respect to any Settlement Date, the period
from and including the preceding Settlement Date (or, with respect to the
initial Accrual Period, from the Closing Date) to but excluding such
Settlement Date and (ii) a Special Settlement Date Accrual Period.
"Administrative Agent": the collective reference to the Managing
Facility Agent and the Old Administrative Agent, each in its role as
administrative agent hereunder.
"Affiliate": as to any Person, (a) any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person or (b) any other Person who is a director,
officer, partner or shareholder of such Person who, in the case of partners
and shareholders, owns, directly or indirectly, 10% or more of the voting
securities (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in the preceding clause (a). For purposes of
this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (ii)
direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Affiliate Obligor": each Affiliate of Raytheon Credit obligated to
make payments in respect of a Receivable; provided that, such Affiliate is
a special purpose entity created solely for the purpose of entering into
Applicable Leases and does not and is not expected to own any assets or
incur any liabilities except in connection with the performance of its
obligations under the Contracts pursuant to which it acquires Aircraft and
the Applicable Leases of such Aircraft.
"Affiliate Receivable": a Receivable created pursuant to a Contract
(as described in clause (i) of the definition thereof) between Raytheon
3
Credit and an Affiliate Obligor located (within the meaning of Section 9-
103 of the New York UCC) within the United States which Receivable (i) is
created in connection with the acquisition by such Affiliate Obligor of an
Aircraft which is leased by such Affiliate Obligor, as lessor, to an
Unaffiliated Foreign Lessee pursuant to an Applicable Lease and (ii) is
secured by a Lien upon (x) such Aircraft and (y) such Unaffiliated Foreign
Lessee's obligations under such Applicable Lease. In accordance with
subsection 2.27, Affiliate Receivables may be categorized as Certified
Foreign Receivables or Uncertified Foreign Receivables.
"Aggregate Exposure":
(a) at any time during the Revolving Period, an aggregate amount equal to the
Commitments in effect at such time and each Dissenting Purchaser's
Outstanding Purchase Price at such time; and
(b) at any time during the Amortization Period, an aggregate amount equal to
the Outstanding Purchase Price of each Purchaser (including each Dissenting
Purchaser) at such time.
"Aggregate Repurchase Obligation": at any time, the sum of the
Repurchase Obligation and the RAC Repurchase Obligation.
"Agreement": this Third Amended and Restated Purchase and Sale
Agreement, as amended, supplemented or otherwise modified from time to
time.
"Aircraft": the collective reference to Commuter Aircraft and General
Aviation Aircraft. When used in connection with a Travel Air Receivable,
"Aircraft" shall mean the related Obligor's undivided interest in the
applicable Aircraft.
"Aircraft Accessories": any of the items listed in clause (ii) of the
definition of Commuter Aircraft and General Aviation Aircraft, as
applicable.
"Amendment Effective Date": as defined in Section 5.1.
"Amortization Adjustment": the adjustment set forth below for the
number of days since (i) for each Purchaser that is not a Dissenting
Purchaser, the commencement of the Amortization Period or (ii) for each
Dissenting Purchaser, the commencement of amortization of such Dissenting
Purchaser's Outstanding Purchase Price pursuant to Section 2.8(b):
Days Adjustment
------------------------------------- --------------------------
1 through 180 0.25% per annum
181 through 360 0.50% per annum
Thereafter 1.00% per annum
4
"Amortization Event": any of the events described in subsection 8.1,
whether or not any of the actions referred to in subsection 8.2 have been
taken.
"Amortization Period": the period beginning on the first day after
the termination of the Revolving Period and ending on the earlier of (i)
the day the Outstanding Purchase Price is reduced to zero as a result of
the application of Collections and other payments and (ii) the day on which
the Principal Balance of all Purchased Receivables has been reduced to zero
as a result of Collections and Net Recoveries.
"Applicable Lease": with respect to any Affiliate Receivable, a lease
contract (substantially in the form described in clause (ii) of the
definition of Contract and which lease contract contains an option to
purchase the related Financed Aircraft by the Unaffiliated Foreign Lessee
prior to the expiration of such lease contract) between the Affiliate
Obligor and the Unaffiliated Foreign Lessee, a Lien upon which secures the
repayment of such Affiliate Receivable.
"Applicable Margin": (a) for each Purchaser for any Settlement
Period, the rate per annum set forth below for Raytheon's applicable Debt
Rating:
Debt Rating Applicable Margin
------------------------------------- --------------------------
A or the equivalent thereof 0.565%
A- or the equivalent thereof 0.600%
BBB+ or the equivalent thereof 0.625%
BBB or the equivalent thereof 0.725%
BBB- or the equivalent thereof 1.000%
BB+ or the equivalent thereof 1.500%
below BB+ or the equivalent thereof 2.000%
(b) For purposes of this definition, changes to the Debt Rating will
be effective for all Settlement Periods commencing on the Settlement Date
next succeeding any such change.
"Applicable Settlement Date": as defined in the definition of
"Ineligible Receivable".
"Assignment": an assignment, substantially in the form of Exhibit A-1
with appropriate insertions and attachments, executed by the Seller or an
Affiliate Obligor, as the case may be, and delivered to the Managing
Facility Agent or the Seller, as the case may be, with respect to each
purchase or substitution.
5
"Available Commitment": as to any Purchaser at any time, an amount
equal to the excess, if any, of (a) the amount of such Purchaser's
Commitment over (b) the product of such Purchaser's Available Commitment
Percentage multiplied by the aggregate Outstanding Purchase Price
(excluding any Dissenting Purchaser's Outstanding Purchase Price at such
time).
"Available Commitment Percentage": as to any Purchaser at any time, a
fraction the numerator of which is the Commitment of such Purchaser at such
time and the denominator of which is the aggregate Commitments at such
time.
"Aviation Act": the Federal Aviation Act of 1958, as amended, and all
applicable rules and regulations thereunder.
"Bailee": any Person (other than the Administrative Agent and the
Seller) which enters a Bailment Agreement.
"Bailment Agreement": each agreement, substantially in the form of
Exhibit F-1 or F-2 with such changes thereto as are reasonably satisfactory
in form and substance to the Managing Facility Agent, among an
Administrative Agent, the Seller and the Person therein designated, which
Person shall be acceptable to the Managing Facility Agent in its reasonable
discretion, to maintain custody, as the bailee of the Administrative Agent
and the Purchasers, of the letter of credit related to each L/C Receivable
sold or substituted hereunder on the terms and subject to the conditions
set forth therein, as any of the same may be amended, supplemented or
otherwise modified from time to time.
"Base Rate": for any day, the higher of (a) 0.50% per annum above the
latest Federal Funds Rate and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America, N.A. in
Charlotte, North Carolina, as its "reference rate". The "reference rate"
is a rate set by Bank of America, N.A. based upon various factors including
Bank of America, N.A.'s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate.
Any change in the reference rate announced by Bank of America, N.A. shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Benefitted Purchaser": as defined in subsection 11.7(a).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York, Wichita, Kansas, Boston,
Massachusetts, or San Francisco, California are authorized or required by
law to close.
"Buyout Amount": as defined in subsection 2.8(b)(iii).
"Cash Collateral Account": as defined in subsection 2.14(c)(i).
"Cash Equivalents": (a) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities not later than the Settlement
6
Date following the date of acquisition, (b) certificates of deposit and
eurodollar time deposits with maturities not later than the Settlement Date
following the date of acquisition, bankers' acceptances with maturities not
later than the Settlement Date following the date on which such investment
is made and overnight bank deposits, in each case, with any commercial bank
(i) the short-term indebtedness of which is rated at least A-1 or P-1 by
S&P or Xxxxx'x, respectively, and (ii) with capital and surplus in excess
of $500,000,000, (c) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (a)
and (b) entered into with any financial institution meeting the
qualifications specified in clause (b) above, and (d) commercial paper
rated at least A-1 or P-1 by S&P or Xxxxx'x, respectively, and in each case
with maturities not later than the Settlement Date following the date of
acquisition.
"Cash Flow Cutoff Date": as of any Settlement Date and with respect
to any Extended Term Receivable, (i) so long as no Rating Event has
occurred and is continuing, the date which is thirteen years after such
Settlement Date and (ii) during the continuation of a Rating Event, the
date which is ten years after such Settlement Date.
"Certified Foreign Receivable": each Affiliate Receivable and each
Foreign Receivable (i) in the case of a Foreign Receivable which is not a
Lease Receivable, (x) in respect of which the obligations of the related
Obligor are secured by a Lien on the related Contract and Financed Aircraft
in compliance with subsections 5.2(e)(ii) and (vii), (y) which has been so
designated as a Certified Foreign Receivable in compliance with subsection
2.27 and (z) in respect of which the Seller has satisfied the conditions
specified in subsection 5.2 (including subsection 5.2(e)), (ii) in the case
of a Foreign Receivable which is a Lease Receivable (including a
Registerable Lease Receivable with a Foreign Obligor) (x) in respect of
which the obligations of the related Obligor are secured by a Lien on the
related Contract and Financed Aircraft in compliance with subsections
5.2(e)(iii), (iv) and (vii), (y) which has been so designated as a
Certified Foreign Receivable in compliance with subsection 2.27 and (z) in
respect of which the Seller has satisfied the conditions specified in
subsection 5.2 (including subsection 5.2(e)) and (iii) in the case of an
Affiliate Receivable (x) in respect of which the obligations of the related
Obligor are secured by a Lien on the related Contract and Financed Aircraft
in compliance with subsections 5.2(e)(vi) and (vii), (y) which has been so
designated as a Certified Foreign Receivable in compliance with subsection
2.27 and (z) in respect of which the Seller has satisfied the conditions
specified in subsection 5.2 (including subsection 5.2(e)).
"Certified Opinion Delivery Date": as defined in subsection 2.27(c).
"Closing Date": March 24, 1997.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": as defined in subsection 11.11(b).
"Collection Account": as defined in subsection 2.14(a).
7
"Collections": with respect to any Purchased Receivable, all cash
collections (including, without limitation, Principal Collections, Finance
Charge Collections and other payments (including penalties, if any)), rent
paid under any Contract (whether as Principal Collections or Finance Charge
Collections), all security deposits (including, without limitation, any
engine reserve account), any payments pursuant to guarantees and all
amounts paid by any Obligor or Unaffiliated Foreign Lessee upon the
exercise of any purchase option under any Contract (including any amounts
financed by the Seller), the amount of drawings under a letter of credit
related to such Purchased Receivable, any insurance paid in respect of an
Exim Bank Receivable, any curtailment payments made by an Obligor in
respect of a Wholesale Receivable, and any other cash proceeds of any
Purchased Receivable or proceeds of such Purchased Receivable, including,
without limitation, any proceeds from realization upon collateral
(including, without limitation, any Financed Aircraft, Applicable Lease,
insurance proceeds, letters of credit, security deposits, curtailment
payments, indemnity payments or any other cash payments under or with
respect to the related Contract) and any amounts withdrawn from the Cash
Collateral Account pursuant to subsection 2.14(c).
"Commitment": as to any Purchaser, the obligation of such Purchaser
to purchase undivided interests in Eligible Receivables from the Seller in
an amount at any one time outstanding not to exceed the amount set forth
opposite such Purchaser's name on Schedule I, as reduced from time to time
in accordance with the terms hereof; as to all the Purchasers on the
Amendment Effective Date, not to exceed an aggregate amount of
$2,075,000,000.
"Commitment Fee": as defined in subsection 2.17(d).
"Commitment Percentage":
(a) at any time during the Revolving Period and as to any Purchaser
other than a Dissenting Purchaser, a fraction, the numerator of which is
the Commitment of such Purchaser in effect at such time and the denominator
of which is equal to the Aggregate Exposure at such time;
(b) at any time during the Revolving Period and as to a Dissenting
Purchaser, a fraction, the numerator of which is the Outstanding Purchase
Price of such Dissenting Purchaser at such time and the denominator of
which is equal to the Aggregate Exposure at such time; and
(c) at any time during the Amortization Period and as to any Purchaser,
including a Dissenting Purchaser, a fraction the numerator of which is
equal to the Outstanding Purchase Price of such Purchaser at such time and
the denominator of which is equal to the Aggregate Exposure at such time.
"Commitment Transfer Supplement": a Commitment Transfer Supplement,
substantially in the form of Exhibit D.
8
"Commonly Controlled Entity": with respect to a Person, an entity,
whether or not incorporated, which is under common control with such Person
within the meaning of Section 4001 of ERISA or is part of a group which
includes such Person and which is treated as a single employer under
Section 414 of the Code.
"Commuter Aircraft": the Models 1300, 1900 and 99 Beechcraft
manufactured by RAC and comparable general aviation aircraft used for
commuter airline purposes manufactured by any other Person including, in
all cases, without limitation, (i) any and all airframes, engines,
(including, without limitation, any replacement or substituted engines) and
avionics, equipment and accessories at any time attached to, connected with
or located in any such aircraft and, to the extent covered by the recording
system of the Aviation Act, all logs, manuals and maintenance records with
respect thereto and (ii) any and all avionics, equipment and accessories
removed from any Aircraft and, to the extent not covered by the recording
system of the Aviation Act, all logs, manuals and maintenance records.
"Commuter Receivable": a Receivable the Obligor of which owns and
operates a commuter airline.
"Concentration Account": as defined in subsection 2.14(b).
"Concentration Receivables": as defined in subsection 2.7(b).
"Consolidated Capitalization": at a particular date, the sum of
Consolidated Debt and Consolidated Net Worth at such date.
"Consolidated Debt": at a particular date, all amounts which would be
included as indebtedness (including capitalized leases) on a consolidated
balance sheet of Raytheon and its consolidated Subsidiaries, determined in
accordance with GAAP.
"Consolidated EBITDA": for any period, the sum of (a) Consolidated
Net Income for such period and (b) the aggregate amounts deducted in
determining Consolidated Net Income in respect of (i) Consolidated Net
Interest Expense for such period and (ii) income taxes, depreciation and
amortization of Raytheon and its consolidated Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income (or deficit) of Raytheon and its consolidated Subsidiaries for such
period, determined in accordance with GAAP; provided that (i) for the
fiscal quarter of Raytheon and its consolidated Subsidiaries ending
December 31, 1997, such Consolidated Net Income shall be increased by
$327,100,000 representing a restructuring charge taken in connection with
Raytheon's acquisition of Xxxxxx Aircraft Company, (ii) for the fiscal
quarter of Raytheon and its consolidated Subsidiaries ending September 27,
1998, such Consolidated Net Income shall be increased by $284,000,000
representing restructuring charges and a write-down in investments taken
in such fiscal quarter, (iii) for the fiscal quarter of Raytheon and its
consolidated Subsidiaries ending October 3, 1999, such Consolidated Net
Income shall be increased by $144,000,000 representing restructuring
9
charges and other non-recurring charges taken in such fiscal quarter and
(iv) for the fiscal quarter of Raytheon and its consolidated Subsidiaries
ending July 2, 2000, such Consolidated Net Income shall be increased by
$191,000,000 representing one-time charges recorded in connection with
Raytheon Engineers and Constructors.
"Consolidated Net Interest Expense": for any period, net interest
expense of Raytheon and its consolidated Subsidiaries for such period,
determined in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would, in conformity with GAAP, be included under stockholders' equity on a
consolidated balance sheet of Raytheon and its consolidated Subsidiaries at
such date.
"Contract": with respect to a Receivable, the collective reference to
(a) the promissory notes, security agreements, leases, financing and
security agreements, contracts, documents and instruments between the
Seller and the Obligor thereon on the Seller's standard form therefor (as
in effect on the Closing Date) or such other forms as shall contain
substantially similar provisions to such standard forms, pursuant to which
the Seller has (i) lent the Obligor funds to purchase an Aircraft or, in
the case of the Travel Air Receivables, an undivided interest therein, and
the Obligor has agreed to make installment payments in respect of such
purchase, or (ii) leased an aircraft or, in the case of the Travel Air
Receivables, an undivided interest therein; to the Obligor, in each case,
as amended, supplemented or otherwise modified from time to time and (b)
upon the occurrence of an event of the type described in subsection 8.1(j)
affecting the Seller, each and every promissory note, security agreement,
lease, financing and security agreement, contract, document and instrument
executed in replacement or supersession of another Contract described in
clause (a) with the same Obligor, or executed upon extension, modification
or amendment of such Contract, whether in connection with an agreement
pursuant to Section 1110 of the Bankruptcy Code (11 USC (S) 1110) or
otherwise. Whenever used in connection with any Purchased Receivables,
unless the context otherwise requires "Contract" shall include any
Applicable Lease securing the obligations of the Affiliate Obligor under
such Purchased Receivable.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit and Collection Policy": those credit and collection policies
and practices of the Seller and the Servicer existing on the Closing Date
relating to the Receivables (including, without limitation, policies
relating to writeoffs of Receivables and policies and practices maintained
by the Seller's or the Servicer's computer system and policies set forth in
the form previously delivered to the Purchasers, as modified from time to
time in accordance with subsection 7.1(c).
"Dealer": any independent dealer or Affiliate of Raytheon Credit
which markets and sells Aircraft.
10
"debis Purchase Agreement": the Asset Purchase Agreement among
Raytheon Credit, the Seller and debis Financial Services, Inc., dated as of
March 22, 2000, as amended.
"Debt Rating": at any date of determination, Raytheon's long-term
unsecured senior debt rating, determined in accordance with the following:
(a) for purposes of determining a Debt Rating as used in the definition
of "Applicable Margin" and as used in calculating the Commitment Fee
pursuant to Section 2.17(d), if on any date on which a Debt Rating is to be
determined, Xxxxx'x and S&P are providing long-term unsecured senior debt
ratings for Raytheon, the Debt Rating will be the lower of such ratings;
provided that (i) if Raytheon's long-term unsecured senior debt is rated at
least BBB- or the equivalent thereof by both Xxxxx'x and S&P and (ii) the
differential between the Xxxxx'x and S&P rating is more than one ratings
level (i.e. the difference between A and A+ being one ratings level), then
the Debt Rating will equal the lower of such ratings plus one ratings
level; and
(b) for all other purposes, if on any date on which a Debt Rating is to
be determined, either one or both of Xxxxx'x and S&P are providing long-
term unsecured senior debt ratings for Raytheon, the Debt Rating will be
the higher of the ratings (or the rating, in the case of a rating by only
one of Xxxxx'x and S&P) so provided.
A debt rating shall be deemed to be in effect on the date of announcement
or publication by the applicable rating agency. References in this
Agreement to alphabetical rating classifications are references to the S&P
ratings. Notwithstanding the foregoing, the Seller and the Purchasers may
at any time and from time to time agree to utilize a rating agency other
than Xxxxx'x or S&P to determine the Debt Rating, in which case the Debt
Rating shall be such levels as quoted by such rating agencies as, in each
case, the Seller and the Purchasers, by unanimous consent, shall agree.
"Debt Ratio": at a particular date, the ratio of Consolidated Debt at
such date to Consolidated Capitalization at such date.
"Default Rate": as defined in subsection 2.17(c).
"Defaulted Applicable Lease": an Applicable Lease (i) as to which any
payment thereon or part thereof remains unpaid by the Unaffiliated Foreign
Lessee thereon for (x) 120 days in the case of a GA Receivable or (y) 150
days in the case of a Commuter Receivable, from, in each case, the original
due date for such payment by such Unaffiliated Foreign Lessee, (ii) as to
which the Unaffiliated Foreign Lessee thereof has taken or suffered any
action of the type described in subsection 8.1(j) with respect to such
Person or (iii) which, consistent with the Credit and Collection Policy,
would be written off the Seller's books as uncollectible.
11
"Defaulted Receivable": a Receivable, (i) in the case of a GA
Receivable or a Travel Air Receivable, as to which any payment on such
Receivable or part thereof remains unpaid by the Obligor thereon for 120
days from the original due date for such payment by such Obligor, (ii) in
the case of a Commuter Receivable, as to which any payment on such
Receivable or part thereof remains unpaid by the Obligor thereon for 150
days from the original due date for such payment by such Obligor, (iii) in
the case of a Wholesale Receivable, as to which any payment on such
Receivable or part thereof remains unpaid by the Obligor thereon for 60
days from the original due date for such payment by such Obligor, (iv) in
the case of an Affiliate Receivable, as to which the Applicable Lease
related thereto is a Defaulted Applicable Lease or (v) any Receivable as to
which the Obligor thereof has taken or suffered any action of the type
described in subsection 8.1(j) with respect to such Obligor or which,
consistent with the Credit and Collection Policy, would be written off the
Seller's books as uncollectible.
"Delinquent Receivable": an Eligible Receivable a payment under which
is more than 90 days past due from the original due date therefor, but
which is not otherwise a Defaulted Receivable
"Discount Event": any time on or prior to the Expiration Date when
Raytheon's Debt Rating is lower than BBB- or the equivalent thereof.
"Dissenting Purchaser": as defined in subsection 2.8(b).
"Domestic Wholesale Receivable": a Receivable arising under a
wholesale financing arrangement between Raytheon Credit and, as Obligor
thereunder, a Dealer which is located (within the meaning of Section 9-103
of the New York UCC) in the United States.
"Effective Date": as defined in Section 5.1 of the 1997 Agreement.
"Eligible Applicable Lease": (x) with respect to each Affiliate
Receivable other than an Existing Affiliate Receivable, at the time of
purchase or substitution of such Affiliate Receivable pursuant to this
Agreement, an Applicable Lease related thereto:
(a) the Unaffiliated Foreign Lessee of which (i) is not an Affiliate
of Raytheon Credit or the Servicer, (ii) is not located in a Prohibited
Jurisdiction, (iii) is not, except to the extent permitted under
subsection 2.7, a Governmental Authority unless the Affiliate Obligor,
Raytheon Credit and the Seller have complied with the requirements of
each applicable Requirement of Law pertaining to the assignment of
accounts receivable the obligor of which is a Governmental Authority,
all in a manner satisfactory to the Managing Facility Agent and the
Required Purchasers in their reasonable discretion and (iv) is not the
Unaffiliated Foreign Lessee or the Obligor, or an Affiliate of an
Obligor or Unaffiliated Foreign Lessee, on any Receivable or Applicable
Lease which is a Defaulted Receivable or Defaulted Applicable Lease, as
appropriate;
12
(b) which is neither more than 30 days past due from the original due
date therefor nor otherwise a Defaulted Applicable Lease;
(c) which arose in the ordinary course of Raytheon Credit's business
from financing the retail purchase or lease financing of an Aircraft and
relates to an Aircraft which will be used for general aviation purposes
or with respect to the ownership and operation of a commuter airline,
but not for military purposes;
(d) which is subject only to adjustment for changes in payments in
accordance with the terms thereof resulting from changes in the interest
rates thereunder and the payment terms of which are identical to the
payment terms set forth in the related Affiliate Receivable;
(e) which is an "account" or a "general intangible" or which
constitutes "chattel paper" within the meaning of the UCC of the State
of Kansas or the law of the state where the Seller or the Servicer
maintains the books, records and documents with respect to such
Receivable;
(f) which is denominated and payable only in United States dollars in
the United States;
(g) which (i) has been duly authorized by each party thereto (or, if
any such party is an individual, such party has the capacity to enter
into) and each of the parties thereto is in compliance therewith in all
material respects, (ii) was not originated with any conduct constituting
fraud or a material misrepresentation on the part of the Affiliate
Obligor, Raytheon Credit or the Seller, (iii) was not originated with
any conduct constituting fraud or a material misrepresentation by the
Unaffiliated Foreign Lessee party thereto of which Raytheon Credit, the
Seller or the Affiliate Obligor thereto knew or should have known based
on the exercise of reasonable care, (iv) constitutes the legal, valid
and binding obligation of the Unaffiliated Foreign Lessee thereof
enforceable against such Unaffiliated Foreign Lessee in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law), (v) contains enforceable provisions such that the
rights and remedies of the holder of the security interest created
therein are adequate for the realization of the benefits of such
security interest against the related Unaffiliated Foreign Lessee and
the other collateral therefor and (vi) if the engine for the related
Financed Aircraft has 750 or more rated takeoff horsepower (or the
equivalent of such horsepower), accurately describes the engines of such
Financed Aircraft as provided for in such Applicable Lease;
(h) which is not subject to any existing material dispute, offset,
counterclaim or defense whatsoever (including, but not limited to,
breach of warranty) of which Raytheon Credit, the Seller or the Servicer
knows or should have known;
13
(i) which does not, or at the time of lease of the Financed Aircraft
did not, contravene any Requirements of Law applicable thereto in any
material respect (including, without limitation, laws, rules and
regulations relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party thereto is in
violation of any such Requirement of Law in any material respect;
(j) which was originated in accordance with the Credit and Collection
Policy and satisfied all requirements thereof;
(k) on which either at least one payment or a down payment (including
a trade-in) has been made prior to the Closing Date or the Settlement
Date on which the related Affiliate Receivable is purchased or
substituted;
(l) the payment terms of which have not been modified other than (i)
in accordance with the Credit and Collection Policy and (ii) to an
extent and in an amount not in excess of the limitations specified in
subsection 7.1(b)(iv)(x); and
(m) of which the Affiliate Obligor, at the time of transfer of the
related Affiliate Receivable to the Purchasers, has good and marketable
title, free and clear of any Lien other than any Permitted Receivable
Lien; and
(y) with respect to any Existing Affiliate Receivable, at the date of its
purchase or substitution under the Existing Agreement pursuant to which
such Receivable was sold to the Old Administrative Agent, the Applicable
Lease related thereto was an "Eligible Applicable Lease" (as defined in
such applicable Existing Agreement) at such date.
"Eligible Receivable": (x) with respect to each Receivable other than
an Existing Receivable, at the time of purchase or substitution pursuant to
this Agreement, a Receivable:
(a) except with respect to an Affiliate Receivable, the Obligor of
which is not an Affiliate of Raytheon Credit, the Seller or the
Servicer;
(b) except with respect to a Foreign Receivable, the Obligor of which
is located (within the meaning of Section 9-103 of the New York UCC)
within the United States and is a Citizen of the United States (as
defined in the Aviation Act); and, with respect to a Foreign Receivable,
the Obligor of which is not located in a Prohibited Jurisdiction;
(c) except with respect to an ExIm Bank Receivable and except as
otherwise permitted in subsection 2.7(a)(xii), the Obligor of which is
not a Governmental Authority unless each of Raytheon Credit and the
Seller has complied with the requirements of the Federal Assignment of
Claims Act or any other applicable Requirement of Law pertaining to the
assignment of accounts receivable the Obligor of which is a Governmental
Authority, all in a manner satisfactory to the Managing Facility Agent
and the Required Purchasers in their reasonable discretion; provided
14
that if a Rating Event has occurred and is continuing, any Affiliate
Receivable in respect of which the Unaffiliated Foreign Lessee under the
related Applicable Lease is any Governmental Authority other than a
United States Federal Governmental Authority shall not be eligible for
purchase or substitution under this Agreement regardless of any action
taken by Raytheon Credit or the Seller with respect to the assignment of
such Applicable Lease;
(d) the Obligor of which is not the Obligor or an Affiliate of an
Obligor on any other Receivable which is a Defaulted Receivable;
(e) which is neither more than 30 days past due from the original due
date therefor nor otherwise a Defaulted Receivable;
(f) which arose in the ordinary course of Raytheon Credit's business
from financing the retail purchase or lease or, in the case of a
Wholesale Receivable, the wholesale purchase of an Aircraft and relates
to an Aircraft which will be used for general aviation purposes or in
connection with commuter airline operations, but not for military
purposes, and which was purchased by the Seller from Raytheon Credit
pursuant to the Intercompany Purchase Agreement in the ordinary course
of the Seller's business;
(g) with respect to GA Receivables, subject only to adjustment for
changes in payments in accordance with the related Contract resulting
from changes in the interest rates thereunder, (i) which, except as set
forth in clause (ii) below, is required to be paid in consecutive
monthly installments or is a Quarterly Receivable or a Semi-Annual
Receivable or (ii) which (A) is a Nonstandard Receivable or (B) has a
maturity within six months from the date such Receivable becomes a
Purchased Receivable, provided that no such Receivable will have a
maturity later than six months after the invoice date for such
Receivable;
(h) which is an "account" or a "general intangible" or which
constitutes "chattel paper" within the meaning of the UCC of the State
of Kansas or the law of the state where the Seller or the Servicer
maintains the books, records and documents with respect to such
Receivable;
(i) which is denominated and payable only in United States dollars in
the United States;
(j) which arises under a Contract which (i) has been duly authorized
by each party thereto (or, if any such party is an individual, such
party has the capacity to enter into) and each party thereto is in
compliance therewith in all material respects, (ii) was not originated
with any conduct constituting fraud or a material misrepresentation on
the part of the Seller or Dealer (if different from the Obligor
thereto), (iii) was not originated with any conduct constituting fraud
or a material misrepresentation by an Obligor party thereto of which the
Seller or Dealer (if different from the Obligor) knew or should have
15
known based on the exercise of reasonable care, (iv) constitutes the
legal, valid and binding obligation of the Obligor thereof enforceable
against such Obligor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law), (v) except
with respect to each L/C Receivable, contains enforceable provisions
such that the rights and remedies of the holder of the security interest
created thereby are adequate for the realization of the benefits of such
security interest against the related Financed Aircraft and the other
collateral therefor and (vi) accurately describes the engines, if any,
of the related Financed Aircraft having 750 or more rated takeoff
horsepower (or the equivalent of such horsepower) as provided for in
such Contract;
(k) (i) except with respect to a L/C Receivable, a Lease Receivable,
a Travel Air Receivable and an Unsecured Receivable, which is secured by
a valid and perfected first priority security interest in favor of the
Seller in the Financed Aircraft related thereto (other than, in the case
of GA Receivables, any engines having less than 750 or more rated
takeoff horsepower, or its equivalent) and, with respect to an Affiliate
Receivable, in the related Applicable Lease, (ii) with respect to a
Registerable Lease Receivable and with respect to an ExIm Bank
Receivable, the related Financed Aircraft of which is registered with
the FAA Registry in the name of the Seller and relates to a Financed
Aircraft in which the Seller has a valid ownership interest, (iii) with
respect to a Lease Receivable which is not a Registerable Lease
Receivable, the related Financed Aircraft of which is registered in the
name of the Seller in each jurisdiction necessary to evidence the valid
ownership interest of the Seller in the Financed Aircraft related
thereto and (iv) with respect to a Travel Air Receivable, which is
secured by a valid and perfected first priority security interest in
favor of the Seller in the Obligor's undivided interest in the Financed
Aircraft and Travel Air Contracts related thereto;
(l) except with respect to a L/C Receivable and an Unsecured
Receivable, the security or ownership interest, as the case may be, of
Raytheon Credit in the Financed Aircraft related thereto is assignable
by Raytheon Credit and, except as permitted under subsection 2.7(a)(x),
has been so assigned as a first priority security interest to the Seller
and by the Seller to the Administrative Agent for the ratable benefit of
the Purchasers to secure the obligations under the related Receivable
and which Financed Aircraft is subject to no other Liens other than
Permitted Aircraft Liens; including (i) except with respect to a Foreign
Receivable (other than a Registerable Lease Receivable with a Foreign
Obligor), of which the security interest granted by the Obligor in favor
of Raytheon Credit and assigned to the Seller and/or, in the case of a
Lease Receivable, by the Seller in favor of the Administrative Agent
(including, with respect to a Registerable Lease Receivable, the
security interest in the Financed Aircraft in favor of the
Administrative Agent) encumbering the related Financed Aircraft (other
16
than, for GA Receivables, Aircraft Accessories with respect thereto and
engines of such Financed Aircraft, if any, having a rated takeoff power
of 750 horsepower or its equivalent) has been duly registered and
recorded with the FAA Registry, (ii) with respect to a Foreign
Receivable (other than a L/C Receivable and a Lease Receivable with a
Foreign Obligor) of which the security interest encumbering the related
Financed Aircraft has been duly filed, registered or recorded with each
office in each jurisdiction in which such filing, registration or
recordation is necessary to perfect the security interest therein
granted (x) by the Obligor thereon in favor of Raytheon Credit, (y) by
Raytheon Credit in favor of the Seller and (z) by the Seller in favor of
the Administrative Agent for the ratable benefit of the Purchasers and
(iii) with respect to a Lease Receivable with a Foreign Obligor (other
than a Registerable Lease Receivable with a Foreign Obligor) of which
the security interest encumbering the related Financed Aircraft has been
duly filed, registered or recorded with each office in each jurisdiction
in which such filing, registration or recordation is necessary to
perfect the security interest therein granted by the Seller in favor of
the Administrative Agent for the ratable benefit of the Purchasers;
(m) as to which, upon the transfer of such Receivable pursuant to
this Agreement, either (i) the Purchasers have a perfected, valid and
enforceable first priority ownership interest in such Receivable or (ii)
the Administrative Agent for the ratable benefit of the Purchasers has a
valid, perfected and first priority security interest in such
Receivable, in each case free and clear of all Liens other than
Permitted Receivable Liens;
(n) of which (i) with respect to each Receivable other than a Lease
Receivable and a Travel Air Receivable, the related Financed Aircraft is
owned by the Obligor on the related Contract, (ii) with respect to each
Lease Receivable, except as permitted under subsection 2.7(a)(x), the
related Financed Aircraft is owned by the Seller and (iii) with respect
to each Travel Air Receivable, an undivided interest in the related
Financed Aircraft is owned by the related Obligor;
(o) of which the related Financed Aircraft is (i) with respect to
each Financed Aircraft registered in the name of the Seller, Raytheon
Credit, Travel Air or the related Obligor with the FAA, duly certified
by the FAA as to type and airworthiness and (ii) in all other cases,
duly certified by the appropriate governmental authorities in the
applicable foreign jurisdiction as to type and airworthiness;
(p) which is not subject to any existing material dispute, offset,
counterclaim or defense whatsoever (including, but not limited to,
breach of warranty) of which Raytheon Credit, the Seller or the Servicer
knows or should have known;
(q) which, together with the Contract and the Financed Aircraft
related thereto, does not, or at the time of sale (or lease, as the case
may be) of the
17
Financed Aircraft did not, contravene any Requirements of Law applicable
thereto in any material respect (including, without limitation, laws,
rules and regulations relating to truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party to the
Contract related thereto is in violation of any such Requirement of Law
in any material respect;
(r) which was originated in accordance with the Credit and Collection
Policy and satisfied all requirements thereof and of the related
Contract;
(s) which, except for an Extended Term Receivable, has a Final
Payment Date not later than (i) so long as no Rating Event has occurred
and is continuing, thirteen years after the Settlement Date on which
such Receivable is purchased or substituted and (ii) during the
continuance of a Rating Event, ten years after the Settlement Date on
which such Receivable is purchased or substituted;
(t) (i) for Receivables other than those Receivables referred to in
clause (g)(ii)(B) of this definition, the related Financed Aircraft has
been delivered to the Obligor (x) so long as Raytheon's Debt Rating is
no lower than BBB- or the equivalent thereof, no later than the second
Settlement Date following the Settlement Date on which undivided
interests in such Receivable are sold to the Purchasers and (y) in all
other cases, no later than the Settlement Date on which undivided
interests in such Receivable are sold to the Purchasers or (ii) for
those Receivables referred to in clause (g)(ii)(B) of this definition,
the related Financed Aircraft has been delivered to the Obligor no later
than six months after the invoice date for such Receivable;
(u) except with respect to a Wholesale Receivable, on which either at
least one payment or a down payment (including a trade-in) has been made
prior to the Settlement Date on which it is purchased or substituted;
(v) the payment terms of which have not been modified other than (i)
in accordance with the Credit and Collection Policy and (ii) to an
extent and in an amount not in excess of the limitations specified in
subsection 7.1(b)(iv)(x);
(w) of which the related Financed Aircraft is insured against loss,
damage, theft, hull and such other casualties as may be required
pursuant to the related Contract, including without limitation passenger
legal liability, public legal liability and property damages legal
liability, the policy or policies of which shall (i) provide that
Raytheon Credit or any Affiliate Obligor, as the case may be, is named
thereunder as loss payee and is entitled to receive 30 days prior notice
of cancellation thereof, (ii) contain a breach of warranty endorsement
in favor of Raytheon Credit or any Affiliate Obligor as the case may be,
(iii) provide for insurance in an amount, after calculation of any
deductible, at least equal to the outstanding principal of the Contract
at any time and (iv) be maintained with financially sound and reputable
insurance companies;
18
(x) if a Lease Receivable (i) prior to the Settlement Date on which
such Lease Receivable is purchased or substituted, with respect to which
all actions required under the related lease to assign to the
Administrative Agent on behalf of the Purchasers the Seller's and
Raytheon Credit's respective rights thereunder (including, without
limitation, any notice to, consent of or acceptance by the lessee party
thereto) shall have been duly performed, (ii) prior to the Settlement
Date on which such Lease Receivable is purchased or substituted, a
determination shall have been made if such Receivable is a Registerable
Lease Receivable in accordance with the definition of such term, (iii)
on the Settlement Date on which such Lease Receivable is purchased or
substituted, no Rating Event shall have occurred and be continuing and
(iv) such Lease Receivable is carried on the books of the Seller as a
"sale" under GAAP;
(y) if a L/C Receivable, with respect to which the related letter of
credit (i) either (A) is issued by an Acceptable L/C Issuer or (B) if
the issuer of the related letter of credit is not an Acceptable L/C
Issuer, at the time of purchase or substitution no Rating Event has
occurred and is continuing, (ii) is issued or confirmed by a financial
institution located in the United States or which otherwise provides
that drawings thereunder may be made in the United States, (iii) is an
irrevocable standby letter of credit providing for drawings upon the
occurrence of a default under the related Contract on sight or upon
presentation of certificates specified therein, (iv) at any date of
determination has an available amount equal to the then outstanding
Principal Balance of such Receivable, (v) is in full force and effect
and (vi) either (A) has an expiration date which is at least five
Business Days following the last scheduled payment date under the
related Contract or (B) provides for automatic extensions without
amendment, notice or other act by or to any Person or permits the Seller
to draw the aggregate amount then available to be drawn thereunder if
not extended;
(z) which is not an Operating Lease Receivable;
(aa) if an ExIm Bank Receivable, (i) at least 85% of the Principal
Balance of which is insured by the related insurance policy and such
insurance policy is in full force and effect and all premiums have been
paid in full, (ii) the related Contract of which requires the Obligor to
purchase the Aircraft at the end of the term thereof, (iii) at the time
of purchase or substitution of which no Rating Event has occurred and is
continuing and (iv) prior to the Settlement Date on which such ExIm Bank
Receivable is purchased or substituted, all actions required to assign
to the Administrative Agent on behalf of the Purchasers the Seller's and
Raytheon Credit's respective rights to amounts payable under the related
insurance policy and the Seller's rights under any lease of the related
Aircraft by an Obligor on such ExIm Bank Receivable (including, without
limitation, any notice to, consent of or acceptance by the insurer or
lessee thereunder) shall have been duly performed;
(bb) if a Wholesale Receivable, (i) the Principal Balance of which
(together with interest thereon) is payable in accordance with the
original terms
19
thereof no later than 180 days after the original date of the Contract
related thereto, and (ii) the original maturity date thereof has not
been extended more than twice;
(cc) if a Domestic Wholesale Receivable, the related Financed
Aircraft of which has not been sold more than once or to more than one
other independent Dealer (exclusive of Dealers owned by Raytheon Credit
or RAC);
(dd) if a Nonstandard Receivable, a Rating Event shall not have
occurred and be continuing;
(ee) if an Affiliate Receivable, (x) prior to the Settlement Date on
which such Affiliate Receivable is purchased or substituted, all actions
required to assign (1) to Raytheon Credit, and from Raytheon Credit to
the Seller, the Affiliate Obligor's rights under the Applicable Lease
and Financed Aircraft and (2) to the Administrative Agent, the Seller's
rights under the Financed Aircraft and the Applicable Lease (including,
without limitation, in case of clauses (1) and (2), any notice to,
consent of or acceptance by the Unaffiliated Foreign Lessee party
thereto) shall have been duly performed and the Administrative Agent,
for the ratable benefit of the Purchasers, shall have a valid, perfected
and first priority security interest in such Financed Aircraft and
Applicable Lease as collateral security for the Affiliate Obligor's
obligations under such Affiliate Receivable, free and clear of all Liens
other than (i) the Lien created in favor of Raytheon Credit and the
Seller, (ii) the Lien created under this Agreement in favor of the
Administrative Agent for the ratable benefit of the Purchasers and (iii)
any Permitted Receivable Lien, (y) on the Settlement Date on which such
Affiliate Receivable is purchased or substituted, no Rating Event shall
have occurred and be continuing and (z) the Applicable Lease related
thereto is an Eligible Applicable Lease; and
(ff) which is an "Eligible Receivable" under and as defined in the
Intercompany Purchase Agreement; and
(y) with respect to any Existing Receivable, at the date of its purchase or
substitution under the Existing Agreement pursuant to which it was sold to
the Old Administrative Agent, such Receivable which was an "Eligible
Receivable" (as defined in such applicable Existing Agreement) at such
date.
Notwithstanding any provision set forth in this definition of "Eligible
Receivable" (except clause (x)(ff)), any Receivable which otherwise
qualifies to be an "Eligible Receivable" and for which the Financed
Aircraft related thereto receives a conveyance number from the FAA on or
prior to the Applicable Settlement Date after the sale or substitution of
such Receivable shall be deemed to be an "Eligible Receivable. Further, a
Receivable (other than an Existing Receivable) created pursuant to a
Contract under which (at the time of purchase or substitution thereof) the
amount scheduled to be outstanding on any annual anniversary of the
execution date of such Contract (assuming all scheduled payments have been
made prior to such date) is greater than the amount
20
which would have been so outstanding on such date if payments on such
Contract prior to such anniversary had been made on a thirteen year
mortgage-type amortization method, assuming a balloon payment of 30% of the
original sales price scheduled for repayment at the end of the thirteenth
year, shall not be an "Eligible Receivable".
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Excess Great Lakes Receivables": as of any date of determination,
the Principal Balances of all Purchased Receivables in respect of Great
Lakes and all of its respective Affiliates to the extent such aggregate
Principal Balances exceed an amount equal to 10% of the Outstanding
Purchase Price on such date of determination (calculated after giving
effect to all proposed purchases and substitutions on such date but
excluding the Outstanding Purchase Price of Wholesale Receivables).
"Excess Mesa Receivables": as of any date of determination, the
Principal Balances of all Purchased Receivables in respect of Mesa and all
of its respective Affiliates to the extent such aggregate Principal
Balances exceed an amount equal to 10% of the Outstanding Purchase Price on
such date of determination (calculated after giving effect to all proposed
purchases and substitutions on such date but excluding the Outstanding
Purchase Price of Wholesale Receivables).
"Excess Spread": as defined in subsection 2.16(b)(vi).
"Excluded Taxes" means, with respect to the Managing Facility Agent,
the Administrative Agent, either Co-Administrative Agent, any Purchaser or
any other recipient of any payment to be made by or on account of any
obligation of the Seller hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America or by
the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Purchaser, in
which its applicable purchasing office is located, (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed by
any other jurisdiction in which the Seller is located and (c) in the case
of a Foreign Purchaser (other than an assignee pursuant to a request by the
Seller under subsection 2.26(b)), any withholding tax that is imposed on
amounts payable to such Foreign Purchaser at the time such Foreign
Purchaser becomes a party to this Agreement or is attributable to such
Foreign Purchaser's failure or inability to comply with Section 2.23(e),
except to the extent that such Foreign Purchaser's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Seller with respect to such withholding tax pursuant to Section 2.23(a).
"ExIm Bank": the Export-Import Bank of the United States and any
successor thereto.
"ExIm Bank Receivable": a Receivable, the payments of which are
insured by the ExIm Bank.
21
"Existing Agreements": the collective reference to the Existing
Commuter Agreement and the Existing GA Agreement.
"Existing Affiliate Receivable": each Existing Receivable which, on
and as of the Effective Date, is an "Affiliate Receivable" under and as
defined in the Existing Agreement pursuant to which the Old Administrative
Agent purchased such Receivable.
"Existing Certified Receivable": each Existing Receivable which, on
and as of the Effective Date, is a "Certified Foreign Receivable" under and
as defined in the Existing Agreement pursuant to which the Old
Administrative Agent purchased such Receivable.
"Existing Commuter Agreement": the Amended and Restated Purchase and
Sale Agreement dated as of March 8, 1996 among Raytheon Credit, the
purchasers referred to therein, Swiss Bank Corporation, New York Branch, as
administrative agent, Bank of America NT&SA, as documentation agent and co-
agent, and Swiss Bank Corporation, New York Branch, as co-agent, as
amended, supplemented or otherwise modified from time to time.
"Existing GA Agreement": the Second Amended and Restated Purchase and
Sale Agreement dated as of March 8, 1996 among Raytheon Credit, the
purchasers referred to therein and Swiss Bank Corporation, New York Branch,
as agent, as amended, supplemented or otherwise modified from time to time.
"Existing Outstanding Balance": as of any date of determination for
any Existing Receivable, the "Outstanding Balance" thereof as determined
under the Existing Agreement pursuant to which such Existing Receivable was
purchased prior to the Effective Date.
"Existing Outstanding Purchase Price": as of any date of
determination for any Purchaser, the sum of such Purchaser's "Outstanding
Purchase Price", if any, under each of the Existing Agreements.
"Existing Principal Balance": as of any date of determination for any
Existing Receivable, the "Principal Balance" thereof as determined under
the Existing Agreement pursuant to which such Existing Receivable was
purchased by the administrative agent or agent under such Existing
Agreement.
"Existing Receivables": on the Effective Date, the collective
reference to the outstanding "Purchased Receivables" under and as defined
in the Existing Agreements.
"Existing Registerable Lease Receivables": on the Effective Date, the
collective reference to the outstanding "Registerable Lease Receivables"
under and as defined in the Existing Agreements.
"Existing Uncertified Foreign Receivables": on the Effective Date,
the collective reference to the outstanding "Foreign Uncertified
Receivables" under and as defined in the Existing Agreements.
22
"Expense Amounts": the collective reference to amounts required to be
paid pursuant to (i) subsections 2.17(a), 2.17(b), 2.17(c) and 2.17(d) and
(ii) subsections 2.22, 2.23, 2.24 and 11.5 (to the extent that the Managing
Facility Agent, the Administrative Agent or a Purchaser has made a demand
therefor).
"Expiration Date": March 8, 2002 or, if the Revolving Period is
extended pursuant to subsection 2.8, 364 days after the date of the
Expiration Date in effect at the time of such extension.
"Extended Term Receivable": as of any Settlement Date, any Receivable
the Final Payment Date of which is later than (i) so long as no Rating
Event has occurred and is continuing, thirteen years after such Settlement
Date and (ii) during the continuance of a Rating Event, ten years after
such Settlement Date, and, for purposes of subsection 2.15, any Receivable
the Final Payment Date of which is extended pursuant to subsection
7.1(b)(iv) to such later date.
"FAA": the Federal Aviation Administration or any successor thereto.
"FAA Assignment": the assignment, certificate or other document to be
filed with the FAA Registry on or before the Closing Date or any Settlement
Date with respect to a Financed Aircraft related to an Eligible Receivable
to be purchased on the Closing Date or purchased or substituted on such
Settlement Date, substantially in the form of (i) in the case of an
assignment by the Seller of a security interest in a Financed Aircraft
granted by an Obligor in favor of the Seller, Exhibit A-2 (for filing on
the Closing Date) or Exhibit A-3 (for filing on each Settlement Date) or,
(ii) with respect to a Registerable Lease Receivable or an ExIm Bank
Receivable, if the Financed Aircraft related thereto is (or the lessee
under the related lease agrees will be) registered under the Aviation Act,
in the case of the grant by the Seller in favor of the Administrative Agent
for the ratable benefit of the Purchasers of a security interest in a
Financed Aircraft and amounts payable under the related lease entered into
with respect to such Lease Receivable or ExIm Bank Receivable,
substantially in the form of Exhibit A-4 (for filing on the Closing Date)
or Exhibit A-5 (for filing on a Settlement Date); in each case, with
appropriate modifications which may be required as a result of changes in
any Requirements of Law after the Closing Date pertaining to filings and
recordings with the FAA Registry.
"FAA Filing Date": as defined in subsection 6.1(n)(ii).
"FAA Registry": the FAA Aircraft Registry maintained on the Closing
Date at the office of the FAA located in Oklahoma City, Oklahoma.
"Final Payment Date": with respect to a Purchased Receivable, the
scheduled final maturity date (which, with respect to a Lease Receivable,
shall be the final scheduled rent payment date under the related Contract)
of such Receivable.
"Finance Charge Collections": (i) with respect to Purchased
Receivables constituting Lease Receivables a portion of the Collections
thereunder representing the interest component of such lease, such interest
component reflecting the interest rate as
23
set forth in such lease and such portion being calculated in accordance
with Credit and Collection Policy, (ii) with respect to all other Purchased
Receivables, Collections on account of accrued finance charges, late fees
and similar items in respect of such Purchased Receivables calculated, in
each case, in accordance with the Credit and Collection Policy and (iii)
Collections deemed by the Managing Facility Agent to be Finance Charge
Collections pursuant to Section 2.16(a).
"Financed Aircraft": the Aircraft, together with all accessions
thereto, securing an Obligor's indebtedness under a Contract; provided
that, the term "Financed Aircraft" when used herein or in any other
document, instrument or certificate delivered pursuant hereto shall mean or
refer to, with respect to a Lease Receivable or an ExIm Bank Receivable,
the Aircraft leased under the Contract pursuant to which such Lease
Receivable was created, together with all accessions thereto.
"Foreign Assignment": with respect to each Foreign Receivable (other
than a L/C Receivable) and each Affiliate Receivable, each document,
instrument, agreement (whether an assignment, security agreement, mortgage
or otherwise) and certificate appropriate for filing in the applicable
office in the applicable jurisdiction and necessary to evidence (i) in the
case of Affiliate Receivables and of Foreign Receivables which are not
Lease Receivables, the Lien in the related Financed Aircraft granted by the
Obligor thereon in favor of Raytheon Credit and the assignment thereof by
Raytheon Credit to the Seller and (ii) in the case of all such Foreign
Receivables and all Affiliate Receivables, the Lien in the related Financed
Aircraft granted by the Seller (or, as applicable, the Lien thereon
assigned by the Seller) in favor of the Administrative Agent for the
ratable benefit of the Purchasers; and all other filings and recordings
necessary to perfect the Purchasers' first priority ownership or security
interests in and to the Foreign Receivables or the Affiliate Receivables,
as the case may be, and the related Contracts (including Applicable Leases)
and Financed Aircraft.
"Foreign Obligor": an Obligor which is not located (within the
meaning of Section 9-103 of the New York UCC) within the United States and
is not a citizen of the United States (as defined in the Aviation Act).
"Foreign Purchaser" means any Purchaser that is not organized under
the laws of the United States of America or a state thereof.
"Foreign Receivable": a Receivable the Obligor of which is a Foreign
Obligor.
"Foreign Wholesale Receivable": a Receivable arising under a
wholesale financing arrangement entered into by Raytheon Credit and, as
Obligor thereunder, a Dealer located (within the meaning of Section 9-103
of the New York UCC) outside the United States.
"Frozen Pool": as defined in subsection 2.8(b)(ii).
"GAAP": generally accepted accounting principles applied on a
consistent basis.
24
"GA Receivable": a Receivable as to which the related Aircraft is a
General Aviation Aircraft and the Obligor of which does not own and operate
a commuter airline.
"General Aviation Aircraft": the collective reference to any aircraft
manufactured (including sub-assembly) by RAC for general aviation purposes,
and comparable general aviation aircraft manufactured by any other Person
including, in all cases, without limitation, (i) any airframe, engines
(whether or not any such engine has 750 or more rated takeoff horsepower or
the equivalent of such horsepower, and including any replacement or
substituted engine), and avionics, equipment and accessories at any time
attached to, connected with or located in any such aircraft and, to the
extent covered by the recording system of the Aviation Act, all logs,
manuals and maintenance records with respect thereto and (ii) any avionics,
equipment and accessories removed from any Aircraft and, to the extent not
covered by the recording system of the Aviation Act, all logs, manuals and
maintenance records.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Great Lakes": Great Lakes Aviation, Ltd., an Iowa corporation.
"Guarantee": the Amended and Restated Guarantee, substantially in the
form of Exhibit B, to be made by Raytheon in favor of the Managing Facility
Agent and the Purchasers, as the same may be amended, supplemented or
otherwise modified from time to time.
"Guarantee Amendment and Reaffirmation": the Amendment and
Reaffirmation, executed by the Guarantor and dated the Amendment Effective
Date, consenting to the execution of this Agreement by the Seller and the
Servicer and amending and reaffirming the Guarantor's obligations under the
Guarantee.
"Guarantor": Raytheon.
"Increasing Purchaser": as defined in Section 5.3.
"Indebtedness": with respect to any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current liabilities incurred in
the ordinary course of business and payable in accordance with customary
trade practices) or which is evidenced by a note, bond, debenture or
similar instrument, (b) all obligations of such Person under capital
leases, (c) all obligations of such Person in respect of acceptances issued
or created for the account of such Person and (d) all liabilities secured
by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof.
"Indemnified Amounts": as defined in subsection 9.1(a).
"Indemnified Person": as defined in subsection 9.1(a).
25
"Indemnified Taxes": Taxes other than Excluded Taxes.
"Indemnitee": as defined in subsection 11.5(c).
"Ineligibility Event": with respect to any Purchased Receivable, any
event of the type specified in (1) clauses (i), (ii) or (iii) of subsection
2.11 or (2) clauses (vi) or (xii) of subsection 9.1(a).
"Ineligible Receivable": (a) with respect to any Purchased
Receivable other than an Existing Receivable, such Receivable, (i) at the
date of its purchase or substitution, was not an Eligible Receivable at
such date, (ii) relates to a Financed Aircraft which did not receive a
conveyance number from the FAA on or prior to the third Settlement Date (or
if Raytheon's Debt Rating is no lower than A/A2, the fourth Settlement
Date; the third or fourth Settlement Date, as applicable, the "Applicable
Settlement Date") following the date of its purchase or substitution or
(iii) relates to a Financed Aircraft which becomes a Remarketed Aircraft;
and
(b) with respect to any Existing Receivable, such Receivable
(x)(i) at the date of its purchase or substitution under the Existing
Agreement pursuant to which it was sold to the administrative agent or
agent under such Existing Agreement, was not an "Eligible Receivable"
(as defined in such applicable Existing Agreement) at such date or
(ii) relates to a Financed Aircraft which did not receive a conveyance
number from the FAA on or prior to the third Settlement Date (or if
Raytheon's Debt Rating is no lower than A/A2, the fourth Settlement
Date following the date of its purchase or substitution under the
applicable Existing Agreement; or
(y) relates to a Financed Aircraft which becomes a Remarketed
Aircraft; or
(z) on and as of the Closing Date (after giving effect to the
transactions contemplated under the Intercompany Purchase Agreement on
such date) such Receivable did not satisfy the criteria specified in
the following clauses under the definition of "Eligible Receivable"
herein (assuming for purposes hereof, that such clauses are applicable
to the Existing Receivables): clauses (c), (h), (k), (l) (other than
any requirement that the related Financed Aircraft be free and clear
of Liens on such Effective Date), (m) (other than any requirement that
such Receivable be free and clear of Liens on such Effective Date),
(n)(ii), (o)(i), (x)(i), (y)(vi)(B), (aa)(iv) or (ee)(x) except, that,
(1) with respect to Existing Certified Receivables, prior to the
Certified Opinion Delivery Date, and with respect to all Existing
Registerable Lease Receivables, prior to the FAA Filing Date, any such
Existing Registerable Lease Receivable which does not satisfy any of
the criteria specified in such clauses (to the extent such clauses are
applicable to Existing Registerable Lease Receivables) solely as a
result of the failure to make any of the filings, if any, required by
subsection 6.1(n) shall not be an Ineligible Receivable and (2) with
respect to Existing Uncertified Foreign Receivables, any such Existing
Receivable which does not satisfy any of the criteria specified in
such clauses (to the extent such
26
clauses are applicable to such type of Existing Receivable) solely as
a result of the failure to make any filing, if any, necessary to (x)
continue the Lien, if any, of the Administrative Agent, on behalf of
the Purchasers, in such Receivables, related Financed Aircraft and
Applicable Leases (if applicable) and Collections thereon with the
same priority thereon as in effect immediately prior to the Effective
Date or (y) perfect the transfer by Raytheon Credit of such
Receivables, the related Financed Aircraft and Applicable Leases (if
applicable) and Collections thereon to the Seller pursuant to the
Intercompany Purchase Agreement shall not be an Ineligible Receivable.
"Interbank Rate ": for any Special Settlement Date Accrual Period,
the sum of (i) the rate of interest per annum (rounded upward to the next
1/16th of 1%) determined by the Managing Facility Agent as follows:
IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
plus (ii) the Applicable Margin;
Where,
Eurodollar Reserve Percentage means for any day for any Special Settlement
Date Accrual Period, the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Purchaser) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency liabilities");
and
IBOR means the rate of interest per annum determined by the Managing
Facility Agent as the rate at which dollar deposits in the approximate
amount of the Managing Facility Agent's Purchase amount for such Special
Settlement Date Accrual Period, would be offered by Bank of America, N.A.'s
Grand Cayman Branch, Grand Cayman B.W.I. (or by Bank of America, N.A.), to
major banks in the offshore dollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business Days prior to
the commencement of such Special Settlement Date Accrual Period.
"Intercompany Purchase Agreement": the Intercompany Purchase and
Contribution Agreement, dated as of March 20, 1997, between Raytheon Credit
and the Seller, as amended, supplemented or otherwise modified from time to
time.
"Interest Coverage Ratio": for any period, the ratio of Consolidated
EBITDA for such period to Consolidated Net Interest Expense for such
period.
"L/C Receivable": a Foreign Receivable which at any time is supported
by a standby letter of credit in an amount at least equal to the
outstanding Principal Balance on
27
such Receivable issued in favor of the Seller and otherwise satisfying the
requirements of clause (y) of the definition of "Eligible Receivables".
"Lease Collateral": as defined in subsection 11.12(a).
"Lease Obligations": as defined in subsection 11.12(a).
"Lease Receivable": any Receivable (other than an ExIm Bank
Receivable) created pursuant to a Contract which is a lease between
Raytheon Credit, as lessor, and the Obligor thereunder, as lessee, with
respect to the Aircraft described therein, other than any such Receivable
which is also a L/C Receivable.
"LIBO Rate": for any Accrual Period (other than a Special Settlement
Date Accrual Period), (A) the per annum rate (carried to the fifth decimal
place) equal to (i) the rate determined by the Managing Facility Agent to
be the offered rate that appears on the page of the Telerate Screen that
displays an average British Bankers Association Interest Settlement Rate
(such page currently being page number 3750) for deposits (for delivery on
the Settlement Date which is the first day of such Accrual Period) with a
term approximately equivalent to such Accrual Period, determined as of
approximately 11:00 a.m. (London, England time) two Working Days prior to
the Settlement Date which is the first day of such Accrual Period or (ii)
in the event the rate referenced in the preceding clause does not appear on
such page or service if such page or service shall cease to be available,
the rate determined by the Managing Facility Agent to be the offered rate
on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits (for delivery on
the Settlement Date which is the first day of such Accrual Period) with a
term approximately equivalent to such Accrual Period, determined as of
approximately 11:00 a.m. (London, England time) two Working Days prior to
the Settlement Date which is the first day of such Accrual Period, (B) if
such rate cannot be calculated in accordance with clause (A), the "LIBO
Rate" for that Accrual Period will be the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Managing Facility Agent by each Reference Bank as the
rate at which such Reference Bank is offered U.S. dollar deposits in the
London interbank eurodollar market for a period comparable in length to
such Accrual Period, at or about 11:00 a.m. (London, England time) two
Working Days prior to such Settlement Date and in an amount comparable to
such Reference Bank's pro rata share of the Outstanding Purchase Price; or
(C) if the LIBO Rate is not able to be determined pursuant to clauses (A)
or (B), the rate per annum determined by the Managing Facility Agent in
good faith, after consultation with the Purchasers, as reasonably
reflecting the aggregate funding costs of the Purchasers.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement or any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the UCC or comparable law of any
jurisdiction in respect of any of the foregoing).
28
"Liquidity Bank": for any SPC, at any date of determination, the
collective reference to the financial institutions which at such date are
providing liquidity and/or credit facilities to or for the account of such
SPC to fund such SPC's obligations hereunder or to support the securities
(if any) issued by such SPC to fund such obligations.
"Low Wholesale Value": of any Aircraft at any date of determination,
the low wholesale value shown in the Aircraft Blue Book Price Digest most
recently published prior to such date of determination for aircraft of
substantially similar age and with comparable features as such Aircraft.
"Majority Purchasers": at any time, Purchasers the Commitment
Percentages of which aggregate at least 51%; provided that the Commitment
Percentage of any Dissenting Purchaser shall not be included in
determinations of Majority Purchasers with respect to purchases or
substitutions of Receivables or other matters not otherwise affecting
Dissenting Purchasers; provided, further, that any action taken by the
Managing Facility Agent and the Purchasers under subsection 8.2 (with the
exception of subsection 8.2(b)) shall be deemed to affect a Dissenting
Purchaser.
"Managing Facility Agent": as defined in the preamble to this
Agreement.
"Material Adverse Effect": (i) with respect to the Seller, a material
adverse effect on (a) the Purchased Receivables taken as a whole, (b) the
ability of the Seller to perform its obligations under this Agreement, (c)
the validity or enforceability of this Agreement or the rights or remedies
of the Managing Facility Agent or the Purchasers under any Purchase
Document or (d) the business, assets, properties or condition (financial or
other) of the Seller and (ii) with respect to the Servicer, a material
adverse effect on (a) the Purchased Receivables taken as a whole, (b) the
ability of the Servicer to perform its obligations under this Agreement,
(c) the validity or enforceability of this Agreement or the rights or
remedies of the Managing Facility Agent or the Purchasers under any
Purchase Document or (d) the business, assets, properties or condition
(financial or other) of the Servicer.
"Mesa": Mesa Airlines, Inc., a New Mexico corporation.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Recoveries": all monies collected by the Seller, the Servicer or
any other Person (from whatever source, including, without limitation, from
the refinancing of the related Financed Aircraft) on account of a Defaulted
Receivable (including, without limitation, from the sale or other
disposition of the Financed Aircraft) net of any expenses incurred by the
Seller, the Servicer or such Person in connection with the collection on
such Defaulted Receivable and the refurbishment, disposition or disposal of
the related Financed Aircraft.
29
"1997 Agreement": the Purchase and Sale Agreement, dated as of March
20, 1997, among the Seller, the Servicer, the financial institutions from
time to time parties thereto (the "1997 Purchasers"), The First National
Bank of Boston, Bank of Montreal, The First National Bank of Chicago, Fleet
National Bank, The Fuji Bank, Limited, New York Branch, The Sanwa Bank
Limited, New York Branch and Westdeustche Landesbank Girozentrale, New York
Branch, as co-agents for the 1997 Purchasers, Swiss Bank Corporation, New
York Branch, Bank of America National Trust and Savings Association,
Canadian Imperial Bank of Commerce, New York Agency, The Chase Manhattan
Bank, Citibank, N.A., Credit Suisse First Boston, New York Branch, The
Industrial Bank of Japan, Limited, Xxxxxx Guaranty Trust Company of New
York, and Wachovia Bank of Georgia, N.A., as agents for the 1997
Purchasers, and Swiss Bank Corporation, New York Branch, as administrative
agent for the 1997 Purchasers.
"90% Repurchase Receivables": at any date of determination, the
collective reference to the following types of Receivables:
(a) L/C Receivables, the related letters of credit of which are not
issued by commercial banks which qualify as Acceptable L/C Issuers at
such date, it being understood that an L/C Receivable shall be a 25%
Repurchase Receivable if the issuer of the related letter of credit does
not qualify as an Acceptable L/C Issuer at the time such Receivable is
purchased or substituted hereunder but does so qualify on such date of
determination;
(b) Uncertified Foreign Receivables (including Affiliate Receivables
which are Uncertified Foreign Receivables) which are not L/C
Receivables;
(c) Foreign Wholesale Receivables;
(d) Receivables which have not received conveyance numbers from the
FAA on or prior to the Applicable Settlement Date after the sale or
substitution of such Receivable; provided, however, that (i) any such
Receivable shall be repurchased by the Seller on such Applicable
Settlement Date and (ii) Receivables which are subject to this paragraph
(d) that are so repurchased by the Seller shall not be subject to
subsection 2.7(a)(viii);
(e) Excess Mesa Receivables;
(f) Excess Great Lakes Receivables; and
(g) all other Receivables which are not 25% Repurchase Receivables or
75% Repurchase Receivables.
"Nonstandard Receivable": a Receivable (other than a Wholesale
Receivable or a Receivable which has Mesa or Great Lakes as the Obligor)
created pursuant to a Contract under which (at the time of purchase or
substitution thereof) the amount scheduled to be outstanding on any annual
anniversary of the execution date of such Contract (assuming all scheduled
payments have been made prior to such date) is greater than the amount
30
which would have been so outstanding on such date if payments on such
Contract prior to such anniversary had been made on a thirteen year
mortgage-type amortization method, assuming a balloon payment of 20% (in
the case of both a GA Receivable or a Commuter Receivable) of the original
sales price scheduled for repayment at the end of the thirteenth year.
"Note Rate": with respect to any Accrual Period, a rate per annum
equal to the LIBO Rate plus the Applicable Margin and the Amortization
Adjustment, if any, calculated in accordance with this Agreement.
"Note Rate Amortization Event": an Amortization Event of the type
described in subsection 8.1(b), (c), (d), (e), (f), (g), (h), (i), (j),
(l), (m) or (n).
"Obligations": as defined in the Guarantee.
"Obligor": each Person obligated to make payments in respect of a
Receivable, including each Affiliate Obligor under an Affiliate Receivable.
"Occurrence": as defined in subsection 10.5.
"Old Administrative Agent": UBS AG, Stamford Branch, as successor to
Swiss Bank Corporation, Stamford Branch, as successor to Swiss Bank
Corporation, New York Branch.
"Operating Lease Receivables": Lease Receivables which are carried on
the books of Raytheon Credit or the Seller as operating leases.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Purchase Document.
"Outstanding Balance": with respect to any Receivable at any date of
determination, the Purchase Price paid with respect to such Receivable less
all Principal Collections applied to such Receivable on and prior to such
date of determination.
"Outstanding Purchase Price": (a) as to all the Purchasers at any
date of determination, the aggregate Purchase Prices which at such date
have been paid to purchase Purchased Receivables (or portions thereof) in
accordance with this Agreement minus the amount of Principal Collections
which have been received by the Purchasers (including, without limitation,
Principal Collections which have been used to purchase additional Eligible
Receivables pursuant to subsection 2.15(b)) minus the amount, if any, of
Excess Spread which has been paid to the Purchasers pursuant to subsection
2.16(b)(vi)(2) and (b) as to any Purchaser, its pro rata share of the
Outstanding Purchase Price, as determined pursuant to clause (a) above.
"Participant": as defined in subsection 11.6(b).
31
"Participated Receivable": a Receivable in which the Seller has a
Seller's Interest pursuant to subsection 2.4(a).
"Permitted Aircraft Lien": with respect to any Financed Aircraft
which is related to a Purchased Receivable, (A) any materialman's,
mechanic's, xxxxxxx'x, repairman's or other like Lien which (i) arises in
favor of a Person contracted by and on behalf of the Obligor or the
Unaffiliated Foreign Lessee on the related Contract, (ii) arises in the
ordinary course of business and (iii) (X) has been released or bonded
against (or other credit assurances provided) in favor of the
Administrative Agent and the Purchasers in an amount at least equal to the
obligations secured by such Lien and otherwise in a manner reasonably
satisfactory to the Managing Facility Agent and the Required Purchasers not
more than 90 days after the earliest date on which the Seller, the Servicer
or RAC knew of such Lien or (Y) secures obligations which are being
contested in good faith by appropriate proceedings, so long as such
proceedings do not involve any material danger of the sale, forfeiture or
loss of such Financed Aircraft or any interest therein, or (B) any Lien
which (i) is involuntary in nature, (ii) secures either (X) state taxes not
yet due by the Obligor on the related Contract or which are being contested
in good faith by appropriate proceedings by the Obligor or (Y) any judgment
or decree entered against such Obligor, (iii) secures obligations which are
immaterial in amount in relation to such Purchased Receivable and (iv) does
not involve any material danger of the sale, forfeiture or loss of such
Financed Aircraft, or (C) solely with respect to a Lease Receivable, a Lien
on the Financed Aircraft related thereto arising under the related lease if
the obligations of the lessee thereunder are, in accordance with GAAP,
required to be capitalized on such lessee's balance sheet or (D) solely
with respect to a Travel Air Receivable, Liens on the undivided interest(s)
in the related Financed Aircraft which are not owned by the Seller, any
affiliate of the Seller, or any Obligor under such Travel Air Receivable.
"Permitted Receivable Lien": with respect to any Purchased
Receivable, if for any reason the Purchased Receivables are held to be the
property of the Seller or the Affiliate Obligor, as the case may be, or if
for any other reason this Agreement and the Assignments are held or deemed
not to effect an absolute sale of the Purchased Receivables, any Lien which
(i) is involuntary in nature, (ii) secures either (A) state taxes not yet
due by the Seller or which are being contested in good faith by appropriate
proceedings by the Seller or any of its Affiliates (so long as adequate
reserves with respect thereto are maintained on the books of the Seller or
such Affiliate in conformity with GAAP) or (B) any judgment or decree
entered against the Seller or, with respect to an Affiliate Receivable, the
related Affiliate Obligor, (iii) secures obligations which are immaterial
in amount in relation to the Purchased Receivables taken as a whole and the
related Contracts and Financed Aircraft and (iv) does not involve any
material danger of the sale, forfeiture or loss of any Purchased
Receivable, the Collections with respect thereto and the related Contract
(including any Applicable Lease), and Financed Aircraft or any other
Material Adverse Effect.
"Person": an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
32
"Plan": with respect to a Person, at a particular time, any employee
benefit plan which is covered by ERISA and in respect of which such Person
or a Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Principal Balance": at any date of determination, whether before or
after the occurrence and continuance of a Rating Event, the actual unpaid
principal balance (or with respect to a Lease Receivable the aggregate
amount of unpaid lease payments discounted at the lessor's implicit
interest rate for the respective lease Contract) of a Receivable at such
date of determination; provided that the Principal Balance of any
Participated Receivable or Extended Term Receivable shall be a reference
only to that portion of the actual unpaid principal balance of such
Participated Receivable or Extended Term Receivable sold to the Purchasers
hereunder at such date of determination.
"Principal Collections": with respect to each Purchased Receivable
during any Settlement Period, Collections on account of such Purchased
Receivable received during such Settlement Period minus the amount of
Finance Charge Collections for such Purchased Receivable for such
Settlement Period. Principal Collections shall include, without
limitation, payments by the Seller in respect of repurchases of Purchased
Receivables pursuant to subsections 2.7(b), 2.10, 2.10A, 2.11, 2.12, the
first sentence of subsection 2.13 and subsection 7.1(b)(iv) and after the
occurrence and continuance of a Rating Event, the portion of Net Recoveries
allocated as Principal Collections pursuant to subsection 2.15(d).
"Pro Rata Credit": as defined in subsection 2.1(d)(iii).
"Pro Rata Debit": as defined in subsection 2.1(d)(iii).
"Prohibited Jurisdiction": each jurisdiction listed on Schedule III
and any jurisdiction notified from time to time to the Seller and the
Servicer by the Managing Facility Agent, on behalf of the Purchasers, as a
jurisdiction in which any Purchaser (an "Affected Purchaser") is
prohibited, as a result of any conflict with a Requirement of Law or with
any policy of such Affected Purchaser, from making loans or other
extensions of credit.
"Purchase Discount": (a) during the continuance of a Rating Event,
(i) with respect to 25% Repurchase Receivables, 35%, (ii) with respect to
75% Repurchase Receivables, 85% and (iii) with respect to 90% Repurchase
Receivables, 100% and (b) during the continuance of a Discount Event (which
is not also a Rating Event), with respect to all Receivables, 10%.
"Purchase Documents": the collective reference to this Agreement, the
Intercompany Purchase Agreement, each Assignment, each FAA Assignment, each
Foreign Assignment, the Repurchase Agreement and the Guarantee.
33
"Purchase Price": (a) with respect to any Receivable to be purchased
from the Seller or substituted by the Seller on any Settlement Date, an
amount equal to the Principal Balance of such Receivable on the last day of
the Settlement Period preceding such Settlement Date on which such
Receivable is purchased or substituted, and
(b) with respect to a Substituted Lease Receivable substituted
pursuant to subsection 2.13(e), the amount equal to the Principal Balance
of such Receivable on the date on which such Substituted Lease Receivable
is substituted;
provided that, (x) if a Rating Event has occurred and is continuing as of
such Settlement Date, the Purchase Price for a Wholesale Receivable
purchased or substituted shall be reduced by the amount of the security or
other deposit made by the Obligor thereon and (y) if a Rating Event or a
Discount Event has occurred and is continuing as of such Settlement Date,
the Purchase Price for each Receivable purchased shall be the Principal
Balance thereof multiplied by a percentage equal to 100% less the
applicable Purchase Discount (and less amounts referred to in clause (x),
if applicable).
"Purchase Report": each purchase report, substantially in the form of
Exhibit I, to be delivered by the Seller on each Settlement Date.
"Purchased Receivable": a Receivable (or a portion thereof in the
case of a Participated Receivable or an Extended Term Receivable) which is
purchased or substituted pursuant to Section 2 (including, without
limitation, subsection 2.3).
"Purchasers": as defined in the preamble of this Agreement.
"Purchasing Party": as defined in subsection 11.6(c).
"Quarterly Receivable": any Receivable which is required to be paid
in quarterly installments.
"RAC": Raytheon Aircraft Company, a Kansas corporation and an
Affiliate of Raytheon Credit.
"RAC Repurchase Obligation": at any time, the aggregate amount of the
"Repurchase Obligation" under and as defined in the Repurchase Agreement.
"Rating Event": any time when (a) Raytheon's Debt Rating is below
BBB- or the equivalent thereof, or if for any reason Raytheon's long-term
senior unsecured debt is not rated (whether by reason of suspension or
withdrawal of a rating, or otherwise) or (b) an Amortization Event
described in subsection 8.1(o) shall have occurred and be continuing.
"Raytheon": Raytheon Company, a Delaware corporation and indirect
parent of the Seller, and its successors and assigns (as permitted by the
Guarantee).
"Raytheon Authorized Officers": the Chairman of the Board of
Directors, the President, the Executive Vice President-Chief Financial
Officer and the Senior Vice President-Treasurer of Raytheon.
34
"Receivable": the right to receive all amounts (including fees and
premiums if any) payable by the Obligor under a Contract including without
limitation any amounts payable by the Obligor or an Unaffiliated Foreign
Lessee upon the exercise of a purchase option or a prepayment option under
any Contract, security deposits, engine reserve accounts and all other
right, title and interest of the Seller under and with respect to a
Contract, including, without limitation, all amounts from time to time
payable and all rights to damages and to exercise remedies thereunder
(including fees and premiums, if any), all collateral security therefor
(including, without limitation, any Applicable Lease related thereto, and
the related Financed Aircraft), guarantees thereof (whether by the Obligor,
RAC or any of such Person's Affiliates or by any financial institution
pursuant to a letter of credit issued in favor of the Seller or any of its
Affiliates), rights to payment (whether by the Obligor thereon, any insurer
or letter of credit issuer with respect thereto or any other Person) with
respect thereto and all agreements or inducements made by or on behalf of
RAC with respect to such related Contract or Financed Aircraft and all
proceeds of the foregoing.
"Reference Banks": The Chase Manhattan Bank and Bank of America, N.A.
"Refinanced Aircraft": except with respect to a new Aircraft related
to a Domestic Wholesale Receivable sold or substituted hereunder which has
been sold to more than one Dealer, any Financed Aircraft (i) manufactured
(including subassembly) by RAC, the related Obligor or Unaffiliated Foreign
Lessee of which is not the initial purchaser or lessee thereof (including
any Person who has assumed the obligations of an Obligor or Unaffiliated
Foreign Lessee under a Contract in connection with the transfer of the
related Aircraft, but excluding any Obligor or Unaffiliated Foreign Lessee
who is a wholly-owned Affiliate of such initial purchaser) or (ii)
manufactured by any other Person the acquisition of which has been financed
or refinanced by Raytheon Credit.
"Register": as defined in subsection 11.6(d).
"Registerable Lease Receivable": any Lease Receivable the related
Financed Aircraft of which is determined to be property registerable in
accordance with the Aviation Act in the Seller's name with the FAA
Registry, such determination to be made by either (i) an opinion of counsel
of the FAA or (ii) an opinion of Xxxxx & Xxxxxxx (or any other law firm
acceptable to the Managing Facility Agent in its reasonable discretion)
issued, in each case, as a result of a review of the related lease prior to
filing thereof in accordance with this Agreement.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System.
"Reimbursable Obligations": as defined in subsection 2.14(c)(iii).
"Remarketed Aircraft": any Financed Aircraft which Raytheon Credit or
any of its Affiliates, at the request of the Obligor or Unaffiliated
Foreign Lessee on the related Contract, has agreed to market and sell on
behalf of such Person after such Person has notified the Seller or any of
its Affiliates (in writing or otherwise) that it is or will be on
35
the date its next scheduled payment is due unable to continue to meet its
obligations under the related Contract. A Financed Aircraft shall be deemed
to be a Remarketed Aircraft on the date Raytheon Credit or any of its
Affiliates agrees to market such Financed Aircraft on such Person's behalf.
"Remittance Event": any time Raytheon's Debt Rating is below BBB- or
the equivalent thereof, or if for any reason Raytheon's long-term senior
unsecured debt is not rated (whether by reason of suspension or withdrawal
of a rating, or otherwise).
"Removed Receivable": as defined in subsection 2.13(a).
"Replaced Lease Receivable": as defined in subsection 2.13(e).
"Reporting Date": with respect to a Settlement Period, the fifth
Business Day following the last day of such Settlement Period, with the
first such Reporting Date occurring hereunder on April 6, 2001.
"Repurchase Agreement": that certain Amended and Restated Repurchase
Agreement, substantially in the form of Exhibit G, dated as of March 18,
1999, between RAC and the Managing Facility Agent on behalf of the
Purchasers, as amended, supplemented or otherwise modified from time to
time.
"Repurchase Agreement Reaffirmation": the Reaffirmation, dated the
Amendment Effective Date, to the Repurchase Agreement whereby RAC will
consent to the execution of this Agreement by the Seller and the Servicer
and will reaffirm its obligations under the Repurchase Agreement.
"Repurchase Factor": an amount equal to A + B, where:
A = 10% of the sum of (i) 25% of the aggregate Outstanding Balances
of the 25% Repurchase Receivables, (ii) 75% of the aggregate
Outstanding Balances of the 75% Repurchase Receivables and (iii)
90% of the aggregate Outstanding Balances of the 90% Repurchase
Receivables, in each case at the time the Repurchase Factor is
calculated;
B = 10% of the sum of (i) 25% of the aggregate Outstanding Balances
of 25% Repurchase Receivables, (ii) 75% of the aggregate
Outstanding Balances of 75% Repurchase Receivables and (iii) 90%
of the aggregate Outstanding Balances of 90% Repurchase
Receivables, in each case which were Defaulted Receivables
repurchased pursuant to subsection 2.10 prior to such time (it
being understood that the purpose of this clause B is to ensure
that the Repurchase Factor is not reduced as a result of
reductions in the Outstanding Purchase Price relating to payments
under the Repurchase Obligation);
36
provided that (i) if an Amortization Event has occurred and is continuing,
the Repurchase Factor shall be equal to the Repurchase Factor on the date
such Amortization Event occurred,
(ii) if during the Amortization Period a Rating Event has occurred and is
continuing, the Repurchase Factor shall be equal to the Repurchase Factor
on the date such Rating Event occurred,
(iii) if during the Amortization Period any of the concentration
limitations set forth in subsection 2.7(a) are exceeded then, until each
such breach is cured, the Repurchase Factor shall be equal to the
Repurchase Factor on the date the first such breach occurred,
(iv) notwithstanding clauses (i), (ii) and (iii), the Repurchase Factor
shall not at any time decrease (x) with respect to any Purchaser other than
a Dissenting Purchaser, below an amount equal to the greater of (1) 1.5% of
the maximum aggregate Outstanding Balances of the Purchased Receivables
which existed at any time during the Revolving Period and (2) 10% of the
sum of the Outstanding Balances on the last day of the Revolving Period of
the three Obligors (and all of their Affiliates) of Purchased Receivables
with the largest aggregate outstanding Principal Balances and (y) with
respect to any Dissenting Purchaser, an amount equal to the greater of (1)
1.5% of the maximum aggregate Outstanding Balances of the sum of the
Purchased Receivables which existed at any time prior to the date such
Purchaser became a Dissenting Purchaser and (2) 10% of the sum of the
Outstanding Balances on the day on which such Purchaser became a Dissenting
Purchaser of the three Obligors (and all of their Affiliates) of Purchased
Receivables with the largest aggregate outstanding Principal Balances, and
(v) notwithstanding clauses (i), (ii), (iii) and (iv), the Repurchase
Factor shall not at any time exceed 10% of the Outstanding Purchase Price.
"Repurchase Percentage": the percentage equivalent of a fraction, the
numerator of which is "A" as used in the definition of the term "Repurchase
Factor" at such time and the denominator of which is the aggregate
Outstanding Balances of the Purchased Receivables at such time.
"Repurchase Obligation": as defined in subsection 2.10(b).
"Repurchase Price":
(a) with respect to a repurchase of or substitution for any
Ineligible Receivable, an amount equal to the Principal Balance of such
Ineligible Receivable on the last day of the Settlement Period preceding
the Settlement Date on which such repurchase or substitution is to be
made (as shown from the Settlement Statement delivered for such
Settlement Period) less, if such Ineligible Receivable was purchased
after the occurrence of a Discount Event or Rating Event at a discount
pursuant to subsection 2.6, an amount equal to such Principal Balance at
such last day times the Purchase Discount in effect on the Settlement
Date such Ineligible Receivable was purchased plus, after a Trigger
Amortization Event, accrued interest;
37
(b) with respect to a repurchase of or substitution for any Purchased
Receivable which becomes a Defaulted Receivable during the Revolving
Period, an amount equal to the Principal Balance of such Defaulted
Receivable on the last day of the Settlement Period preceding the
Settlement Date on which such repurchase or substitution is to be made
(as shown from the Settlement Statement delivered for such Settlement
Period) less, if such Defaulted Receivable was purchased after the
occurrence of a Discount Event or Rating Event at a discount pursuant to
subsection 2.6, an amount equal to such Principal Balance at such last
day times the Purchase Discount in effect on the Settlement Date such
Defaulted Receivable was purchased; and
(c) with respect to a repurchase of or substitution for any Purchased
Receivable which becomes a Defaulted Receivable during the Amortization
Period, an amount equal to the Principal Balance of such Defaulted
Receivable on the last day of the Settlement Period preceding the
Settlement Date on which such repurchase or substitution is to be made
(as shown from the Settlement Statement delivered for such Settlement
Period).
"Required Purchasers": at any time, Purchasers the Commitment
Percentages of which aggregate at least 67%; provided that the Commitment
Percentage of any Dissenting Purchaser shall not be included in
determinations of Required Purchasers with respect to purchases or
substitutions of Receivables or other matters not otherwise affecting
Dissenting Purchasers; provided, further, that any action taken by the
Managing Facility Agent and the Purchasers under subsection 8.2 (with the
exception of subsection 8.2(b)) shall be deemed to affect a Dissenting
Purchaser.
"Requirement of Law": as to any Person, any law, treaty, rule or
regulation or final determination (after exhaustion of all appeals) of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Resale": as defined in subsection 11.24.
"Resale Account": as defined in subsection 2.14(d).
"Resale Purchase Price": as defined in subsection 11.24.
"Resold Receivable": as defined in subsection 11.24.
"Responsible Officer": the president or chief credit officer of the
Seller.
"Revolving Period": the period from and including the Amendment
Effective Date to and including the earlier of (i) the Expiration Date and
(ii) the date on which the Revolving Period is terminated pursuant to
subsection 8.2(b) as a result of the occurrence of an Amortization Event.
"S&P": Standard & Poor's Ratings Services.
"Secured Lease Receivables": the collective reference to (i) each
Receivable which is a Lease Receivable purchased after the date hereof and
in respect of which the
38
filings referred to in subsection 5.2(e) have been made and (ii) each
Existing Receivable which is a "Registerable Lease Receivable" under the
Existing Agreement pursuant to which such Receivable was purchased by the
Old Administrative Agent and with respect to which all filings required
under subsection 6.1(n)(ii) have been made.
"Security Interest Leases": as defined in subsection 11.12.
"Seller": as defined in the preamble of this Agreement.
"Seller's Interest": an amount equal to the subordinated
participating interest in the Purchased Receivables purchased by the Seller
(i) pursuant to subsection 2.4(a) and subject to the terms of subsection
2.4(b), (ii) pursuant to subsection 2.5(a) and subject to the terms of
subsection 2.5(b) and (iii) after the occurrence of a Rating Event or
Discount Event, pursuant to subsection 2.6(b) and subject to the terms of
subsection 2.6(c).
"Semi-Annual Receivable": any Receivable which is required to be paid
in semi-annual payments.
"Servicer": the Person appointed as servicer of the Purchased
Receivables pursuant to subsection 3.1.
"Servicer Letter of Credit": an irrevocable standby letter of credit
issued in favor of the Managing Facility Agent and the Purchasers which:
(a) supports the obligations of the Servicer under this Agreement;
(b) provides for drawings on sight or upon presentation of
certificates specified therein;
(c) is issued by a commercial bank, the short term unsecured
indebtedness of which, at the date the Servicer Letter of Credit is
issued and at all times thereafter, is rated at least A-1 and P-1 by S&P
and Xxxxx'x, respectively;
(d) at any date of determination, has an expiration date which is not
earlier than the second succeeding Settlement Date after such date of
determination;
(e) at any date of determination, has an available amount equal to
the aggregate amount of Principal Collections and Finance Charge
Collections for the three Settlement Periods preceding such date of
determination; and
(f) is otherwise in form and substance satisfactory to the Managing
Facility Agent and the Majority Purchasers.
"Servicing Fee": the fee which the Servicer is entitled to receive
pursuant to subsection 3.4.
39
"Settlement Date": (i) with respect to a Settlement Period, the tenth
Working Day following the last day of such Settlement Period, with the
first such Settlement Date under this Agreement occurring on April 17, 2001
and (ii) each Special Settlement Date.
"Settlement Period": each fiscal monthly period of the Seller during
each of its fiscal years during the term of this Agreement.
"Settlement Statement": a Settlement Statement delivered by the
Seller pursuant to this Agreement, substantially in the form of Exhibit C
for delivery during the Revolving Period and with appropriate modifications
thereto for delivery during the Amortization Period, in each case with
appropriate insertions.
"75% Repurchase Receivables": at any date of determination, the
collective reference to the following types of Receivables:
(a) Commuter Receivables the Obligor under which is located (within
the meaning of Section 9-103 of the New York UCC) in the United States;
(b) Certified Foreign Receivables (including Affiliate Receivables
which are Certified Foreign Receivables); and
(c) the Travel Air Receivables.
"Solvent": as to any Person at any time, that (a) the fair value of
the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities)
as such value is established and liabilities evaluated for purposes of
Section 101(31) of the Bankruptcy Code (11 USC (S) 101(31)); (b) the
present fair saleable value of the property of such Person in an orderly
liquidation of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured; (c) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature; and (e) such Person is
not engaged in business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's property would
constitute unreasonably small capital.
"SPC": each Purchaser which is a special purpose corporation
identified as such on the signature pages hereto next to the caption "SPC"
and each special purpose corporation identified as such in a Commitment
Transfer Supplement or a Transfer Notice.
"SPC Bank": each Purchaser which is identified as such on the
signature pages hereto next to the caption "SPC Bank" and immediately below
the signature of its SPC.
"Special Settlement Date": each of March 30, 2001, June 29, 2001,
September 28, 2001 and December 28, 2001.
40
"Special Settlement Date Accrual Period": with respect to any Special
Settlement Date, the period beginning on the third Working Day after such
Special Settlement Date and ending on the next Settlement Date; provided
that, if the notice provided for in Section 2.3 is delivered to the
Managing Facility Agent at least three Working Days before any Special
Settlement Date, the Special Settlement Date Accrual Period with respect to
such Special Settlement Date shall begin on such Special Settlement Date.
"Specified Amortization Event": (i) an Amortization Event of the
type described in subsection 8.1(a), (b), (e), (f), (j) (unless applicable
to the Servicer which is neither Raytheon Credit nor an Affiliate of
Raytheon Credit), (m), (n) or (o), or (ii) an Amortization Event of the
type described in subsection 8.1(d) if such Amortization Event could
reasonably be expected to have a Material Adverse Effect.
"Stipulated Aircraft Value": the Stipulated Aircraft Value as set
forth in any lease Contract with respect to the related Financed Aircraft.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person.
"Substituted Receivable": as defined in subsection 2.13(a).
"Substituted Lease Receivable": as defined in subsection 2.13(e).
"Syndication Materials": the collective reference to (i) the document
dated January 2001 furnished on behalf of the Seller to the Purchasers with
respect to the transactions contemplated by the Purchase Documents and (ii)
those materials relating to the Receivables and related Contracts and
Financed Aircraft and the business and operations of the Seller, RAC,
Raytheon Credit and Raytheon.
"Taxes": means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Third Party Buyer": as defined in subsection 11.24.
"Transferee": as defined in subsection 11.6(f).
"Transfer Notice": as defined in subsection 11.6(c).
"Transferred Property": as defined in subsection 11.13(a)(i).
"Travel Air": Raytheon Travel Air Company, a Kansas corporation.
41
"Travel Air Aircraft": Aircraft the undivided interests in which are
sold to Obligors pursuant to Travel Air Contracts.
"Travel Air Contracts": those purchase, management and other
agreements, substantially in the form of Exhibit I hereto, pursuant to
which Travel Air has sold to an Obligor an undivided interest in an
aircraft and agreed to the management (including interchange arrangements)
with respect thereto.
"Travel Air Receivables": the collective reference to each Receivable
secured by the applicable Obligor's rights and interests in and to the
Travel Air Aircraft and the Travel Air Contracts.
"Trigger Amortization Event": any Amortization Event which occurs
during, or which pursuant to subsection 8.2(b) results in the commencement
of, the Amortization Period.
"25% Repurchase Receivables": at any date of determination, the
collective reference to the following types of Receivables:
(a) Receivables arising from the financing of General Aviation
Aircraft, the Obligor under which is located (within the meaning of
Section 9-103 of the New York UCC) in the United States;
(b) ExIm Bank Receivables; and
(c) L/C Receivables with a letter of credit issued by an Acceptable
L/C Issuer and held by the Bailee under the Bailment Agreement.
"UCC": with respect to a specified jurisdiction, the Uniform
Commercial Code as from time to time in effect in such jurisdiction.
"Unaffiliated Foreign Lessee": with respect to any Affiliated
Receivable, the lessee under the related Applicable Lease.
"Uncertified Foreign Receivables": Foreign Receivables and Affiliate
Receivables which are not Certified Foreign Receivables.
"Unsecured Foreign Receivable": a Receivable arising from the
purchase of an Aircraft by an Obligor not located (within the meaning of
Section 9-103 of the New York UCC) within the United States, the Principal
Balance of which is less than $500,000 at the time of purchase or
substitution hereunder.
"Uncertified Lease Receivables": A Foreign Receivable which is a
Lease Receivable with a Foreign Obligor for which a Lien on the Financed
Aircraft has not been granted by the Seller to the Administrative Agent
under Sections 2.27(a)(iii)(A) and 2.27(a)(iii)(B).
42
"Unsecured Receivables": the collective reference to each Receivable
which is (i) an Unsecured Foreign Receivable, (ii) an Existing Certified
Receivable with respect to which the requirements of subsection 6.1(n)(i)
have not been satisfied, (iii) an Existing Receivable which is an
"Uncertified Foreign Receivable" under and as defined in the Existing
Agreement pursuant to which such Receivable was purchased, (iv) an Existing
Receivable which is a "Registerable Lease Receivable" under the Existing
Agreement pursuant to which such Receivable was purchased and with respect
to which the requirements of subsection 6.1(n)(ii) have not been satisfied
and (v) an Uncertified Lease Receivable.
"Wholesale Receivable": a Domestic Wholesale Receivable or a Foreign
Wholesale Receivable.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Seller and
its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) When used in this Agreement, "purchase" and its correlative
meanings shall refer to purchases of Eligible Receivables by the
Purchasers pursuant to and subject to the terms and conditions of, this
Agreement.
(d) 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, and
Section, subsection, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Agreement to Purchase and Sell; Special Purpose Purchasers;
Initial Utilization and Pro Ration. (a) Subject to the terms and
conditions hereof, the Seller agrees to sell to each Purchaser, and each
Purchaser severally agrees to purchase from the Seller from time to time
during the Revolving Period, undivided interests in Receivables with an
Outstanding Purchase Price at any one time as to such Purchaser not to
exceed the amount of such Purchaser's Commitment. The Outstanding Purchase
Price of all Purchased Receivables (exclusive of the interests of
Dissenting Purchasers) at any one time shall not exceed the aggregate
Commitments then in effect. Each purchase and sale of Receivables shall,
subject to
43
the terms and conditions hereof, take place on the Closing Date or on any
Settlement Date during the Revolving Period. Each Purchaser's Available
Commitment Percentage of the Purchase Price for the Receivables being
purchased on the Closing Date or such Settlement Date shall not exceed
such Purchaser's Available Commitment at such date (calculated before
giving effect to any such purchase). Upon the expiration of the Revolving
Period, the Commitments will be canceled, the Purchasers will have no
further commitment to purchase Receivables hereunder and Collections on
the Purchased Receivables will continue to be applied in respect of the
Outstanding Purchase Price in accordance with the terms of this Agreement.
(b) In consideration of the agreements set forth herein, upon each
purchase of Receivables hereunder, the Seller will sell, assign and
transfer to the Purchasers all of its right, title and interest in and
to the Receivables, the related Contracts (including any Applicable
Leases) and Financed Aircraft.
(c) Except for Three Rivers Funding Corporation, nothing contained
herein shall constitute a commitment by an SPC to make purchases. For
any Purchaser which is an SPC Bank, any purchase to be made by such
Purchaser may from time to time be made by the related SPC in its sole
discretion and nothing herein contained shall constitute a commitment to
make purchases by such SPC; provided that if any SPC elects not to make
a purchase, its SPC Bank agrees it will make such purchase pursuant to
the terms hereof. Any purchase by an SPC shall constitute a utilization
of the Commitment of the SPC Bank.
(d) It is expressly agreed that on the Closing Date, immediately
following the purchases and sales provided for above in subsection
2.1(d) of the 1997 Agreement, each Existing Agreement was deemed amended
and restated by the 1997 Agreement.
2.2 Procedures for Making Purchases. The Seller shall give the
Managing Facility Agent irrevocable notice, which notice must be received by the
Managing Facility Agent prior to 10:00 a.m., New York City time, on the
Reporting Date prior to the Settlement Date (other than a Special Settlement
Date) on which the Seller wishes to sell Eligible Receivables hereunder (or, in
the case of the initial purchase, three Working Days prior to the Closing Date).
Each such notice of a proposed purchase shall specify the date of purchase
(which shall be the Closing Date or the Settlement Date next succeeding such
Reporting Date), the aggregate Outstanding Purchase Price of the Purchased
Receivables prior to such proposed purchase (after giving effect to the
application of Collections on the related Settlement Date), the Principal
Balance and the Purchase Price for each Receivable which the Seller proposes to
sell on the Closing Date or such Settlement Date and any other information which
the Managing Facility Agent, in its reasonable discretion, may require prior to
the Closing Date or such Settlement Date. Upon receipt of any such notice from
the Seller, the Managing Facility Agent shall promptly notify each Purchaser
thereof. Prior to 11:00 a.m., New York City time, on each such Settlement Date
on which a purchase has been requested to be made, each Purchaser shall make
available to the Managing Facility Agent, in immediately available funds at the
Managing Facility Agent's office specified in subsection 11.2, the amount of
such Purchaser's pro rata share of such aggregate Purchase Price for all
Receivables being purchased on such Settlement Date. Subject to the terms and
conditions hereof, the proceeds of such purchase will then be made available (or
deemed made available if subsection 2.15 is applicable) to the Seller by the
Managing Facility Agent crediting the account of the Seller on the books of such
office with the
44
aggregate of the amounts made available to the Managing Facility Agent by the
Purchasers and in like funds as received by the Managing Facility Agent.
2.3 Special Settlement Dates. On each Special Settlement Date, the Seller
will be permitted to sell Eligible Receivables to the Purchasers. In connection
with any purchase of Eligible Receivables on any Special Settlement Date, the
Seller shall give the Managing Facility Agent irrevocable notice, which notice
must be received by the Managing Facility Agent prior to 10:00 a.m., New York
City time on the day which is one Business Day prior to such Special Settlement
Date. Each such notice, which shall be in the form of Exhibit H, shall specify
(i) the aggregate Outstanding Purchase Price of the Purchased Receivables prior
to such proposed purchase, (ii) the Principal Balance and the Purchase Price for
each Receivable which the Seller proposes to sell on such Special Settlement
Date and (iii) the amount of 90% Repurchase Receivables, 75% Repurchase
Receivables and 25% Repurchase Receivables, respectively, included in the
Receivables which the Seller proposes to sell on such Special Settlement Date.
Upon receipt of any notice from the Seller, the Managing Facility Agent shall
promptly notify each Purchaser thereof. Prior to 11:00 a.m., New York City time,
on such Special Settlement Date, each Purchaser shall make available to the
Managing Facility Agent, in immediately available funds at the Managing Facility
Agent's office specified in Section 11.2, the amount of such Purchaser's pro
rata share of the aggregate Purchase Price for all Receivables being purchased
on such Special Settlement Date. Subject to the terms and conditions hereof, the
proceeds of such purchase will then be made available to the Seller by the
Managing Facility Agent crediting the account of the Seller on the books of such
office with the aggregate of the amounts made available to the Managing Facility
Agent by the Purchasers and in like funds as received by Managing Facility
Agent.
2.4 Participated Receivables. (a) In the event that on any Settlement Date
the aggregate Available Commitments are less than the aggregate Purchase Price
of Eligible Receivables the Seller proposes to sell on such Settlement Date, and
so long as no Rating Event has occurred and is continuing, the Purchasers agree,
subject to the terms and conditions in this Agreement, to purchase an interest
in each such Receivable, the Purchase Price of which would otherwise exceed the
amount of the Available Commitments, up to the aggregate Available Commitments
then in effect. The Purchase Price for each such Receivable shall be deemed to
be the Principal Balance able to be purchased under the Available Commitments;
provided that the Available Commitments shall first be applied to purchase
Receivables other than Participated Receivables to the fullest extent available
and next to purchase Participated Receivables. The portion of each such
Receivable not available to be purchased by the Purchasers shall be an interest
of the Seller in such Receivable and shall represent the Seller's Interest in
such Participated Receivable. The Seller's Interest in each Participated
Receivable shall be subordinated and junior to the rights of the Purchasers in
accordance with the terms and conditions of subsection 2.4(b). The portion of
any Participated Receivable representing the Seller's Interest therein shall be,
subject to the terms and conditions of this Agreement, available as a Receivable
for purchase by the Purchasers on subsequent Settlement Dates.
(b) The Seller's Interest in and to each Participated Receivable shall be
subordinate and junior in right of payment and all other rights to the rights of
the Purchasers with respect to such Participated Receivable, including, but not
limited to, the rights of the Purchasers to receive all Principal Collections
and Finance Charge Collections on such Participated
45
Receivable. Such subordination shall be in effect until the Principal Balance
purchased by the Purchasers of the Participated Receivable, after application of
Principal Collections received on account of such Participated Receivable, has
been reduced to zero and, accordingly, the Seller shall not (except as provided
in subsection 2.16(b)) be entitled to receive any amounts with respect to a
Participated Receivable on account of the Seller's Interest therein until such
time. If the Seller receives any payment on account of the Seller's Interest in
any Participated Receivable prior to the time at which it is entitled to retain
such payment pursuant to this subsection 2.4(b), the Seller shall hold such
payment in trust for the Managing Facility Agent and the Purchasers and shall
immediately deposit such payment into the Concentration Account.
2.5 Extended Term Receivables. (a) The Purchasers agree, subject to the
terms and conditions of this Agreement, on the Closing Date and any Settlement
Date to purchase Extended Term Receivables, up to each Purchaser's Available
Commitment, for a Purchase Price equal to (a) the actual unpaid Principal
Balance of such Receivable on the last day of the Settlement Period preceding
the date of purchase less (b) the aggregate amount of principal payments
scheduled to be made thereon after the Cash Flow Cutoff Date for such Extended
Term Receivable. The portion of each such Receivable not available to be
purchased by the Purchasers shall be an interest of the Seller in such
Receivable and shall represent the Seller's Interest in such Extended Term
Receivable. The Seller's Interest in each Extended Term Receivable shall be
subordinated and junior to the rights of the Purchasers in accordance with the
terms and conditions of subsection 2.5(b). The portion of the actual unpaid
principal balance of any Extended Term Receivable representing the Seller's
Interest therein shall be, subject to the terms and conditions hereof
(including, without limitation, that principal payments scheduled to be made
after the applicable Cash Flow Cutoff Date at any date of determination are not
available for purchase under this Agreement), available for purchase by the
Purchasers on subsequent Settlement Dates.
(b) The Seller's Interest in and to each Extended Term Receivable shall be
subordinate and junior in right of payment and all other rights to the rights of
the Purchasers with respect to such Extended Term Receivable, including, but not
limited to, the rights of the Purchasers to receive all Principal Collections
and Finance Charge Collections on such Extended Term Receivable. Such
subordination shall be in effect until the Principal Balance purchased by the
Purchasers of the Extended Term Receivable, after application of Principal
Collections received on account of such Extended Term Receivable, has been
reduced to zero and, accordingly, the Seller shall not be entitled to receive
any amounts with respect to a Extended Term Receivable on account of the
Seller's Interest therein until such time. If the Seller receives any payment on
account of the Seller's Interest in any Extended Term Receivable prior to the
time at which it is entitled to retain such payment pursuant to this subsection
2.5(b), the Seller shall hold such payment in trust for the Managing Facility
Agent and the Purchasers and shall immediately deposit such payment into the
Concentration Account.
2.6 Certain Actions Following a Rating Event and a Discount Event. (a) If a
Rating Event shall occur, then no later than the 20th Business Day following
such occurrence (provided such Rating Event shall then be continuing) the Seller
shall deposit cash into the Cash Collateral Account an amount equal to the
Repurchase Percentage times the aggregate Outstanding Purchase Price (as of the
Settlement Date preceding such date of deposit). As long as any Rating Event
continues, any amounts deposited in the Cash Collateral Account shall be
46
applied from time to time in accordance with subsection 2.14(c). If such Rating
Event shall cease to continue, the Managing Facility Agent shall, upon written
request of the Seller, withdraw amounts so deposited in the Cash Collateral
Account and deliver such amounts to the Seller (or upon its order).
(b) On each Settlement Date after the occurrence and during the continuance
of a Discount Event or Rating Event, each purchase of Eligible Receivables in
accordance with the terms and conditions specified in this Agreement shall be at
a discount as specified in the proviso contained in the definition of "Purchase
Price" and the portion of such Receivable's Principal Balance equal to the sum
of the reductions and discounts required pursuant to such proviso clause shall
be an interest of the Seller in such Receivable and shall constitute the
Seller's Interest. The Seller's Interest in each Purchased Receivable created
pursuant to this clause (b) shall be subordinated and junior to the rights of
the Purchasers in accordance with the terms and conditions of subsection 2.6(c).
If a Rating Event or Discount Event is no longer continuing, the portion of any
Receivable representing the Seller's Interest created therein pursuant to this
clause (b) shall, subject to the terms and conditions of this Agreement, be
deemed to be available as a Receivable for purchase by the Purchasers on
subsequent Settlement Dates.
(c) The Seller's Interest in and to each Purchased Receivable a portion of
which is an interest of the Seller pursuant to subsection 2.6(b) shall be
subordinate and junior in right of payment and all other rights to the rights of
the Purchasers with respect to the Purchased Receivables, including, but not
limited to, the rights of the Purchasers to receive all Principal Collections
and Finance Charge Collections on the Purchased Receivables until the
Outstanding Purchase Price has been reduced to zero and all other amounts owing
to the Managing Facility Agent or any Purchaser under any Purchase Document have
been paid in full and, accordingly, the Seller shall not (except as provided in
subsection 2.16(b)) be entitled to receive any amounts on account of the
Seller's Interest in such Purchased Receivables until the Outstanding Purchase
Price has been reduced to zero and all other amounts owing to the Managing
Facility Agent or any Purchaser under any Purchase Document have been paid in
full.
(d) If a Rating Event shall occur and be continuing, Lease Receivables, 90%
Repurchase Receivables, Unsecured Foreign Receivables, Nonstandard Receivables,
ExIm Bank Receivables, Affiliate Receivables and Receivables (other than
Wholesale Receivables) the payments of which are not required to be made at
least monthly and Receivables the Obligor of which is a Governmental Authority
(other than a United States Federal Governmental Authority) will not be eligible
for purchase or substitution hereunder (including Lease Receivables under
subsection 2.13(e)).
(e) If a Rating Event shall occur and be continuing and the Servicer makes
a drawing under any letter of credit related to a L/C Receivable pursuant to
subsection 3.2(a), the Servicer shall deposit the amount of such drawing in the
Collection Account on the date deposits are required to be made hereunder
pursuant to subsection 2.14(a).
(f) [Intentionally Omitted.]
(g) If a Rating Event shall occur or be continuing, the other provisions of
this Agreement regarding such event including, without limitation, those
specified in clause (k) of the
47
definition of "Eligible Applicable Lease", clauses (c), (x), (y), (aa), (dd) and
(ee) of the definition of "Eligible Receivable", the definition of "Purchase
Price", the definition of "Repurchase Factor", the definition of "Repurchase
Price" and subsections 2.4, 2.5, 2.10, 2.11, 2.14, 2.15, 2.16, 11.1 and 11.7
hereof, shall apply.
2.7 Concentration Limits. (a) The Seller shall not sell or substitute
Eligible Receivables on any Settlement Date if, and to the extent that, after
giving effect to such sales and substitutions on such date (unless the Managing
Facility Agent and all of the Purchasers otherwise agree with respect to clauses
(i) and (ii) below and unless the Managing Facility Agent and the Required
Purchasers otherwise agree with respect to clauses (iii) through (xvi) below):
(i) the aggregate outstanding Principal Balances of all Purchased
Receivables in respect of a single Obligor and all of its Affiliates or
a single Unaffiliated Foreign Lessee and all of its Affiliates would
exceed an amount equal to 10% of the Outstanding Purchase Price on such
Settlement Date, provided, that (x) if no Amortization Event has
occurred and is continuing, the Servicer may request that the 10%
concentration limit with respect to any Obligor be waived and such
waiver may be granted with the unanimous written consent of the
Purchasers; and (y) the 10% concentration limit is hereby waived with
respect to both Mesa and Great Lakes, and a 15% concentration limit
shall be applicable to each;
(ii) the aggregate outstanding Principal Balances of Purchased
Receivables of the five Obligors and all of their Affiliates with the
largest aggregate outstanding Principal Balances would exceed an amount
equal to 35% of the Outstanding Purchase Price on such Settlement Date;
provided, that the greater of (x) the Principal Balances of Receivables
having Mesa as the applicable Obligor and (y) the Principal Balances of
Receivables having Great Lakes as the applicable Obligor shall be
excluded from the foregoing concentration limitations unless Raytheon's
Debt Rating is below either BBB- or the equivalent thereof during which
time such Receivables shall be subject to the foregoing limitations. For
purposes of this subsection 2.7(a)(ii), the Obligor under an Affiliate
Receivable shall be deemed to be the Unaffiliated Foreign Lessee
thereunder;
(iii) the aggregate outstanding Principal Balances of Purchased
Receivables in connection with the financing or refinancing of
Refinanced Aircraft would constitute more than 50% of the Outstanding
Purchase Price paid for all Receivables (other than Wholesale
Receivables) on such Settlement Date;
(iv) the aggregate outstanding Principal Balances of all Nonstandard
Receivables would exceed an amount equal to 35% of the Outstanding
Purchase Price on such Settlement Date;
(v) the aggregate outstanding Principal Balances of all Secured Lease
Receivables would exceed an amount equal to 45% of the Outstanding
Purchase Price on such Settlement Date;
48
(vi) the aggregate outstanding Principal Balances of all Uncertified
Foreign Receivables (other than L/C Receivables and Foreign Wholesale
Receivables) would exceed an amount equal to 40% of the Outstanding
Purchase Price on such Settlement Date;
(vii) the aggregate outstanding Principal Balances of all Purchased
Receivables which are not required to be paid in consecutive monthly
installments (including, without limitation, Quarterly Receivables and
Semi-Annual Receivables but excluding those Receivables referred to in
clause (g)(ii)(B) of the definition of "Eligible Receivables") would
exceed 20% of the Outstanding Purchase Price on such Settlement Date;
(viii) the aggregate outstanding Principal Balances of all Purchased
Receivables with respect to which the FAA Assignment for the Financed
Aircraft related thereto (if required by subsection 5.2(e) hereof) is
without a conveyance number from the FAA on such Settlement Date would
exceed 20% of the Outstanding Purchase Price on such Settlement Date;
provided that if Raytheon's Debt Rating is below BBB- or the equivalent
thereof, the concentration limit shall be 0%;
(ix) with respect to each foreign jurisdiction (other than Brazil,
Turkey and Venezuela) whose long-term foreign currency debt rating is
rated below BBB-or the equivalent thereof, the aggregate outstanding
Principal Balances of all Purchased Receivables which are Foreign
Receivables having a Foreign Obligor located in such jurisdiction would
exceed an amount equal to 5% or, in the case of each of Brazil, Turkey
and Venezuela, 10% of the Outstanding Purchase Price on such Settlement
Date. For purposes of this clause (ix), the Obligor under an Affiliate
Receivable shall be deemed to be the Unaffiliated Foreign Lessee
thereunder;
(x) the aggregate outstanding Principal Balances of all Unsecured
Receivables on any Settlement Date would exceed an amount equal to 30%
of the Outstanding Purchase Price on such Settlement Date;
(xi) the aggregate outstanding Principal Balances of all Wholesale
Receivables would exceed an amount equal to 20% of the Outstanding
Purchase Price on such Settlement Date;
(xii) the aggregate outstanding Principal Balances of all Unsecured
Foreign the Obligor of which is a Governmental Authority would exceed an
amount equal to 2% of the Outstanding Purchase Price on such Settlement
Date;
(xiii) the aggregate outstanding Principal Balances of all Extended
Term Receivables would exceed an amount equal to 50% of the Outstanding
Purchase Price on such Settlement Date;
49
(xiv) the aggregate outstanding Principal Balances of all Purchased
Receivables with respect to Aircraft manufactured by any Person other
than RAC would exceed an amount equal to 5% of the Outstanding Purchase
Price on such Settlement Date;
(xv) [Intentionally omitted];
(xvi) [Intentionally omitted];
(xvii) the aggregate outstanding Principal Balances of all Travel Air
Receivables on any Settlement Date would exceed an amount equal to 15%
of the Outstanding Purchase Price on such Settlement Date; or
(xviii) the aggregate outstanding Principal Balances of Receivables
referred to in clause (g)(ii)(B) of the definition of "Eligible
Receivable" would exceed $75,000,000 on such Settlement Date.
(b) If any such sale or substitution on any Settlement Date shall cause a
breach of any of the limitations specified in subsections 2.7(a)(i) through
2.7(a)(xvii), the Seller shall, subject to subsection 2.13, repurchase from the
Purchasers, on the Settlement Date immediately following the date the Managing
Facility Agent notifies the Seller of such breach, the fewest number of
Receivables necessary such that after such repurchase such breach shall have
been remedied (each Receivable required to be so repurchased, a "Concentration
Receivable"). The Seller shall effect such repurchase by depositing into the
Concentration Account on such Settlement Date cash in an amount equal to the
aggregate Outstanding Balances of the Concentration Receivables plus, if a
Trigger Amortization Event has occurred and is continuing, accrued and unpaid
interest thereon at the rate under the related Contract except to the extent
(without duplication) of any payment made pursuant to subsection 2.18 for the
Settlement Period during which such interest accrued and was not paid by the
related Obligor. The amount of any such deposit shall be applied and distributed
in accordance with subsections 2.15 and 2.16.
2.8 Term of Revolving Period. (a) So long as no Amortization Event has
occurred and is continuing, no more than 60 and no less than 45 days prior to
the applicable Expiration Date, the Seller may request, through the Managing
Facility Agent, that each Purchaser extend the Revolving Period, which decision
will be made by each Purchaser in its sole discretion. Such request by the
Seller shall be accompanied by an amortization schedule of Purchased Receivables
in form and substance satisfactory to the Managing Facility Agent and the
Purchasers. Upon receipt of any such request, the Managing Facility Agent shall
promptly notify each Purchaser thereof. At least 30 but not more than 45 days
prior to the applicable Expiration Date, each Purchaser shall notify the
Managing Facility Agent of such Purchaser's willingness to extend the Revolving
Period, and the Managing Facility Agent shall notify the Seller of such
willingness by the Purchasers on such 30th day. The approval of the Managing
Facility Agent and at least the Majority Purchasers (calculated as to Purchasers
which are not Dissenting Purchasers prior to the applicable Expiration Date)
shall be required to extend such Expiration Date.
50
(b) (i) Any Purchaser not wishing to extend the Revolving Period (a
"Dissenting Purchaser") may in its sole discretion elect to terminate its
Commitment on the Expiration Date in effect prior to any such extension of the
Revolving Period. The Dissenting Purchaser shall give the Managing Facility
Agent notice of such election at least 30 days prior to the applicable
Expiration Date, provided that failure to expressly notify the Managing Facility
Agent of a willingness to extend the Expiration Date in accordance with
subsection 2.8(a) shall be deemed an election by such Purchaser to terminate its
Commitment on the Expiration Date. Upon receipt of any notice the Managing
Facility Agent shall promptly notify each other Purchaser and the Seller
thereof. The Seller, by notice to the Managing Facility Agent, may (but shall
not be required to) request one or more other Purchasers, or seek another
financial institution acceptable to the Managing Facility Agent and the Seller,
in their reasonable discretion, to acquire the Commitment of the Dissenting
Purchaser and all amounts payable to it hereunder in accordance with subsection
11.6(c). Unless otherwise specified in connection with a transfer made pursuant
to subsection 11.6(c), a Purchaser shall become a Dissenting Purchaser pursuant
to this subsection 2.8(b) on the first day following the Expiration Date on
which its Commitment is terminated.
(ii) If any Dissenting Purchaser's Commitment is not acquired pursuant to
subsection 11.6(c), such Dissenting Purchaser shall, on each Settlement Date
after the Expiration Date on which its Commitment terminates, (A) be paid such
Dissenting Purchaser's pro rata share of Principal Collections received after
such Expiration Date solely (except as provided in subsection 2.13(c)) on
account of Eligible Receivables purchased or substituted on or before such
Expiration Date (based on such Dissenting Purchaser's Commitment Percentage at
the time its Commitment terminated) (as to such Dissenting Purchaser, its
"Frozen Pool"), (B) not purchase any additional Receivables after such
Expiration Date and (C) be paid interest in accordance with subsection 2.17 in
respect of its Outstanding Purchase Price.
(iii) So long as the Revolving Period has not expired or terminated, if on
any Settlement Date after a Purchaser becomes a Dissenting Purchaser its
Outstanding Purchase Price is less than 10% (after giving effect to the
application of Collections on such Settlement Date) of such Dissenting
Purchaser's maximum Outstanding Purchase Price at any time prior to the date
such Purchaser became a Dissenting Purchaser, then the Seller may give the
Managing Facility Agent irrevocable notice, which must be received by the
Managing Facility Agent by 10:00 a.m., New York City time, on the Reporting Date
prior to the next succeeding Settlement Date, (A) requesting that each other
Purchaser purchase a pro rata share (based on such other Purchaser's Available
Commitment Percentage as in effect on such next succeeding Settlement Date) of
such Dissenting Purchaser's Outstanding Purchase Price (the "Buyout Amount")
subject to the approval of the Managing Facility Agent and the Majority
Purchasers or (B) stating that the Seller or an Affiliate of the Seller will
repurchase all the Dissenting Purchaser's interests in and to the Receivables in
the Frozen Pool by payment of the Buyout Amount on such next succeeding
Settlement Date; provided that no such purchase by the Purchasers shall be made
if the Buyout Amount to be paid by such Purchasers exceeds the aggregate
Available Commitments in effect on such next succeeding Settlement Date (after
giving effect to purchases from the Seller on such date). Any such purchase of
the Buyout Amount by the Purchasers shall be subject to, and shall be made upon
satisfaction of, the conditions set forth in subsection 5.2 and, in connection
therewith, the Seller shall be deemed to have made the representations and
51
warranties set forth in subsection 4.2 with respect to the Receivables
constituting the Frozen Pool as if such Receivables were being sold to the
Purchasers on such Settlement Date. Payment for the purchase by the Purchasers
or the repurchase by the Seller of the Frozen Pool, as the case may be, shall be
made to the Managing Facility Agent for the account of such Dissenting Purchaser
on such Settlement Date by deposit into the Concentration Account on the
Settlement Date required by this subsection 2.8(b)(iii).
2.9 Termination or Reduction of Commitments. (a) On any Settlement Date,
the Seller shall have the right to terminate the Commitments or reduce the
amount thereof by notice to the Managing Facility Agent on the preceding
Reporting Date; provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any distributions on account of
the Outstanding Purchase Price made on such Settlement Date, the then
Outstanding Purchase Price (exclusive of the interests of Dissenting Purchasers)
would exceed the Commitments then in effect. Any such reduction shall be in an
amount equal to $50,000,000 or a multiple of $1,000,000 in excess thereof and
shall permanently reduce the Commitments then in effect.
(b) On each Settlement Date the aggregate Commitment of the Purchasers
shall be reduced by an amount, if positive, equal to (i) the aggregate amount of
Resales which occurred prior to or during the related Settlement Period pursuant
to clause (x) of subsection 11.24(a) less (ii) the aggregate amount of any prior
reduction of the aggregate Commitment of the Purchasers pursuant to this
subsection 2.9(b).
(c) [Intentionally omitted].
(d) Each Purchaser's Commitment shall terminate upon the expiration of the
Revolving Period as to such Purchaser.
2.10 Defaulted Receivables; Application of Lease Security Deposits. (a) (i)
On each Settlement Date (other than a Special Settlement Date) the Seller agrees
to repurchase from the Purchasers, up to the Repurchase Obligation, all
Receivables which became Defaulted Receivables during each preceding Settlement
Period with respect to which the Seller has not substituted an Eligible
Receivable pursuant to subsection 2.13, as indicated on the Settlement Statement
delivered on the related Reporting Date. Subject to subsections 2.10(b), 2.13,
2.15(b) and clause sixth of subsection 2.16(b), the Seller shall repurchase such
Defaulted Receivables by depositing into the Concentration Account on such
Settlement Date cash in an amount equal to the aggregate Outstanding Balances of
the Defaulted Receivables plus, if a Trigger Amortization Event has occurred and
is continuing, accrued and unpaid interest thereon at the rate under the related
Contract except to the extent (without duplication) of any payment made pursuant
to subsection 2.18 for the Settlement Period during which such interest accrued
and was not paid by the Obligor under such Contract. The amount of any such
deposit shall be applied and distributed in accordance with subsections 2.15 and
2.16. If on any Settlement Date the Repurchase Price to be paid by the Seller
for any Defaulted Receivable would cause the Repurchase Obligation then in
effect (determined on such Settlement Date) to be exceeded, the Seller shall be
deemed to acquire only a fractional interest in each Defaulted Receivable
repurchased on such Settlement Date. The numerator of such fraction shall be the
Repurchase Obligation then in effect determined on such Settlement Date and the
denominator thereof shall
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be the aggregate Repurchase Price for all Defaulted Receivables on such
Settlement Date. Upon any repurchase of a Defaulted Receivable pursuant to this
subsection or the Repurchase Agreement after a Discount Event or Rating Event,
the Seller's Interest shall be reduced by an amount equal to the Purchase
Discount, if any, with respect to such Defaulted Receivable times the Principal
Balance thereof on the last day of the Settlement Period preceding the
Settlement Date on which such repurchase is made. Any Purchased Receivable
related to a Remarketed Aircraft which is repurchased or substituted for in
accordance with subsection 2.11 or 2.13, respectively, shall not be deemed to be
a Defaulted Receivable.
(ii) In the event that a Rating Event occurs and is continuing, any Net
Recoveries received by the Seller (A) on account of any Defaulted Receivable
repurchased by it, RAC or the Guarantor or (B) on account of any Defaulted
Receivable which neither the Seller, RAC nor the Guarantor has repurchased,
shall be deposited into the Cash Collateral Account. In the event that the
Amortization Period ends pursuant to clause (ii) of the definition of such term,
any Net Recoveries received by the Seller after such time (A) on account of a
Defaulted Receivable repurchased by it, RAC or the Guarantor or (B) on account
of any Defaulted Receivable which none of the Seller, RAC nor the Guarantor has
repurchased shall be deposited into the Cash Collateral Account. The Seller
shall make any deposit required to be made by this subsection 2.10(a)(ii) within
two Business Days after the Seller's receipt of such Net Recoveries and such
deposits shall be applied in accordance with subsections 2.15 and 2.16. The
obligation of the Seller to deposit such Net Recoveries shall survive the
termination of this Agreement.
(iii) The Seller agrees that, to the extent it has received a security
deposit in respect of any Lease Receivable, at the time the Seller applies any
or all of such security deposit or any or all of such security deposit is
applied (in each case pursuant to the related Contract or otherwise) against the
amounts owed in respect of a Receivable, on the next succeeding Settlement Date
the Seller shall be obligated to pay the Purchasers the amount of such
application. The Seller shall pay such obligation by depositing into the
Concentration Account on such Settlement Date cash in an amount equal to such
application. The amount of any such deposit shall be applied and distributed in
accordance with subsections 2.15 and 2.16.
(b) The maximum repurchase obligation of the Seller with respect to
Defaulted Receivables (the "Repurchase Obligation") shall be equal at any time
to (i) the Repurchase Factor in effect on the Settlement Date on which such
repurchase is to be made minus (ii) the aggregate Repurchase Prices of Defaulted
Receivables which were repurchased by the Seller pursuant to subsection 2.10(a)
prior to such time minus (iii) amounts deposited into the Cash Collateral
Account pursuant to subsection 2.14(c)(ii) plus (iv) all Net Recoveries received
by the Seller with respect to such Defaulted Receivables (or portion thereof) so
repurchased by the Seller prior to such time and not required to be deposited
into the Cash Collateral Account pursuant to subsection 2.10(a)(ii).
2.10A Delinquent Receivables. If on any Settlement Date the
outstanding balance of Delinquent Receivables shall cause an Amortization Event
of the type described in subsection 8.1(p), below, the Seller may either
substitute Eligible Receivables for such Delinquent Receivables pursuant to
Section 2.13 or repurchase from the Purchasers sufficient Delinquent
Receivables, in each case, with the consent of the Managing Facility Agent,
beginning with those Delinquent Receivables with the oldest outstanding balance,
such that after
53
such repurchase or substitution such Amortization Event shall have been cured.
Seller shall repurchase such Delinquent Receivables being repurchased on such
Settlement Date by depositing into the Concentration Account on such Settlement
Date cash in an amount equal to the Outstanding Balance of such Delinquent
Receivables. Any amounts received by the Administrative Agent, or deposited into
the Concentration Account, in respect of Delinquent Receivables sold pursuant to
this Section 2.10A shall be applied and distributed in accordance with
subsections 2.15 and 2.16.
2.11 Ineligible Receivables. The Seller agrees to repurchase on each
Settlement Date, and the Purchasers agree to sell to the Seller on such date and
in accordance with the terms hereof, any Purchased Receivable if such Receivable
is (i) an Ineligible Receivable, (ii) an Existing Certified Receivable in
respect of which the Old Administrative Agent shall not have received on or
prior to the Certified Opinion Delivery Date (x) an opinion of foreign counsel
satisfying the requirements of subsection 2.27(c) or (y) evidence of the
filings, if any, referred to in subsection 6.1(n)(i) or (iii) an Existing
Receivable in respect of which the Old Administrative Agent shall not have
received on or prior to the FAA Filing Date evidence of the filings, if any,
referred to in subsection 6.1(n)(ii) provided that, during the Amortization
Period, the Purchasers, by unanimous consent, in their sole discretion may
choose not to sell any Receivable referred to in clauses (i), (ii) or (iii) to
the Seller. The Seller shall make such repurchase on the Settlement Date first
succeeding the earlier of (x) the date on which the Seller becomes aware of
facts and circumstances giving rise to such event of ineligibility or (y) the
date on which the Managing Facility Agent notifies the Seller that such event of
ineligibility has occurred and is continuing. Subject to subsections 2.13 and
2.15(b), the Seller shall make such repurchase by depositing in the
Concentration Account cash in an amount equal to the Repurchase Price for such
Ineligible Receivable at the date such deposit is made, except to the extent
(without duplication) of any payment made pursuant to subsection 2.18, for the
Settlement Period during which such interest accrued and was not paid by the
Obligor under such Contract. The amount of any such deposit shall be applied and
distributed in accordance with subsections 2.15 and 2.16. Except as provided in
subsection 9.1, the sole obligation of the Seller with respect to an Ineligible
Receivable of the type described in clause (i) of this subsection 2.11 shall be
the requirement to repurchase or substitute for such Receivable pursuant to this
subsection 2.11 or subsection 2.13, respectively.
2.12 Rebated Receivables. If on any date the Principal Balance of any
Purchased Receivable is, or is deemed to be, reduced or adjusted or no longer
payable as a result of any rebate, discount, refund or other adjustment of such
Purchased Receivable, or any other reduction or adjustment of any payment under
any Purchased Receivable, other than any such rebate, discount refund or
adjustment permitted under subsection 7.1(b)(iv)(x), the Seller shall be deemed
to have received on such day a Collection in respect of such Purchased
Receivable in the amount of such reduction or adjustment or in the amount no
longer payable (as applicable) and shall, subject to subsection 2.15(b), deposit
cash into the Concentration Account on the next succeeding Settlement Date in an
amount equal to such reduction or adjustment or such amount no longer payable
(as applicable) plus if a Trigger Amortization Event has occurred and is
continuing, accrued and unpaid interest thereon at the rate under the related
Contract except to the extent (without duplication) of any payment made pursuant
to subsection 2.18 for the Settlement Period during which such interest accrued
and was not paid by the Obligor under
54
such Contract. The amount of any such deposit shall be applied and distributed
in accordance with subsections 2.15 and 2.16.
2.13 Substitution of Receivables. (a) Whenever the Seller is required or
permitted in accordance with the terms of this Agreement to repurchase
Concentration Receivables, Defaulted Receivables, Delinquent Receivables or
Ineligible Receivables pursuant to subsection 2.7(b), 2.10, 2.10A or 2.11,
respectively, the Seller may, subject to the terms hereof, in lieu of making
such repurchase, substitute one or more Eligible Receivables (each, a
"Substituted Receivable") therefor on the Settlement Date on which the
repurchase is required to be made; provided that the Settlement Statement
delivered on the Reporting Date prior to such Settlement Date shall contain the
information required thereby with respect to such proposed substitution. The
option of the Seller to substitute one or more Substituted Receivables for any
Receivables as aforesaid is subject to the following conditions precedent: (i)
no Trigger Amortization Event has occurred and is then continuing, (ii) if such
substitution occurs during the Amortization Period, and provided that no Trigger
Amortization Event has occurred and is then continuing, the Majority Purchasers
have approved such substitution, (iii) if the substitution is of a Delinquent
Receivable pursuant to Section 2.10A, the Managing Facility Agent has consented
to such substitution and (iv) either the Substituted Receivable has a Final
Payment Date which is not after the Final Payment Date of the replaced
Receivable (each, replaced Receivable, a "Removed Receivable"), or if the Final
Payment Date of the Substituted Receivable is after that of the Removed
Receivable, then only that portion of the Principal Balance of such proposed
Substituted Receivable which is scheduled to be paid on or prior to the Final
Payment Date of the Removed Receivable shall be included as a Substituted
Receivable. All Defaulted Receivables, then all Delinquent Receivables, shall be
replaced with Substituted Receivables prior to replacement of Ineligible
Receivables or Concentration Receivables with Substituted Receivables and, in
each case, shall be replaced with Substituted Receivables in the following order
of priority: (i) first, with Substituted Receivables which are 25% Repurchase
Receivables, (ii) second, with Substituted Receivables which are 75% Repurchase
Receivables, and (iii) third, with Substituted Receivables which are 90%
Repurchase Receivables. The making of such substitution shall be subject to the
satisfaction of the conditions set forth in paragraphs subsection 5.2,
including, without limitation, the delivery of an Assignment and, if applicable,
an FAA Assignment or Foreign Assignment.
(b) If the Repurchase Price of the Removed Receivable proposed to be
replaced by one or more Substituted Receivables is greater than the aggregate
Principal Balances of such Substituted Receivables, the Seller shall deposit
cash into the Concentration Account in an amount equal to such excess.
Alternatively, if the Repurchase Price of such Removed Receivable is less than
the aggregate Principal Balances of the corresponding Substituted Receivable or
Receivables, during the Revolving Period the Seller may, so long as no
Amortization Event has occurred and is continuing, request the Purchasers to
purchase such excess, to the extent of the Available Commitments, pursuant to
subsection 2.2. If such excess is not purchased for any reason set forth in this
Agreement, then each Substituted Receivable able to be substituted to the
fullest extent shall first be substituted and any remaining Substituted
Receivable shall be a Participated Receivable subject to the provisions of
subsection 2.4. During the Revolving Period, if any Substituted Receivable is an
Extended Term Receivable, then such Substituted Receivable shall be subject to
subsection 2.5 and the Cash Flow Cutoff Date for such
55
Substituted Receivable shall be deemed to be, initially, (i) so long as no
Rating Event has occurred and is continuing, thirteen years after the date of
substitution of such Substituted Receivable and (ii) during the continuance of a
Rating Event, ten years after the date of substitution of such Substituted
Receivable. Substitution for a Defaulted Receivable shall not reduce the
Repurchase Obligation.
(c) If a Dissenting Purchaser holds an undivided interest in any Removed
Receivable then:
(i) if such Removed Receivable is an Ineligible Receivable, a Delinquent
Receivable or a Concentration Receivable, the Seller shall pay to the Managing
Facility Agent for the account of such Dissenting Purchaser an amount equal to
the sum of (A) the product of such Dissenting Purchaser's Commitment Percentage
(determined at the time such Dissenting Purchaser's Commitment terminated) times
the Outstanding Balance for such Removed Receivable and (B) if a Trigger
Amortization Event has occurred and is continuing, the Dissenting Purchaser's
pro rata share (determined at the time such Dissenting Purchaser's commitment
terminated) of accrued and unpaid interest on such Removed Receivable at the
rate under the related Contract except to the extent (without duplication) of
any payment made pursuant to subsection 2.18 for the Settlement Period during
which such interest accrued and was not paid by the Obligor under such Contract;
and
(ii) if such Removed Receivable is a Defaulted Receivable, (A) and if the
aggregate Available Commitments in effect on the Settlement Date on which such
substitution is to be made exceed an amount equal to (x) the Dissenting
Purchaser's Commitment Percentage (determined at the time such Dissenting
Purchaser's Commitment terminated) times (y) the Outstanding Balance for such
Removed Receivable (the "Dissenting Purchaser's Share"), each Purchaser other
than a Dissenting Purchaser shall be deemed to purchase its Commitment
Percentage of the Dissenting Purchaser's Share by making funds therefor
available to the Managing Facility Agent for the account of such Dissenting
Purchaser on the Settlement Date on which such substitution is proposed to be
made; provided that such purchases shall be subject to the satisfaction of the
conditions set forth in subsection 5.2 and, in connection therewith, the Seller
shall be deemed to have made the representations and warranties set forth in
subsection 4.2 with respect to the Purchased Receivables constituting the
Dissenting Purchaser's Share as if the Seller were selling such Receivables to
the Purchasers on such Settlement Date; or (B) if for any reason a purchase
cannot be made pursuant to the foregoing clause (A), the Seller shall
repurchase, up to the amount of the Repurchase Obligation on the date of such
purchase, such Dissenting Purchaser's Share on such Settlement Date up to such
Dissenting Purchaser's Commitment Percentage (determined at the time such
Dissenting Purchaser's Commitment terminated) of the Aggregate Repurchase
Obligation in effect on such Settlement Date (in each case after giving effect
to purchases, substitutions and repurchases on such Settlement Date) plus, if a
Trigger Amortization Event has occurred and is continuing, the Dissenting
Purchaser's pro rata share (determined at the time such Dissenting Purchaser's
Commitment terminated) of accrued and unpaid interest on such Removed Receivable
at the rate under the related Contract except to the extent (without
duplication) of any payment made pursuant to subsection 2.18 for the Settlement
Period during which such interest accrued and was not paid by the Obligor under
such Contract. It is understood that determinations of the Repurchase Obligation
with respect to a Dissenting Purchaser pursuant to this subsection 2.13(c)(ii)
shall be, with respect to a L/C
56
Receivable, made on the Settlement Date on which such determination is made in
accordance with the definitions of the terms "90% Repurchase Receivable" and
"25% Repurchase Receivable" and the status of such L/C Receivable at such
Settlement Date.
(d) Any repurchases of Receivables made pursuant to subsection 2.13(c)
shall be made on the Settlement Date on which the related substitution of
Receivables is to be made.
(e) On any Settlement Date (other than a Special Settlement Date) the
Seller may, with the consent of the Managing Facility Agent, substitute a Lease
Receivable which is an Eligible Receivable (a "Substituted Lease Receivable")
for a Lease Receivable (other than a Lease Receivable which is a Defaulted
Receivable, a Delinquent Receivable, a Concentration Receivable or an Ineligible
Receivable) which was previously sold or substituted hereunder (a "Replaced
Lease Receivable") if the Seller, in the ordinary course of business and in
accordance with the Credit and Collection Policy, is entering into a new
Contract with the same Person which is the Obligor under the Contract related to
such Replaced Lease Receivable (or an Affiliate of such Person); provided that
during the Amortization Period the prior consent of the Majority Purchasers
shall be required to effect any such substitution; provided, further, that if a
Remittance Event has occurred and is continuing and if the Principal Balance of
a Substituted Lease Receivable is less than the Principal Balance of the
Replaced Lease Receivable such substitution shall occur only on a Settlement
Date and within two Business Days after such substitution is made, the Seller
shall deposit into the Concentration Account an amount equal to the difference
between the Outstanding Balance of the Replaced Lease Receivable and the
Purchase Price of the Substituted Lease Receivable. The Settlement Statement
with respect to the Settlement Period in which such substitution occurs (or the
Settlement Statement delivered with respect to the Settlement Date on which such
substitution occurs, in the case of substitutions made on a Settlement Date in
accordance with the final proviso of the preceding sentence) shall contain the
information required thereby with respect to such substitution. Upon such
substitution, the Principal Balance of the Replaced Lease Receivable shall be
deemed to be reduced to zero. The provisions of subsection 2.13(b) (except for
the first sentence thereof) shall apply as if a Replaced Lease Receivable and a
Substituted Lease Receivable are, respectively, a Removed Receivable and a
Substituted Receivable and the provisions of subsection 2.13(c)(i) (A) (without
regard to clause (B) of subsection 2.13(c)(i)) shall apply as if a Replaced
Lease Receivable is a Removed Receivable; provided that, in accordance with
subsection 2.13(d) and notwithstanding the date of substitution of a Substituted
Lease Receivable in accordance with this subsection 2.13(e), payments shall be
made to the Dissenting Purchaser with respect to a Substituted Lease Receivable
on the Settlement Date related to the Settlement Statement which contains
information with respect to such substitution. The making of such substitution
shall be subject to the satisfaction of the conditions set forth in subsection
5.2, including in each case, without limitation, the delivery of an Assignment
and FAA Assignment or a Foreign Assignment, as applicable, with respect to each
such Substituted Lease Receivable on or before the Business Day such Substituted
Lease Receivable is substituted.
2.14 Accounts. (a) On or before the Closing Date the Seller shall establish
in its name a segregated account with a commercial bank satisfactory to the
Managing Facility Agent (the "Collection Account"). Upon the occurrence and
during the continuance of a Remittance Event, and unless the Servicer has
provided a Servicer Letter of Credit in accordance with subsection 2.15(a), the
Seller or the Servicer shall within two Business Days after its receipt, (i)
57
deposit all Collections received by it directly into the Collection Account and
(ii) transfer or cause to be transferred to the Concentration Account any
Collections so deposited. Any amounts received by the Seller and not related to
the Purchased Receivables or the related Contracts or Financed Aircraft shall
not be deposited into the Collection Account. Any amounts at any time on deposit
in the Collection Account shall be transferred only to the Concentration Account
and to no other deposit or other account (including, but not limited to, any
account or sub-account maintained pursuant to Raytheon's cash management
system). The Seller hereby grants to the Managing Facility Agent for the ratable
benefit of the Purchasers a security interest in the Collection Account and all
amounts from time to time on deposit therein to secure the Obligations. The
Seller shall have no right to withdraw any amounts on deposit in the Collection
Account.
(b) On or before the Closing Date there shall be established with and in
the name of the Managing Facility Agent a segregated account (the "Concentration
Account") which shall be maintained as a cash collateral account subject to the
exclusive dominion and control of the Managing Facility Agent for the ratable
benefit of the Purchasers. The Seller hereby grants to the Managing Facility
Agent for the ratable benefit of the Purchasers a security interest in any of
its right, title and interest in the Concentration Account and all amounts from
time to time on deposit therein and all income from the investment of such
amounts to secure, in each case, the Obligations. Funds on deposit from time to
time in the Concentration Account shall bear interest at the then prevailing
rate paid by the Managing Facility Agent for deposit accounts with similar
amounts on deposit from time to time. If at any time funds on deposit in the
Concentration Account are greater than $100,000, the Managing Facility Agent
may, but shall not be required to, unless it receives a request from the Seller
or Raytheon, invest such funds in Cash Equivalents with maturities not later
than the next succeeding Settlement Date, to the extent such requested Cash
Equivalents are available for investment. Any investment request by the Seller
or Raytheon shall be given to the Managing Facility Agent one Business Day prior
to the day the investment is to be made (which shall be a Business Day in New
York, New York and San Francisco, California) and shall specify the particular
Cash Equivalents and maturities thereof. Any interest or investment earnings on
amounts in the Concentration Account on related investments shall be retained in
the Concentration Account to be withdrawn in accordance with this subsection
2.14(b). The Managing Facility Agent shall have the right to withdraw amounts
from the Concentration Account to make the payments required to be made
hereunder from Collections. Neither the Managing Facility Agent nor any
Purchaser shall have any responsibility for any such investment and the Managing
Facility Agent shall be permitted to liquidate any such investment, without
liability for any loss occurring by reason of such liquidation, to the extent
necessary to make payments and distributions under this Agreement. The Seller
shall have no right to withdraw amounts on deposit from time to time in the
Concentration Account.
(c) (i) On or before the Closing Date there shall be established with and
in the name of the Managing Facility Agent a segregated trust account comprised
of two segregated sub-accounts, the Seller cash collateral sub-account (the
"Seller Cash Collateral Sub-Account") and the RAC cash collateral sub-account
(the "RAC Cash Collateral Sub-Account", the Seller Cash Collateral Sub-Account
and the RAC Cash Collateral Sub-Account being referred to collectively as the
"Cash Collateral Account") which shall be maintained as a cash collateral
58
account subject to the exclusive dominion and control of the Managing Facility
Agent for the ratable benefit of the Purchasers. The Seller hereby grants to the
Managing Facility Agent for the ratable benefit of the Purchasers a first
priority security interest in the Cash Collateral Account and all amounts on
deposit from time to time therein and all income from the investment of such
amounts to secure, in each case, the Obligations. Funds on deposit from time to
time in the Seller Cash Collateral Sub-Account shall bear interest at the then
prevailing rate paid by the Managing Facility Agent for deposit accounts with
similar amounts on deposit from time to time. If at any time funds on deposit in
the Seller Cash Collateral Sub-Account are greater than $100,000, the Managing
Facility Agent may, but shall not be required to, unless it receives a request
from the Seller, invest funds on deposit in the Seller Cash Collateral Sub-
Account in Cash Equivalents with maturities not later than the next succeeding
Settlement Date (or such other maturities as the Seller shall request and the
Managing Facility Agent shall approve), to the extent such requested Cash
Equivalents are available for investment. Any investment request by the Seller
shall be given to the Managing Facility Agent one Business Day prior to the day
the investment is to be made (which shall be a Business Day in New York, New
York and San Francisco, California) and shall specify the particular Cash
Equivalents and maturities thereof. Any interest or investment earnings on
amounts in the Seller Cash Collateral Sub-Account or related investments shall
be retained in the Seller Cash Collateral Sub-Account to be withdrawn in
accordance with paragraphs (ii), (iii) and (iv) of this subsection 2.14(c).
Neither the Managing Facility Agent nor any Purchaser shall have any
responsibility for any such investment and the Managing Facility Agent shall be
permitted to liquidate any such investment, without liability for any loss
occurring by reason of such liquidation, to the extent necessary to make
payments and distributions under this Agreement. The Seller shall have no right
to withdraw amounts on deposit from time to time in the Cash Collateral Account.
(ii) If on any Settlement Date on which the Seller is required to
repurchase Defaulted Receivables pursuant to subsection 2.10 and fails for any
reason to repurchase such Defaulted Receivables or substitute for such Defaulted
Receivables pursuant to subsection 2.13, whether or not RAC fails to repurchase
such Defaulted Receivables under the Repurchase Agreement, the Managing Facility
Agent may withdraw from amounts on deposit in the Seller Cash Collateral Sub-
Account on account of such Defaulted Receivable an amount equal to the lesser of
(A) the Repurchase Price for such Defaulted Receivable plus any accrued and
unpaid interest thereon required to be paid by subsection 2.10 and (B) the
amount then on deposit in the Seller Cash Collateral Sub-Account. It is
specifically understood and agreed that amounts on deposit in the Seller Cash
Collateral Sub-Account, whether on account of 25% Repurchase Receivables, 75%
Repurchase Receivables or 90% Repurchase Receivables, may be withdrawn as
aforesaid on account of any Defaulted Receivable, regardless of the Repurchase
Percentage associated therewith or whether the RAC Repurchase Obligation shall
be outstanding. Any amounts so withdrawn shall be deposited into the
Concentration Account and allocated and distributed pursuant to subsections 2.15
and 2.16, respectively. The Seller agrees with the Managing Facility Agent and
the Purchasers to deposit into the Seller Cash Collateral Sub-Account, without
any requirement for notice or demand therefor, the lesser of the amount
withdrawn therefrom or the sum of the Repurchase Obligation then in effect on
the date such withdrawal is made, plus interest thereon at a rate per annum
equal to the Default Rate for the period from such date of withdrawal to such
date of deposit. Deposit of amounts into the Seller Cash Collateral Sub-Account
pursuant to the preceding sentence shall, to the extent of such
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deposit, satisfy the Seller's obligation to repurchase such Defaulted Receivable
pursuant to subsection 2.10.
(iii) If the Seller or the Servicer (if then Raytheon Credit or any
Affiliate thereof) shall fail to make any deposit, payment or transfer of funds
required to be made by the Seller or the Servicer under this Agreement or any
other document executed and delivered in connection herewith, including, without
limitation, any payment, deposit or transfer of funds or payment of any
indemnity required to be made pursuant to subsection 2.7(b), 2.10, 2.10A, 2.11,
2.12, 2.18 or 9.1 (each such payment, deposit or transfer, a "Reimbursable
Obligation"), then the Managing Facility Agent with the consent of the Majority
Purchasers may, in addition to any similar rights in favor of the Managing
Facility Agent under the Repurchase Agreement, withdraw from the Seller Cash
Collateral Sub-Account on the date such Reimbursable Obligation is due hereunder
an amount equal to the lesser of (A) such Reimbursable Obligation and (B) the
amount then on deposit in the Seller Cash Collateral Sub-Account. The Seller
agrees with the Managing Facility Agent and the Purchasers to deposit in the
Seller Cash Collateral Sub-Account, without any requirement for notice or demand
therefor, the amount withdrawn on the date such withdrawal is made, plus
interest thereon at a rate per annum equal to the Default Rate for the period
from such date of withdrawal to such date of deposit.
(iv) No amounts on deposit in the Seller Cash Collateral Sub-Account
(including interest or investment earnings) shall be released to the Seller
until the Outstanding Purchase Price is reduced to zero and all other amounts
owing to the Managing Facility Agent or any Purchaser hereunder are paid in
full, provided, that,
(x) on each Settlement Date (other than a Special Settlement Date)
occurring during the continuance of a Rating Event, after giving effect to
all collections and distributions on such date, the amounts on deposit in
the Cash Collateral Account in excess of the Aggregate Repurchase
Obligation on such Settlement Date shall be released pro rata based upon
their respective repurchase obligations, to the Seller and to RAC;
(y) on each Settlement Date occurring during the continuance of a
Rating Event following a Settlement Period during which Finance Charges on
Wholesale Receivables which are Quarterly Receivables have been paid, the
excess of (A) amounts which were on previous Settlement Dates, pursuant to
subsection 2.16(b)(vi), deposited into the Cash Collateral Account as
accrued Finance Charge Collections on such Quarterly Receivables, over (B)
any portion of such amounts so previously deposited which are on such
Settlement Date withdrawn from the Cash Collateral Account by the Managing
Facility Agent and applied pursuant to subsection 2.14(c) shall be released
to the Seller; and
(z) on the Business Day after the date on which the Outstanding
Purchase Price is reduced to zero and all other amounts owing to the
Managing Facility Agent and the Purchasers hereunder have been paid in
full, all amounts on deposit in the Seller Cash Collateral Sub-Account
shall be released to the Seller.
(d) On or before the Amendment Effective Date there shall be established
with and in the name of the Managing Facility Agent a segregated account (the
"Resale Account")
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which shall be maintained as a cash collateral account subject to the exclusive
dominion and control of the Managing Facility Agent for the ratable benefit of
the Purchasers. The Seller hereby grants to the Managing Facility Agent for the
ratable benefit of the Purchasers a security interest in any of its right, title
and interest in the Resale Account and all amounts, including investments, from
time to time on deposit therein and all income from the investment of such
amounts to secure, in each case, the Obligations. Funds on deposit from time to
time in the Resale Account shall bear interest at the then prevailing rate paid
by the Managing Facility Agent for deposit accounts with similar amounts on
deposit from time to time. If at any time funds on deposit in the Resale Account
are greater than $100,000, the Managing Facility Agent may, but shall not be
required to, unless it receives a request from the Seller or Raytheon, invest
such funds in Cash Equivalents with maturities not later than the next
succeeding Settlement Date, to the extent such requested Cash Equivalents are
available for investment. Any such investment shall be made in the name of the
Managing Facility Agent. Any investment request by the Seller or Raytheon shall
be given to the Managing Facility Agent one Business Day prior to the day the
investment is to be made (which shall be a Business Day in New York, New York
and San Francisco, California) and shall specify the particular Cash Equivalents
and maturities thereof. Any interest or investment earnings on amounts in the
Resale Account on related investments shall be retained in the Resale Account to
be withdrawn in accordance with subsection 11.24(b). The Managing Facility Agent
shall have the right to withdraw amounts from the Resale Account to make the
payments required to be made hereunder in accordance with subsection 11.24(b).
Neither the Managing Facility Agent nor any Purchaser shall have any
responsibility for any such investment and the Managing Facility Agent shall be
permitted to liquidate any such investment, without liability for any loss
occurring by reason of such liquidation, to the extent necessary to make
payments and distributions under this Agreement. None of the Seller, the
Servicer, RAC and Raytheon shall have the right to withdraw amounts on deposit
from time to time in the Resale Account.
2.15 Remittance and Allocation of Collections. (a) The Seller or the
Servicer shall, subject to subsection 2.14(a), deposit into or transfer to the
Concentration Account all Collections within two Business Days following receipt
thereof; provided that so long as (i) a Remittance Event has not occurred and is
continuing or (ii) following the occurrence and during the continuance of a
Remittance Event, the Servicer has provided a Servicer Letter of Credit, the
Seller or the Servicer shall make such deposit in or transfer to the
Concentration Account not later than the Settlement Date following the
Settlement Period during which such Collections were received; provided,
further, that after the occurrence and during the continuance of a Rating Event,
the Seller or the Servicer shall, at the times required by and otherwise in
accordance with this subsection 2.15(a), also deposit into or transfer to the
Concentration Account interest payments made by RAC on behalf of an Obligor
under a Wholesale Receivable.
(b) On each Reporting Date the Servicer shall allocate all Collections
received on account of the Purchased Receivables during the preceding Settlement
Period between Principal Collections and Finance Charge Collections. All Finance
Charge Collections shall be deposited in the Concentration Account in accordance
with subsection 2.15(a) and distributed pursuant to subsection 2.16(b). All
Principal Collections shall be deposited in the Concentration Account in
accordance with subsection 2.15(a) and applied in accordance with subsection
2.16(a); provided that (i) if on any Settlement Date during the Revolving Period
the aggregate
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Purchase Price to be paid for purchases to be made on such Settlement Date
exceeds amounts deposited or to be deposited into the Concentration Account by
the Seller or the Servicer, as the case may be, on or during the Settlement
Period prior to such Settlement Date on account of Principal Collections, the
Seller may retain such Principal Collections, or to the extent previously
deposited into the Concentration Account shall make payments therefrom, as
application for such aggregate Purchase Price to be paid to the Seller on such
Settlement Date and amounts so retained by or paid to the Seller shall be
treated as a payment (in whole or in part, as applicable) for such Purchase
Price and (ii) to the extent the amount of such Principal Collections exceeds
the aggregate Purchase Price of Eligible Receivables available to be purchased
on such Settlement Date, the Seller or the Servicer, as the case may be, shall
deposit, to the extent not previously deposited, such excess in the
Concentration Account on or prior to such Settlement Date for distribution in
accordance with subsection 2.16. Any purchases made pursuant to the foregoing
clause (i) shall be subject to the satisfaction of the conditions set forth in
paragraphs (a) through (h) of subsection 5.2. During the Amortization Period,
all Principal Collections shall be deposited into the Concentration Account in
accordance with subsection 2.15(a) and, on the Settlement Date on or following
such date of deposit, shall be distributed in accordance with subsection 2.16.
The portion of any deposit to be made into the Concentration Account required to
be made pursuant to subsections 2.10, 2.10A, 2.11 or 2.12 or the first sentence
of 2.13(b) (including, without limitation, on account of a Substituted Lease
Receivable) representing the Repurchase Price for any Receivable shall be
subject to the provisions of this subsection 2.15(b).
(c) Any Principal Collections received on account of an Extended Term
Receivable during the Revolving Period shall, subject to the satisfaction of the
conditions set forth in paragraphs (a) through (h) of subsection 5.2, be applied
to purchase the next succeeding monthly payments of such Receivable which have
not been purchased and which are payable prior to the Cash Flow Cutoff Date then
applicable to such Receivable.
(d) All Net Recoveries required to be deposited in accordance with
subsection 2.10(a)(ii) shall be deposited into the Concentration Account as
Collections. On the Reporting Date following the Settlement Period in which such
deposit is made, such Net Recoveries shall be allocated by the Managing Facility
Agent as Principal Collections and Finance Charge Collections and the Managing
Facility Agent shall notify the Servicer of such allocation the Business Day
following such Reporting Date. Such allocation shall be conclusive in the
absence of manifest error or unless the Managing Facility Agent receives notice
from the Servicer of any error made in such allocation on or before the third
Business Day after such notice is given to the Servicer and, in the event of any
dispute between the Managing Facility Agent and the Servicer with respect to
such allocation, the allocation of such Net Recoveries shall be conclusively
made by the Managing Facility Agent's independent certified public accountants
prior to the next succeeding Reporting Date. Such Net Recoveries shall be
distributed pursuant to subsection 2.16.
2.16 Distribution and Application of Collections. (a) Principal
Collections. All Principal Collections on Purchased Receivables shall be payable
to the Purchasers up to the amount of the Outstanding Purchase Price from time
to time. On each Settlement Date during the Revolving Period, Principal
Collections received during the prior Settlement Period shall be first, applied
to the aggregate Purchase Price of Eligible Receivables purchased on such
Settlement Date in accordance with the terms and conditions of this Agreement
and second, paid
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to the Purchasers on such Settlement Date and applied in respect of the
Outstanding Purchase Price. On each Settlement Date during the Amortization
Period, Principal Collections received during the prior Settlement Period shall
be paid to the Purchasers on such Settlement Date and applied in respect of the
Outstanding Purchase Price. Following an Amortization Event, Principal
Collections on account of the Purchase Discount applied to the Purchase Price of
Receivables purchased during a Rating Event or a Discount Event may, at the
discretion of the Managing Facility Agent, be deemed Finance Charge Collections
available to be distributed pursuant to subsections 2.16(b)(ii) and (b)(iii).
(b) Finance Charge Collections. On each Settlement Date (other than a
Special Settlement Date) funds on deposit in the Concentration Account
representing Finance Charge Collections in respect of the preceding Settlement
Period shall be distributed by the Managing Facility Agent as follows, to the
extent of funds available therefor:
(i) first, to the Servicer as payment of the Servicing Fee for the
preceding Settlement Period;
(ii) second, to the Purchasers pro rata as payment of all interest
due pursuant to subsection 2.17(a) and (c) for the preceding Accrual
Period;
(iii) third, to the Managing Facility Agent and each Purchaser which
has made a prior to the Reporting Date preceding such Settlement Date,
to costs payable pursuant to subsections 2.22, 2.23, 2.24 and 11.5;
(iv) fourth, to the Purchasers pro rata as payment of the Commitment
Fees for the preceding Accrual Period pursuant to subsection 2.17(d) and
second, to the Managing Facility Agent as payment of the fees referred
to in subsection 2.17(e) to the extent such fees have not been paid
directly by the Seller;
(v) fifth, if a Rating Event has occurred and is continuing, to the
extent of funds available therefor, to the Managing Facility Agent for
deposit into the Cash Collateral Account an amount equal to Finance
Charges on those Wholesale Receivables which are Quarterly Receivables
which Finance Charges have accrued during the preceding Settlement
Period and are payable under the related Contract on a subsequent
Settlement Date; and
(vi) sixth, any remaining Finance Charge Collections (such remainder,
"Excess Spread") shall be distributed as follows: (1) so long as no
Trigger Amortization Event has occurred and is continuing, to the Seller
or its designees and (2) in all other cases, 100% thereof shall be paid
to the Purchasers pro rata as payment in respect of the Outstanding
Purchase Price.
(c) All Collections received from an Obligor of any Purchased Receivable
shall be applied to Purchased Receivables of such Obligor in the order of the
age of such Purchased Receivables, starting with the oldest outstanding amount
of such Purchased Receivable (i.e., the most delinquent of such Purchased
Receivables), except if the payment is designated by such Obligor for
application to specific Receivables. All Principal Collections received on
account of
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any Extended Term Receivable and not used to purchase monthly payments of such
Receivable payable after its most recent Cash Flow Cutoff Date shall be applied
in the direct order of maturity thereof. Payments made by an Obligor on account
of a Receivable shall, except as otherwise specified by such Obligor or
otherwise required by contract or law and unless otherwise instructed by the
Managing Facility Agent and the Required Purchasers, be applied as a Collection
of any Purchased Receivable of such Obligor to the extent of any amounts then
due and payable thereunder before being applied to any other indebtedness of
such Obligor to the Seller or Raytheon Credit.
2.17 Interest and Fees. (a) Except as provided in paragraph (b) below, each
Purchaser's Outstanding Purchase Price shall bear interest for each day during
an Accrual Period at a rate per annum equal to the Note Rate for such Purchaser
and shall be payable on each Settlement Date (other than a Special Settlement
Date) for the immediately preceding Accrual Period. To the extent that the
Outstanding Purchase Price has not been reduced to zero on the date the
Amortization Period ends pursuant to clause (ii) of the definition of such term,
interest shall accrue pursuant to this subsection 2.17(a) regardless of whether
the Seller shall be obligated to pay Expense Amounts under subsection 2.18.
(b) The Outstanding Purchase Price for Receivables purchased on a Special
Settlement Date shall bear interest (i) at a rate per annum equal to the Base
Rate for the first three Working Days following such Special Settlement Date and
(ii) thereafter at a rate per annum equal to the Interbank Rate for each day of
the Special Settlement Date Accrual Period; provided that, if the Seller
provides the Managing Facility Agent with the notice provided for in Section 2.3
at least three Working Days prior to the applicable Special Settlement Date,
then interest shall be calculated in accordance with clause (ii) from such
Special Settlement Date until the end of the related Special Settlement Date
Accrual Period. Interest payable under this Section 2.17(b) shall be payable on
the next Settlement Date. Beginning with the first Settlement Date after any
Special Settlement Date, interest with respect to the Receivables purchased on
such Special Settlement Date shall be calculated in accordance with paragraph
(a) above.
(c) If all or any portion of any amount (including interest) payable by the
Seller hereunder shall not be paid when due, such overdue amount shall bear
interest at a rate per annum equal to the Note Rate plus 1% (the "Default Rate")
from the date of such non-payment until such amount is paid in full (after as
well as before judgment). The Outstanding Purchase Price shall bear interest
pursuant to, and at the times specified in, subsection 8.2(a) for each day
during an Accrual Period at a rate per annum equal to the Default Rate until the
Outstanding Purchase Price is reduced to zero (after as well as before
judgment). Any amount payable pursuant to this subsection 2.17(c) shall be
payable on each Settlement Date (other than a Special Settlement Date), or on
demand after any judgment. To the extent that the Outstanding Purchase Price has
not been reduced to zero on the date the Amortization Period ends pursuant to
clause (ii) of the definition of such term, interest shall accrue pursuant to
this subsection 2.17(c) regardless of whether the Seller shall be obligated to
pay Expense Amounts under subsection 2.18. Interest accruing pursuant to this
subsection 2.17(c) shall be payable from time to time on demand.
(d) During the period from and including the Closing Date to the date on
which the Revolving Period ends, a commitment fee (a "Commitment Fee") shall be
payable to the
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Managing Facility Agent for the account of each Purchaser, payable monthly in
arrears on each Settlement Date (other than a Special Settlement Date) and
computed at the rate per annum based on Raytheon's Debt Rating in effect on such
day, as set forth under the relevant column heading below, on the actual daily
amount of the Available Commitment of such Purchaser during each Accrual Period
ending prior to the Settlement Date on which the Commitment Fee is paid,
commencing on the first such Settlement Date to occur after the Closing Date:
Raytheon Debt Rating Commitment Fee
------------------------------------- --------------------
A or the equivalent thereof 0.065%
A- or the equivalent thereof 0.075%
BBB+ or the equivalent thereof 0.100%
BBB or the equivalent thereof 0.125%
BBB- or the equivalent thereof 0.175%
BB+ or the equivalent thereof 0.225%
Below BB+ or the equivalent thereof 0.375%
(e) The Seller agrees to pay (i) to the Managing Facility Agent for its
account the fees set forth in the Fee Letter, dated March 9, 2001, among the
Managing Facility Agent, the Seller and the Guarantor in the amounts and on the
dates set forth therein and (ii) to the Syndication Agent for its account the
fees set forth in the Fee Letter, dated January 29, 2001, among the Syndication
Agent, the Seller and the Guarantor in the amounts and on the dates set forth
therein.
(f) Interest and fees required to be paid under this subsection 2.17 shall
be payable regardless of whether sufficient Finance Charge Collections therefore
are on deposit in the Concentration Account on the date or dates such interest
or fees are required to be paid.
2.18 Yield Adjustment. If on any Settlement Date (other than a Special
Settlement Date) any Expense Amount is not paid in full on such Settlement Date,
then on such Settlement Date the Seller will pay to the Managing Facility Agent
for the account of each Purchaser the amounts required to pay all such Expense
Amounts in full provided, that the Seller's obligation under this subsection
2.18 in favor of any Purchaser in any calendar year shall not exceed an amount
equal to the product of the applicable Note Rate as of such date times such
Purchaser's Outstanding Purchase Price as of such date. The Seller shall not be
obligated to pay pursuant to this subsection 2.18 any Expense Amounts which
accrue after the date the Amortization Period ends; provided that the Seller
shall remain obligated to pay any Expense Amount which accrued prior to such
date (whether or not claimed prior to such date) so long as a
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claim for such Expense Amount is made prior to the times set forth in the
subsection hereof governing such Expense Amount.
2.19 Computations and Payments. (a) All amounts to be paid or deposited by
or on behalf of the Seller hereunder shall be paid or deposited in accordance
with the terms hereof no later than 11:00 a.m., New York City time, on the day
when due in lawful money of the United States of America and in immediately
available funds. All computations of Commitment Fees, interest and other fees
and amounts payable hereunder shall be made on the basis of a year of 360 days
for the actual number of days elapsed (including the first but excluding the
last day). The Managing Facility Agent shall as soon as practicable notify the
Seller and the Purchasers of each determination of a LIBO Rate or an Interbank
Rate.
(b) Each determination of the Note Rate, the Interbank Rate or the Default
Rate by the Managing Facility Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Seller and the Purchasers in the absence
of manifest error. The Managing Facility Agent shall, at the request of the
Seller, deliver to the Seller a statement showing the quotations used by the
Managing Facility Agent in determining the Note Rate for any Accrual Period.
(c) If any Reference Bank's Commitment shall terminate for any reason
whatsoever, such Reference Bank shall thereupon cease to be a Reference Bank,
and if, as a result of the foregoing, there shall only be one Reference Bank
remaining, the Managing Facility Agent (after consultation with the Seller and
the Purchasers) shall, by notice to the Seller and the Purchasers, designate
another Purchaser as a Reference Bank so that there shall at all times be at
least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish quotations of
rates to the Managing Facility Agent to the extent contemplated by the
definition of "LIBO Rate". If any Reference Bank shall be unable or shall
otherwise fail to supply such rates to the Managing Facility Agent upon its
request, the LIBO Rate shall be determined on the basis of the quotations of the
remaining Reference Banks or Reference Bank.
2.20 Pro Rata Treatment. (a) Except with respect to payments to a
Dissenting Purchaser pursuant to subsection 2.8(b)(ii) or 2.13(c), (i) each
purchase by the Purchasers hereunder, each payment by the Seller in respect of
the Commitment Fees and any reduction of the Commitments shall be made pro rata
according to the respective Available Commitment Percentages of the Purchasers
and (ii) each payment by the Seller in respect of the Outstanding Purchase Price
and interest thereon and any repurchase of Receivables shall be made pro rata
according to the respective Commitment Percentages of the Purchasers. The
Managing Facility Agent shall distribute payments received by or on behalf of
the Seller to the Purchasers promptly upon receipt in like funds as received.
(b) Unless the Managing Facility Agent shall have been notified in writing
by any Purchaser prior to a Settlement Date that such Purchaser will not make
available to the Managing Facility Agent the amount that would constitute its
Available Commitment Percentage of the aggregate Purchase Price to be paid on
such date, the Managing Facility Agent may assume that such Purchaser has made
such amount available to the Managing Facility Agent on
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such Settlement Date, and the Managing Facility Agent may, in reliance upon such
assumption, make available to the Seller a corresponding amount. If such amount
is made available to the Managing Facility Agent on a date after such Settlement
Date, such Purchaser shall pay to the Managing Facility Agent on demand an
amount equal to the product of (i) the daily average Federal funds rate during
such period as quoted by the Managing Facility Agent, times (ii) the amount of
such Purchaser's Available Commitment Percentage of such aggregate Purchase
Price, times (iii) a fraction the numerator of which is the number of days that
elapse from and including such Settlement Date to the date on which such
Purchaser's Available Commitment Percentage of such aggregate Purchase Price
shall have become immediately available to the Managing Facility Agent and the
denominator of which is 360. A certificate of the Managing Facility Agent
submitted to any Purchaser with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Purchaser's Available Commitment Percentage of such aggregate Purchase Price is
not in fact made available to the Managing Facility Agent by such Purchaser
within three Business Days after such Settlement Date, then on the fourth
Business Day after such Settlement Date the Seller shall be deemed to have
repurchased participating interests in the Receivables in an amount equal to
such Purchaser's Available Commitment Percentage of the aggregate Purchase Price
paid on such Settlement Date, together with interest on such amount at the rate
per annum equal to the LIBO Rate, such repurchase to be made by a cash payment
to the Managing Facility Agent for its own account; provided that such
repurchase shall not limit the rights of the Seller against the Purchaser which
failed to make available its Available Commitment Percentage of such aggregate
Purchase Price.
2.21 Illegality. Notwithstanding any other provision herein, if any change
in any Requirement of Law or in the interpretation or application thereof shall
make it unlawful for any Purchaser to make or maintain its proportionate share
of the Outstanding Purchase Price based on the LIBO Rate as contemplated by this
Agreement, (a) the Commitment of such Purchaser hereunder to make purchases
shall forthwith be canceled and (b) the Outstanding Purchase Price of such
Purchaser shall be paid on each Settlement Date thereafter as if such Purchaser
were a Dissenting Purchaser under subsection 2.8.
2.22 Requirements of Law. (a) In the event that any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Purchaser with any request or directive (whether or not having the force
of law) from any central bank or other Governmental Authority (each, a "Change
in Law") made subsequent to the date hereof (or with respect to a Purchasing
Party which becomes a party hereto pursuant to subsection 11.6(c), made
subsequent to the date such Purchasing Party became a party hereto) shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Purchaser (except any such
reserve requirement reflected in the LIBO Rate); or
(ii) impose on any Purchaser or the London interbank market any
other condition affecting this Agreement or the making of purchases or
the maintaining of a proportionate share of the Outstanding Purchase
Price by such Purchaser;
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and the result of any of the foregoing shall be to increase the cost to such
Purchaser of making purchases or maintaining its proportionate share of the
Outstanding Purchase Price (or of maintaining its obligation to do any of the
foregoing) or to reduce the amount of any sum received or receivable by such
Purchaser hereunder (whether of principal, interest or otherwise), then the
Seller will pay to such Purchaser such additional amount or amounts as will
compensate such Purchaser for such additional costs incurred or reduction
suffered.
(b) If any Purchaser determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Purchaser's capital or on the capital of such Purchaser's holding company, if
any, as a consequence of this Agreement or such Purchaser's obligations
hereunder, to a level below that which such Purchaser or such Purchaser's
holding company could have achieved but for such Change in Law (taking into
consideration such Purchaser's policies and the policies of such Purchaser's
holding company with respect to capital adequacy), then from time to time the
Seller will pay to such Purchaser such additional amount or amounts as will
compensate such Purchaser or such Purchaser's holding company for any such
reduction suffered.
(c) A certificate of a Purchaser setting forth the amount or amounts
necessary to compensate such Purchaser or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this subsection shall be delivered
to the Seller and shall be conclusive absent manifest error. The Seller shall
pay such Purchaser the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Purchaser to demand compensation
pursuant to this subsection shall not constitute a waiver of such Purchaser's
right to demand such compensation; provided that the Seller shall not be
required to compensate a Purchaser pursuant to this subsection for any increased
costs or reductions incurred more than six months prior to the date that such
Purchaser notifies the Seller of the Change in Law giving rise to such increased
costs or reductions and of such Purchaser's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
2.23 Taxes. (a) Any and all payments by or an account of any obligation of
the Seller hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Seller shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this subsection) the Managing Facility Agent, Co-Administrative Agent or
Purchaser (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Seller shall make such
deductions and (iii) the Seller shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Seller shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
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(c) The Seller shall indemnify the Managing Facility Agent, each Co-
Administrative Agent and each Purchaser, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this subsection) paid by the Managing Facility Agent, such
Co-Administrative Agent or such Purchaser, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Seller by a Purchaser, or by the Managing Facility Agent on its own behalf or on
behalf of a Purchaser or a Co-Administrative Agent shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Seller to a Governmental Authority, the Seller shall deliver to the
Managing Facility Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Managing Facility Agent.
(e) Any Foreign Purchaser that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Seller is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Seller (with a
copy to the Managing Facility Agent), at the time or times prescribed by
applicable law or reasonably requested by the Seller, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
2.24 Reemployment Costs. The Seller agrees to indemnify each Purchaser and
to hold each Purchaser harmless from any loss or expense (including, but not
limited to, any such loss or expense arising from interest or fees payable by a
Purchaser to lenders of funds obtained by it or them to purchase or maintain an
interest in the Purchased Receivables with respect to which the Note Rate is
determined by reference to the LIBO Rate) as a consequence of (a) default by the
Seller in the performance of its obligations hereunder, (b) any reduction in the
Outstanding Purchase Price prior to the last day of any Settlement Period, (c)
the failure of the Seller or the Servicer to make any amounts available to the
Managing Facility Agent when due hereunder or (d) any expenses (excluding legal
expenses) incurred by any Purchaser pursuant to subsection 2.21. A certificate
of such Purchaser submitted to the Seller certifying, in reasonably specific
detail, the basis for, calculation of and amounts of such additional costs shall
be conclusive in the absence of manifest error. This covenant shall survive for
a period of two years following the date on which the Amortization Period ends.
2.25 Seller's Obligations Absolute and Unconditional. The Seller's
obligations under this Section 2 to make payments, deposits and repurchases
shall be absolute and unconditional and shall be performed without regard to any
set-off which the Seller at any time may have available to it.
2.26 Mitigation Obligations; Replacement of Purchaser. (a) If any
Purchaser requests compensation under subsection 2.22, or if the Seller is
required to pay any additional
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amount to any Purchaser or any Governmental Authority for the account of any
Purchaser pursuant to subsection 2.23, then such Purchaser shall use reasonable
efforts to designate a different lending office for funding or booking its
purchases hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Purchaser,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to subsection 2.22 or 2.23, as the case may be, in the future and (ii)
would not subject such Purchaser to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Purchaser. The Seller hereby agrees to
pay all reasonable costs and expenses incurred by any Purchaser in connection
with any such designation or assignment.
(b) If any Purchaser requests compensation under subsection 2.22, or if
the Seller is required to pay any additional amount to any Purchaser or any
Governmental Authority for the account of any Purchaser pursuant to subsection
2.23, or if any Purchaser defaults in its obligation hereunder to make purchases
or maintain its proportionate share of the Outstanding Purchase Price or if at
any time after the Effective Date any Purchaser shall cause the Managing
Facility Agent to notify the Seller and the Servicer of a Prohibited
Jurisdiction, then the Seller may, at its sole expense and effort, upon notice
to such Purchaser and the Managing Facility Agent, require such Purchaser to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in subsection 11.6), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Purchaser, if a Purchaser accepts
such assignment); provided that (i) the Seller shall have received the prior
written consent of the Managing Facility Agent, which consent shall not
unreasonably be withheld, (ii) such Purchaser shall have received payment of an
amount equal to such Purchaser's Outstanding Purchase Price, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Seller (in the case of all other amounts), (iii) in the case of any
such assignment resulting from a claim for compensation under subsection 2.22 or
payments required to be made pursuant to subsection 2.23, such assignment will
result in a reduction in such compensation or payments and (iv) in the case of
any such assignment resulting from a request to add an additional Prohibited
Jurisdiction, such assignee will not request that such jurisdiction be so
categorized. A Purchaser shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Purchaser or
otherwise, the circumstances entitling the Seller to require such assignment and
delegation cease to apply.
2.27 Designation of Affiliate Receivables and Foreign Receivables. (a)
Each Affiliate Receivable and each Foreign Receivable (other than L/C
Receivables, Unsecured Foreign Receivables and Existing Receivables) shall be
designated as a Certified Foreign Receivable or an Uncertified Foreign
Receivable in accordance with this subsection 2.27.
Except as provided in subsections 2.27(c) and (d) below, no less than
45 days prior to the Settlement Date on which the Seller proposes to sell or
substitute an Affiliate Receivable or Foreign Receivable (other than a L/C
Receivable), the Seller shall deliver to the Servicer the following:
(i) with respect to each such Foreign Receivable other than a Lease
Receivable with a Foreign Obligor,
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(A) the form(s) of Foreign Assignment(s) with respect to the Financed
Aircraft related to such Receivable, which Foreign Assignment(s) shall be
effective to perfect (A) the Lien granted by the Obligor thereon in favor
of Raytheon Credit, (B) the assignment thereof by Raytheon Credit in favor
of the Seller and (C) the assignment of such Lien by the Seller in favor of
the Administrative Agent, in each case, in all respects reasonably
satisfactory in form and substance to the Managing Facility Agent and its
counsel,
(B) the forms of all other filings and recordings (including, without
limitation, any UCC filings with filing offices in the jurisdictions listed
on Schedule II) necessary or advisable, in the opinion of the Managing
Facility Agent after consultation with its counsel or the Servicer, to
perfect the Purchasers' first priority ownership or security interests in
and to such Foreign Receivable and the related Contracts and Financed
Aircraft and the Collections with respect thereto, and
(C) (x) a form of legal opinion of counsel (a copy of which shall be
delivered to the Managing Facility Agent) admitted to practice in the
foreign jurisdiction in which the related Foreign Obligor is located
(within the meaning of Section 9-103 of the New York UCC), addressed to the
Managing Facility Agent, the Co-Administrative Agents and the Purchasers
(1) to the effect that (x) the Lien granted by the Obligor in favor of
Raytheon Credit in the related Financed Aircraft constitutes a duly
perfected, first priority Lien thereon, (y) each of the assignment of such
Lien by Raytheon Credit to the Seller and by the Seller in favor of the
Administrative Agent (for the ratable benefit of the Purchasers) in the
related Financed Aircraft constitutes (as of its effectiveness) a duly
perfected, first priority Lien thereon (except as set forth in paragraph
(l) of the definition of "Eligible Receivables") and (z) the assignment of
such Foreign Receivable by Raytheon Credit to the Seller and by the Seller
in favor of the Administrative Agent (for the ratable benefit of the
Purchasers) constitutes (as of its effectiveness) a duly perfected, first
priority Lien thereon (except for Permitted Receivables Liens) and (2)
covering such other matters as the Managing Facility Agent shall reasonably
request, and in all respects satisfactory in form and substance to the
Managing Facility Agent and its counsel, or
(y) if the Obligor of such Receivable is located (within the meaning of
Section 9-103 of the New York UCC) in a jurisdiction covered by a
previously delivered and accepted (by the Managing Facility Agent on behalf
of the Purchasers) legal opinion, a form of certificate of a Responsible
Officer of the Seller which represents and warrants to the Managing
Facility Agent, for the benefit of the Purchasers, that the Seller has
taken all actions specified in such previously delivered opinion and all
other actions known to the Seller to ensure that the Liens referenced in
clause (A) of this paragraph (i) are enforceable and have been duly
perfected to the same extent as set forth in such previously delivered and
accepted legal opinion;
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(ii) with respect to each such Foreign Receivable which is a
Registerable Lease Receivable with a Foreign Obligor,
(A) the form of FAA Assignment with respect to the Financed Aircraft
related to such Receivable, which FAA Assignment shall be effective to
perfect the Lien granted by the Seller thereon in favor of the
Administrative Agent, in each case, in all respects reasonably satisfactory
in form and substance to the Managing Facility Agent and its counsel,
(B) the forms of all other filings and recordings (including, without
limitation, any UCC filings with filing offices in the jurisdictions listed
on Schedule II) necessary or advisable, in the opinion of the Managing
Facility Agent after consultation with its counsel or the Servicer, to
perfect the Purchasers' first priority ownership or security interests in
and to such Foreign Receivable and the related Contracts and Financed
Aircraft and the Collections with respect thereto, and
(C) (x)(1) a form of legal opinion of special FAA counsel to the
Seller to the effect that (A) the Lien granted by the Seller in favor of
the Administrative Agent (for the ratable benefit of the Purchasers) in the
related Financed Aircraft constitutes a duly perfected, first priority Lien
thereon (except as set forth in paragraph (l) of the definition of
"Eligible Receivables") and (B) the assignment of such Foreign Receivable
by the Seller in favor of the Administrative Agent (for the ratable benefit
of the Purchasers) constitutes a duly perfected, first priority Lien
thereon (except for Permitted Receivables Liens) and (2) a form of legal
opinion of counsel (a copy of which shall be delivered to the Managing
Facility Agent) admitted to practice in the foreign jurisdiction in which
the related Foreign Obligor is located (within the meaning of Section 9-103
of the New York UCC), addressed to the Managing Facility Agent, the Co-
Administrative Agents and the Purchasers to the effect that the assignment
of such Foreign Receivable by the Seller in favor of the Administrative
Agent (for the ratable benefit of the Purchasers) constitutes a duly
perfected, first priority Lien thereon (except for Permitted Receivables
Liens); each such opinion shall also cover such other matters as the
Managing Facility Agent shall reasonably request, and shall be in all
respects satisfactory in form and substance to the Managing Facility Agent
and its counsel, or
(y) if the Foreign Obligor of such Foreign Receivable is so located in a
jurisdiction covered by a previously delivered and accepted (by the
Managing Facility Agent on behalf of the Purchasers) legal opinion of
foreign counsel (as described in clause (C)(x) above), a form of
certificate of a Responsible Officer of the Seller which represents and
warrants to the Managing Facility Agent, for the benefit of the Purchasers,
that the Seller has taken all actions specified in such previously
delivered opinion and all other actions known to the Seller to ensure that
the assignment of the Foreign Receivable is enforceable and has been duly
perfected to the same extent as set forth in such previously delivered and
accepted legal opinion;
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(iii) with respect to each such Foreign Receivable which is a Lease
Receivable with a Foreign Obligor, but is not a Registerable Lease Receivable,
(A) the form of Foreign Assignment with respect to the Financed
Aircraft related to such Receivable, which Foreign Assignment shall be
effective to perfect the Lien granted thereon by the Seller in favor of the
Administrative Agent for the ratable benefit of the Purchasers, in each
case, in all respects reasonably satisfactory in form and substance to the
Managing Facility Agent and its counsel,
(B) the forms of all other filings and recordings (including, without
limitation, any UCC filings with filing offices in the jurisdictions listed
on Schedule II) necessary or advisable, in the opinion of the Managing
Facility Agent after consultation with its counsel or the Servicer, to
perfect the Purchasers' first priority ownership or security interests in
and to such Foreign Receivable and the related Contracts and Financed
Aircraft and the Collections with respect thereto, and
(C) (x) a form of legal opinion of counsel (a copy of which shall be
delivered to the Managing Facility Agent) admitted to practice in the
foreign jurisdiction in which the related Foreign Obligor is located
(within the meaning of Section 9-103 of the New York UCC), addressed to the
Managing Facility Agent, the Co-Administrative Agents and the Purchasers
(1) to the effect that (A) the Lien granted by the Seller in favor of the
Administrative Agent (for the ratable benefit of the Purchasers) in the
related Financed Aircraft constitutes a duly perfected, first priority Lien
thereon (except as set forth in paragraph (l) of the definition of
"Eligible Receivables"), (B) the assignment by the Seller in favor of the
Administrative Agent (for the ratable benefit of the Purchasers) of such
Receivable constitutes a duly perfected, first priority Lien thereon
(except for Permitted Receivables Liens) and (2) covering such other
matters as the Managing Facility Agent shall reasonably request, and in all
respects satisfactory in form and substance to the Managing Facility Agent
and its counsel, or
(y) if the Foreign Obligor of such Foreign Receivable is so located in a
jurisdiction covered by a previously delivered and accepted (by the
Managing Facility Agent on behalf of the Purchasers) legal opinion, a form
of certificate of a Responsible Officer of the Seller which represents and
warrants to the Managing Facility Agent, for the benefit of the Purchasers,
that the Seller has taken all actions specified in such previously
delivered opinion and all other actions known to the Seller to ensure that
the Liens referenced in clause (C)(x)(1)(A) and (B) of this paragraph (iii)
are enforceable and have been duly perfected to the same extent as set
forth in such previously delivered and accepted legal opinion;
provided, however, that notwithstanding the provisions of this subsection
2.27(a)(iii), the Seller may, at its option, decline to perform any of the
requirements of this subsection 2.27(a)(iii) with respect to any Uncertified
Lease Receivable; and
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(iv) with respect to each Affiliate Receivable,
(A) the form(s) of Foreign Assignment(s) with respect to the Financed
Aircraft related to such Receivable, which Foreign Assignment(s) shall be
effective to perfect (A) the Lien granted thereon by the Affiliate Obligor
in favor of Raytheon Credit, (B) an assignment of such Lien by Raytheon
Credit in favor of the Seller and (B) an assignment of such Lien by the
Seller in favor of the Administrative Agent for the ratable benefit of the
Purchasers, in each case, in all respects reasonably satisfactory in form
and substance to the Managing Facility Agent and its counsel,
(B) the forms of all other filings and recordings (including, without
limitation, any UCC filings with filing offices in the jurisdictions listed
on Schedule II) necessary or advisable, in the opinion of the Managing
Facility Agent after consultation with its counsel or the Servicer, to
perfect (A) Raytheon Credit's first priority perfected interest in the
Applicable Lease related thereto, the Financed Aircraft and the Collections
with respect thereto, (B) the assignment by Raytheon Credit of such
Affiliate Receivable and Raytheon Credit's interest in the Applicable Lease
related thereto, the Financed Aircraft and the Collections with respect
thereto to the Seller and (C) the Purchasers' first priority ownership or
security interests in and to such Affiliate Receivable and the related
Contracts and Financed Aircraft and the Collections with respect thereto,
and
(C) (x) a form of legal opinion of counsel (a copy of which shall be
delivered to the Managing Facility Agent) admitted to practice in the
foreign jurisdiction in which the related Unaffiliated Foreign Lessee is
located (within the meaning of Section 9-103 of the New York UCC),
addressed to the Managing Facility Agent, the Co-Administrative Agents and
the Purchasers (1) to the effect that (A) the Lien in favor of Raytheon
Credit in the related Financed Aircraft constitutes a duly perfected, first
priority Lien thereon (except as set forth in paragraph (l) of the
definition of "Eligible Receivables"), (B) the assignment by Raytheon
Credit in favor of the Seller of such Affiliate Receivable and Raytheon
Credit's interest in the Applicable Lease related thereto, the Financed
Aircraft and the Collections with respect thereto constitutes a duly
perfected assignment thereof and (C) the assignment thereof by the Seller
in favor of the Administrative Agent, for the ratable benefit of the
Purchasers of such Affiliate Receivable, constitutes a duly perfected,
first priority Lien thereon (except for Permitted Receivables Liens and
except as set forth in paragraph (l) of the definition of "Eligible
Receivables") and (2) covering such other matters as the Managing Facility
Agent shall reasonably request, and in all respects satisfactory in form
and substance to the Managing Facility Agent and its counsel, or
(y) if the Unaffiliated Foreign Lessee of such Affiliate Receivable is so
located in a jurisdiction covered by a previously delivered and accepted
(by the Managing Facility Agent on behalf of the Purchasers) legal opinion,
a form of certificate of a Responsible Officer of the Seller which
represents and warrants to the Managing Facility Agent, for the benefit of
the Purchasers, that the Seller has taken all actions
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specified in such previously delivered opinion and all other actions known
to the Seller to ensure that the Liens referenced in clause (C)(x)(1)(A),
(B) and (C) of this paragraph (iv) are enforceable and have been duly
perfected to the same extent as set forth in such previously delivered and
accepted legal opinion.
(b) Except as provided in subsection 2.27(c) below, within 30 days of
receipt of such forms of assignment, legal opinions and other specified
documents, the Servicer shall notify the Seller whether or not the related
Affiliate Receivables and Foreign Receivables will, subject to the satisfaction
of the conditions specified in subsection 5.2(e), constitute Certified Foreign
Receivables, Uncertified Foreign Receivables or Ineligible Receivables. Subject
to the satisfaction of the conditions specified in subsection 5.2(e), such
designation will be applied from and after the date of such notification. In the
absence of such notification, such Receivable shall constitute an Uncertified
Foreign Receivable, provided, however, that at any time thereafter, the Seller
may request that the Servicer determine whether any Uncertified Foreign
Receivable due to a change of circumstance is eligible to qualify as a Certified
Foreign Receivable. Within 45 days of receipt of such request (or such shorter
period as shall be reasonably practicable) the Servicer shall determine the
eligibility of the Uncertified Foreign Receivable referred to above to qualify
as a Certified Foreign Receivable in accordance with the provisions of this
subsection 2.27 and notify the Seller.
(c) Notwithstanding the foregoing, but subject to the further provisions of
this subsection 2.27(c) and the provisions of subsection 2.27(d), on the Closing
Date Existing Certified Receivables shall be designated Certified Foreign
Receivables hereunder. Within 180 days of the Closing Date (such date, the
"Certified Opinion Delivery Date"), the Seller shall deliver to the Old
Administrative Agent, with respect to each Existing Certified Receivable, a form
of legal opinion of counsel (satisfactory to the Old Administrative Agent)
admitted to practice in the foreign jurisdiction in which the related
Unaffiliated Foreign Lessee is located (within the meaning of Section 9-103 of
the New York UCC), addressed to the Old Administrative Agent and the Purchasers
(x) to the effect that no further action need be taken in order to (1) perfect
the transfer by Raytheon Credit to the Seller of such Existing Certified
Receivable, the related Financed Aircraft and Applicable Lease (if applicable)
and Collections thereon in accordance with the Intercompany Purchase Agreement
and (2) continue the Lien in favor of the Administrative Agent of such Existing
Certified Receivable, the related Financed Aircraft and Applicable Lease (if
applicable) and Collections thereon as a duly perfected Lien having the same
priority as in effect immediately prior to the Effective Date and (y) if any
actions had been required in order to render the opinions set forth in clause
(x), setting forth such actions and (z) covering such other matters as the Old
Administrative Agent shall reasonably request, which opinion shall be in all
respects satisfactory in form and substance to the Old Administrative Agent and
its counsel.
(d) On the first Settlement Date (other than a Special Settlement Date)
following the Certified Opinion Delivery Date, the Seller shall repurchase from
the Purchasers and the Purchasers agree to sell to the Seller on such date in
accordance with the terms hereof, each Existing Certified Receivable and each
Existing GA Receivable (the Foreign Obligor of which is located in Canada,
France or Australia) as to which the Purchasers shall not have received a legal
opinion to the effect set forth in subsection 2.27(c) hereof. Subject to
subsections 2.13 and 2.15(b), the Seller shall make such repurchase by
depositing in the Concentration Account cash an amount for each such Receivable
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equal to the amount set forth in clause (a) of the definition of "Repurchase
Price", calculated at the date such deposit is made, except to the extent
(without duplication) of any payment made pursuant to subsection 2.18, for the
Settlement Period during which such interest accrued and was not paid by the
Foreign Obligor under the related Contract. The amount of any such deposit shall
be applied and distributed in accordance with subsections 2.15 and 2.16. Except
as provided in subsection 9.1, the sole obligation of the Seller with respect to
a Receivable of the type described in this subsection 2.27(d) shall be the
requirement to repurchase or substitute for such Receivable pursuant to this
subsection 2.27(d).
SECTION 3. THE SERVICER AND SERVICING OF PURCHASED RECEIVABLES
3.1 Designation of Servicer; Removal. (a) The servicing,
administering and collection of Purchased Receivables shall be conducted by such
Person (the "Servicer") so designated from time to time in accordance with this
subsection 3.1. Until the Required Purchasers give notice to the Seller of the
designation of a new Servicer pursuant to subsection 3.1(b), Raytheon Credit is
hereby designated as, and hereby agrees to perform the duties and obligations
of, the Servicer for the Purchased Receivables sold hereunder. The Servicer may,
with the prior consent of the Required Purchasers, subcontract with any other
Person to perform, in accordance with applicable laws, the servicing,
administering or collecting of Purchased Receivables, provided that the Servicer
shall remain liable for the performance of the duties and obligations of the
Servicer pursuant to the terms hereof. With respect to the Existing Receivables,
the capacity of the Servicer shall be a continuation by Raytheon Credit of its
capacity as Servicer under and as defined in each of the Existing Agreements.
(b) At any time after the occurrence and during the continuance of a
Specified Amortization Event, the Required Purchasers may remove Raytheon Credit
(or any successor Servicer) as the Servicer and appoint as a successor Servicer
any Person to succeed Raytheon Credit (or any successor Servicer) as Servicer,
on the condition that such successor Servicer agrees to perform the duties and
obligations of the Servicer pursuant to the terms hereof. Any such removal of
Raytheon Credit (or any successor Servicer) as the Servicer shall not become
effective until such successor Servicer accepts its appointment and agrees to be
bound by the terms and conditions of this Agreement with respect to the Servicer
in a writing satisfactory in form and substance to the Managing Facility Agent
and the Required Purchasers. The Servicer agrees to cooperate with the Managing
Facility Agent, the Purchasers and any successor Servicer if the Servicer is
terminated under this Agreement, including transferring to the successor
Servicer all cash amounts or documents or instruments relating to the Purchased
Receivables held by the Servicer at the time of its removal.
(c) The authorization of the Servicer under this Agreement shall terminate
when all the obligations under this Agreement have been paid in full.
3.2 Duties of Servicer. (a) The Servicer shall take or cause to be taken
all such actions as may be necessary or advisable to administer, service and
collect each Purchased Receivable from time to time, all in accordance with
applicable laws, rules and regulations, with reasonable care and diligence, and
solely in accordance with the Credit and Collection Policy. The Seller, the
Managing Facility Agent and each Purchaser each agrees that the Servicer may
enforce its rights and interests in and under the Purchased Receivables and the
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Contracts and with respect to the Financed Aircraft. The Servicer shall remit
Collections in accordance with subsections 2.14 and 2.15(a) and until such
remittances are made, in the circumstance described in Section 2.15(a), without
regard to the proviso, shall hold such Collections in trust for the account of
the Purchasers. The Servicer may not extend, amend or otherwise modify the terms
of any Purchased Receivable, or amend, modify or waive any term or condition of
any Contract related thereto, or extend, amend or otherwise modify the rights of
the Seller except (i) in accordance with subsection 7.1(b) and (ii) if the
Servicer is not then Raytheon Credit, with the Seller's prior consent. No
Servicer (if not Raytheon Credit) may commence or settle any legal action to
enforce collection of any Purchased Receivable without the prior consent of the
Required Purchasers. The Seller shall deliver to the Servicer (if not the
Seller) all computer tapes or disks and, upon the Managing Facility Agent's
request, all documents, instruments or other records which evidence or relate to
Purchased Receivables (the foregoing, the "Contract Files").
(b) The Servicer (if not Raytheon Credit) shall as soon as practicable
following receipt turn over to the Seller or any other party entitled thereto
the Collections on any Receivable which is not a Purchased Receivable less all
reasonable and appropriate out-of-pocket costs and expenses of the Servicer of
servicing, collecting and administering such Receivable to the extent not
covered by the Servicing Fee received by it. The Servicer, if other than the
Seller, shall as soon as practicable upon demand deliver to the Seller all
documents, instruments and records in its possession which evidence or relate to
Receivables other than Purchased Receivables, and copies of documents,
instruments and records in its possession which evidence or relate to
Receivables other than Purchased Receivables. The Servicer unconditionally and
absolutely agrees to take any and all action requested by the Managing Facility
Agent in connection with the exercise by the Managing Facility Agent and the
Purchasers of their rights under subsection 8.2, 11.11, 11.12 or 11.13.
(c) With respect to any L/C Receivable the related letter of credit of
which expires on the last date of the Contract related thereto, the Servicer
shall prepare any drawing request required under such letter of credit and, if
the payment due under such Contract is not made by the drawing deadline under
such letter of credit, the Servicer shall make a drawing thereunder. Further, if
the expiration date of any letter of credit related to any L/C Receivable is not
extended when a Principal Balance of such Receivable remains outstanding, the
Servicer shall, or shall cause the Seller or Raytheon Credit to, draw the
aggregate available amount under such letter of credit prior to the expiration
thereof.
3.3 Servicer Reports. The Servicer shall deliver to the Managing Facility
Agent, with sufficient copies for each Purchaser:
(a) Within 45 days after the end of each of the first three fiscal
quarters of the Servicer, beginning with the first such quarter to end after the
Closing Date, a report with respect to such fiscal quarter, certified by a
Responsible Officer (if the Seller is then the Servicer) or by the president or
officer responsible for financial affairs of the Servicer, to the effect that
the Servicer has reviewed its servicing, administration and collection of
Purchased Receivables, Collections with respect thereto and the related
Contracts and Financed Aircraft, that no errors and irregularities were detected
with respect to such servicing, administration and collection and
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that such servicing, collection and administration was conducted in compliance
with the applicable provisions of this Agreement; and
(b) Within 90 days after the last day of each fiscal year of the Servicer,
a report of a firm of nationally recognized independent public accountants
(which may also render other services to the Servicer, the Seller or Raytheon or
any Affiliate thereof) to the effect that (i) such firm has made a study and
evaluation in accordance with generally accepted auditing standards of the
Servicer's internal accounting controls relative to the servicing,
administration and collection of Purchased Receivables, Collections with respect
thereto and the related Contracts and Financed Aircraft, that such system of
internal accounting controls then in effect with respect to such servicing
procedures performed by the Servicer was sufficient for the prevention and
detection of errors and irregularities and that such servicing, administration
and collection of Purchased Receivables, Collections with respect thereto and
the related Contracts and Financed Aircraft was conducted in compliance with the
provisions of this Agreement and (ii) such firm has compared the mathematical
calculations of amounts set forth on a statistically representative sample of
Settlement Statements delivered with respect to each Settlement Period during
such fiscal year with the Servicer's computer reports and other documents which
were the source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except in either case as may be described in such
report.
3.4 Servicing Fee. As compensation for its servicing activities hereunder
and reimbursement for its reasonable fees, disbursements and expenses incurred
in connection with its activities hereunder, the Servicer shall be entitled to
receive a per annum servicing fee of .85% of the Outstanding Purchase Price,
payable monthly in arrears on each Settlement Date (other than a Special
Settlement Date) in respect of the Outstanding Purchase Price at the end of the
Accrual Period preceding the Settlement Date on which the Servicing Fee is paid.
The Servicing Fee shall be calculated on the basis of a 360-day year for the
actual number of days elapsed during such Accrual Period.
3.5 Merger or Consolidation of, or Assumption of the Obligations of, the
Servicer. The Servicer shall not consolidate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety
shall be, if the Servicer is not the surviving entity, organized and
existing under the laws of the United States of America or any State or
the District of Columbia and shall expressly assume, by an agreement in
form reasonably satisfactory to the Managing Facility Agent and the
Required Purchasers, the performance of every covenant and obligation of
the Servicer hereunder, and shall benefit from all the rights granted to
the Servicer, as applicable hereunder;
(ii) the Servicer has delivered to the Managing Facility Agent a
certificate of the Chief Financial Officer or President thereof and an
opinion of counsel (which counsel shall be reasonably satisfactory to the
Managing Facility Agent) each stating that such consolidation, merger,
conveyance or transfer and
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such agreement comply with this Section 3.5 and that all conditions
precedent herein provided for relating to such transaction have been
complied with and, in the case of the opinion of counsel, that such
agreement is legal, valid and binding with respect to the Servicer; and
(iii) after giving effect thereto, no Amortization Event shall have
occurred and be continuing.
3.6 Limitation on Liability of the Servicer and Others. Neither the
Servicer (except as otherwise provided herein) nor any of the directors or
officers or employees or agents of the Servicer shall be under any liability to
the Managing Facility Agent, the Co-Administrative Agents or the Purchasers or
any other Person for any action taken or for refraining from the taking of any
action pursuant to this Agreement whether arising from express or implied duties
under this Agreement; provided, however, that this provision shall not protect
the Servicer against any liability which would otherwise be imposed by reason of
its willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of its willful misconduct hereunder or by reason of Section
3.7. The Servicer and any director or officer or employee or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
3.7 Indemnification of the Seller, the Managing Facility Agent, the
Administrative Agent, the Co-Administrative Agents and each Purchaser. The
Servicer shall indemnify and hold harmless the Seller, the Managing Facility
Agent, the Administrative Agent and each Purchaser from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions of the Servicer with respect to
activities of the Seller or the Purchasers for which the Servicer is responsible
pursuant to this Agreement, including those arising from acts or omissions of
the Servicer pursuant to this Agreement, including, but not limited to any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim. Notwithstanding the foregoing, (i) the Servicer
shall not indemnify the Seller, the Managing Facility Agent, the Administrative
Agent, any Co-Administrative Agent or any Purchaser if such acts, omissions or
alleged acts constitute fraud, gross negligence or breach of fiduciary duty by
such Person; (ii) the Servicer shall not indemnify the Seller, the Managing
Facility Agent, the Administrative Agent, the Co-Administrative Agents or any
Purchaser for any liabilities, costs or expenses with respect to any action
taken by or at the request of any Purchasers, the Managing Facility Agent, the
Administrative Agent, any Co-Administrative Agent, any Co-Agent or any Agent;
(iii) the Servicer shall not indemnify the Seller, the Managing Facility Agent,
the Administrative Agent, the Co-Administrative Agents or any Purchaser as to
any losses, claims or damages incurred by any of them in their capacities as
investors, including without limitation losses incurred as a result of Defaulted
Receivables which are written off as uncollectible; and (iv) the Servicer shall
not indemnify the Seller, the Managing Facility Agent, the Administrative Agent,
the Co-Administrative Agents or any Purchaser for any liabilities, costs or
expenses of any such Person arising under any tax law, including without
limitation any federal, state or local income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with respect
thereto or arising from a failure to comply therewith) required to be paid by
any such Person in connection
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herewith to any taxing authority. The provisions of this indemnity shall run
directly to and be enforceable by an injured party subject to the limitations
hereof.
The obligations of the Servicer under this subsection 3.7 shall
survive the payment in full of the obligations hereunder.
3.8 The Servicer Not to Resign. The Servicer shall not resign from the
obligations and duties hereby imposed on it except upon determination that (i)
the performance of its duties hereunder is or becomes impermissible under
applicable law and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (i) above by an opinion of counsel
(satisfactory to the Managing Facility Agent and its counsel) to such effect
delivered to the Managing Facility Agent. No such resignation shall become
effective until a successor Servicer shall have assumed the responsibilities and
obligations of the Servicer hereunder. Any delegation of duties permitted under
subsection 3.1 shall not relieve the Servicer of its liability and
responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of this subsection 3.8.
3.9 Access to Certain Documentation and Information Regarding the
Contracts. The Servicer shall provide to the Managing Facility Agent access to
the documentation regarding the Purchased Receivables (including the Contracts)
and the related Financed Aircraft, such access being afforded without charge but
only (i) upon reasonable request, (ii) during normal business hours, (iii)
subject to the Servicer's normal security and confidentiality procedures and
(iv) at offices designated by the Servicer.
3.10 Marking of Records. The Servicer shall xxxx the Contract files with
a legend (or, in the case of computer tapes and disks, other appropriate
electronic xxxx or tag) that such Purchased Receivables have been sold to the
Managing Facility Agent and each Purchaser.
3.11 Additional Covenants of the Servicer. The Servicer hereby covenants
that:
(a) Contract Files. The Servicer will, at its own cost and expense,
maintain all Contract files in its possession in trust for the Seller, the
Managing Facility Agent and the Purchasers and in accordance with the Credit and
Collection Policy and customary standards in the aircraft finance industry.
Without limiting the generality of the preceding sentence, the Servicer will not
dispose of any such items in any manner which is inconsistent with the
performance of its obligations as the Servicer pursuant to this Agreement and
will not dispose of any Contract except as contemplated by this Agreement.
(b) Compliance with Law. The Servicer will comply, in all material
respects, with all laws and regulations of any Governmental Authority applicable
to the Servicer, the Contracts related to the Purchased Receivables, the related
Financed Aircraft and the Contract Files or any part thereof; provided that the
Servicer may contest any such law or regulation in any reasonable manner which
will not materially and adversely affect the value of (or the rights of the
Managing Facility Agent or the Purchasers, with respect to) the Purchased
Receivables and related Financed Aircraft.
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(c) Preservation of Security Interest. The Servicer will execute and
file such financing and continuation statements and any other documents
reasonably requested by the Managing Facility Agent to be filed or which may be
required by any law or regulation of any Governmental Authority to preserve and
protect fully the interest of the Managing Facility Agent and the Purchasers in,
to and under the Purchased Receivables and related Financed Aircraft (in each
case as contemplated by the other provisions of this Agreement).
(d) Obligations with Respect to Contracts; Modifications. The Servicer
will duly fulfill and comply with, in all material respects, all obligations on
the part of the Seller to be fulfilled or complied with under or in connection
with each Contract related to Purchased Receivables and will do nothing to
impair the rights of the Administrative Agent or the Purchasers in, to and under
the Purchased Receivables and the related Financed Aircraft. The Servicer will
perform such obligations under the Contracts and will not change or modify the
Contracts, except as otherwise provided in subsection 7.1(b)(iv) of this
Agreement.
(e) No Bankruptcy Petition. Prior to the date that is one year and one
day after the payment in full of all amounts owing hereunder, the Servicer will
not institute against the Seller, or join any other Person in instituting
against the Seller, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceedings under the laws of the
United States or any state of the United States. This Section 3.11(e) will
survive the termination of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties Relating to the Seller. To induce the
Purchasers to enter into this Agreement and to purchase the Receivables the
Seller hereby represents and warrants to the Managing Facility Agent and each
Purchaser on the date hereof, on the Amendment Effective Date and (except as
provided in subsection 4.1(j)) on each Settlement Date (including each Special
Settlement Date) on which a purchase or substitution is made that:
(a) Corporate Existence; Compliance with Law. The Seller (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(iii) is duly qualified and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that failure so to
qualify could not reasonably be expected to have a Material Adverse Effect and
(iv) is in compliance with all Requirements of Law (whether or not the
determination of any arbitrator, court or other Governmental Authority has been
appealed and is final) except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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(b) Corporate Power; Authorization; Enforceable Obligations. The Seller
has the corporate power and authority, and the legal right, to execute and
deliver, and to perform its obligations under, this Agreement, each Assignment,
each FAA Assignment and each Foreign Assignment and to sell or substitute the
Receivables hereunder, to grant and assign the Liens as contemplated herein and
has taken all necessary corporate action to authorize the sales, purchases and
substitutions and the granting and assigning of Liens in connection therewith on
the terms and conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement and each other Purchase Document to
which it is a party. No consent or authorization of, filing with or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the sales, purchases and substitutions to be made hereunder, the
granting and assignment of Liens in connection therewith or with the execution,
delivery, performance, validity or enforceability of this Agreement or any other
Purchase Document to which it is a party. This Agreement has been, and each
Assignment, FAA Assignment and Foreign Assignment will be, duly executed and
delivered on behalf of the Seller. This Agreement constitutes, and each
Assignment, FAA Assignment and Foreign Assignment when executed and delivered
will constitute, a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(c) No Legal Bar. Each sale and purchase and each substitution to be made
hereunder, the use of the proceeds of any such purchase and sale, each granting
or assigning of the Liens in connection with any such purchase and sale or
substitution and the execution, delivery and performance of this Agreement and
each other Purchase Document to which it is a party will not violate the
Seller's certificate of incorporation or by-laws or any Requirement of Law
(including, but not limited to, bulk transfer or similar statutory provisions in
effect in any applicable jurisdiction) or Contractual Obligation of the Seller
and will not result in, or require, the creation or imposition of any Lien on
any of its properties or revenues pursuant to the Seller's certificate of
incorporation or by-laws or any such Requirement of Law or Contractual
Obligation, other than the Liens in favor of the Administrative Agent and the
Purchasers created hereby.
(d) No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending by or against the
Seller or, to the Seller's knowledge, pending against RAC, or threatened by or
against the Seller or RAC, or against any of their respective properties or
revenues (i) with respect to this Agreement or any other Purchase Document to
which the Seller is a party or any of the transactions contemplated hereby or
thereby or (ii) which could reasonably be expected to have a Material Adverse
Effect.
(e) No Default. Neither the Seller nor, to the Seller's knowledge, RAC is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
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(f) Federal Regulations. No part of the proceeds of any purchase will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors. If requested by any Purchaser or the Managing Facility
Agent, the Seller will furnish to the Managing Facility Agent and each Purchaser
a statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U.
(g) ERISA. During the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, each Plan has
complied in all material respects with the applicable provisions of ERISA and
the Code and neither the Seller nor any Commonly Controlled Entity has incurred
any liability with respect to any Plan (other than contributions and payments
required to be made in a timely fashion under the terms of such Plan which were
so made), where a failure to comply or such liability could reasonably be
expected to have a Material Adverse Effect. Neither the Seller nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Seller or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made which could reasonably be
expected to have a Material Adverse Effect.
(h) Investment Company Act; Other Regulations. The Seller is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The Seller
is not subject to regulation under any Federal or State statute or regulation
which limits its ability to incur indebtedness..
(i) Place of Business. The chief place of business and chief executive
office of the Seller and the offices where the Seller keeps all its books,
records and documents evidencing the Purchased Receivables and the related
Contracts are located at the address of the Seller referred to in subsection
11.2 (or, in the case of books, records and documents evidencing the Purchased
Receivables, at such other locations, notified to the Managing Facility Agent in
accordance with subsection 11.2, in jurisdictions where all action required by
subsection 6.1(l) has been taken and completed).
(j) Information. All information set forth in the Syndication Materials
is accurate in all material respects on and as of the Amendment Effective Date
and does not contain any untrue statement of a material fact or omit to state
any material fact of which the Seller knows or should have known which is
necessary to make the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
4.2 Representations and Warranties Relating to the Receivables. To induce
the Purchasers to purchase the Receivables the Seller hereby represents and
warrants to the Managing Facility Agent and each Purchaser with respect to
Receivables being purchased or substituted on each Settlement Date (including
each Special Settlement Date) or the Closing Date that:
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(a) Eligible Receivables. Each Purchased Receivable is on its date of
purchase or substitution hereunder an Eligible Receivable.
(b) Ownership or Perfected First Security Interest . Upon each purchase or
substitution, the Purchasers will acquire a valid and perfected first priority
ownership or security interest in each Purchased Receivable, the Collections
with respect thereto and each related Contract and, except with respect to any
Unsecured Receivable described in clause (i), (iii) or (v) of the definition of
"Unsecured Receivable", the related Financed Aircraft, free and clear of any
Lien other than (i) with respect to such Purchased Receivable and the related
Contracts, the Lien in favor of the Administrative Agent for the ratable benefit
of the Purchasers and any Permitted Receivable Lien on such Purchased Receivable
and related Contracts, (ii) solely with respect to a Financed Aircraft, (u) the
Lien created by the Obligor (including an Affiliate Obligor) in favor of
Raytheon Credit and assigned to the Seller, (v) with respect to Existing
Certified Receivables, prior to the Certified Opinion Delivery Date, the Lien
created by the Obligor in favor of Raytheon Credit (but solely to the extent a
filing is required in a foreign jurisdiction to transfer such Lien to the Seller
and such filing has not been made), (w) with respect to all Existing
Receivables, prior to the FAA Filing Date, the Lien created by the Obligor in
favor of Raytheon Credit (but solely to the extent a filing is required with the
FAA to transfer such Lien to the Seller and such filing has not been made), (x)
the assignment of each such Lien by the Seller in favor of the Administrative
Agent for the ratable benefit of the Purchasers or (y) solely with respect to a
Lease Receivable, the Lien created by the Seller in favor of the Administrative
Agent for the ratable benefit of the Purchasers, and (iii) any Permitted
Aircraft Lien on such Financed Aircraft; and no effective document or instrument
covering any Purchased Receivable or Collections with respect thereto or the
related Contract(s) or Financed Aircraft is on file or of record in any
recording office (including, but not limited to, the FAA Registry or the
comparable registry with respect to any Foreign Receivable (excluding any L/C
Receivable)) except (1) the filings with the appropriate foreign registry with
respect to Affiliate Receivables in order to perfect the Lien in favor of the
Seller in the Applicable Leases and Financed Aircraft related to such Affiliate
Receivables and (2) the filing with the FAA Registry or the comparable registry
with respect to any Foreign Receivable or any Affiliate Receivable (excluding
any L/C Receivable) in order to perfect the Lien encumbering a Financed Aircraft
and any related Applicable Leases which was granted by the related Obligor in
favor of the Seller and (3) as may be filed in favor of the Administrative Agent
for the ratable benefit of the Purchasers in accordance with this Agreement.
(c) Assignment. The information set forth on Annex I to an Assignment,
with respect to Eligible Receivables to be purchased or substituted on a
Settlement Date or purchased on the Closing Date, is true and correct on and as
of such Settlement Date or the Closing Date.
(d) No Material Adverse Change. Since the date of the last Settlement
Statement, there has been no material adverse change in the collectibility of
the Purchased Receivables taken as a whole.
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(e) Substituted Receivables. If on any Settlement Date the Seller sells or
substitutes less than substantially all the Eligible Receivables available for
purchase or substitution on such Settlement Date, the Seller or the Servicer has
not utilized any selection procedure intended to result in a selection of
Purchased Receivables to be purchased or substituted on such Settlement Date
which could be materially adverse to the rights of the Managing Facility Agent
and the Purchasers as of such Settlement Date.
(f) No Violation. Immediately following each purchase or substitution,
the Seller will not have violated the limitations contained in subsection 2.7.
(g) Entitlement to Section 1110 Benefits. With respect to each Purchased
Receivable which is a Commuter Receivable (other than a Foreign Receivable and
an Affiliate Receivable), Raytheon Credit or the Seller shall be entitled to the
benefits of Section 1110 of the Bankruptcy Code (11 USC (S) 1110) with respect
to each Contract and repossession of the related Financed Aircraft under which
each such Purchased Receivable arises, and the Administrative Agent, for the
ratable benefit of the Purchasers, pursuant to subsection 11.13, shall be
entitled to such Section 1110 benefits of Raytheon Credit and the Seller after
the occurrence and during the continuance of a Specified Amortization Event or
in connection with any action taken pursuant to subsection 11.11(c) or
subsection 11.12(b).
(h) Stipulated Aircraft Value. The Stipulated Aircraft Value with respect
to any Financed Aircraft as set forth in any lease Contract related to a
Receivable at any time is equal to or greater than the Outstanding Balance of
such Receivable at such time assuming all current payments are made.
(i) Finance Charge Collections. The Finance Charge Collections have been
calculated in compliance with the Credit and Collection Policy.
4.3 Representations and Warranties Relating to the Servicer. To induce the
Purchasers to enter into this Agreement and to purchase the Receivables the
Servicer hereby represents and warrants to the Managing Facility Agent and each
Purchaser on the date hereof, on the Amendment Effective Date and (except as
provided in subsection 4.3(i)) on each Settlement Date (including each Special
Settlement Date) on which a purchase or substitution is made that:
(a) Corporate Existence; Compliance with Law. The Servicer (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(iii) is duly qualified and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that failure so to
qualify could not reasonably be expected to have a Material Adverse Effect and
(iv) is in compliance with all Requirements of Law (whether or not the
determination of any arbitrator, court or other Governmental Authority has been
appealed and is final) except
85
to the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Corporate Power; Authorization; Enforceable Obligations. The Servicer
has the corporate power and authority, and the legal right, to execute and
deliver, and to perform its obligations under, this Agreement and each other
Purchase Document to which it is a party and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement
and each other Purchase Document to which it is a party. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement or any other
Purchase Document to which it is a party. This Agreement has been duly executed
and delivered on behalf of the Servicer. This Agreement constitutes, and each
other Purchase Document to which it is a party, when executed and delivered by
it, will constitute, a legal, valid and binding obligation of the Servicer
enforceable against the Servicer in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(c) No Legal Bar. The execution, delivery and performance of this
Agreement and each other Purchase Document to which it is a party will not
violate the Servicer's certificate of incorporation or by-laws or any
Requirement of Law (including, but not limited to, bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction) or Contractual
Obligation of the Servicer and will not result in, or require, the creation or
imposition of any Lien on any of its properties or revenues pursuant to the
Servicer's certificate of incorporation or by-laws or any such Requirement of
Law or Contractual Obligation.
(d) No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending by or against the
Servicer or, to the Servicer's knowledge, pending against RAC, or threatened by
or against the Servicer or RAC, or against any of their respective properties or
revenues (i) with respect to this Agreement or any other Purchase Document to
which the Servicer is a party or any of the transactions contemplated hereby or
thereby or (ii) which could reasonably be expected to have a Material Adverse
Effect.
(e) No Default. Neither the Servicer nor, to the Servicer's knowledge, RAC
is in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
(f) ERISA. During the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, each Plan has
complied in all material respects with the applicable provisions of ERISA and
the Code and neither the Servicer nor any Commonly Controlled Entity has
incurred any liability with respect to any Plan (other than contributions and
payments required to be made in a timely fashion under the terms of such Plan
which were so made), where a failure to comply or
86
such liability could reasonably be expected to have a Material Adverse Effect.
Neither the Servicer nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Servicer or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made which could reasonably be expected to have a Material Adverse
Effect.
(g) Investment Company Act; Other Regulations. The Servicer is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Servicer is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur indebtedness.
(h) Place of Business. The chief place of business and chief executive
office of the Servicer and the offices where the Servicer keeps all its books,
records and documents evidencing the Purchased Receivables and the related
Contracts are located at the address of the Servicer referred to in subsection
11.2 (or, in the case of books, records and documents evidencing the Purchased
Receivables, at such other locations, notified to the Managing Facility Agent in
accordance with subsection 11.2, in jurisdictions where all action required by
subsection 6.1(l) has been taken and completed).
(i) Information. All information set forth in the Syndication Materials is
accurate in all material respects on and as of the Amendment Effective Date and
does not contain any untrue statement of a material fact or omit to state any
material fact of which the Servicer knows or should have known which is
necessary to make the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction, of the following conditions precedent (the first
date on which such conditions are satisfied, which shall be a Business Day,
being herein called the "Amendment Effective Date"):
(a) Purchase and Other Documents. The Managing Facility Agent shall have
received, with a copy for each Purchaser, (i) this Agreement executed and
delivered by a duly authorized officer of each party hereto and (ii) the
Repurchase Agreement Reaffirmation executed and delivered by a duly authorized
officer of RAC and (iii) the Guarantee Amendment and Reaffirmation executed and
delivered by a duly authorized officer of Raytheon.
(b) Corporate Proceedings and Contracts. The Managing Facility Agent
shall have received, with a counterpart for each Purchaser, a copy of the
resolutions, in form and substance satisfactory to the Managing Facility Agent,
of the Boards of Directors of the Seller, Raytheon Credit, RAC and Raytheon
authorizing, (i) in the case of the Seller, the execution, delivery and
performance of this Agreement, (ii) in the case of Raytheon Credit, authorizing
the execution and delivery of this Agreement, (iii) in the case of RAC,
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authorizing the execution and delivery of the Repurchase Agreement Reaffirmation
and (iv), in the case of Raytheon, acknowledging the execution and delivery of
this Agreement and authorizing the execution and delivery of the Guarantee
Amendment and Reaffirmation, certified by the Secretary or an Assistant
Secretary of the Seller, Raytheon Credit, RAC or Raytheon, as the case may be,
as of the Amendment Effective Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance satisfactory to the Managing
Facility Agent.
(c) Corporate Documents; Good Standing Certificates. The Managing Facility
Agent shall have received, with a copy for each Purchaser, (i) true and complete
copies of the certificate of incorporation and by-laws of each of the Seller,
Raytheon Credit, RAC and Raytheon, certified by the Secretary or Assistant
Secretary thereof as of the Amendment Effective Date as complete and correct
copies thereof and (ii) good standing certificates with respect to Raytheon from
the Secretary of State of the State of Delaware, with respect to Raytheon Credit
from the Secretary of State of the State of Kansas, with respect to RAC from the
Secretary of State of the State of Kansas and with respect to the Seller from
the Secretary of State of the State of Kansas.
(d) Evidence of Incumbency. The Managing Facility Agent shall have
received, with a counterpart for each Purchaser, a certificate, in form and
substance satisfactory to the Managing Facility Agent, of the Secretary or
Assistant Secretary of each of the Seller, Raytheon Credit, RAC and Raytheon
certifying as to the names and true signatures of the officers authorized on
such Person's behalf to sign any of this Agreement, the Repurchase Agreement
Reaffirmation and the Guarantee Amendment and Reaffirmation to which it is a
party.
(e) Officer's Certificates. The Managing Facility Agent shall have
received, with a counterpart for each Purchaser, (i) certificates, in form and
substance satisfactory to the Managing Facility Agent, of a vice president of
each of the Seller, Raytheon, RAC and Raytheon Credit that the representations
and warranties made by such Person in the Purchase Documents to which it is a
party are true and correct on and as of the Amendment Effective Date as though
made on and as of the Amendment Effective Date and (ii) a certificate of the
Vice President and Treasurer of Raytheon setting forth in the certificate
delivered on behalf of Raytheon the Debt Ratio on the last day of its fiscal
quarter ending December 31, 2000, the Interest Coverage Ratio for the period of
four consecutive fiscal quarters ending December 31, 2000 and calculations
thereof in reasonable detail.
(f) Legal Opinions. The Managing Facility Agent shall have received, with
a counterpart for each Purchaser, the following executed legal opinions, each
dated the Amendment Effective Date and each addressed to the Managing Facility
Agent and the Purchasers:
(i) the executed legal opinion of Xxxxx Xxxxxxx, General Counsel to
Raytheon Credit, RAC and the Seller, substantially in the form of Exhibit
E-1; and
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(ii) the executed legal opinion of an in-house attorney of Raytheon
who is satisfactory to the Managing Facility Agent, substantially in the
form of Exhibit E-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by the Purchase Documents as the Managing Facility
Agent may reasonably require.
(g) Fees. (i) The Seller shall have paid to the Syndication Agent and the
Managing Facility Agent for their respective accounts the fees set forth in
their respective fee letters with the Seller required to be paid on or prior to
the Amendment Effective Date.
(ii) The Seller shall have paid to the Managing Facility Agent, for
the account of each Purchaser, an upfront fee in an amount agreed to by
such Purchaser.
(h) Amendment to the Intercompany Purchase Agreement. The Managing
Facility Agent shall have received counterparts of the Amendment to the
Intercompany Purchase Agreement duly executed by the Servicer and the Seller,
substantially in the form of Exhibit J hereto.
5.2 Conditions to Each Purchase or Substitution. The agreement of each
Purchaser to make any purchase requested to be made by it on the Closing Date or
any Settlement Date (including, without limitation, its initial purchase and any
other purchase the Purchase Price for which is netted from Collections pursuant
to subsections 2.15 and 2.16(a) but excluding the purchases among the Purchasers
contemplated by subsection 2.1(d)) and the right of the Seller to substitute
Receivables pursuant to subsection 2.13 are each subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. The representations and warranties
made by each of the Seller, Raytheon Credit, RAC and Raytheon in or pursuant to
the Purchase Documents to which it is a party shall be true and correct in all
material respects on and as of such date as if made on and as of such date and
the Seller, if applicable, shall have made the representations and warranties
required by subsection 5.2(f).
(b) Amortization Event. No Amortization Event shall have occurred and be
continuing on such date or after giving effect to the purchases or substitutions
to be made on such date.
(c) Settlement Statement. The Managing Facility Agent shall have received
the Settlement Statement most recently due.
(d) Assignments. On or prior to such date, the Managing Facility Agent
shall have received an Assignment with respect to Receivables to be purchased or
substituted on such date, dated such date and executed and delivered by a duly
authorized Responsible Officer.
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(e) Perfection Matters. The Servicer shall have received the following:
(i) with respect to Eligible Receivables other than Affiliate
Receivables, Foreign Receivables and Registerable Lease Receivables,
evidence that each FAA Assignment (in the appropriate form for filing on
the Closing Date or such Settlement Date) with respect to the Financed
Aircraft related to such Eligible Receivables to be purchased on the
Closing Date or purchased or substituted on such Settlement Date, shall
have been filed with the FAA Registry,
(ii) with respect to Eligible Receivables which are Foreign
Receivables (other than Foreign Receivables which are Lease Receivables
with a Foreign Obligor), evidence that each Foreign Assignment (in the
appropriate form for filing on the Closing Date or such Settlement Date)
with respect to the Financed Aircraft related to such Eligible Receivables
to be purchased on the Closing Date or purchased or substituted on such
Settlement Date, shall have been filed in each office in each jurisdiction
necessary to perfect (A) the Lien granted by the Obligor thereon in favor
of Raytheon Credit, (B) the transfer of such Lien by Raytheon Credit to
the Seller and (C) the assignment of such Lien by the Seller in favor of
the Administrative Agent for the ratable benefit of the Purchasers,
(iii) with respect to Eligible Receivables which are Foreign
Receivables which are Lease Receivables with a Foreign Obligor (other than
any such Receivable which is a Registerable Lease Receivable with a
Foreign Obligor or an Uncertified Lease Receivable), evidence that each
Foreign Assignment (in the appropriate form for filing on the Closing Date
or such Settlement Date) with respect to the Financed Aircraft related to
such Eligible Receivables to be purchased on the Closing Date or purchased
or substituted on such Settlement Date, shall have been filed in each
office in each jurisdiction necessary to perfect (x) the transfer by
Raytheon Credit of its ownership interest therein to the Seller and (y)
the Lien granted thereon by the Seller in favor of the Administrative
Agent for the ratable benefit of the Purchasers,
(iv) with respect to Eligible Receivables which are Registerable
Lease Receivables, evidence that each FAA Assignment (in the appropriate
form for filing on the Closing Date or such Settlement Date) with respect
to the Financed Aircraft related to such Eligible Receivables to be
purchased on the Closing Date or purchased or substituted on such
Settlement Date, shall have been filed with the FAA Registry in a manner
satisfactory to perfect (x) the transfer by Raytheon Credit of its
ownership interest therein to the Seller and (y) the Lien granted thereon
by the Seller in favor of the Administrative Agent for the ratable benefit
of the Purchasers,
(v) with respect to each L/C Receivable, an acknowledgement,
substantially in the form of Schedule I to the Bailment Agreement, by the
Bailee of its receipt of the related letters of credit,
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(vi) with respect to Eligible Receivables which are Affiliate
Receivables, evidence that each Foreign Assignment (in the appropriate
form for filing on such Settlement Date) with respect to the Financed
Aircraft related to such Eligible Receivables to be purchased or
substituted on such Settlement Date, shall have been filed in each office
in each jurisdiction necessary to perfect (x) the Lien thereon granted by
the Affiliate Obligor in favor of Raytheon Credit, (y) the transfer of
such Lien by Raytheon Credit to the Seller and (z) the Lien granted
thereon by the Seller in favor of the Administrative Agent for the ratable
benefit of the Purchasers, and
(vii) with respect to each of the foregoing Eligible Receivables,
evidence that all other filings and recordings (including, without
limitation, any UCC filings with filing offices in the jurisdictions
listed on Schedule II, filings with the FAA Registry and filings in other
jurisdictions as applicable) and all other actions necessary or advisable
to perfect (x) the Purchasers' first priority ownership or security
interests in and to such Eligible Receivables to be sold or substituted on
such date and (y) the Purchasers' first priority security interest and, in
the case of an Affiliate Receivable, the Affiliate Obligor's first
priority ownership interest or the Seller's ownership or security
interest, as applicable, in and to the related Contracts and, with respect
to any Travel Air Receivables, the Travel Air Contracts and, if required
pursuant to the foregoing, Financed Aircraft and the Collections with
respect thereto shall have been duly taken or made.
From and after the Amendment Effective Date, all filings, assignments and other
similar documents required to perfect a Lien hereunder with respect to
Receivables (and related Aircraft) purchased after such date, which names the
Administrative Agent shall be made in the name of Bank of America, N.A., as
Administrative Agent.
(f) Certificates. With respect to each Certified Foreign Receivable, the
Servicer shall have received an executed certificate from a Responsible Officer
of the Seller to the Managing Facility Agent, dated the date of such proposed
sale and in the form approved by the Managing Facility Agent pursuant to
subsection 2.27.
(g) Marking Records. The Seller shall have, or shall have caused the
Servicer to have, marked its books and records with respect to the Purchased
Receivables to be sold or substituted on such date in accordance with subsection
6.1(h).
(h) L/C Receivables. On or prior to the related Reporting Date, a letter
of credit shall have been issued in connection with each L/C Receivable to be
purchased or substituted on such Settlement Date and each such letter of credit
shall meet the eligibility criteria set forth herein.
(i) Refinanced Aircraft. If the Receivable proposed to be purchased
(including, without limitation, a purchase the Purchase Price for which is
netted from Collections pursuant to subsections 2.15 and 2.16(a)) or substituted
has been or will be created in connection with the financing or refinancing of a
Refinanced Aircraft, the Seller shall have caused a Lien search to be made with
the FAA Registry with respect to such
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Refinanced Aircraft and at the date of such purchase or substitution, no Lien
shall have been recorded at the FAA Registry with respect to such Refinanced
Aircraft other than any Permitted Aircraft Lien or the Lien created in favor of
Raytheon Credit and transferred to the Seller and assigned to the Administrative
Agent for the ratable benefit of the Purchasers.
(j) Purchase Report. The Managing Facility Agent, with sufficient copies
for each Purchaser, shall have received from the Seller a Purchase Report in the
form of Exhibit I.
(k) Additional Documents. The Managing Facility Agent, with sufficient
copies for each Purchaser, shall have received each additional document,
instrument, legal opinion or item of information reasonably requested by it.
(l) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Managing Facility Agent, and the Managing Facility
Agent shall have received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
Each purchase (including, without limitation, a purchase the Purchase Price for
which is netted from the Collections pursuant to subsections 2.15 and 2.16(a))
and each substitution of Receivables hereunder shall constitute a representation
and warranty by the Seller as of the Closing Date or the Settlement Date
(including a Special Settlement Date, if applicable) on which such purchase or
substitution is made that the conditions contained in paragraphs (a) through (i)
of this subsection 5.2 have been satisfied.
5.3 Reallocation of Commitments; Addition of New Purchasers. On the
Amendment Effective Date, any SPC may assign to its SPC Bank all or any portion
of such SPC's undivided interest in the Purchased Receivables, and any SPC Bank
may asign to its SPC all or any portion of such SPC Bank's undivided interest in
the Purchased Receivables. Such assignments may be evidenced by such documents
as shall be agreeable between the SPC and its SPC Bank. Each SPC Bank
participating in any such assignments shall advise the Managing Facility Agent
of such assignment, the amount thereof and certain administrative information
requested by the Managing Facility Agent. The following allocations and payments
shall be made following the foregoing assignments.
On the Amendment Effective Date each entity identified on the
signature pages hereto as a "New Purchaser" shall be and become a Purchaser
hereunder having a Commitment equal to the amount set forth opposite such New
Purchaser's name on Schedule I hereto and each entity identified on the
signature pages hereto as a "Withdrawing Purchaser" shall cease to be a
Purchaser except to the extent expressly provided otherwise herein.
On the Amendment Effective Date, immediately following the addition
referred to in the immediately preceding paragraph, but subject to the terms and
conditions hereof, each Purchaser shall sell and assign to each other Purchaser,
and each Purchaser shall purchase from each other Purchaser, undivided interests
in each then outstanding Purchased Receivable to the
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extent necessary so that, after giving effect to such purchases and sales, each
Purchaser's undivided interest in each Purchased Receivable will equal its
Commitment Percentage (as defined in clause (a) of the definition thereof and
utilizing the Commitments set forth on Schedule I hereto) thereof. Other than
the representation and warranty that each of them is the legal and beneficial
owner of the respective interest being assigned hereby free and clear of any
adverse claim, the selling Purchasers make no representation or warranty to the
purchasing Purchasers and assume no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any instrument or document furnished
pursuant thereto. The amounts payable to each Purchaser whose undivided
interests are being reduced (each, a "Reducing Purchaser") in accordance with
the foregoing (such amount for each such Purchaser, its "Pro Rata Credit"); the
amounts payable by each Purchaser whose undivided interests are being increased
or created (each, an "Increasing Purchaser") in accordance with the foregoing
(such amount for each such Purchaser, its "Pro Rata Debit"), in each case as a
result of the foregoing sales and purchases; and the amount of each Purchaser's
Outstanding Purchase Price immediately after giving effect to the foregoing
sales and purchases shall be set forth in a letter from the Managing Facility
Agent dated the Amendment Effective Date and satisfactory to each Purchaser.
Prior to 11:00 a.m., New York City time, on the Amendment Effective Date each
Increasing Purchaser shall make available to the Managing Facility Agent, in
immediately available funds at the Managing Facility Agent's office specified in
subsection 11.2 hereto, the amount of such Purchaser's Pro Rata Debit. Promptly
after receipt of the aggregate amount of Pro Rata Debits, the Managing Facility
Agent will transfer to each Reducing Purchaser the amount of such Purchaser's
Pro Rata Credit. Such sales and purchases shall be effective on the Amendment
Effective Date without further act of assignment.
Notwithstanding any contrary provision of this Agreement, on the
Amendment Effective Date, the Managing Facility Agent shall pay to each
Purchaser, including each Withdrawing Purchaser, from funds received from the
Seller pursuant to subsection 2.17, interest on such Purchaser's Outstanding
Purchase Price for the Accrual Period ending on the Amendment Effective Date.
SECTION 6. AFFIRMATIVE COVENANTS
6.1 Affirmative Covenants of the Seller. The Seller hereby agrees that, so
long as the Commitments remain in effect, the Outstanding Purchase Price has not
been reduced to zero or any other amount is owing to any Purchaser or the
Managing Facility Agent hereunder, the Seller shall:
(a) Reporting Requirements. (i) Settlement Statements. On or before each
Reporting Date, furnish or cause the Servicer to furnish to the Managing
Facility Agent, with sufficient copies for each Purchaser, a Settlement
Statement in the form of Exhibit C for the preceding Settlement Period, setting
forth:
(x) information and calculations with respect to (A) the Purchased
Receivables, Collections thereon, the related Contracts and Financed
Aircraft and any Remarketed Aircraft, (B) the Outstanding Purchase Price
(separately identifying the portion thereof
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representing the Purchase Price, if any, of Receivables purchased on the
most recent Special Settlement Date), the Note Rate, the Default Rate (if
any), the Interbank Rate (if applicable) and Commitment Fees for the
related Accrual Period, (C) purchases of specified Eligible Receivables
requested to be made on the succeeding Settlement Date (including a
specific reference to any new Foreign Obligors), (D) Defaulted Receivables,
Ineligible Receivables, Substituted Receivables and adjustments of
Receivables made under subsection 2.12, (E) any Permitted Receivable Liens
and Permitted Aircraft Liens, (F) the concentration limits as described in
subsection 2.7, (G) any Receivables of which the scheduled principal
payments are being deferred pursuant to subsection 7.1(b)(iv)(x), (H) the
total amount of the Participated Receivables, (I) the total amount of the
Extended Term Receivables and (J) Net Recoveries; and
(y) such other information with respect to the Receivables from the
Seller and the Servicer as the Managing Facility Agent or any other
Purchaser may from time to time request;
each Settlement Statement shall be certified by a Responsible Officer of the
Servicer as being true and correct;
(ii) Officer's Certificate. Within 45 days after the end of each fiscal
quarter of the Seller, deliver to the Managing Facility Agent, with sufficient
copies for each Purchaser, a certificate of a Responsible Officer of the Seller
stating that, to the best of such officer's knowledge, after due and diligent
inquiry, the Seller during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this
Agreement and that such officer, after due and diligent inquiry, has obtained no
knowledge of any Amortization Event, Discount Event, Rating Event, Remittance
Event or Ineligibility Event or any errors in any amounts or other information
set forth in any Settlement Statement or any Assignment, FAA Assignment or
Foreign Assignment delivered with respect to any Settlement Period occurring
during such fiscal quarter except as specified in such certificate;
(iii) Servicer Reports. Cause the Servicer to deliver the reports required
by subsection 3.3 in accordance with the terms thereof;
(iv) Credit and Collection Policy. Deliver to the Managing Facility Agent,
with sufficient copies for each Purchaser, promptly after adoption thereof, any
change in the Credit and Collection Policy;
(v) Financing Programs. Concurrently with the distribution or publication
to any of Raytheon Credit's Affiliates or Dealers, deliver to the Managing
Facility Agent, with sufficient copies for each Purchaser, a copy of each report
setting forth Raytheon Credit's retail financing programs;
(vi) Additional Information. Furnish to the Managing Facility Agent and
each Purchaser, promptly, such additional financial and other information,
documents, records or reports with respect to the Seller, the Servicer (if
Raytheon Credit or an Affiliate of Raytheon Credit is then the Servicer) or RAC,
any Purchased Receivable or the Contract, Obligor, Unaffiliated Foreign Lessee
or Financed Aircraft with respect thereto, or the business,
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operations, property or condition (financial or otherwise) of the Seller, as the
Managing Facility Agent or any Purchaser may from time to time reasonably
request; and
(vii) Notices. Promptly give notice to the Managing Facility Agent and
each Purchaser, after the Seller knows or should have known, of: (1) the
occurrence of any Amortization Event, Discount Event, Rating Event, Remittance
Event or Ineligibility Event; (2) any Lien (other than the security interest
created hereunder in favor of the Administrative Agent and the Purchasers) on or
claim asserted against any Purchased Receivable, the Collections with respect
thereto or the related Contract or material claim asserted with respect to the
related Financed Aircraft; (3) a development or event which has had a Material
Adverse Effect; (4) any loss of a Financed Aircraft or of the use thereof due to
theft, destruction, damage beyond repair or damage to an extent which makes
repair uneconomical, or the confiscation or seizure of any material portion
thereof, or requisition of title to or for the use thereof by any Governmental
Authority; and (5) any litigation, investigation or proceeding which may exist
at any time between the Seller, Raytheon Credit, RAC or any Person which, in
either case, could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Seller proposes to take with respect thereto.
(viii) Fiscal Months. No later than December 15 of each calendar year the
Seller shall send the Managing Facility Agent written notification of each of
the Seller's fiscal monthly periods for the immediately following calendar year.
(b) Compliance with Laws, Etc. Comply, and cause each Affiliate Obligor to
comply, in all respects with all applicable Requirements of Law and all
Contractual Obligations with respect to it, its business and properties and all
Purchased Receivables and the related Contracts and Financed Aircraft except to
the extent that failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
(c) Conduct of Business and Maintenance of Existence. Continue to engage
in business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable actions to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business except where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification could not reasonably be expected to have a Material Adverse
Effect.
(d) Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are
considered reasonable and prudent by the Seller; cause each Financed Aircraft
(including, without limitation, any Financed Aircraft repossessed by the Seller
or the Servicer) related to a Purchased Receivable to be covered by insurance
meeting the requirements of paragraph (w) of the definition of "Eligible
Receivable"; and furnish to each Purchaser, upon request, full information as to
the insurance carried.
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(e) Keeping of Records and Books of Account. Maintain and implement
administrative and operating procedures (including, without limitation,
maintaining the ability to recreate records evidencing Purchased Receivables in
the event of the destruction of the originals thereof), and keep and maintain
all documents, books (with true and correct entries in conformity with generally
accepted accounting principles as in effect from time to time and all material
Requirements of Law), records and other information reasonably necessary or
advisable for the administration, servicing and collection of all Purchased
Receivables and the monitoring of the Contracts, the related Obligors and
Unaffiliated Foreign Lessees and Financed Aircraft (including, without
limitation, records adequate to permit the daily identification of all
Collections of and adjustments to each Purchased Receivable).
(f) Location of Records. Keep its chief place of business and chief
executive office, and the offices where it keeps its records concerning the
Purchased Receivables and all Contracts related thereto (and all original
documents relating thereto), at its address referred to in subsection 11.2 or,
upon 30 days' prior written notice to the Managing Facility Agent, at such other
locations in jurisdictions where all actions required by subsection 6.1(l) shall
have been taken and completed.
(g) Access. From time to time during regular business hours upon
reasonable prior notice, permit the Managing Facility Agent or any Purchaser, or
their respective agents or representatives (a) to examine and make copies of and
abstracts from all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of the Seller
or its Affiliates relating to Purchased Receivables, including, without
limitation, the related Contracts and Financed Aircraft and (b) to visit the
offices and properties of the Seller, its Affiliates or its independent
certified public accountants for the purpose of examining such materials
described in clause (a) above, and to discuss matters relating to Purchased
Receivables, the Contracts and the Financed Aircraft or the Seller's or
Servicer's (if Raytheon Credit or an Affiliate of Raytheon Credit is then the
Servicer) performance hereunder with any of the officers or employees of the
Seller or its Affiliates having knowledge of such matters and to discuss the
business, operations, properties and financial and other condition of the Seller
with such officers and with its independent certified public accountants;
provided that any information, records and materials obtained by the Managing
Facility Agent or any Purchaser pursuant to this subsection 6.1(g) shall be used
by the Managing Facility Agent or such Purchaser solely in connection with its
participation in the transactions contemplated by the Purchase Documents
(including pursuant to subsections 11.6(b) and (c)) and shall be treated as
confidential by the Managing Facility Agent or such Purchaser in accordance with
subsection 11.22.
(h) Marking of Records. At its expense, xxxx (or cause the Servicer to
xxxx) the computer files evidencing the Purchased Receivables and related
Contracts with a legend evidencing that such Purchased Receivables and related
Contracts have been sold in accordance with this Agreement and deliver evidence
satisfactory thereto in form and substance to the Managing Facility Agent in
accordance with subsection 5.2(g).
(i) Credit and Collection Policy. Comply in all material respects with the
Credit and Collection Policy with respect to each Purchased Receivable
(including but not limited to the calculation of the Finance Charge Collections)
and the related Contract and Financed Aircraft.
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(j) Performance and Compliance with Receivables and Contracts. At its own
expense, timely and fully perform and comply with, and enforce and defend, or,
with respect to Affiliate Receivables, cause the related Affiliate Obligor to
perform and comply with and enforce and defend, all material provisions,
covenants and other promises (which promises are required to be observed by it)
under the Contracts (other than the payment by such Affiliate Obligor of the
principal of and interest on the promissory note included in such Contract) and
any policy of insurance issued in connection with an ExIm Bank Receivable and
with respect to the Financed Aircraft related to the Purchased Receivables in
accordance with the Credit and Collection Policy; and defend the right, title
and interest of the Administrative Agent and each Purchaser in and to such
Purchased Receivable, the Collections with respect thereto and the related
Contract and Financed Aircraft against the claims and demands of any Persons
whomsoever (other than of the Administrative Agent or any Purchaser).
(k) [Intentionally omitted.]
(l) Further Action Evidencing Interests of Administrative Agent and
Purchasers. At any time and from time to time, upon the request of the Managing
Facility Agent or the request of the Managing Facility Agent as directed by the
Majority Purchasers and at the sole expense of the Seller, promptly execute and
deliver and cause each Affiliate Obligor to execute and deliver all further
instruments and documents and take all further actions and cause each Affiliate
Obligor to take all further actions that the Managing Facility Agent or the
Managing Facility Agent as directed by the Majority Purchasers may request in
order to perfect, protect or more fully evidence the ownership or security
interests of the Administrative Agent and the Purchasers in the Purchased
Receivables, the Collections with respect thereto and the related Contracts and
Financed Aircraft, or to enable any of them or the Administrative Agent to
exercise or enforce any of their respective rights with respect thereto,
including, but not limited to: (a) execute and file such financing or
continuation statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate; and (b) xxxx
conspicuously each invoice evidencing each Purchased Receivable and the related
Contract with a legend, in a form acceptable to the Managing Facility Agent,
evidencing that such Contract has been assigned to the Administrative Agent for
the ratable benefit of the Purchasers and, in connection therewith, the Seller
hereby (x) authorizes the Administrative Agent to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Purchased Receivables now existing or hereafter
arising without the signature of the Seller or any of its Affiliates where
permitted by law and (y) agrees that if the Seller fails to perform any of its
agreements or obligations under this Agreement, the Managing Facility Agent may
(but shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Managing Facility Agent
incurred in connection therewith shall be payable by the Seller as provided in
subsection 11.5.
(m) Separate Corporate Existence. (i) Maintain its own deposit account or
accounts, separate from those of any Affiliate, with commercial banking
institutions. The funds of the Seller will not be diverted to any other Person
or for other than corporate uses of the Seller.
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(ii) Ensure that, to the extent that it shares the same officers or other
employees as any of its stockholders or Affiliates, the salaries of and the
expenses related to providing benefits to such officers and other employees
shall be fairly allocated among such entities, and each such entity shall bear
its fair share of the salary and benefit costs associated with all such common
officers and employees.
(iii) Ensure that, to the extent that it jointly contracts with any of its
stockholders or Affiliates to do business with vendors or service providers or
to share overhead expenses, the costs incurred in so doing shall be allocated
fairly among such entities, and each such entity shall bear its fair share of
such costs. To the extent that the Seller contracts or does business with
vendors or service providers when the goods and services provided are partially
for the benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share of such
costs. All material transactions between Seller and any of its Affiliates shall
be only on an arm's length basis.
(iv) Maintain a principal executive and administrative office through
which its business is conducted separate from those of its Affiliates. To the
extent that Seller and any of its stockholders or Affiliates have offices in the
same location, there shall be a fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its fair share of such
expenses.
(v) Conduct its affairs strictly in accordance with its Certificate of
Incorporation and observe all necessary, appropriate and customary corporate
formalities, including, but not limited to, holding all regular and special
stockholders' and directors' meetings appropriate to authorize all corporate
action, keeping separate and accurate minutes of its meetings, passing all
resolutions or consents necessary to authorize actions taken or to be taken, and
maintaining accurate and separate books, records and accounts, including, but
not limited to, payroll and intercompany transaction accounts.
(vi) Take or refrain from taking, as applicable, each of the activities
specified in the "non-substantive consolidation" opinion of Xxxxxxxx & Worcester
LLP, delivered on the Effective Date, upon which the conclusions expressed
therein are based.
(n) Existing Receivables Perfection Matters. Deliver to the Managing
Facility Agent the following:
(i) with respect to Existing Certified Receivables, no later than
the Certified Opinion Delivery Date, a certificate of a Responsible
Officer certifying that all actions set forth in the legal opinions
described in subsection 2.27(c) and necessary in order to perfect the
Liens and assignments of such Receivables, the related Financed Aircraft
and Applicable Leases (if applicable) and Collections thereon, to the
extent set forth in such subsection, shall have been taken; and
(ii) with respect to all Existing Receivables, no later than 90 days
after the Effective Date (the "FAA Filing Date"), a certificate of a
Responsible Officer certifying that all filings, if any, to be made with
the FAA as described in the
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opinion of special FAA counsel delivered pursuant to subsection
5.1(g)(iv) of the 1997 Agreement and necessary to (x) continue the Lien of
the Old Administrative Agent, on behalf of the Purchasers, in the Existing
Receivables, the related Financed Aircraft and Applicable Leases (if
applicable) and Collections thereon with the same priority thereon as in
effect immediately prior to the Effective Date and (y) perfect the
transfer by Raytheon Credit of the Existing Receivables, the related
Financed Aircraft and Applicable Leases (if applicable) and Collections
thereon to the Seller pursuant to the Intercompany Purchase Agreement
shall have been taken.
6.2 Affirmative Covenants of the Servicer. The Servicer (so long as it is
Raytheon Credit) hereby agrees that, so long as the Commitments remain in
effect, the Outstanding Purchase Price has not been reduced to zero or any other
amount is owing to any Purchaser or the Managing Facility Agent hereunder, the
Servicer shall:
(a) Compliance with Laws, Etc. Comply in all respects with all applicable
Requirements of Law and all Contractual Obligations with respect to it, its
business and properties and all Purchased Receivables and the related Contracts
and Financed Aircraft except to the extent that failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.
(b) Conduct of Business and Maintenance of Existence. Continue to engage
in business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable actions to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business except where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification could not reasonably be expected to have a Material Adverse
Effect.
(c) Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are
considered reasonable and prudent by the Servicer; cause each Financed Aircraft
(including, without limitation, any Financed Aircraft repossessed by the
Servicer) related to a Purchased Receivable to be covered by insurance meeting
the requirements of paragraph (w) of the definition of "Eligible Receivable";
and furnish to each Purchaser, upon request, full information as to the
insurance carried.
(d) Keeping of Records and Books of Account. Maintain and implement
administrative and operating procedures (including, without limitation,
maintaining the ability to recreate records evidencing Purchased Receivables in
the event of the destruction of the originals thereof), and keep and maintain
all documents, books (with true and correct entries in conformity with generally
accepted accounting principles as in effect from time to time and all material
Requirements of Law), records and other information reasonably necessary or
advisable for the administration, servicing and collection of all Purchased
Receivables and the monitoring of the Contracts, the related Obligors and
Unaffiliated Foreign Lessees and Financed Aircraft (including, without
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limitation, records adequate to permit the daily identification of all
Collections of and adjustments to each Purchased Receivable).
(e) Location of Records. Keep its chief place of business and chief
executive office, and the offices where it keeps its records concerning the
Purchased Receivables and all Contracts related thereto (and all original
documents relating thereto), at its address referred to in subsection 11.2 or,
upon 30 days' prior written notice to the Managing Facility Agent, at such other
locations in jurisdictions where all actions required by subsection 6.1(l) shall
have been taken and completed.
(f) Access. From time to time during regular business hours upon
reasonable prior notice, permit the Managing Facility Agent or any Purchaser, or
their respective agents or representatives (i) to examine and make copies of and
abstracts from all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of the Servicer
or its Affiliates relating to Purchased Receivables, including, without
limitation, the related Contracts and Financed Aircraft and (ii) to visit the
offices and properties of the Servicer, its Affiliates or its independent
certified public accountants for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to Purchased
Receivables, the Contracts and the Financed Aircraft or the Servicer's
performance hereunder with any of the officers or employees of the Servicer or
its Affiliates having knowledge of such matters and to discuss the business,
operations, properties and financial and other condition of the Servicer with
such officers and with its independent certified public accountants; provided
that any information, records and materials obtained by the Managing Facility
Agent or any Purchaser pursuant to this subsection 6.2(f) shall be used by the
Managing Facility Agent or such Purchaser solely in connection with its
participation in the transactions contemplated by the Purchase Documents
(including pursuant to subsections 11.6(b) and (c)) and shall be treated as
confidential by the Managing Facility Agent or such Purchaser in accordance with
subsection 11.22. The Servicer hereby consents to the disclosure of any non-
public information with respect to it as related to this transaction and the
assets sold hereunder by any SPC to any rating agency, commercial paper dealer,
or provider of a surety, guaranty or credit or liquidity enhancement to that
SPC.
(g) Credit and Collection Policy. Comply in all material respects with the
Credit and Collection Policy with respect to each Purchased Receivable
(including but not limited to the calculation of the Finance Charge Collections)
and the related Contract and Financed Aircraft.
(h) Ownership of Affiliate Obligors. The Servicer shall at all times
beneficially own, directly or indirectly, 100% of each Affiliate Obligor.
SECTION 7. NEGATIVE COVENANTS
7.1 Negative Covenants of the Seller. The Seller hereby agrees that, so
long as the Commitments remain in effect, the Outstanding Purchase Price has not
been reduced to zero or any other amount is owing to any Purchaser or the
Managing Facility Agent hereunder, the Seller shall not:
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(a) Sales, Liens, Etc. Sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Lien (other than
Permitted Receivable Liens and other than, but solely with respect to a Financed
Aircraft, Permitted Aircraft Liens), upon or with respect to, the Purchased
Receivables, the related Contracts and Financed Aircraft or the Collections with
respect thereto, or assign any right to receive payments in respect thereof
other than to the Managing Facility Agent and the Purchasers pursuant to this
Agreement.
(b) Extension or Amendment of Purchased Receivables. Extend, amend or
otherwise modify the terms of any Purchased Receivable, or amend, modify or
waive any term or condition of any Contract related thereto or permit the
Servicer (if the Seller or an Affiliate of the Seller is then the Servicer) to
do any of the foregoing except in the normal course of the Seller's business and
in accordance with the Credit and Collection Policy or pursuant to subsection
7.1(b)(iv)(x) (each, a "Modification"); provided that:
(i) any Modification made pursuant to this subsection 7.1(b) shall
be subject to the provisions of subsection 2.12;
(ii) if an Amortization Event shall have occurred and be continuing,
no Modification shall be made without the prior consent of the Required
Purchasers if the effect thereof would be to extend the then average life
of the Purchased Receivables taken as a whole, to reduce or increase the
Principal Balance of any Purchased Receivable or to reduce the amount or
rate of interest thereon or to cause the Stipulated Aircraft Value under a
Contract to be less than the Outstanding Balance of the Receivable with
respect to such Contract;
(iii) if an Amortization Event shall have occurred and be
continuing, no Modification shall be made without the prior consent of
each Purchaser if the effect thereof would be to extend the Final Payment
Date of a Receivable beyond the then latest Final Payment Date of all
Purchased Receivables;
(iv) the Seller shall not modify the payment terms of any Purchased
Receivable except (x) in accordance with the Credit and Collection Policy,
except that, (A) with respect to any GA Receivable, the Seller shall not
modify the payment terms of any such Purchased Receivable more than once
after the Closing Date or Settlement Date on which such Receivable is sold
or substituted pursuant to this Agreement or an Existing Agreement, and
(B) with respect to a Commuter Receivable, (1) no more than an aggregate
of 12 monthly principal payments may be deferred during the term of any
Contract and (2) subject to the immediately following sentence, the Final
Payment Date may not be extended by more than three years and, (y) so long
as no Amortization Event has occurred and is continuing, the Servicer may
when necessary to prevent a possible default by the Obligor under any
Contract or in order to enhance the collectibility of any Receivable,
defer any scheduled payment of principal, in part or in whole, to a later
scheduled payment date under such Contract. If, after giving effect to the
extension of the Final Payment Date of a Purchased Receivable pursuant to
clause (iv)(x)(B)(2) of the foregoing proviso, such extended Final Payment
Date
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exceeds, (I) so long as no Rating Event has occurred and is continuing, 13
years from the date of such extension and, (II) during the continuance of
a Rating Event, 10 years from the date of such extension, then on the
immediately following Settlement Date (or if such date is a Settlement
Date, then on such date) the Seller shall deposit in the Concentration
Account an amount equal to the aggregate Principal Collections then
scheduled to be paid after such 13th year or 10th year, as the case may
be, plus, if a Trigger Amortization Event has occurred and is continuing,
accrued and unpaid interest on the amount so deposited at the rate under
the related Contract except to the extent (without duplication) of any
payment made pursuant to subsection 2.18 for the Settlement Period during
which such interest accrued and was not paid by the Obligor under such
Contract. The amount of any such deposit shall be applied and distributed
in accordance with subsections 2.15 and 2.16 provided, however, that any
Purchased Receivable so modified shall be deemed an Extended Term
Receivable for purposes of subsection 2.15;
(v) any Modification made in accordance with this subsection 7.1(b)
shall not cause the Principal Balance of the applicable Purchased
Receivable to exceed 50% of the Low Wholesale Value of the related
Financed Aircraft; and
(vi) the Seller shall not make any Modification which permits the
transfer of registered ownership in any Financed Aircraft without the
consent of the Required Purchasers, unless after giving effect to such
transfer (and any payments made under the Contract at the time of
transfer) the related Receivable would satisfy on the date of transfer the
criteria contained in the definition of Eligible Receivable; provided that
the provisions of this subsection 7.1(b)(vi) shall not apply to a transfer
by an Obligor to a wholly-owned Affiliate of such Obligor.
(c) Change in Business or Credit and Collection Policy. Make any material
change in the character of its business or, without the prior written consent of
the Required Purchasers, notify any Obligor to remit payments to a location
other than that to which such payment would be remitted on the Closing Date;
make any change in the Credit and Collection Policy without prior notice to the
Managing Facility Agent and each Purchaser; provided that, without the prior
consent of the Required Purchasers, the Seller shall not make or permit to be
made any such change to the Credit and Collection Policy if such change could
reasonably be expected to materially adversely affect the collectibility or
maturity of any Purchased Receivable or the interests of the Administrative
Agent and the Purchasers in any Purchased Receivable, the related Contract and
Financed Aircraft or the Collections with respect thereto.
(d) No Actions against Obligors. Except in accordance with the Credit and
Collection Policy, commence or settle any legal action to enforce collection of
any Purchased Receivable.
(e) Security Interest to Remain in Force. Release, in whole or in part,
any Financed Aircraft, or any other collateral securing or guarantee of the
related Contract
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(including, but not limited to, any letter of credit related thereto issued in
favor of the Seller), from the security interest granted by such Contract
except, that, the Seller may or may permit the Servicer to, at its or the
Servicer's own expense, (x) substitute engines in accordance with subsection
7.1(j) and (y) substitute other parts (other than airframes) for any of the
parts on any Financed Aircraft as Seller or Servicer may deem desirable in the
proper conduct of its business; provided, however, that for purposes of this
clause (y), (i) no such substitution(s), individually or in the aggregate, shall
diminish the utility or remaining useful life of such Financed Aircraft, or
materially diminish the value, or impair the condition or airworthiness,
thereof, below the utility, remaining useful life, condition, airworthiness, or
value thereof immediately prior to such substitution, (ii) no such substitution
shall affect adversely the Lien on such Financed Aircraft (other than the
removed avionics) in favor of the Administrative Agent for the benefit of the
Purchasers (as such Lien was in effect immediately prior to such substitution),
(iii) the Administrative Agent shall have a Lien on the substitute parts with a
priority no less than the priority of the Lien in favor of the Administrative
Agent on the removed parts and (iv) the new part shall not be subject to any
Liens other than Permitted Aircraft Liens. Upon substitution of any engine or
other parts on any Financed Aircraft, the Lien thereon of the Administrative
Agent on behalf of the Purchasers shall, without the requirement for any further
act, be automatically released.
(f) Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets (except for sales and substitutions of Purchased Receivables pursuant to
this Agreement).
(g) Transactions with Affiliates. Enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, relating to the administration, servicing and
collection of the Purchased Receivables, the Collections with respect thereto
and the related Contracts and Financed Aircraft, with any Affiliate unless such
transaction is otherwise permitted under this Agreement, is in the ordinary
course of the Seller's business and is upon fair and reasonable terms no less
favorable to the Seller than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
(h) Fiscal Year. Permit the fiscal year of the Seller to end on a day
other than December 31 without 60 days' prior notice thereof to the Managing
Facility Agent.
(i) Assignment of Contracts. Permit any assignment of any Contract by
either the Seller or Obligor (except for an assignment to the Guarantor) without
the prior written consent of the Required Purchasers, provided that such consent
shall not be unreasonably withheld to the extent the Contract so provides.
(j) Substitution of Engines. Permit any engine to be substituted for an
engine originally annexed to any Financed Aircraft related to a Purchased
Receivable unless such engine is of the same model number and of the same or
improved utility,
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performance and efficiency, of equivalent age and equivalent or greater
value as the replaced engine.
(k) Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness or other liability whatsoever, except (i) Indebtedness owing
from time to time to Raytheon Credit and incurred to finance a portion of
the Purchase Price (as defined in the Intercompany Purchase Agreement) of
Receivables, the payment of which Indebtedness is subordinated to the
prior payment in full of all amounts owing to the Purchasers, (ii)
obligations incurred under this Agreement and (iii) other liabilities
incurred in the ordinary course of business.
(l) Guarantees. Become or remain liable, directly or contingently,
in connection with any Indebtedness or other liability of any other
Person, whether by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or repurchase, agreement to supply or
advance funds, or otherwise.
(m) Investments. Make or suffer to exist any loans or advances to,
or extend any credit to, or make any investments (by way of transfer of
property, contributions to capital, purchase of stock or securities or
evidences of indebtedness, acquisition of the business or assets, or
otherwise) in, any Person except (i) for purchases of Receivables pursuant
to the Intercompany Purchase Agreement, (ii) for investments in Cash
Equivalents in accordance with the terms of this Agreement and (iii) the
holding of the demand note made by RAC or Raytheon Credit in favor of the
Seller.
(n) Distributions. Declare or pay, directly or indirectly, any
dividend or make any other distribution (whether in cash or other
property) with respect to the profits, assets or capital of the Seller or
any Person's interest therein, or purchase, redeem or otherwise acquire
for value any of its capital stock now or hereafter outstanding, except
that so long as the Seller would continue to be Solvent as a result
thereof and after giving effect thereto and no Amortization Event is
continuing or would result therefrom, the Seller may declare and pay
dividends on its capital stock.
(o) Agreements. Become a party to, or permit any of its properties
to be bound by, any indenture, mortgage, instrument, contract, agreement,
lease or other undertaking, except the Contracts, this Agreement and the
Intercompany Purchase Agreement or amend or modify the provisions of its
Certificate of Incorporation or issue any power of attorney except to the
Managing Facility Agent or the Servicer.
(p) Intercompany Purchase Agreement. Give any material consent or
fail to exercise in any material respect any right or privilege under the
Intercompany Purchase Agreement.
7.2 Negative Covenants of the Servicer. The Servicer (so long as it is
Raytheon Credit) hereby agrees that, so long as the Commitments remain in
effect, the Outstanding Purchase Price has not been reduced to zero or any other
amount is owing to any Purchaser or the Managing Facility Agent hereunder, the
Servicer shall not:
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(a) No Actions against Obligors. Except in accordance with the
Credit and Collection Policy, commence or settle any legal action to
enforce collection of any Purchased Receivable.
(b) Security Interest to Remain in Force. Except to the extent
permitted in subsection 7.1(e), release, in whole or in part, any Financed
Aircraft, or any other collateral securing or guaranteeing the related
Contract (including, but not limited to, any letter of credit related
thereto issued in favor of the Seller), from the security interest granted
by such Contract.
(c) Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets (except for sales and substitutions of
Receivables pursuant to the Intercompany Purchase Agreement), except that
any Subsidiary of the Servicer may be merged or consolidated with or into
the Servicer (so long as the Servicer is the surviving or continuing
corporation).
(d) Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, relating to the administration,
servicing and collection of the Purchased Receivables, the Collections
with respect thereto and the related Contracts and Financed Aircraft, with
any Affiliate unless such transaction is otherwise permitted under this
Agreement, is in the ordinary course of the Servicer's business and is
upon fair and reasonable terms no less favorable to the Servicer than it
would obtain in a comparable arm's length transaction with a Person not an
Affiliate.
(e) Assignment of Contracts. Permit any assignment of any Contract
by either the Seller or Obligor (except for an assignment to the Guarantor
or RAC) without the prior written consent of the Required Purchasers,
provided that such consent shall not be unreasonably withheld to the
extent the Contract so provides.
(f) Change in Credit and Collection Policy. Without the prior
written consent of the Required Purchasers, notify any Obligor to remit
payments to a location other than that to which such payment would be
remitted on the Closing Date; make any change in the Credit and Collection
Policy without prior notice to the Managing Facility Agent and each
Purchaser; provided that, without the prior consent of the Required
Purchasers, the Servicer shall not make or permit to be made any such
change to the Credit and Collection Policy if such change could reasonably
be expected to materially adversely affect the collectibility or maturity
of any Purchased Receivable or the interests of the Administrative Agent
and the Purchasers in any Purchased Receivable, the related Contract and
Financed Aircraft or the Collections with respect thereto.
SECTION 8. AMORTIZATION EVENTS
8.1 Amortization Events. Any of the following shall constitute an
Amortization Event (whether it occurs before or during the Amortization Period)
hereunder:
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(a) The Seller or the Servicer shall fail to make any deposit or
payment (including any payment of interest) required to be made by the
Seller or the Servicer, as the case may be, under this Agreement or any
other document executed and delivered in connection herewith, including,
without limitation, any payment or deposit required to be made pursuant to
subsection 2.6(a), 2.7(b), 2.10, 2.10A, 2.11, 2.12, 2.14(c)(iii), 2.18 or
7.1(b), or the Seller or the Servicer (if an Affiliate of the Seller is
then the Servicer) shall fail to deliver the Settlement Statement, or the
Seller or the Servicer (if an Affiliate of the Seller is then the
Servicer) shall fail to take any action required or requested to be taken
pursuant to this Agreement after an Amortization Event has occurred and is
continuing, in each case within five days after any such deposit, payment
or delivery is required to be made or any such action is requested to be
taken hereunder; or
(b) Raytheon shall fail to make any payment required under the
Guarantee or RAC shall fail to make any payment required under the
Repurchase Agreement within, in each case, five days after any such
payment is required to be made; or
(c) [Intentionally Omitted]; or
(d) Any representation or warranty made or deemed made by the
Seller, the Servicer (if an Affiliate of the Seller is then the Servicer)
or Raytheon in any Purchase Document to which it is a party or which is
contained in any certificate, document or financial or other statement
furnished at any time under or in connection with this Agreement shall
prove to have been incorrect in any material respect on or as of the date
made or deemed made by the Seller, the Servicer (if an Affiliate of the
Seller is then the Servicer) or Raytheon, and shall have continued to be
incorrect in such material respect for a period of 30 days after such
representation or warranty was initially made (other than any
representation and warranty with respect to a Receivable which has been
repurchased or substituted pursuant to subsection 2.7(b), 2.10, 2.10A,
2.11 or 2.13); or
(e) (i) The Seller shall default in the observance or performance
of, or Raytheon shall default under the Guarantee in causing the Seller to
observe or perform, any agreement contained in Section 7.1 or (ii) the
Servicer shall default in the observance or performance of, or Raytheon
shall default under the Guarantee in causing the Servicer to observe or
perform, any agreement contained in subsection 7.2; or
(f) Either of the Seller or the Servicer (if an Affiliate of the
Seller is then the Servicer) shall default in the observance or
performance of any other agreement (other than subsection 6.1(n), the
remedy for which is contained in subsection 2.11) contained in this
Agreement in any material respect or Raytheon shall default in the
observance or performance of any agreement contained in the Guarantee in
any material respect or RAC shall default in the observance or performance
of any agreement contained in the Repurchase Agreement in any material
respect (other than as provided in paragraphs (a) through (e) of this
subsection 8.1), and such default shall continue unremedied for a period
of 30 days after the earlier of (i) notice of such default from the
Managing Facility Agent or the Majority Purchasers or (ii) knowledge by
the Seller, the Servicer (if an Affiliate of the Seller is then the
Servicer) or Raytheon of any such default, or
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(g) The Debt Ratio of Raytheon shall be greater than (i) 0.60 to 1.0
on the last day of any fiscal quarter of Raytheon ending on or before
December 31, 2001 or (ii) 0.55 to 1.0 on the last day of any fiscal
quarter of Raytheon ending thereafter;
(h) The Interest Coverage Ratio for any period of four consecutive
fiscal quarters shall be less than 2.5 to 1.0; or
(i) Raytheon, RAC, Raytheon Credit or the Seller shall default in
any payment of principal of or interest of any indebtedness for borrowed
money (or any guarantee thereof) (other than under the Guarantee or the
Repurchase Agreement) with a principal amount in excess of $25,000,000
when due (whether by acceleration, upon maturity or otherwise), beyond the
period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such indebtedness (or guarantee) was
created; or
(j) (i) Raytheon, RAC, Raytheon Credit or the Seller shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it as
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets; or (ii) there shall be commenced against
Raytheon, RAC, Raytheon Credit or the Seller any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days from the entry thereof; or (iii) there shall be commenced against
Raytheon, RAC, Raytheon Credit or the Seller any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) Raytheon, RAC, Raytheon Credit or the
Seller shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) Raytheon, RAC, Raytheon Credit or the
Seller shall make a general assignment for the benefit of its creditors or
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(k) Any event or condition shall occur or exist with respect to a
Plan that, together with all other such events or conditions, if any,
could reasonably be expected to subject Raytheon or any Commonly
Controlled Entity to any tax, penalty or other liabilities which in the
aggregate could reasonably be expected to have a Material Adverse Effect
or a material adverse effect on the business, assets, property or
condition (financial or other) of Raytheon and its Subsidiaries taken as a
whole; or
(l) One or more judgments or decrees shall be entered against
Raytheon, RAC, Raytheon Credit or the Seller involving in the aggregate a
liability (not paid or fully covered by insurance) of $25,000,000 or more
and all such judgments or decrees shall not have been vacated, discharged,
satisfied, stayed or bonded pending appeal within 60 days from the entry
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thereof; provided that no Amortization Event shall be deemed to occur if
any such judgment or decree is being contested in good faith by
appropriate proceedings and with respect to which no enforcement
proceedings to collect any such judgment or enforce any such decree have
been commenced which could reasonably be expected to have a Material
Adverse Effect; or
(m) The Guarantee shall cease to be in full force and effect or
Raytheon shall so assert in writing or the Repurchase Agreement shall
cease to be in full force and effect or RAC shall so assert in writing or;
(n) The ownership or security interests created under this Agreement
or any Assignment (including to the extent applicable, each Foreign
Assignment) shall cease to be in full force and effect or the Seller or
any of its Affiliates shall so assert in writing, or this Agreement or any
Assignment (including to the extent applicable, each Foreign Assignment)
shall cease, for any reason other than acts or omissions of the Managing
Facility Agent or any Purchaser, to be effective to grant a perfected
first-priority ownership or security interest in the Purchased
Receivables, the related Contracts and Financed Aircraft free and clear of
any Lien except (i) to the extent any of the foregoing are violated prior
to the dates set forth in subsection 6.1(n) as a result of the failure to
make the filings referred to therein and required to be made by such
dates, (ii) to the extent a Lien of the first priority on the related
Financed Aircraft is not perfected with respect to L/C Receivables,
Unsecured Foreign Receivables and Existing Uncertified Foreign
Receivables, (iii) solely with respect to a Purchased Receivable, to the
extent the Lien thereon is subject to a Permitted Receivable Lien, (iv)
solely with respect to a Financed Aircraft, to the extent the Lien thereon
is subject to Permitted Aircraft Liens or (v) to the extent provided in
subsection 4.2(b); or
(o) (i) Raytheon shall cease to own, directly or indirectly, 100% of
the issued and outstanding voting stock of RAC, the Seller or Raytheon
Credit or (ii) Raytheon Credit shall cease to own 100% of the issued and
outstanding voting stock of the Seller; or
(p) On any Settlement Date on which Raytheon's Debt Rating is less
than A-/A3, after giving effect to any sales pursuant to subsection 11.25,
(i) the aggregate amount of Delinquent Receivables shall exceed
$200,000,000 or (ii) the ratio, expressed as a percentage, of the
aggregate Outstanding Purchase Price of all Delinquent Receivables to the
Outstanding Purchase Price of all Receivables shall be greater than 13%;
or
(q) Raytheon's Debt Rating shall be less than BBB- or the equivalent
thereof or Raytheon's long-term unsecured senior debt shall not be rated
by both S&P and Xxxxx'x or, if the Seller and the Required Purchasers
shall have agreed to use a rating agency other than Xxxxx'x or S&P to
determine the Debt Rating, such Debt Rating shall be less than such level
as the Seller and the Purchasers, by unanimous consent, shall have agreed;
or
(r) As of any Settlement Date, the Aggregate Repurchase Obligation
in effect on such Settlement Date, before giving effect to any purchases
and substitutions on such date but after deducting the Repurchase Price of
Defaulted Receivables repurchased on such date (whether paid by the
Seller, RAC or the Guarantor), shall be equal to or less than 75% of the
sum of (i) 25% of the aggregate Outstanding Balances of the 25% Repurchase
Receivables, (ii) 75% of the aggregate Outstanding Balances of the 75%
Repurchase Receivables and (iii) 90% of the
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aggregate Outstanding Balances of the 90% Repurchase Receivables, in
effect on such Settlement Date, before giving effect to any purchases and
substitutions on such date and before giving effect to any reductions of
such Aggregate Repurchase Obligation on such date.
8.2 Rights and Remedies. If an Amortization Event should occur and be
continuing, the Managing Facility Agent and the Purchasers shall have available
the following rights and remedies (unless such Amortization Event is waived
pursuant to subsection 11.1) in addition to any other rights and remedies
available under applicable law, such rights and remedies being cumulative and
not exclusive:
(a) each Purchaser's Outstanding Purchase Price shall bear interest for
the Accrual Period in which such Amortization Event occurs, payable on demand,
at the Default Rate for such Purchaser (i) if such event is an Amortization
Event specified in subsection 8.1(a), commencing on the date such Amortization
Event occurs and (ii) if such Amortization Event is a Note Rate Amortization
Event, commencing on the date the Revolving Period and the Commitments are
terminated pursuant to subsection 8.2(b) or, if later, on the date such Note
Rate Amortization Event occurs; or
(b) with the consent of the Majority Purchasers, the Managing Facility
Agent may, or upon the request of the Majority Purchasers, the Managing Facility
Agent shall, by notice to the Seller declare the Revolving Period and the
Commitments to be terminated forthwith, whereupon the Revolving Period and the
Commitments shall immediately terminate; provided that if such event is an
Amortization Event specified in clause (i) or (ii) of subsection 8.1(j),
automatically the Revolving Period and the Commitments shall immediately
terminate; or
(c) if such event is a Specified Amortization Event and the Revolving
Period and the Commitments have been terminated pursuant to subsection 8.2(b),
the Majority Purchasers may in their sole discretion terminate the appointment
of Raytheon Credit as the Servicer in accordance with subsection 3.1; or
(d) if such event is a Specified Amortization Event and the Revolving
Period and the Commitments have been terminated pursuant to subsection 8.2(b),
upon five Business Days' notice to the Seller and the Servicer and at the
Seller's expense, the Managing Facility Agent may, or upon the request of the
Majority Purchasers the Managing Facility Agent shall, notify, or direct the
Seller or the Servicer, as the case may be, to notify, the Obligors of Purchased
Receivables, or any of them, of the ownership of the Purchased Receivables by
the Purchasers; or
(e) if such event is a Specified Amortization Event and the Revolving
Period and the Commitments have been terminated pursuant to subsection 8.2(b),
the Managing Facility Agent may, or upon the request of the Majority Purchasers
the Managing Facility Agent shall, direct or request the Seller or the Servicer,
as the case may be, to direct the Obligors of Purchased Receivables, or any of
them, that payment of all amounts payable under any such Purchased Receivable be
made directly to the Managing Facility Agent or its designee for the account of
the Purchasers; or
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(f) if the Revolving Period and the Commitments have been terminated
pursuant to subsection 8.2(b), the Managing Facility Agent may, or upon the
request of the Majority Purchasers the Managing Facility Agent shall, direct the
Seller or the Servicer, as the case may be, to segregate all cash, checks and
other instruments received by it from time to time constituting Collections on
account of any Purchased Receivable in a manner acceptable to the Managing
Facility Agent and to remit promptly upon receipt all such cash, checks and
instruments, duly endorsed or with duly executed instruments of transfer, to the
Managing Facility Agent or its designee for the account of the Purchasers; or
(g) if the Revolving Period and the Commitments have been terminated
pursuant to subsection 8.2(b), the Managing Facility Agent may, or upon the
request of the Majority Purchasers the Managing Facility Agent shall, direct the
Seller or the Servicer, as the case may be, to assemble the documents,
instruments and other records (including, without limitation, computer tapes and
disks) which evidence the Purchased Receivables, the related Contracts and the
related Financed Aircraft, or which are otherwise necessary or desirable to
collect the Purchased Receivables, and to make the same available to the
Managing Facility Agent at a place selected by the Managing Facility Agent or
its designee; or
(h) if the Revolving Period and the Commitments have been terminated
pursuant to subsection 8.2(b), the Managing Facility Agent may, or upon the
request of the Majority Purchasers the Managing Facility Agent shall, direct the
Seller or the Servicer to convert the Collection Account to a lockbox account
into which payments on account of the Purchased Receivables are remitted or
deposited directly and, in connection therewith, the Seller or the Servicer
shall execute and file such documents and take such actions to transfer to the
Managing Facility Agent or its agent all post office boxes, deposit and other
accounts into which Collections are remitted or deposited and to grant to the
Managing Facility Agent and the Purchasers perfected first-priority security
and/or ownership interests therein; or
(i) if the Revolving Period and the Commitments have been terminated
pursuant to subsection 8.2(b), the Managing Facility Agent may, or upon the
request of the Majority Purchasers the Managing Facility Agent shall, direct the
Seller or the Servicer to take any and all steps in the name of the Seller or
the Servicer and on behalf of the Managing Facility Agent and the Purchasers
which may be necessary or desirable, in the determination of the Managing
Facility Agent (or the Managing Facility Agent and the Majority Purchasers, if
the Managing Facility Agent is acting at the request of the Majority
Purchasers), to collect all amounts due under any and all Purchased Receivables
and the related Contracts and Financed Aircraft, including, without limitation,
endorsing the name of the Seller on checks and other instruments representing
Collections in respect of such Purchased Receivables and enforcing such
Purchased Receivables and the related Contracts and Financed Aircraft; or
(j) if the Revolving Period and the Commitments have been terminated
pursuant to subsection 8.2(b), the Managing Facility Agent may, or upon the
request of the Majority Purchasers the Managing Facility Agent shall, take or
direct the Seller to take any and all steps in the name of the Seller and on
behalf of the Managing Facility Agent and the Purchasers which may be necessary
or desirable, in the determination of the Managing Facility Agent (or the
Managing Facility Agent and the Majority Purchasers, if the Managing Facility
Agent is acting at the request of the Majority Purchasers), to enforce and
protect the rights and remedies of the
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Managing Facility Agent and the Purchasers in, to and under the Intercompany
Purchase Agreement.
8.3 Waivers. Except as expressly provided herein, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the
Seller and the Servicer.
SECTION 9. INDEMNIFICATIONS
9.1 Indemnities of the Seller. (a) Without limiting any other rights which
the Managing Facility Agent, any Purchaser or any Affiliate thereof may have
hereunder or under applicable law, the Seller hereby agrees, subject to the
limitations set forth in this Section 9, to indemnify the Managing Facility
Agent, each Administrative Agent, each Co-Administrative Agent, each Purchaser
and each Affiliate thereof (each, an "Indemnified Person") from and against any
and all damages, losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing,
collectively, "Indemnified Amounts") awarded against or incurred by any
Indemnified Person which arise directly or indirectly from:
(i) any Purchased Receivable which is not an Eligible Receivable at
the date of its purchase or substitution (which date shall be, for each
Existing Receivable, the date such Receivable was purchased or substituted
under the Existing Agreement applicable to such Existing Receivable) or
which is an Ineligible Receivable as defined in clause (b)(z) of the
definition of "Ineligible Receivable";
(ii) reliance on any representation or warranty made by the Seller
(or any of their respective officers) under or in connection with this
Agreement or any Settlement Statement which shall have been false or
incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller, any Affiliate Obligor or the
Servicer to comply with any applicable Requirement of Law in all material
respects with respect to any Purchased Receivable, the related Contract or
Financed Aircraft, or the nonconformity in any material respect of any
Purchased Receivable or the related Contract or Financed Aircraft with any
such applicable Requirement of Law;
(iv) the failure (A) of the Administrative Agent to have a valid,
perfected and first priority security interest in the Financed Aircraft
(including the Aircraft Accessories) other than with respect to a
Registerable Lease Receivable, Unsecured Foreign Receivable, Existing
Uncertified Foreign Receivable or L/C Receivable, (B) with respect to a
Registerable Lease Receivable, of the Administrative Agent to have a
valid, perfected and first priority security interest in the Financed
Aircraft (including the Aircraft Accessories related thereto) or (C)
either (1) to vest and maintain in any Purchaser a perfected, valid and
enforceable first priority ownership interest in any Purchased Receivable
or (2) to create and
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maintain in favor of the Administrative Agent for the ratable benefit of
the Purchasers a valid, perfected and first priority security interest in
such Receivable;
(v) the failure to file or record any document or instrument
(including, without limitation, any FAA Assignment or any Foreign
Assignment) with respect to any Receivables constituting, or purporting to
constitute, Purchased Receivables, the Contracts or the Financed Aircraft
related thereto (other than the Financed Aircraft related to the L/C
Receivables and the Unsecured Foreign Receivables), whether at the time of
any purchase or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Purchased
Receivable or of the Unaffiliated Foreign Lessee to the payment of any
amount under its Applicable Lease (including, without limitation, a
defense based on such Receivable or the related Contract not being a
legal, valid and binding obligation of such Obligor or Unaffiliated
Foreign Lessee enforceable against it in accordance with its terms or any
claims based on the related Financed Aircraft not conforming to any
express or implied warranty);
(vii) any failure of the Seller or the Servicer to perform its
duties or obligations in any capacity in accordance with the provisions of
this Agreement, including, without limitation, the turnover of amounts
pursuant to subsection 2.14 or 2.15;
(viii) any Lien against or with respect to Purchased Receivables,
the Collections with respect thereto or the related Contract or Financed
Aircraft, or any sale, pledge, or assignment (by operation of law or
otherwise) or other disposition of Collections of Purchased Receivables by
the Seller or the Servicer;
(ix) any failure by the Seller, any Affiliate Obligor or the
Servicer to comply (1) in any material respect with any provision,
covenant or other promise required to be observed by any such Person under
any Contract related to any Purchased Receivable or (2), except as
otherwise permitted by this Agreement, with all provisions of the Credit
and Collection Policy in all material respects, which failure reduces or
impairs the rights of the Administrative Agent or any Purchaser with
respect to any Purchased Receivable or the value of any Purchased
Receivable including, but not limited to, failure to comply with those
provisions of the Credit and Collection Policy relating to the
cancellation, extension, amendment, modification, compromise or settlement
of any Purchased Receivable or any term thereof, the extension, amendment,
modification or waiver of any term or condition of any Contract related
thereto, the sale, pledge or assignment of, or grant of security interest
in, any Purchased Receivable or the Contract or Financed Aircraft related
thereto, any change in the character of its business or in the Credit and
Collection Policy or the commencement or settlement of any legal action to
enforce collection of any Purchased Receivable;
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(x) any investigation, litigation, or proceeding related to any use
of the proceeds of any purchase;
(xi) any casualty loss, property loss or product liability related
to (i) the Purchasers' ownership of the Purchased Receivables or (ii) the
Purchasers' security interest in the related Financed Aircraft;
(xii) the failure of any Purchased Receivable at any time after its
sale or substitution hereunder or, with respect to the Existing
Receivables, under the applicable Existing Agreement to satisfy the
criteria under clause (k) or (l) (including, without limitation, the
failure of a Permitted Receivable Lien or a Permitted Aircraft Lien to be
released or bonded in accordance with the definition of each such term) of
the definition of "Eligible Receivable" (notwithstanding that such
criteria are required to be satisfied pursuant to such definition on the
date a Purchased Receivable is sold or substituted); or
(xiii) the execution, delivery, performance, administration and
enforcement of any of the Purchase Documents.
(b) Notwithstanding anything to the contrary contained in subsection
9.1(a), and with respect to any event of the type described in clause (vi) or
(xii) of subsection 9.1(a), the Managing Facility Agent, the Administrative
Agent, the Co-Administrative Agents and the Purchasers shall be deemed to have
incurred Indemnified Amounts with respect to a Purchased Receivable as a result
of events described in such clause (vi) or (xii) on the earlier of (1) the date
on which the Seller becomes aware of the event or events of the type described
in either of such clauses or (2) the date on which the Managing Facility Agent
notifies the Seller that the event described in either of such clauses has
occurred.
(c) Indemnification payments required to be made hereunder shall be
payable at any time on demand by the Managing Facility Agent at the request of
the applicable Indemnified Persons and shall be promptly deposited in the
Concentration Account and paid out to such Indemnified Persons pro rata with
respect to the Indemnified Amounts incurred and requested by such Indemnified
Persons.
(d) The agreements in this Section 9 shall survive the completion of the
Amortization Period.
9.2 Limitations of Seller's Liability. (a) The Seller shall not be
required to indemnify an Indemnified Person pursuant to subsection 9.1 for:
(i) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Person;
or
(ii) recourse for non-payment by an Obligor (except as otherwise
provided in this Agreement) for Defaulted Receivables; or
(iii) any income, franchise or other similar taxes imposed on any
Indemnified Person as a result of any of the indemnities provided in
subsection
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9.1(a) arising out of or as a result of this Agreement or in respect of
any Receivables or any Contract; or
(iv) Indemnified Amounts resulting from actions taken or failed to
be taken by a successor Servicer that is not an Affiliate of the Seller
appointed pursuant to subsection 3.1(b).
(b) Each of the Managing Facility Agent, each Administrative Agent, each
Co-Administrative Agent and each Purchaser hereby waives, to the maximum extent
not prohibited by law, any right it may have to claim or recover as Indemnified
Amounts under this Section 9 any special, exemplary, punitive or consequential
damages; provided that the waiver contained in this subsection 9.2(b) shall not
extend to, and the Managing Facility Agent, each Administrative Agent, each Co-
Administrative Agent and each Purchaser does not waive, any right to claim or
recover from the Seller any special, exemplary, punitive or consequential
damages for which an Indemnified Person is liable to any Person (other than an
Affiliate of such Indemnified Person).
9.3 Proceedings against Indemnified Person. (a) If any action, suit or
proceeding shall be brought against one or more of the Indemnified Persons in
respect of which indemnity may be sought against the Seller, such Indemnified
Person shall, promptly after receipt of notice of commencement of such action,
suit or proceeding, notify the Seller in writing, enclosing a copy of all papers
served upon such Indemnified Person; provided that the failure so to notify the
Seller shall not relieve it from any liability which it may have under
subsection 9.1 except to the extent that the Seller is prejudiced by such
failure. The Seller may, and upon such Indemnified Person's request shall, at
the Seller's expense, resist and defend such action, suit or proceeding, or
cause the same to be resisted or defended by counsel selected by the Seller. In
the event of any failure by the Seller to resist and defend such suit, action or
proceeding or cause the same to be resisted or defended by counsel reasonably
satisfactory to such Indemnified Person, the Seller shall pay all reasonable
costs and expenses (including, without limitation, attorney's fees and
disbursements) incurred by such Indemnified Person in connection with such suit,
action or proceeding. In the event that the Seller does assume the defense of
such suit, action or proceeding, the Seller shall have the sole authority to
negotiate, compromise and settle such claim; provided that such Indemnified
Person shall have the right to employ counsel to represent it in connection with
any claim in respect of which indemnity may be sought by such Indemnified Person
against the Seller under such subsection 9.1 if, in the reasonable judgment of
such Indemnified Person, such Indemnified Person may have a conflict with the
Seller, such Indemnified Person shall be entitled to be represented by separate
counsel, and in that event the fees and expenses of such separate counsel shall
be paid by the Seller. In any event, the Indemnified Person shall retain the
right to employ its own counsel, but the Indemnified Person shall, except as
otherwise provided in this subsection 9.3, bear and shall be solely responsible
for its own costs and expenses.
(b) The Seller shall be subrogated to an Indemnified Person's rights in
any matter with respect to which the Seller has actually reimbursed such
Indemnified Person for any amounts for which the Indemnified Person claims
indemnification hereunder after the Amortization Period ends.
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SECTION 10. THE MANAGING FACILITY AGENT AND ADMINISTRATIVE AGENT
10.1 Appointment. Each Purchaser hereby irrevocably designates and
appoints Bank of America, N.A., as the Managing Facility Agent of such Purchaser
under this Agreement and the other Purchase Documents and each such Purchaser
irrevocably authorizes Bank of America, N.A., as the Managing Facility Agent for
such Purchaser, to take such action on its behalf under the provisions of this
Agreement and the other Purchase Documents and to exercise such powers and
perform such duties as are expressly delegated to the Managing Facility Agent by
the terms of this Agreement and the other Purchase Documents, together with such
other powers as are reasonably incidental thereto. Each Purchaser hereby
irrevocably designates and appoints each of Bank of America, N.A. and UBS AG,
Stamford Branch (as successor to Swiss Bank Corporation, Stamford Branch, as
successor to Swiss Bank Corporation, New York Branch) as Administrative Agent
under this Agreement and the other Purchase Documents and to be, or continue to
be, jointly or individually, the named party or the secured party for the
benefit of the Purchasers with respect to the Receivables and the related
Aircraft and in and on all presently existing or hereafter executed financing
statements, assignments and continuation statements, FAA Assignments and other
FAA filings and similar filings in foreign jurisdictions and security interests
granted under this Agreement or any predecessor agreement (including pursuant to
Sections 11.11 and 11.12) relating to the Receivables and the related Aircraft.
Each Administrative Agent shall act solely in accordance with the instructions
of the Managing Facility Agent (including pursuant to Sections 11.10, 11.11 and
11.12) which in the case of the Old Administrative Agent shall be deemed to
include any action taken by the Managing Facility Agent pursuant to a power of
attorney granted by the Old Administrative Agent in favor of the Managing
Facility Agent. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Managing Facility Agent and each Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Purchaser, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Purchase Document or otherwise exist against
the Managing Facility Agent or either Administrative Agent.
10.2 Delegation of Duties. The Managing Facility Agent and each
Administrative Agent may execute any of its duties under this Agreement and the
other Purchase Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Managing Facility Agent and each Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Managing Facility Agent, each
Administrative Agent, nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Purchase Document (except for its or
such Person's own gross negligence or willful misconduct) or (b) responsible in
any manner to any of the Purchasers for any recitals, statements,
representations or warranties made by the Seller, the Servicer or Raytheon or
any officer thereof contained in this Agreement or any other Purchase Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Managing Facility Agent or either
Administrative Agent under or in connection with, this Agreement or any other
Purchase Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Purchase
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Document or for any failure of the Seller, the Servicer or Raytheon to perform
their respective obligations hereunder or thereunder. The Managing Facility
Agent and each Administrative Agent shall not be under any obligation to any
Purchaser to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of (except delivery to it of items
required by Section 5 hereof to be delivered to it), this Agreement or any other
Purchase Document, or to inspect the properties, books or records of the Seller,
the Servicer or Raytheon. Without limiting the foregoing, the Old Administrative
Agent shall not have any liability for (i) any action, or omission to act, which
is made in accordance with the instructions of the Managing Facility Agent or
(ii) the failure to act if it has not received any instructions from the
Managing Facility Agent.
10.4 Reliance by Managing Facility Agent and Administrative Agent. The
Managing Facility Agent and each Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Seller, the Servicer or Raytheon),
independent accountants and other experts selected by the Managing Facility
Agent or such Administrative Agent. The Managing Facility Agent and each
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Purchase Document unless it shall first
receive such advice or concurrence of the Majority Purchasers as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Purchasers against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Managing Facility
Agent and each Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other
Purchase Documents in accordance with a request of the Required Purchasers or
the Majority Purchasers, as appropriate, and such request and any action taken
or failure to act pursuant thereto shall be binding upon each Purchaser.
10.5 Notice of Certain Events. Neither the Managing Facility Agent nor any
Administrative Agent shall be deemed to have knowledge or notice of the
occurrence of an Amortization Event, Discount Event, Rating Event, Remittance
Event or Ineligibility Event (each, an "Occurrence") hereunder unless the
Managing Facility Agent has received notice from a Purchaser, the Seller, the
Servicer, RAC or Raytheon referring to this Agreement, describing such
Occurrence and stating that such notice is a notice thereof. In the event that
the Managing Facility Agent receives such a notice, the Managing Facility Agent
shall promptly give notice thereof to the Purchasers. The Managing Facility
Agent shall take such action with respect to any Amortization Event as shall be
reasonably directed by the Majority Purchasers; provided that unless and until
the Managing Facility Agent shall have received such directions, the Managing
Facility Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to any such Amortization Event as it shall
deem advisable in the best interests of the Purchasers.
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10.6 Non-Reliance on Managing Facility Agent, the Administrative Agent,
the Co-Administrative Agents and the Purchasers. Each Purchaser expressly
acknowledges that neither the Managing Facility Agent, either Administrative
Agent, the Co-Administrative Agents nor any of their officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Managing Facility Agent, either
Administrative Agent or the Co-Administrative Agents hereafter taken, including
any review of the affairs of the Seller, the Servicer or Raytheon, shall be
deemed to constitute any representation or warranty by the Managing Facility
Agent, either Administrative Agent or the Co-Administrative Agents to any
Purchaser. Each Purchaser represents to the Managing Facility Agent, each
Administrative Agent and the Co-Administrative Agents that it has, independently
and without reliance upon the Managing Facility Agent, either Administrative
Agent, the Co-Administrative Agents or any other Purchaser, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Seller, the Servicer and Raytheon
and made its own decision to make its purchases hereunder and enter into this
Agreement. Each Purchaser also represents that it will, independently and
without reliance upon the Managing Facility Agent, either Administrative Agent
or the Co-Administrative Agents or any Purchaser, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Purchase Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Seller, the Servicer and Raytheon. Except for notices, reports and other
documents expressly required to be furnished to the Purchasers by the Managing
Facility Agent hereunder, neither the Managing Facility Agent, either
Administrative Agent nor the Co-Administrative Agents shall have any duty or
responsibility to provide any Purchaser with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Seller or Raytheon which may
come into the possession of the Managing Facility Agent, either Administrative
Agent or the Co-Administrative Agents or any of their officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification
------ ---------------
. The Purchasers agree to indemnify the Managing Facility Agent and
each Administrative Agent in its capacity as such (to the extent not reimbursed
by the Seller or Raytheon and without limiting the obligation of the Seller or
Raytheon to do so), 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 whatsoever which may at any time (including, without limitation, at
any time after the Outstanding Purchase Price is reduced to zero) be imposed on,
incurred by or asserted against the Managing Facility Agent or either
Administrative Agent in any way relating to or arising out of this Agreement,
any other Purchase Document or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Managing Facility Agent or either Administrative
Agent under or in connection with any of the foregoing; provided that no
Purchaser shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Managing Facility Agent's or
either Administrative Agent's gross negligence or willful misconduct. The
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agreements in this subsection shall survive the reduction of the Outstanding
Purchase Price to zero and payment of all other amounts payable hereunder.
10.8 Managing Facility Agent and Administrative Agent in Their Individual
Capacities. The Managing Facility Agent and each Administrative Agent and their
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Seller, the Servicer, RAC and Raytheon
and their Affiliates as though the Managing Facility Agent were not the Managing
Facility Agent, or such Administrative Agent was not an Administrative Agent,
hereunder and under the other Purchase Documents. With respect to purchases made
by it, the Managing Facility Agent and each Administrative Agent shall have the
same rights and powers under this Agreement and the other Purchase Documents as
any Purchaser and may exercise the same as though it were not the Managing
Facility Agent or an Administrative Agent, as the case may be, and the terms
"Purchaser" and "Purchasers" shall include the Managing Facility Agent and each
Administrative Agent, each in its individual capacity.
10.9 Successor Managing Facility Agent or Administrative Agent. The
Managing Facility Agent may resign as Managing Facility Agent upon 30 days'
notice to the Purchasers and such resignation shall be effective upon the
earlier of (i) the expiration of such 30 day notice period and (ii) the
appointment of a successor Managing Facility Agent pursuant to the provisions of
this Section 10.9.; provided that, if a successor Managing Facility Agent shall
not have been appointed prior to the end of such 30 day notice period, the
Managing Facility Agent shall remain the Administrative Agent until a successor
Managing Facility Agent is appointed in accordance with this Section 10.9. If
the Managing Facility Agent shall resign as Managing Facility Agent under this
Agreement and the other Purchase Documents, then the Required Purchasers shall
appoint from among the Purchasers a successor agent for the Purchasers, which
successor agent shall, subject to the consent of the Seller and Raytheon (which
consent shall not be unreasonably withheld), succeed to the rights, powers and
duties of the Managing Facility Agent including its rights powers and duties as
Administrative Agent hereunder, and the term "Managing Facility Agent" shall
mean such successor agent effective upon its appointment, and the former
Managing Facility Agent's rights, powers and duties as Managing Facility Agent
and as an Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Managing Facility Agent or any of the
parties to this Agreement or any holder of an Assignment. After any retiring
Managing Facility Agent's resignation as Managing Facility Agent, the provisions
of this subsection shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Managing Facility Agent under this Agreement and
the other Purchase Documents. The rights, obligations and duties of the Old
Administrative Agent shall be governed by the terms and provisions of the
letter, dated as of March 9, 2001, among the Old Administrative Agent, Raytheon,
Raytheon Credit and the Managing Facility Agent.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any other Purchase
Document nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. Unless
otherwise specifically provided herein, with the written consent of the Majority
Purchasers, the Managing Facility Agent, the Seller, the Servicer, RAC and
Raytheon may, from time to time, enter into written amendments,
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supplements or modifications hereto and to the other Purchase Documents for the
purpose of adding or deleting any provisions to this Agreement or the other
Purchase Documents or changing in any manner the rights of the Purchasers, the
Seller, the Servicer, RAC, or Raytheon hereunder or thereunder or waiving, on
such terms and conditions as the Managing Facility Agent may specify in such
instrument, any of the requirements of this Agreement or the other Purchase
Documents; provided, however, that no such waiver and no such amendment,
supplement or modification shall (a) increase the Commitment of any Purchaser or
extend the Expiration Date or reduce the rate or amount of interest or any fee
payable to any Purchaser hereunder or extend (beyond the applicable period of
grace) the scheduled date for any payment or deposit by the Seller or the
Servicer (if not then the Seller) hereunder, in each case without the consent of
the Purchaser affected thereby, or (b) (i) amend, modify or waive any provision
of this subsection or reduce the percentage specified in or amend the
definitions of "Required Purchasers", or "Majority Purchasers", (ii) consent to
the assignment or transfer by the Seller of any rights and obligations under
this Agreement and the other Purchase Documents, (iii) take action with respect
to any Purchased Receivable pursuant to subsection 7.1(b)(iii), (iv) amend the
criteria set forth in the definition of "Eligible Receivable" or "Ineligible
Receivable" or any definition contained in either such definition if the effect
thereof is to decrease the Seller's or RAC's repurchase obligation, (v) after
the occurrence of a Rating Event release or reassign any material interest of
the Purchasers in the Financed Aircraft (except as provided in subsections
11.10, 11.24 or 11.25), (vi) release Raytheon as Guarantor under the Guarantee
or make any material modification or amendment to the Guarantee or release RAC
from its obligations under the Repurchase Agreement or make any material
modification or amendment to the Repurchase Agreement, (vii) release the
interest of the Purchasers in the Intercompany Purchase Agreement, (viii) amend
the definition of "Repurchase Factor" or amend subsection 2.10(b) or any
definition contained therein if the effect thereof is to decrease the Repurchase
Obligation, (ix) amend, modify or waive any provision of subsection 2.6, 2.18,
2.20(a) or 11.7(a), or (x) amend the definition of "Purchase Price", without, in
each case specified in this clause (b), the written consent of all the
Purchasers, or (c) amend, modify or waive any provision of Section 10 without
the written consent of the then Managing Facility Agent or (d) waive any
Amortization Event (including, any Trigger Amortization Event, any Specified
Amortization Event or any Note Rate Amortization Event) or its consequences
without the written consent of the Required Purchasers. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Purchasers and shall be binding upon the Seller, the Servicer, the Purchasers
and the Managing Facility Agent. In the case of any waiver, the Seller, the
Servicer, RAC, Raytheon, the Purchasers and the Managing Facility Agent shall be
restored to their former position and rights hereunder and under any other
Purchase Documents, and any Amortization Event (including, any Trigger
Amortization Event, any Specified Amortization Event or any Note Rate
Amortization Event) waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Amortization Event,
Trigger Amortization Event, Specified Amortization Event or Note Rate
Amortization Event, or impair any right consequent thereon.
Notwithstanding any of the provisions of this Section 11.1 no
provision of the Agreement which affects the rights or obligations of the Old
Administrative Agent shall be amended without the written consent of the Old
Administrative Agent.
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11.2 Notices. (a) All notices, requests, demands and consents to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy or telex), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, or, in the case of telex notice, when sent,
answerback received, addressed as follows in the case of the Seller and the
Managing Facility Agent, and as set forth in Schedule I in the case of the Co-
Administrative Agents and any Purchaser, or to such other address as may be
hereafter notified by the respective parties hereto:
The Seller: Raytheon Aircraft Receivables Corporation
0000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Servicer: Raytheon Aircraft Credit Corporation
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Managing
Facility Agent: Bank of America, N.A.
Agency Management 10831
Mail Code: CA5-701-12-09
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Carry
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Bank of America, N.A.
Credit Services - West
Mail Code: CA4-706-05-09
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx-Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Account No.: 12335-16573;
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provided that any notice, request or demand to or upon the Managing Facility
Agent or the Purchasers pursuant to subsection 2.2, 2.3, 2.8 or 2.20 shall not
be effective until received.
(b) The Managing Facility Agent agrees to promptly notify the Purchasers
of (i) each address of the Seller or the Servicer forwarded to the Managing
Facility Agent under subsection 6.1(f) or 6.2(e), respectively, and (ii) any
change in the fiscal year of the Seller under subsection 7.1(h).
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Managing Facility Agent, either Administrative
Agent or any Purchaser, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement.
11.5 Payment of Expenses and Taxes. The Seller agrees (a) to pay or
reimburse the Managing Facility Agent and each Administrative Agent for all its
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the other Purchase Documents, any Commitment Transfer Supplement
executed and delivered pursuant to subsection 11.6 and any other document
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Managing Facility Agent and such Administrative Agent, (b) to pay or reimburse
each Purchaser, the Managing Facility Agent and each Administrative Agent for
all its respective costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other
Purchase Documents and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Managing Facility Agent,
such Administrative Agent and to the several Purchasers (including, but not
limited to, allocated costs of in-house counsel and costs incurred by counsel
with respect to the Foreign Receivables and the Affiliate Receivables), and (c)
to pay, indemnify, and hold each Purchaser, the Managing Facility Agent, each
Administrative Agent and each Co-Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Purchase Documents
and any such other documents (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Seller shall have no obligation hereunder to
the Managing Facility Agent, either Administrative Agent or any Purchaser (each,
an "Indemnitee") with respect to indemnified liabilities arising from (i) the
gross negligence or willful misconduct of such Indemnitee, (ii) legal
proceedings commenced against such Indemnitee by any security holder or creditor
thereof arising out of and
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based upon rights afforded any such security holder or creditor solely in its
capacity as such, or (iii) legal proceedings commenced against such Indemnitee
by any other Purchaser or by any Transferee. The agreements in this subsection
shall survive the completion of the Amortization Period.
11.6 Successors and Assigns; Participations; Purchasing Parties.
(a) This Agreement shall be binding upon and inure to the benefit of the
Seller, the Purchasers, the Co-Administrative Agents, the Managing Facility
Agent, the Administrative Agent and their respective successors and assigns,
except that (i) the Seller may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Managing Facility Agent, the Administrative Agent and each Purchaser and (ii)
certain governmental authorities in foreign jurisdictions may require the
completion of certain procedures in order for any such assignment to be
effective with respect to the Foreign Receivables and the Affiliate Receivables.
(b) Any Purchaser may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in such
Purchaser's Outstanding Purchase Price, the Commitment of such Purchaser or any
other interest of such Purchaser hereunder and under the other Purchase
Documents. In the event of any such sale by a Purchaser of participating
interests to a Participant, such Purchaser's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Purchaser shall
remain solely responsible for the performance thereof, such Purchaser shall be
the "Purchaser" for all purposes under this Agreement and the other Purchase
Documents, and the Seller and the Managing Facility Agent shall continue to deal
solely and directly with such Purchaser in connection with such Purchaser's
rights and obligations under this Agreement and the other Purchase Documents.
The Seller agrees that, upon the occurrence and continuance of a Rating Event
and an Amortization Event of the type described in subsection 8.1(a), (b), (i)
or (j), each Participant shall be deemed to have the right of setoff in respect
of its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Purchaser under this Agreement; provided that such Participant shall only
be entitled to such right of setoff pursuant to this sentence if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Purchasers the proceeds thereof as
provided in subsection 11.7. The Seller also agrees that each Participant shall
be entitled to the benefits of subsections 2.22, 2.23 and 2.24 and 11.5 with
respect to its participation in the Commitments and the Outstanding Purchase
Price; provided that no Participant shall be entitled to receive any greater
amount pursuant to such subsections than the transferor Purchaser would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Purchaser to such Participant had no such
transfer occurred. Promptly after the sale of any such participation, the
selling Purchaser shall give the Managing Facility Agent, Servicer and Seller
notice of the amount sold and the identity of the Participant.
(c) Any Purchaser may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any
Purchaser or any affiliate thereof and, with the consent of the Seller and the
Managing Facility Agent (which in each case
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shall not be unreasonably withheld), to one or more additional financial
institutions (each, a "Purchasing Party") all or any part of such Purchaser's
Outstanding Purchase Price, the Commitment of such Purchaser or any other
interest of such Purchaser hereunder and under the other Purchase Documents;
provided that such assignment shall be in a minimum amount of $1,000,000 unless
such assignment is to a financial institution not then a party to this
Agreement, in which case such assignment shall be in a minimum amount of
$10,000,000. Each such assignment shall be made pursuant to a Commitment
Transfer Supplement executed by such Purchasing Party, such Transferor Purchaser
and, in the case of a Purchasing Party that is not then a Purchaser or an
Affiliate thereof, by the Seller and the Managing Facility Agent, and delivered
to the Managing Facility Agent for its acceptance and recording in the Register.
Any SPC may, without obtaining any consent hereunder, assign all or a portion of
its interests in any Purchased Receivable under this Agreement to its SPC Bank,
its Liquidity Bank or another SPC managed by the same SPC Bank as such SPC or
any other SPC Bank hereunder. Each such assignment shall be made pursuant to
written notice (a "Transfer Notice") delivered to the Managing Facility Agent
for recording in the Register. Upon the execution, delivery, acceptance (if
required) and recording of any Transfer Notice or Commitment Transfer
Supplement, as the case may be, from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement (or after the
effective date set forth in the Transfer Notice), (x) the Purchasing Party
thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement (or such Transfer Notice, as the case may be),
have the rights and obligations of a Purchaser hereunder with a Commitment as
set forth therein, and (y) the transferor Purchaser thereunder shall, to the
extent provided in such Commitment Transfer Supplement (or such Transfer Notice,
as the case may be), be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement, or Transfer Notice, as the case
may be, covering all or the remaining portion of a transferor Purchaser's rights
and obligations under this Agreement, such transferor Purchaser shall cease to
be a party hereto). Such Commitment Transfer Supplement (or such Transfer
Notice, as the case may be) shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Party and the resulting adjustment of Commitment Percentages or
Available Commitment Percentages arising from the purchase by such Purchasing
Party of all or a portion of the rights and obligations of such transferor
Purchaser under this Agreement.
(d) The Managing Facility Agent shall maintain at its address referred to
in subsection 11.2 a copy of each Commitment Transfer Supplement and each
Transfer Notice delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Purchasers and the Commitment of,
and proportionate share of the Outstanding Purchase Price from time to time
payable to, each Purchaser from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Seller, the Managing
Facility Agent and the Purchasers may treat each Person whose name is recorded
in the Register as the holder of the Commitment recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Seller, the Servicer or any Purchaser at any reasonable time and from time
to time upon reasonable prior notice to the Managing Facility Agent.
(e) Upon its receipt of a Commitment Transfer Supplement or a Transfer
Notice executed by a transferor Purchaser and Purchasing Party (and, in the case
of a Purchasing Party that is not then a Purchaser or an Affiliate thereof, by
the Seller and the Managing Facility
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Agent) and, except in the case of a transfer from an SPC to its Liquidity Bank,
payment by the transferor Purchaser or the Purchasing Party of a servicing fee
of $3,500 to the Managing Facility Agent, the Managing Facility Agent shall (i)
promptly accept such Commitment Transfer Supplement or Transfer Notice, as the
case may be, and (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the Seller, such transferor Purchaser and such
Purchasing Party.
(f) The Seller authorizes each Purchaser to disclose to any Participant or
Purchasing Party (each, a "Transferee") and any prospective Transferee any and
all financial information in such Purchaser's possession concerning the Seller
and its Affiliates which has been delivered to such Purchaser by or on behalf of
the Seller pursuant to this Agreement or which has been delivered to such
Purchaser by or on behalf of the Seller in connection with such Purchaser's
credit evaluation of the Seller and its Affiliates prior to becoming a party to
this Agreement; provided that such Transferee or such prospective Transferee
shall have agreed in writing to be bound by the same confidentiality provisions
as a Purchaser with respect to all information delivered hereunder.
(g) If, pursuant to this subsection, any interest in this Agreement is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Purchaser shall cause such Transferee, concurrently with the effectiveness of
such transfer, (i) to represent to the transferor Purchaser (for the benefit of
the transferor Purchaser, the Managing Facility Agent, Raytheon, RAC, the
Servicer and the Seller) that under applicable law and treaties no taxes will be
required to be withheld by the Managing Facility Agent, the Seller, Raytheon,
RAC, the Servicer or the transferor Purchaser with respect to any payments to be
made to such Transferee in respect of the Outstanding Purchase Price, (ii) to
furnish to the transferor Purchaser (and, in the case of any Purchasing Party
registered in the Register, the Managing Facility Agent and the Seller) (A)
either U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue
Service Form W-8ECI (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (B) an Internal Revenue Service Form W-8 or W-9 and (iii) to agree (for the
benefit of the transferor Purchaser, the Managing Facility Agent, Raytheon, RAC
and the Seller) to provide the transferor Purchaser (and, in the case of any
Purchasing Party registered in the Register, the Managing Facility Agent and the
Seller) a new Form W-8BEN or Form W-8ECI, or Form W-8 or W-9, if applicable,
upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(h) Nothing herein shall prohibit any Purchaser from pledging or assigning
its interests hereunder to any Federal Reserve Bank in accordance with
applicable law or prohibit any SPC from pledging or assigning its interests
hereunder to its SPC Bank.
11.7 Adjustments; Set-off.
(a) If any Purchaser (a "Benefitted Purchaser") shall at any time receive
any payment of all or part of its Outstanding Purchase Price, or interest
thereon, or receive any
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collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 8.1(j)
or pursuant to the Guarantee, the Repurchase Agreement or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Purchaser, if any, in respect of such other Purchaser's Outstanding Purchase
Price, or interest payable thereon, such Benefitted Purchaser shall purchase for
cash from the other Purchasers such portion of each such other Purchaser's
Outstanding Purchase Price, or shall provide such other Purchasers with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Purchaser to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Purchasers; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Purchaser, such purchase shall be
rescinded, and the Purchase Price and benefits returned, to the extent of such
recovery, but without interest. The Seller agrees that each Purchaser so
purchasing a portion of another Purchaser's Outstanding Purchase Price may
exercise all rights of payment (including, without limitation, rights of set-
off) with respect to such portion as fully as if such Purchaser were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Purchasers provided by
law, each Purchaser shall have the right, without prior notice to the Seller,
any such notice being expressly waived by the Seller to the extent permitted by
applicable law, upon the occurrence and continuance of a Rating Event or an
Amortization Event of the type described in subsection 8.1(a), (b), (i) or (j),
to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Purchaser or any branch or agency thereof to or for the
credit or the account of the Seller. Each Purchaser agrees promptly to notify
the Seller and the Managing Facility Agent after any such set-off and
application made by such Purchaser, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
11.8 Responsibilities of the Seller. Anything herein to the contrary
notwithstanding:
(a) the Seller shall perform all of its obligations under Contracts
related to the Purchased Receivables to the same extent as if such Purchased
Receivables had not been sold hereunder and the exercise by either
Administrative Agent or the Managing Facility Agent or any Purchaser of any of
their rights hereunder shall not relieve the Seller from such obligations or its
obligations with respect to such Purchased Receivables; and
(b) neither Administrative Agent, nor the Managing Facility Agent nor any
Purchaser shall have any obligation or liability with respect to any Purchased
Receivables or the related Contracts or Financed Aircraft, nor shall any of them
be obligated to perform any of the obligations of the Seller thereunder.
11.9 Optional Repurchase. If the Outstanding Purchase Price at any time
during the Amortization Period is less than 10% of the maximum Outstanding
Purchase Price at any time during the Revolving Period, then on any Settlement
Date thereafter the Seller may, by 10
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days prior irrevocable notice to the Managing Facility Agent, repurchase the
ownership interests in the Purchased Receivables by payment to the Managing
Facility Agent for the account of the Purchasers of an amount equal to the sum
of (i) the Outstanding Purchase Price on such Settlement Date, (ii) interest
accrued to such Settlement Date and (iii) all other amounts payable to the
Managing Facility Agent and the Purchasers under this Agreement.
11.10 Reassignments. (a) The Purchasers (or a Dissenting Purchaser, as the
case may be) shall assign (subject to the Purchasers' right to receive Net
Recoveries in certain circumstances as described herein) to the Seller all their
(or its) ownership interests in any Purchased Receivable (or portion thereof)
sold hereunder (i) which has been repurchased pursuant to subsection 2.8(b) or
2.13(c) (in the case of repurchases from a Dissenting Purchaser) or subsection
2.7(b), 2.10A, 2.10, 2.11, 2.12, or 11.9 (in all other cases) or for which an
indemnity in an amount satisfactory to the Managing Facility Agent and the
Purchasers has been paid pursuant to subsection 9.1(a)(vi) or 9.1(a)(xii) or
(ii) when the Principal Balance of any such Purchased Receivable has been
reduced to zero. In connection with reassignments pursuant to this subsection
11.10(a), the Managing Facility Agent, the Administrative Agent and the
Purchasers shall promptly execute and deliver to the Seller, at the Seller's
expense, such documents and instruments of reassignment as the Seller may
reasonably request.
(b) With respect to any Contract for which all amounts outstanding
thereunder (including accrued interest) are paid prior to the Final Payment Date
of such Contract, and upon receipt by the Managing Facility Agent of
certification by the Servicer of such prepayment in full, the Administrative
Agent agrees to execute such documents and instruments (including releases of
security interests) for recording and filing with the FAA Registry which are
necessary to release the Lien on the related Financed Aircraft as a result of
such prepayment in full. In order to facilitate the business operations of the
Seller and the Servicer, the Administrative Agent may provide the Servicer with
a limited number of executed releases; provided that, the Servicer shall not
file any such release without the written consent of the Managing Facility
Agent; provided further that, the Servicer shall promptly return all such
releases to the Managing Facility Agent upon the occurrence of an Amortization
Event or if the Managing Facility Agent shall so request. With respect to any
substitution of Lease Receivables made pursuant to subsection 2.13(e), the
Administrative Agent agrees to execute such documents and instruments (including
releases of security interests) for recording and filing with the FAA Registry
which are necessary (i) to release the Lien on the lease related to the Replaced
Lease Receivable so long as, prior to or concurrently with the recording and
filing with the FAA Registry of any such document or instrument of release, the
conditions contained in subsection 5.2(e) with respect to the lease and the
Financed Aircraft related to the Substituted Lease Receivable substituted for
such Replaced Lease Receivable have been satisfied and (ii) if amounts are
required to be paid pursuant to subsection 2.13(e) because the Outstanding
Balance of the Replaced Lease Receivable is greater than the Purchase Price of
the Substituted Lease Receivable at the time the substitution occurs have been
so paid, to release the Financed Aircraft related to such Replaced Lease
Receivable. Each Purchaser authorizes the Administrative Agent to execute such
documents and instruments in accordance with this subsection 11.10(b) and with
respect to Foreign Receivables and Affiliate Receivables, except for Uncertified
Foreign Receivables, to take whatever action is necessary to release any Liens
in accordance with the intent of this subsection 11.10(b).
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(c) In connection with any Receivable not purchased by the Purchasers
hereunder for which an FAA Assignment was filed with respect to the related
Financed Aircraft, the Administrative Agent agrees to promptly execute such
documents and instruments for recording and filing with the FAA Registry which
are necessary to reassign to the Seller the interests covered by such FAA
Assignment in such Financed Aircraft and to take whatever actions with respect
to any Foreign Receivable and any Affiliate Receivables are necessary to effect
a reassignment in the applicable foreign jurisdictions.
(d) The Purchasers shall assign (subject to the Purchasers' right to
receive Net Recoveries in certain circumstances as described herein) to Raytheon
all of their ownership interests in any Receivable (or portion thereof)
purchased by Raytheon pursuant to paragraph 2(e) of the Guarantee. In addition,
the Purchasers shall assign (subject to the Purchasers' right to receive Net
Recoveries in certain circumstances as described herein) to RAC all of their
ownership interests in any Receivable (or portion thereof) purchased by RAC
pursuant to Section 2 of the Repurchase Agreement. In connection with
reassignments pursuant to this subsection 11.10(d), the Managing Facility Agent,
the Administrative Agent and the Purchasers shall promptly execute and deliver
to Raytheon or RAC, as appropriate, such documents and instruments of
reassignment as Raytheon or RAC, as the case may be, may reasonably request.
(e) All reassignments by the Managing Facility Agent, the Administrative
Agent and the Purchasers pursuant to this Section 11.10 shall be made without
any recourse, representation or warranty whatsoever.
11.11 Intention of the Parties; Lien on Intercompany Purchase Agreement.
(a) It is expressly intended that each purchase hereunder be, and be construed
as, an absolute sale of the Purchased Receivables by the Seller to the
Purchasers conveying good title thereto free and clear of any Lien, and that the
Purchased Receivables not be part of the estate of the Seller in the event of
bankruptcy or insolvency of the Seller. It is further expressly intended that
such conveyance not be deemed a pledge of the Purchased Receivable by the Seller
to the Purchasers or the Administrative Agent for the ratable benefit of the
Purchasers to secure a debt or other obligation of the Seller. However, in the
event that the Purchased Receivables are held to be the property of the Seller,
or if for any other reason this Agreement is held or deemed not to effect an
absolute sale of the Purchased Receivables, then (i) the parties hereto intend
that the extensions of credit from the Purchasers to the Seller shall be a loan
in a principal amount equal to the then Outstanding Purchase Price with interest
payable thereon pursuant to subsection 2.17, (ii) the parties hereto intend that
this Agreement constitute a security agreement and (iii) the Seller hereby
grants to the Administrative Agent for the ratable benefit of the Purchasers, as
collateral security for all of the obligations of the Seller and Raytheon Credit
hereunder, a first priority security interest in all of the right, title and
interest of the Seller whether now owned or hereafter acquired, in and to:
(A) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, proceeds of a letter of credit and money
consisting of, arising from, constituting or relating to the Purchased
Receivables (including, without limitation, amounts from time to time on
deposit in the Cash Collateral Account or the Concentration Account);
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(B) all of the Seller's rights in, under and to the Contracts and its
interest in the related Financed Aircraft, including any security interests in
such Financed Aircraft, and the Applicable Leases;
(C) all accounts, contract rights, general intangibles, chattel paper,
instruments, documents and money and other rights arising from or by virtue of
or constituting the Collections; and
(D) all proceeds of the collateral described in the foregoing clauses A, B
and C (clauses A through D, collectively, the "Receivables Collateral").
(b) In connection with the transfer of the Receivables Collateral as
aforesaid (whether or not such transfer constitutes a sale or the grant of a
Lien) the Seller hereby grants to the Administrative Agent for the ratable
benefit of the Purchasers, as collateral security for all of the obligations of
the Seller and Raytheon Credit hereunder, a first priority security interest in
all of the right, title and interest of the Seller, whether now owned or
hereafter acquired, in and to the Intercompany Purchase Agreement, including,
without limitation, the obligation of Raytheon Credit to make repurchases
thereunder (together with the Receivables Collateral, the "Collateral").
(c) In connection herewith, if this Agreement is held or deemed not to
effect on absolute sale of the Purchased Receivables to the Purchasers, the
Managing Facility Agent and each Purchaser shall have all the rights and
remedies of a secured party and a creditor under the UCC and all other
applicable laws in each relevant jurisdiction. Without limiting the generality
of the foregoing, upon the occurrence and during the continuance of a Trigger
Amortization Event, if this Agreement is held or deemed not to effect an
absolute sale of the Purchased Receivables to the Purchasers, with the consent
of the Required Purchasers the Managing Facility Agent may, or at the direction
of the Required Purchasers, the Managing Facility Agent shall, by notice to the
Seller, declare the Outstanding Purchase Price to be immediately due and
payable, whereupon such amount shall become immediately due and payable and, at
such time or at any time after such declaration, the Administrative Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Seller or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Administrative Agent or any Purchaser or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Administrative Agent or any Purchaser shall have the right
upon any such public sale or sales, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Seller,
which right or equity is hereby waived or released. The Seller further agrees,
at the Administrative Agent's request, to assemble the Collateral and make it
available to the Administrative Agent at places which the Administrative Agent
shall reasonably select, whether at the Seller's premises or elsewhere. The
Administrative Agent shall
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apply the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Purchasers hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in such order as the Administrative Agent
in its reasonable discretion may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
UCC in the relevant jurisdiction, need the Administrative Agent account for the
surplus, if any, to the Seller. To the extent permitted by applicable law, the
Seller waives all claims, damages and demands it may acquire against the
Administrative Agent or any Purchaser arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. The
Seller shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by the Administrative Agent
or any Purchaser to collect such deficiency. The Seller authorizes the
Administrative Agent and the Purchasers, at any time and from time to time, to
execute, in connection with the sale provided for in this subsection 11.11(c),
any endorsements, assignments or other instruments of conveyance or transfer
with respect to the Collateral.
(d) Each Administrative Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the UCC in the relevant jurisdiction or otherwise, shall be to
deal with it in the same manner as such Administrative Agent deals with similar
property for its own account. Neither the Managing Facility Agent, either
Administrative Agent, any Co-Administrative Agent, any Purchaser nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Seller or otherwise. Nothing
in this subsection 11.11 shall be construed to prejudice any rights the
Purchasers have as purchasers or owners of the Purchased Receivables.
(e) The foregoing transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by
either Administrative Agent or any Purchaser of any obligation of the Seller,
the Servicer or any other Person in connection with the Purchased Receivables or
any agreement or instrument relating thereto, including, without limitation, any
obligation to any Obligors or insurers, or in connection with the Intercompany
Purchase Agreement.
11.12 Leases; Grant of Security Interest. (a) The Seller agrees to perform
and to cause each Affiliate Obligor to perform all its respective obligations
under (other than the payment by such Affiliate Obligor of the rent payable
under such Lease), and not to terminate or to permit (voluntarily or
involuntarily, whether during a bankruptcy case involving the Seller or such
Affiliate Obligor or otherwise) the termination of, any Applicable Lease or any
lease related to a Lease Receivable (other than in connection with substitutions
of Lease Receivables in accordance with subsection 2.13(e)) or the lease by an
Obligor on an ExIm Bank Receivable (such leases, collectively, the "Security
Interest Leases") sold or substituted hereunder; provided
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that (i) if a Substituted Lease Receivable which is substituted on any day other
than a Settlement Date in accordance with subsection 2.13(e) has a Purchase
Price less than the related Replaced Lease Receivable, the Seller agrees to
deposit into the Concentration Account on the Settlement Date following such
date of substitution (or, if a Remittance Event has occurred, within two
Business Days after such substitution) the difference between the Outstanding
Balance of such Replaced Lease Receivable and the Purchase Price of such
Substituted Lease Receivable and (ii) if such Security Interest Lease has been
declared to be in default, the Seller may terminate and may permit any Affiliate
Obligor to terminate, such Security Interest Lease if the Seller pays on the
date of termination to the Administrative Agent for the account of the
Purchasers an amount equal to the aggregate amount of rent payable for the
remaining term under such Lease (including any interest thereon on amounts past
due), up to the then Outstanding Balance of the related Receivable together with
interest on such Outstanding Balance at the rate set forth in such Lease
Receivable or Applicable Lease related to such Affiliate Receivable for the
period from the last date of payment on such Receivable (all of the foregoing,
including any damages resulting from a breach of the foregoing, collectively,
the "Lease Obligations"). As collateral security for (i) the prompt and complete
payment and performance of the Lease Obligations and (ii) the agreement of the
Seller not to reject or permit an Affiliate Obligor to reject pursuant to 11
U.S.C. (S)365 any Lease after the occurrence of a bankruptcy case involving the
Seller or such Affiliate Obligor (and all other Obligations under this
Agreement) the Seller does hereby grant, bargain, sell, assign, transfer,
convey, mortgage, pledge, grant a security interest in and confirm unto the
Administrative Agent for the ratable benefit of the Purchasers the following:
(A) each Financed Aircraft subject to a Security Interest Lease, the
related Receivable of which is sold or substituted hereunder on the
Closing Date or on any Settlement Date; and
(B) all proceeds thereof (clauses A and B, collectively, the "Lease
Collateral").
(b) In connection with the foregoing grant, the Administrative Agent and
each Purchaser shall have all the rights and remedies of a secured party and a
creditor under the UCC and all other applicable laws in each relevant
jurisdiction. Without limiting the generality of the foregoing, upon the
occurrence and during the continuance of a Trigger Amortization Event, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Seller or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Lease Collateral, or any part thereof, and/or may forthwith
sell, lease, assign, give option or options to purchase, or otherwise dispose of
and deliver the Lease Collateral or any part thereof (or contract to do any of
the foregoing), in one or more parcels at a public or private sale or sales, at
any exchange, broker's board or office of the Administrative Agent or any
Purchaser or elsewhere upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. The Administrative Agent or any
Purchaser shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Lease Collateral so sold, free of any right or equity
of redemption in the Seller, which right or equity is hereby waived or released.
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The Seller further agrees, at the Administrative Agent's request, to assemble
the Lease Collateral, to the extent available to the Seller under applicable
law, and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at the Seller's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Lease Collateral or in any
way relating to the Lease Collateral or the rights of the Administrative Agent
and the Purchasers hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Lease Obligations, in such order as the Administrative Agent in its reasonable
discretion may elect, and only after such application and after the payment by
the Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the UCC in the relevant
jurisdiction, need the Administrative Agent account for the surplus, if any, to
the Seller. To the extent permitted by applicable law, the Seller waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Purchaser arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Lease Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Seller shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Lease Collateral are insufficient to pay the Lease Obligations and the fees
and disbursements of any attorneys employed by the Administrative Agent or any
Purchaser to collect such deficiency. The Seller authorizes the Administrative
Agent and the Purchasers, at any time and from time to time, to execute, in
connection with the sale provided for in this subsection 11.12(b), any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Lease Collateral.
(c) Each Administrative Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Lease Collateral in its possession,
under Section 9-207 of the UCC in the relevant jurisdiction or otherwise, shall
be to deal with it in the same manner as such Administrative Agent deals with
similar property for its own account. Neither the Managing Facility Agent, any
Administrative Agent, any Co-Administrative Agent or any Purchaser nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the Lease
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Lease Collateral upon the request of the Seller or
otherwise.
11.13 Power of Attorney. (a) The Seller hereby irrevocably constitutes and
appoints the Managing Facility Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Seller and in the
name of the Seller or in its own name, from time to time after the occurrence
and during the continuance of a Specified Amortization Event or in connection
with any action taken pursuant to subsection 11.11(c) or subsection 11.12(b) in
the Managing Facility Agent's discretion, for the purpose of carrying out the
terms of this Agreement and obtaining the benefit of the Purchased Receivables,
the Collections with respect thereto and the related Contracts and Financed
Aircraft, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary to perform the duties and
obligations of the Seller or the Servicer under this Agreement or desirable to
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accomplish the purposes of this Agreement, including the power and right, on
behalf of the Seller, without notice to or assent by the Seller, to do the
following after the occurrence and during the continuance of a Specified
Amortization Event or in connection with any action taken pursuant to subsection
11.11(c) or subsection 11.12(b):
(i) in the name of the Seller or its own name, or otherwise, to take
possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Purchased Receivable or on account of Collections with respect thereto or
the related Contract or Financed Aircraft (collectively, the "Transferred
Property") and to file any claim or to take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Managing Facility Agent for the purpose of collecting any and all such
moneys due under any Purchased Receivable or with respect to any other
Transferred Property whenever payable;
(ii) to pay or discharge taxes and Liens levied or placed on or
threatened against any of the Transferred Property, to effect any repairs
or any insurance called for by the terms of this Agreement and to pay all
or any part of the premiums therefor and the costs thereof; and
(iii) to file financing or continuation statements under the UCC, or
with respect to Foreign Receivables and Affiliate Receivables, excluding
Uncertified Foreign Receivables, under the appropriate foreign statute, in
any relevant jurisdiction covering the interests of the Administrative
Agent, the Managing Facility Agent and the Purchasers in the Transferred
Property; and
(iv) (A) to commence and prosecute any suits, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect any
of the Transferred Property or any thereof and to enforce any other right
in respect of any Transferred Property; (B) to defend any suit, action or
proceeding brought against the Seller with respect to any Transferred
Property; and (C) to settle, compromise or adjust any suit, action or
proceeding described in clause (B) above and, in connection therewith, to
give such discharges or releases as the Managing Facility Agent may deem
appropriate.
(b) The Seller hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
11.14 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Seller and the Managing Facility Agent.
11.15 Severability; Headings. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the
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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. The section and subsection headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or to be taken into consideration in the interpretation hereof.
11.16 Integration. This Agreement represents the agreement of the Seller,
the Servicer, the Managing Facility Agent, each Administrative Agent, the Co-
Administrative Agents and the Purchasers with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Managing Facility Agent, either Administrative Agent, the Co-
Administrative Agents or any Purchaser relative to subject matter hereof not
expressly set forth or referred to herein.
11.17 GOVERNING LAW. THIS AGREEMENT, THE ASSIGNMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.18 Submission To Jurisdiction; Waivers. Each of the Seller and the
Servicer hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the Assignments, or for
recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or thereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Person at its address set forth in subsection 11.2 or at such other
address of which the Managing Facility Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
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11.19 Acknowledgements. (a) The Seller hereby acknowledges with respect to
the transactions contemplated by the Purchase Documents that:
(i) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Purchase Documents;
(ii) neither the Managing Facility Agent, either Administrative
Agent, any Co-Administrative Agent nor any Purchaser has any fiduciary
relationship to the Seller; and
(iii) no joint venture exists among the Purchasers or among the
Seller and the Purchasers or among the Guarantor, RAC, the Servicer, the
Seller and the Purchasers.
(b) By execution of this Agreement, each Purchaser acknowledges and agrees
to be bound by the provisions of paragraph 18 of the Guarantee and paragraph 18
of the Repurchase Agreement.
11.20 WAIVERS OF JURY TRIAL. THE SELLER, THE SERVICER, THE MANAGING
FACILITY AGENT, EACH ADMINISTRATIVE AGENT, EACH CO-ADMINISTRATIVE AGENT AND EACH
PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER PURCHASE
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.21 Bankruptcy Petition. (a) Each of the Seller, the Servicer, the
Managing Facility Agent, each Administrative Agent, each Co-Administrative Agent
and each Purchaser hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
(b) Each of the the Servicer, the Managing Facility Agent, each
Administrative Agent, each Co-Administrative Agent and each Purchaser hereby
covenants and agrees that, prior to the date that is one year and one day after
the payment in full of the Outstanding Purchase Price and all amounts owing with
respect thereto and hereunder, it will not institute against the Seller, or join
any other Person in instituting against the Seller, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States.
11.22 Confidentiality. Each of the Managing Facility Agent, the Co-
Administrative Agent and the Purchasers agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this subsection, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Seller or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this subsection by such Person or (ii) becomes available to the
Managing Facility Agent, any Co-Administrative Agent or any Purchaser on a
nonconfidential basis from a source other than Raytheon, RAC, Raytheon Credit or
the Seller. For the purposes of this Section, "Information" means all
information received from Raytheon, RAC, Raytheon Credit or the Seller relating
to Raytheon, RAC, Raytheon Credit or the Seller or their business, other than
any such information that is available to the Managing Facility Agent, any Co-
Administrative or any Purchaser on a nonconfidential basis prior to disclosure
by Raytheon, RAC, Raytheon Credit or the Seller; provided that, in the case of
information received from the Raytheon, RAC, Raytheon Credit or the Seller after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this subsection shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. The Seller and the Servicer hereby
consent to the disclosure of any non-public information with respect to either
of them as related to this transaction and the assets sold hereunder by any SPC
to any rating agency, commercial paper dealer, or provider of a surety, guaranty
or credit or liquidity enhancement to that SPC.
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11.23 Claims Against SPCs. The obligations of each SPC under this
Agreement and the other Purchase Documents are solely its corporate obligations.
No recourse shall be had for the payment of any amount owing by any SPC under
this Agreement or the other Purchase Documents or for the payment by any SPC of
any fee in respect of this Agreement or the other Purchase Documents or any
other obligations or claim of or against any SPC arising out of or based upon
this Agreement or the other Purchase Documents, against any of the SPC's
employees, officers, directors, incorporators or stockholders. It is further
agreed that each SPC shall be liable for any claims against such SPC in
connection with this Agreement and other Purchase Documents only to the extent
that such SPC has, on any date of determination, excess funds not required to
pay or provide for the payment of all commercial paper notes that such SPC has
outstanding. Any and all claims against any SPC in connection with this
Agreement and the other Purchase Documents shall be subordinate to the claims of
the holders of commercial paper notes issued by such SPC.
11.24 Resales. (a) The Administrative Agent is authorized to sell from
time to time Purchased Receivables (the "Resold Receivables") to either (i) a
third party buyer (each, a "Third Party Buyer") or (ii) the Seller for ultimate
sale to a Third Party Buyer (each, a "Resale"); provided that:
(x) with respect to Resales made pursuant to the debis Purchase
Agreement since March 10, 2000:
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(i) the aggregate Principal Balance of Purchased Receivables that
are resold thereunder shall not exceed $950,000,000;
(ii) the aggregate Principal Balance of such Resold Receivables that
are GA Receivables shall not exceed $800,000,000, of which the aggregate
Principal Balance of such Resold Receivables that are GA Receivables that
were owned by the Purchasers on December 31, 1999 shall not exceed
$600,000,000;
(iii) the aggregate Principal Balance of Resold Receivables that are
GA Receivables that are Certified Foreign Receivables shall not exceed
$50,000,000;
(iv) none of such Resold Receivables may be Wholesale Receivables;
and
(v) the proceeds of such Resales shall reduce the aggregate
Commitment of the Purchasers in accordance with Section 2.9(b); and
(y) with respect to Resales not made pursuant to the debis Purchase
Agreement, the aggregate Principal Balance of Purchased Receivables shall
not exceed $400,000,000.
The Principal Balance of a Resold Receivable will be determined at the time of
the applicable Resale.
(b) The sale of any Resold Receivable by the Administrative Agent is
conditioned upon receipt by the Managing Facility Agent, prior to or
contemporaneously with such sale or on the next Settlement Date immediately
following such sale, as the case may be, of a purchase price in immediately
available funds (the "Resale Purchase Price") from the Third Party Buyer and/or
the Seller equal to the Outstanding Balance of such Resold Receivable. The
aggregate Resale Purchase Price payable on any day for Resales made pursuant to
the debis Purchase Agreement only will be deposited into the Resale Account
until the Settlement Date for the month in which the related Resale occurred. On
such Settlement Date, (i) any amounts on deposit in the Resale Account in
respect of the Outstanding Balance of Resold Receivables shall be considered
Principal Collections and shall be distributed in accordance with Sections
2.15(b) and 2.16(a) and (ii) all other amounts on deposit in the Resale Account
shall be considered Finance Charge Collections and shall be distributed in
accordance with Sections 2.15(b) and 2.16(b). In addition, on each Settlement
Date, the Seller shall deposit into the Collection Account the aggregate Resale
Purchase Price of such Receivables resold pursuant to clause (y) of Section
11.24(a), together with all amounts owing on the related Outstanding Purchase
Price on such Settlement Date. Each Purchaser's Outstanding Purchase Price will
only be reduced as a result of Resales in accordance with the preceding
sentence.
(c) In connection with the Resales, the Administrative Agent is authorized
to execute, either directly or through a power of attorney provided to a
representative of the Seller or the Servicer, all documentation requested by the
Seller in order to transfer ownership of the Resold Receivables, together with
any interest held by the Administrative Agent in collateral securing the Resold
Receivables, to either the Third Party Buyer or the Seller.
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(d) Any Resale, and any documentation executed in connection with a
Resale, shall be made without any representations or warranties from the
Purchasers, except for any representations or warranties from the Administrative
Agent made in such capacity as are agreed upon with the Seller and the Servicer.
11.25 Repurchase of Delinquent Receivables. On any Settlement Date, the
Managing Facility Agent, at its discretion, may instruct the Administrative
Agent to sell, without any further consent or approval of any of the Purchasers,
any Delinquent Receivable for an amount not less than the Outstanding Balance of
such Delinquent Receivable on the last day of the Settlement Period preceding
such Settlement Date; provided that the Seller or, if the Seller elects not to
repurchase such Delinquent Receivable, RAC, shall have a right of first refusal
to repurchase such Delinquent Receivable on such Settlement Date by depositing
into the Concentration Account cash in an amount equal to the Outstanding
Balance of such Delinquent Receivable. Any amounts received by the
Administrative Agent, or deposited into the Concentration Account, in respect of
Delinquent Receivables sold pursuant to this Subsection 11.25 shall be applied
and distributed in accordance with Subsections 2.15 and 2.16.
11.26 Amendment to Guarantee. The Purchasers hereby consent to the
amendment of the Guarantee as set forth in the Form of Guarantee Amendment and
Reaffirmation, attached hereto as Exhibit B-1.
(End of Page)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
RAYTHEON AIRCRAFT RECEIVABLES CORPORATION,
as Seller
By:________________________________________
Title:
RAYTHEON AIRCRAFT CREDIT CORPORATION,
as Servicer
By:________________________________________
Title:
BANK OF AMERICA, N.A.
as Managing Facility Agent, Co-Administrative Agent
and Administrative Agent
By:________________________________________
Title: Vice President
THE CHASE MANHATTAN BANK,
as Co-Administrative Agent
By:________________________________________
Title:
XX XXXXXX, A DIVISION OF CHASE SECURITIES, INC.,
as Syndication Agent
By:________________________________________
Title:
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UBS AG, STAMFORD BRANCH,
solely as Administrative Agent
By:________________________________________
Title: Vice President
By:________________________________________
Title:
