AMENDED AND RESTATED GUARANTEE
AMENDED AND RESTATED GUARANTEE, dated as of March 18, 1999 (as amended,
supplemented or otherwise modified from time to time, the 'Guarantee'), made by
RAYTHEON COMPANY, a Delaware corporation ('Raytheon', together with its
successors and assigns permitted herein, the 'Guarantor'), in favor of the
Purchasers referred to below and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as managing facility agent (in such capacity, the 'Managing
Facility Agent') for such Purchasers.
W I T N E S S E T H :
WHEREAS, pursuant to the Purchase and Sale Agreement, dated as
of March 20, 1997 (as amended, supplemented or otherwise modified from time to
time, the '1997 Agreement'), among Raytheon Aircraft Credit Corporation
('RACC'), as servicer (in such capacity, the 'Servicer'), Raytheon Aircraft
Receivables Corporation ('RARC'), as seller (the 'Seller'), the financial
institutions from time to time parties thereto, the several co-agents parties
thereto, the several agents parties thereto and Swiss Bank Corporation, New York
Branch ('SBC'), Raytheon entered into the Guarantee dated as of March 20, 1997
(as amended, supplemented or otherwise modified from time to time, the '1997
Guarantee'), in favor of the Purchasers referred to in the 1997 Agreement and
SBC, as administrative agent for such Purchasers;
WHEREAS, the 1997 Agreement is being amended and restated by
the Amended and Restated Purchase and Sale Agreement (the 'Purchase Agreement'),
dated as of March 18, 1999, among RARC, as Seller, RACC, as Servicer, the
financial institutions and special purpose corporations from time to time
parties to the Purchase Agreement (the 'Purchasers'), the Managing Facility
Agent, Bank of America National Trust and Savings Association and The Chase
Manhattan Bank, as Co-Administrative Agents for the Purchasers (in such
capacity, a 'Co-Administrative Agent'), The Chase Manhattan Bank, as Syndication
Agent (in such capacity, the 'Syndication Agent'), Citibank, N.A. and Credit
Suisse First Boston, as Co-Syndication Agents (in such capacity, a
'Co-Syndication Agent'), and each Administrative Agent party thereto.
WHEREAS, pursuant to the Purchase Agreement, the Purchasers
have severally agreed to purchase from the Seller from time to time hereafter
undivided interests in certain Receivables generated in the Seller's ordinary
course of business;
WHEREAS, the Purchasers desire to continue the guarantee by
the Guarantor of the obligations under the 1997 Agreement, and the Guarantor is
willing to continue such guarantees and to guarantee the obligations of the
Seller and the Servicer under the Purchase Agreement as set forth herein;
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WHEREAS, pursuant to the Amended and Restated Repurchase
Agreement, dated as of March 18, 1999 (as amended, supplemented or otherwise
modified from time to time, the 'Repurchase Agreement'), made by Raytheon
Aircraft Company, a Kansas corporation (together with its successors and assigns
permitted herein, 'RAC'), in favor of the Purchasers and the Managing Facility
Agent, RAC has agreed to repurchase certain Defaulted Receivables from the
Purchasers;
WHEREAS, the Purchasers also desire the Guarantor to continue
the guarantee of the obligations of RAC under the Repurchase Agreement, and the
Guarantor is also willing to continue the guarantee of the obligations of RAC
under the Repurchase Agreement as set forth herein;
WHEREAS, it is a condition precedent to the obligations of the
Purchasers to make their respective purchases from the Seller under the Purchase
Agreement that the Guarantor shall have executed and delivered this Guarantee to
the Managing Facility Agent for the ratable benefit of the Purchasers;
WHEREAS, the Guarantor is the indirect parent of RAC, the
Seller and the Servicer and it is to the advantage of the Guarantor that the
Purchasers purchase certain Receivables from the Seller; and
WHEREAS, the parties hereto desire to restate the 1997
Guarantee as so amended modified and supplemented in its entirety;
NOW THEREFORE, in consideration of the premises and to induce
the Managing Facility Agent and the Purchasers to enter into the Purchase
Agreement and to induce the Purchasers to make their respective purchases from
the Seller under the Purchase Agreement, the Guarantor hereby agrees with the
Managing Facility Agent, for the ratable benefit of the Purchasers, as follows:
1. Defined Terms. Terms defined in the preamble hereof and the recitals hereto
and terms defined in the Purchase Agreement and used herein without definition
shall have their defined meanings when used herein, and the following terms
shall have the following meanings:
'Debt': indebtedness for money borrowed.
'Material Subsidiary': at any time, a Subsidiary of Raytheon which as of
such time meets the definition of a 'significant subsidiary' as in effect at the
Closing Date in Regulation S-X of the Securities and Exchange Commission.
'Obligations': all obligations and liabilities of the Seller, the Servicer
or RAC to the Managing Facility Agent or any Purchaser, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, pursuant to, out of, or in connection
with, the Purchase Agreement or the Repurchase Agreement (including, without
limitation, interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Seller, the Servicer or RAC, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) and any other Purchase
Document and any other document made, delivered or given in connection therewith
or herewith, whether on account of Collections, deposit obligations, repurchase
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obligations (including, without limitation, repurchase obligations arising under
subsections 2.7(b), 2.10, 2.11 and 2.12 of the Purchase Agreement and under
Section 2 of the Repurchase Agreement), payments required to be made pursuant to
subsection 2.18 of the Purchase Agreement, all obligations of the Seller
pursuant to subsections 11.11 and 11.12 of the Purchase Agreement, payments on
account of adjusted Receivables, principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Managing Facility Agent or the Purchasers
(including, but not limited to, allocated costs of in-house counsel and costs
incurred by counsel with respect to the Foreign Receivables) that are required
to be paid by the Seller, the Servicer or RAC pursuant to the terms of the
Purchase Agreement or the Repurchase Agreement, as the case may be) or
otherwise.
'Principal Property': the Guarantor's principal office building and any
manufacturing plant or principal research facility of the Guarantor or any
Subsidiary of the Guarantor which is located within the United States of America
or Canada, except any such principal office building, plant or facility which
the Board of Directors by resolution declares is not of material importance to
the total business conducted by the Guarantor and its Subsidiaries as an
entirety.
2. Guarantee. (a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Managing Facility Agent for the ratable benefit of the
Managing Facility Agent and the Purchasers the prompt and complete payment by
the Seller, the Servicer and RAC when due (whether at the stated maturity or
otherwise) of the Obligations. Such guarantee shall be a guarantee of payment.
(b) The Guarantor further unconditionally and irrevocably covenants and
agrees with the Managing Facility Agent for the ratable benefit of the Managing
Facility Agent and the Purchasers that the Guarantor will cause each of the
Seller, the Servicer and RAC duly and punctually to perform and observe all of
their respective terms, conditions, covenants, agreements and indemnities under
the Purchase Agreement and the Repurchase Agreement, including but not limited
to the obligations of the Seller pursuant to subsection 2.6 and 2.10 of the
Purchase Agreement and the obligations of RAC pursuant to Sections 2 and 3 of
the Repurchase Agreement, and any other document executed and delivered by the
Seller, the Servicer or RAC in connection therewith, strictly in accordance with
the terms thereof, and that if for any reason whatsoever the Seller, the
Servicer or RAC shall fail so to perform and observe such terms, conditions,
covenants, agreements and indemnities, the Guarantor will duly and punctually
perform and observe the same.
(c) The Guarantor further agrees to pay any and all expenses (including,
without limitation, all reasonable fees and disbursements of counsel) which may
be paid or incurred by the Managing Facility Agent or any Purchaser in enforcing
or preserving any of their rights under this Guarantee.
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(d) The Guarantor agrees that whenever, at any time, or from time to time,
it shall make any payment to the Managing Facility Agent or any Purchaser on
account of its liability hereunder, it will notify the Managing Facility Agent
and such Purchaser, if applicable, in writing that such payment is made under
this Guarantee for such purpose. No payment or payments made by the Seller, the
Servicer, RAC or any other Person or received or collected by the Managing
Facility Agent or any Purchaser from the Seller, the Servicer, RAC or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantor hereunder which shall, notwithstanding any such
payment or payments, continue until the Obligations are paid in full and the
Commitments are terminated. This Guarantee shall remain in full force and effect
until the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto the Seller, the Servicer
and/or RAC may be free from any Obligations.
(e) Notwithstanding anything herein to the contrary, the Guarantor, in lieu
of paying or depositing the amount required to repurchase any Purchased
Receivable pursuant to the Purchase Agreement or the Repurchase Agreement, may
purchase such Receivable directly from the Purchasers in accordance with the
provisions of the Purchase Agreement or the Repurchase Agreement, as the case
may be, for repurchases as if the Guarantor were the Seller or RAC thereunder.
3. Right of Set-off. Upon the occurrence and continuance of a Rating Event
or of an Amortization Event of the type described in subsection 8.1(a), (b), (i)
or (j) of the Purchase Agreement, the Managing Facility Agent and each Purchaser
are hereby irrevocably authorized at any time and from time to time without
notice to the Guarantor, any such notice being hereby waived by the Guarantor,
to set off and appropriate and apply 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 the Managing Facility Agent or such Purchaser to or for the credit or
the account of the Guarantor, or any part thereof in such amounts as the
Managing Facility Agent or such Purchaser may elect, on account of the
liabilities of the Guarantor hereunder and claims of every nature and
description of the Managing Facility Agent or any Purchaser against the
Guarantor, in any currency, whether arising hereunder, under the Purchase
Agreement or under the Repurchase Agreement, as the Managing Facility Agent or
such Purchaser may elect, whether or not the Managing Facility Agent or such
Purchaser has made any demand for payment and although such liabilities and
claims may be contingent or unmatured. The Managing Facility Agent and such
Purchaser shall notify the Guarantor promptly of any such set-off made by it and
the application made by it of the proceeds thereof, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Managing Facility Agent and each Purchaser under this
paragraph are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Managing Facility Agent or such
Purchaser may have.
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4. No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Guarantee, the Guarantor hereby
irrevocably waives all rights which may have arisen in connection with this
Guarantee to be subrogated to any of the rights (whether contractual, under
Title 11 of the United States Code, including Section 509 thereof, under common
law or otherwise) of the Managing Facility Agent and the Purchasers against the
Seller, the Servicer or RAC or against any right of offset of the Managing
Facility Agent and the Purchasers with respect to the Obligations. The Guarantor
hereby further irrevocably waives all contractual, common law, statutory or
other rights of reimbursement, contribution, exoneration or indemnity (or any
similar right) from or against the Seller, the Servicer, RAC or any other Person
which may have arisen in connection with this Guarantee. So long as any
Obligations remain outstanding, if any amount shall be paid by or on behalf of
the Seller, the Servicer or RAC to the Guarantor on account of any of the rights
waived in this paragraph, such amount shall be held by the Guarantor in trust,
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor (duly endorsed by the Guarantor to the Managing Facility Agent,
if required), be applied against the Obligations, whether matured or unmatured,
in such order as the Managing Facility Agent may determine. The provisions of
this paragraph shall survive the termination of the Purchase Agreement and the
Repurchase Agreement and the payment in full of the Obligations; provided that
the foregoing waiver shall be of no force and effect 370 days following the
termination of the Purchase Agreement and the Repurchase Agreement and the
payment in full of the Obligations but only if during such 370-day period none
of the Seller, the Servicer, RAC or the Guarantor shall have commenced or have
commenced against it a bankruptcy proceeding under Title 11 of the United States
Code.
5. Amendments, etc. with respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Managing
Facility Agent or any Purchaser may be rescinded by the Managing Facility Agent
or such Purchaser, and any of the Obligations continued, and the Obligations, or
the liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Managing
Facility Agent or any Purchaser, and the Purchase Agreement, the Repurchase
Agreement, any other Purchase Document or any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Purchasers (or the Required Purchasers,
as the case may be) may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by the Managing Facility
Agent or any Purchaser for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Managing Facility Agent
nor any Purchaser shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Guarantee or any property subject thereto.
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6. Guarantee Absolute and Unconditional. The Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Managing Facility Agent or any
Purchaser upon this Guarantee or acceptance of this Guarantee; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred in reliance upon this Guarantee; and all dealings between the
Seller, the Servicer, RAC or the Guarantor, on the one hand, and the Managing
Facility Agent and the Purchasers, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Seller, the Servicer, RAC or the
Guarantor with respect to the Obligations. This Guarantee shall be construed as
a continuing, absolute and unconditional guarantee without regard to the
validity or enforceability of the Purchase Agreement, the Repurchase Agreement,
the Assignments, the FAA Assignments, the Foreign Assignments, the Bailment
Agreement or any other document or instrument executed in connection with any of
the foregoing documents, any of the Obligations or any collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Managing Facility Agent or any Purchaser, any
defense which relates, directly or indirectly, to the matters covered by the
representations and warranties set forth in Section 4 of the Purchase Agreement
or Section 8 of the Repurchase Agreement or set-off which in either case may at
any time be available to or be asserted by the Seller, the Servicer or RAC
against the Managing Facility Agent or any Purchaser, or any other circumstance
whatsoever (with or without notice to or knowledge of the Seller, the Servicer,
RAC or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Seller, the Servicer or RAC for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance; provided that this clause (c) shall not prevent the Guarantor
from being discharged from its obligations under this Guarantee pursuant to
confirmation of a plan of reorganization under Chapter 11 of the United States
Code in a case in which the Guarantor is the debtor. When the Managing Facility
Agent, or any Purchaser is pursuing its rights and remedies hereunder against
the Guarantor, the Managing Facility Agent or such Purchaser may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Seller, the Servicer, RAC or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Managing Facility Agent or any Purchaser to
pursue such other rights or remedies or to collect any payments from the Seller,
the Servicer, RAC or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Seller, the Servicer, RAC or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Managing Facility Agent and the Purchasers against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Managing Facility Agent or any Purchaser upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Seller, the Servicer or RAC or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Seller, the Servicer, RAC or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
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8. Payments. The Guarantor hereby agrees that the Obligations will be paid
to the Managing Facility Agent in immediately available funds without set-off in
U.S. Dollars at the office of the Managing Facility Agent at the address
specified in subsection 11.2 of the Purchase Agreement.
9. Representations and Warranties. The Guarantor represents and warrants to
the Managing Facility Agent and the Purchasers that:
(a) the Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in
which it is currently engaged, 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
where the failure so to qualify could not reasonably be expected to have a
material adverse effect on the business, operations, property or financial
or other condition of the Guarantor and its consolidated Subsidiaries taken
as a whole or on the ability of the Guarantor to perform its obligations
hereunder and is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Guarantor and
its consolidated Subsidiaries taken as a whole or on the ability of the
Guarantor to perform its obligations hereunder;
(b) the Guarantor has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guarantee,
and has taken all necessary corporate action to authorize its execution,
delivery and performance of this Guarantee;
(c) this Guarantee has been duly executed and delivered on behalf of the
Guarantor and this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally (whether enforcement is sought by proceedings
in equity or at law);
(d) the execution, delivery and performance of this Guarantee will not violate
any provision of any Requirement of Law or Contractual Obligation of the
Guarantor or any of its Material Subsidiaries except to the extent that
such violation could not, in the aggregate, reasonably be expected to have
a material adverse effect on the business, operations, property or
financial or other condition of the Guarantor and its consolidated
Subsidiaries taken as a whole or on the ability of the Guarantor to perform
its obligations hereunder, and will not result in or require the creation
or imposition of any Lien on any of the properties or revenues of the
Guarantor or any of its Material Subsidiaries pursuant to any Requirement
of Law or Contractual Obligation of the Guarantor or such Material
Subsidiary;
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(e) no consent or authorization of, filing with, or other act by or in respect
of, any arbitrator or Governmental Authority and no consent of any other
Person (including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guarantee;
(f) no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Guarantor,
threatened by or against the Guarantor or any of its Material Subsidiaries
or against any of their respective properties or revenues with respect to
this Guarantee or any of the transactions contemplated hereby or which,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, operations, property or financial
or other condition of the Guarantor and its consolidated Subsidiaries taken
as a whole or on the ability of the Guarantor to perform its obligations
hereunder;
(g) no tax Lien has been filed, and, to the knowledge of the Guarantor, no
claim is being asserted, with respect to any such tax, fee or other charge
which could reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the
Guarantor and its consolidated Subsidiaries taken as a whole or on the
ability of the Guarantor to perform its obligations hereunder;
(h) the consolidated balance sheet of the Guarantor and its consolidated
Subsidiaries as at the last day of the fiscal year of the Guarantor most
recently ended at least 90 days prior to the date this representation and
warranty is made and the related statements of income, stockholders' equity
and cash flows for such fiscal year of the Guarantor then ended, reported
on by Coopers & Lybrand or other comparable independent certified public
accountants and set forth in the Guarantor's applicable Form 10-K, as filed
with the Securities and Exchange Commission (the 'SEC') (or if not required
to be so filed, as delivered to the Purchasers), are complete and correct,
have been prepared in accordance with GAAP applied consistently throughout
the period involved (except for any changes disclosed therein) and present
fairly the consolidated financial condition of the Guarantor and its
consolidated Subsidiaries as at such date and the results of its operations
for such fiscal year;
(i) the unaudited consolidated balance sheet of the Guarantor and its
consolidated Subsidiaries as at the end of the fiscal quarter of the
Guarantor most recently ended at least 45 days prior to the date this
representation and warranty is made and the related statements of income,
stockholders' equity and cash flows for the portion of the Guarantor's
fiscal year then ended, as set forth in the Guarantor's applicable
quarterly report on Form 10-Q for such quarter, as filed with the SEC (or
if not required to be so filed, as delivered to the Purchasers), are
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complete and correct, have been prepared in accordance with GAAP applied
consistently throughout the period involved (except for any changes
disclosed therein) and present fairly the consolidated financial condition
of the Guarantor and its consolidated Subsidiaries as at such date and the
results of its operations for such fiscal quarter (subject to all
adjustments, which are of a normal recurring nature, necessary to a fair
presentation of the consolidated financial statements of Raytheon and its
consolidated Subsidiaries for the interim period reflected therein); and
(j) since December 31, 1995, there has been no material adverse change (other
than as disclosed in the Guarantor's quarterly reports on Form 10-Q for the
quarters ended since December 31, 1995, the change in the Guarantor's
credit rating announced by S&P and Moody's, the possible divestiture of the
Guarantor's Appliance Group announced in the Guarantor's press release
dated February 23, 1997, the purchase by the Guarantor of the Defense
Systems and Electronics Business of Texas Instruments Incorporated
described in the Guarantor's report on Form 8K filed January 6, 1997 and
the merger of the Guarantor with the Defense Business of Hughes Electronics
Corporation described in the Guarantor's report on Form 8K filed January
17, 1997) in the business, operations, property or financial or other
condition of the Guarantor and its consolidated Subsidiaries taken as a
whole.
The Guarantor agrees that the foregoing representations and warranties
(other than the representation set forth in clause (j)) shall be deemed to have
been made by the Guarantor on each date required by subsection 5.2(a) of the
Purchase Agreement.
10. Covenants. The Guarantor hereby agrees that until the Obligations are
paid in full and the Commitments are terminated, it shall and (except in the
case of paragraphs (a), (b), (c), (d), (j)(1), (k), (l) and (m) below) shall
cause each of its Material Subsidiaries to:
(a) Deliver to the Managing Facility Agent, with sufficient copies for each
Purchaser, all reports and notices filed with the SEC, promptly after the
filing thereof, including, without limitation, the Guarantor's quarterly
reports on Forms 10-Q and annual reports on Form 10-K; provided that if the
Guarantor is no longer required to file such forms with the SEC, the
Guarantor shall deliver to the Managing Facility Agent and the Purchasers
comparable periodic financial information for comparable periods at the
same time as such reports are required to be filed, certified as requested
by the Managing Facility Agent in a form consistent with the
representations and warranties set forth in paragraphs 9(h) and (i).
(b) Promptly give notice to the Managing Facility Agent and each Purchaser of
the occurrence of any Amortization Event or Ineligibility Event of which it
has knowledge, the occurrence of any Rating Event, Discount Event or
Remittance Event and (iii) the occurrence of any event which causes a
Ratings Adjustment.
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(c) 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 with respect to the Financed
Aircraft related to the Purchased Receivables; and defend the right, title
and interest of the Managing Facility 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 Managing Facility Agent or any
Purchaser).
(d) Not convey, sell, lease, assign, transfer or otherwise dispose of all or
substantially all the property, business or assets of the Guarantor to any
Person or Persons unless such Person or Persons delivers a written
assumption of the Guarantor's obligations under this Guarantee (which
assumption shall not release the Guarantor hereunder) and a legal opinion
with respect thereto, all satisfactory in form and substance to the
Managing Facility Agent and its counsel.
(e)(i) Not issue, assume or guarantee any Debt on or after the date hereof, if
such Debt is secured by a mortgage, pledge, security interest or lien (any
mortgage, pledge, security interest or lien being hereinafter in this
subsection 10(e) referred to as a 'mortgage' or 'mortgages') upon any
Principal Property, or any shares of stock or indebtedness of any
Subsidiary, whether now owned or hereafter acquired, without in any such
case effectively providing, concurrently with the issuance, assumption or
guarantee of any such Debt, that this Guarantee (together with, if the
Guarantor shall so determine, any other indebtedness of or guaranteed by
the Guarantor or such Subsidiary ranking equally with the Guarantor and
then existing or thereafter created) shall be secured equally and ratably
with (or prior to) such Debt; provided however, that the foregoing
restriction shall not apply to:
(A) mortgages on any Principal Property, shares of stock or indebtedness of
any corporation existing at the time such corporation becomes a Subsidiary;
(B) mortgages on any Principal Property acquired, constructed or improved
by the Guarantor or any Subsidiary after the date hereof which are created or
assumed contemporaneously with, or within 90 days after, such acquisition,
construction or improvement to secure or provide for the payment of the purchase
price of such property or the cost of such construction or improvement incurred
after the date hereof, or, in addition to mortgages contemplated by clause (C)
below, mortgages on any Principal Property existing at the time of acquisition
thereof; provided, however, that in the case of any such acquisition,
construction or improvement the mortgage shall not apply to any property
theretofore owned by the Guarantor or any Subsidiary, other than, in the case of
any such construction or improvement, any theretofore unimproved real property
on which the property so constructed, or the improvement, is located;
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(C) mortgages on any Principal Property or shares of stock or indebtedness
acquired from a corporation which is merged with or into the Guarantor or a
Subsidiary;
(D) mortgages to secure Debt of a Subsidiary to the Guarantor or to another
Subsidiary; and
(E) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to in
the foregoing clauses (A) to (D) inclusive; provided, however, that the
principal amount of Debt secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or replacement and
that such extension, renewal or replacement shall be applicable only to all or a
part of the property which secured the mortgage extended, renewed or replaced
(plus improvements on the property).
(ii) The Guarantor will not, nor will it permit any Subsidiary to merge or
consolidate with another corporation, or sell all or substantially all of
its assets to another corporation for a consideration other than the fair
market value thereof which consideration shall consist of liquid assets
(which shall have a fair market value readily determinable by an
independent source), (x) unless, in the case of a merger or consolidation
of the Guarantor or a sale by the Guarantor of substantially all of its
assets, the successor or purchasing corporation, as applicable, has assumed
all of the obligations of the Guarantor hereunder and (y) if such other
corporation has outstanding obligations secured by a mortgage which, after
such merger, consolidation or sale would extend to any of the assets owned
by the Guarantor or such Subsidiary immediately prior to such merger,
consolidation or sale unless, prior to such merger, consolidation or sale,
the Guarantor or such Subsidiary shall have effectively provided that this
Guarantee (together with, if the Guarantor or such Subsidiary shall so
determine, any other Debt, indebtedness or liability issued, assumed or
guaranteed by the Guarantor or such Subsidiary, whether then existing or
thereafter created) shall be secured by a mortgage, the lien of which, upon
completion of said merger, consolidation or sale, will rank prior to the
lien of such mortgage of such other corporation on all assets owned by the
Guarantor or such Subsidiary immediately prior to such merger,
consolidation or sale, which, upon completion of such merger, consolidation
or sale, will be subjected to the lien of such mortgage of such other
corporation.
(iii) In the event that the Guarantor shall enter into any indenture or other
agreement or instrument relating to the issuance of Debt (collectively,
referred to herein as an 'indenture') and the provisions of any such
indenture with respect to restrictions on Liens permitted to be created or
to exist on any of the Guarantor's property or the granting of equal and
ratable security interests (collectively, the 'Lien Provisions') are more
restrictive on the Guarantor than this subsection 10(e), then without any
action by any Person, the Lien Provisions shall be deemed to be
incorporated by reference in the provisions of this subsection 10(e) with
the Obligations under this Guarantee constituting the 'Debt' for purposes
of such Lien Provision.
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(f) Not enter into any material transaction with any Affiliate (other than a
Subsidiary of Raytheon), including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, unless any
such transaction is upon fair and reasonable terms no less favorable to the
Guarantor or such Material Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an
Affiliate.
(g) Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all obligations of whatever nature
which are material to the business, operations, property or financial or
other condition of the Guarantor and its consolidated Subsidiaries taken as
a whole, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books
of the Guarantor and its consolidated Subsidiaries taken as a whole.
(h) Comply with all Contractual Obligations and Requirements of Law except to
the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the
Guarantor and its consolidated Subsidiaries taken as a whole or on the
ability of the Guarantor to perform its obligations hereunder.
(i) 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 usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Managing
Facility Agent, upon written request of any Purchaser, a schedule of
insurance then in force setting forth the type of coverage, the names of
the insurance carriers, policy numbers, the amount and type of coverage and
the term of each policy, together with a certificate or certificates of
insurance.
(j) Permit representatives of the Managing Facility Agent or any Purchaser to
visit and inspect any of its properties and examine and make abstracts from
any books and records of the Guarantor with respect to the transactions
contemplated by the Purchase Documents at any reasonable time and as often
as may reasonably be necessary and to discuss the business, operations,
properties and financial and other condition of the Guarantor and its
Material Subsidiaries with officers of the Guarantor having knowledge of
such matters 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 paragraph 10(j)
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 subsection 11.6(b) and (c) of the
Purchase Agreement) and shall be treated as confidential by the Managing
Facility Agent or such Purchaser in accordance with Section 11.22 of the
Purchase Agreement.
(k) Cause its short-term unsecured indebtedness to be rated by either or both
S&P and Moody's and cause its long-term unsecured indebtedness to be rated
by S&P, Moody's and Duff or any combination thereof.
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(l) Within 45 days after the end of each of the first three fiscal quarters of
each fiscal year of the Guarantor and within 90 days after the end of the
fourth fiscal quarter of each fiscal year of the Guarantor, deliver to the
Managing Facility Agent, with sufficient copies for each Purchaser, a
certificate of the chief financial officer, treasurer or comparable officer
of the Guarantor setting forth the Guarantor's Debt Ratio for the
Guarantor's fiscal quarter ended prior to the date of such certificate and
Interest Coverage Ratio for the Guarantor's four consecutive fiscal
quarters ended prior to the date of such certificate, showing calculations
therefor in reasonable detail and specifying whether a Trigger Amortization
Event of the type specified in subsection 8.1(g) or (h) of the Purchase
Agreement has occurred.
(m) Cause RAC to maintain full and adequate product liability insurance with
respect to each Financed Aircraft with financially sound and reputable
insurance companies (which may include a program of product liability
insurance maintained by an Affiliate of Raytheon, the sole business of
which is providing insurance for Raytheon and its Affiliates).
11. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Paragraph Headings. The paragraph headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the Managing Facility Agent nor
any Purchaser shall by any act (except by a written instrument pursuant to
paragraph 14 hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any default or
Amortization Event, Ineligibility Event, Remittance Event, Discount Event or
Rating Event, or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Managing
Facility Agent or any Purchaser, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the Managing
Facility Agent or any Purchaser of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Managing Facility Agent or such Purchaser would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
14. Waivers and Amendments; Successors and Assigns. None of the terms or
provisions of this Guarantee may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Guarantor and the
Managing Facility Agent in accordance with the Purchase Agreement. This
Guarantee shall be binding upon the successors and assigns of the Guarantor and
shall inure to the benefit of the Managing Facility Agent and the Purchasers and
their successors and assigns.
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15. GOVERNING LAW. THIS GUARANTEE AND THE OBLIGATIONS OF THE GUARANTOR
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Notices. All notices by the Managing Facility Agent to the Guarantor
hereunder to be effective shall be in writing (including by telecopy or telex),
and shall be deemed to have been duly given or made when delivered by hand, in
the case of mail, three Business Days after deposit in the mail, postage
prepaid, in the case of telecopy notice, when received, or in the case of telex
notice, when sent, answerback received, addressed to the Guarantor at its
address or transmission number set forth under its signature below. The
Guarantor may change its address and transmission numbers by written notice to
the Managing Facility Agent.
17. Authority of Managing Facility Agent. The Guarantor acknowledges that
the rights and responsibilities of the Managing Facility Agent under this
Guarantee with respect to any action taken by the Managing Facility Agent or the
exercise or non-exercise by the Managing Facility Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guarantee shall, as between the Managing Facility Agent and
the Purchasers, be governed by the Purchase Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Managing Facility Agent and the Guarantor, the Managing Facility
Agent shall be conclusively presumed to be acting as agent for the Purchasers
with full and valid authority so to act or refrain from acting, and the
Guarantor shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
18. Waivers. Each of the Managing Facility Agent and, by its acceptance of
this Guarantee, each Purchaser hereby irrevocably and unconditionally waives, to
the maximum extent not prohibited by law, any right the Managing Facility Agent
or such Purchaser may have to claim or recover in any legal action or proceeding
relating to this Guarantee any special, exemplary, punitive or consequential
damages; provided that the waiver contained in this paragraph 18 shall not
extend to any right to claim or recover from the Guarantor any special,
exemplary, punitive or consequential damages for which the Managing Facility
Agent or any Purchaser is liable to any Person (other than an Affiliate of the
Managing Facility Agent or such Purchaser).
19. Acknowledgements. The Guarantor hereby acknowledges with respect to the
transactions contemplated by the Purchase Documents that:
(a) it has been advised by counsel in the negotiation, execution and delivery
of this Guarantee;
(b) neither the Managing Facility Agent nor any Purchaser has any fiduciary
relationship to the Guarantor or the Seller and the relationship between
the Managing Facility Agent and the Purchasers, on the one hand, and the
Guarantor or the Seller, on the other hand, is solely that of debtor and
creditor; and
(c) no joint venture exists among the Purchasers, among the Seller, the
Purchasers and the Managing Facility Agent or among the Guarantor, the
Purchasers and the Managing Facility Agent.
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20. WAIVERS OF JURY TRIAL. THE GUARANTOR AND, BY THEIR ACCEPTANCE HEREOF,
THE MANAGING FACILITY AGENT AND THE PURCHASERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
21. Submission To Jurisdiction; Waivers. The Guarantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Guarantee, or for recognition and enforcement of any
judgment 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 it at its address
set forth below its signature hereto or at such other address of which the
Managing Facility Agent shall have been notified pursuant hereto;
(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
sue 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.
22. Existing Guaranties Superseded. Upon the execution and delivery of the
Purchase Agreement, the Repurchase Agreement and this Guarantee, the obligations
of the Guarantor under the Existing Guarantees shall be continued (and not
repaid) by and in accordance with the terms hereof and the obligations
guaranteed thereunder shall be amended and restated (and not repaid) by and in
accordance with the terms of the Purchase Agreement and the Repurchase Agreement
as described therein.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed and delivered in New York, New York by its proper and duly
authorized officer as of the day and year first above written.
RAYTHEON COMPANY
By:
Title:
Address for Notices:
Raytheon Company
141 Spring Street
Lexington, Massachusetts 02173
Attention: Vice President & Treasurer
Telecopy: (718) 860-2240
Acknowledged By:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Managing Facility Agent
By:
Title:
Guarantee - Raytheon Co. and Bank of America NT&SA
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