\nSchedule I Commitments and Purchaser Information
\nSchedule II UCC Filing Locations
\nSchedule III Prohibited Foreign Jurisdictions
\nSchedule IV Specified Resales<\/p>\nExhibit A-1 Form of Assignment
\nExhibit A-2 Form of FAA Assignment (Used on the Closing Date – Loans)
\nExhibit A-3 Form of FAA Assignment (To Be Used on Settlement Dates after the Effective Date –
\n Loans)
\nExhibit A-4 Form of FAA Assignment (Used on Closing Date – Leases)
\nExhibit A-5 Form of FAA Assignment (To Be Used on Settlement Dates after the Effective Date –
\n Leases)
\nExhibit B-1 Form of Amended and Restated Guarantee
\nExhibit B-2 Form of Guarantee Reaffirmation
\nExhibit C Form of Settlement Statement
\nExhibit D Form of Transfer Supplement
\nExhibit E-1 Form of Legal Opinion of General Counsel to RAC
\nExhibit E-2 Form of Legal Opinion of General Counsel to the Seller and Raytheon Credit
\nExhibit E-3 Form of Legal Opinion of General Counsel of Raytheon
\nExhibit E-4 Form of Legal Opinion of Special Counsel to the Seller and Raytheon Credit
\nExhibit E-5 Form of Legal Opinion of Bingham Dana LLP, Special Counsel to
\n Raytheon Credit
\nExhibit F-1 Form of Bailment Agreement
\nExhibit F-2 Form of Bailment Agreement
\nExhibit G Form of Second Amended and Restated Repurchase Agreement
\nExhibit H Form of Special Settlement Date Notice
\nExhibit I Form of Purchase Report
\nExhibit J Form of Amendment to Intercompany Purchase Agreement
\nExhibit K Form of Agreed Upon Procedures Relating to Settlement Statements and Receivables Files
\n<\/c><\/s><\/table>\n
FOURTH AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, dated
\nas of March 8, 2002, among RAYTHEON AIRCRAFT RECEIVABLES CORPORATION, a Kansas
\ncorporation (the “Seller”), RAYTHEON AIRCRAFT CREDIT CORPORATION (“Raytheon
\n —— ——–
\nCredit”), as Servicer (as defined herein), the financial institutions and
\n——
\nspecial purpose corporations from time to time parties to this Agreement (the
\n“Purchasers”), BANK OF AMERICA, N.A., as Managing Facility Agent for the
\n ———-
\nPurchasers (in such capacity, the “Managing Facility Agent”), JPMORGAN CHASE
\n ———————–
\nBANK and BANK OF AMERICA, N.A., as Co-Administrative Agents for the Purchasers
\n(in such capacity, a “Co-Administrative Agent”), J.P. MORGAN SECURITIES INC. and
\n ———————–
\nBANC OF AMERICA SECURITIES LLC, as Co-Arrangers and Joint Bookrunners, J.P.
\nMORGAN SECURITIES INC., as Syndication Agent (in such capacity, the “Syndication
\n ———–
\nAgent”), CITIBANK, N.A., CREDIT SUISSE FIRST BOSTON and FLEET SECURITIES, INC.,
\n—–
\nas Co-Documentation Agents (in such capacity, a “Co-Documentation Agent”), and
\n ———————-
\neach Administrative Agent referred to herein.<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, the Seller, Raytheon Credit and certain of the
\nPurchasers herein are parties to the Third Amended and Restated Purchase and
\nSale Agreement, dated as of March 9, 2001 (as heretofore amended, supplemented
\nor otherwise modified, the “2001 Agreement”) pursuant to which such Purchasers
\n ————–
\nhave agreed to purchase, and have purchased, certain Receivables from the
\nSeller;<\/p>\n
WHEREAS, the parties hereto desire to amend the 2001 Agreement
\nto, among other things, permit certain resales of receivables as described
\nherein, modify the Commitment Fee, the Applicable Margin, the Aggregate
\nRepurchase Obligation and certain of the Concentration Limits provided in the
\n2001 Agreement and extend the Expiration Date;<\/p>\n
WHEREAS, certain of the Purchasers under the 2001 Agreement
\n(the “Withdrawing Purchasers”) desire to sell their undivided interests in the
\n ———————-
\nReceivables purchased thereunder and to terminate their respective Commitments
\nunder the 2001 Agreement on the Amendment Effective Date;<\/p>\n
WHEREAS, the Purchasers under the 2001 Agreement other than
\nthe Withdrawing Purchasers (the “Extending Purchasers”) desire to extend the
\n ——————–
\nExpiration Date;<\/p>\n
WHEREAS, certain new financial institutions and special
\npurpose corporations (such other financial institutions and corporations, the
\n“New Purchasers”) desire to become “Purchasers” under the 2001 Agreement as
\n ————–
\namended and restated hereby;<\/p>\n
WHEREAS, each of the Extending Purchasers and the New
\nPurchasers desires to extend, increase or decrease its Commitment such that, on
\nthe Amendment Effective Date, the Commitment of each such Purchaser will be as
\nshown on Annex A hereto opposite the name of such Purchaser; and<\/p>\n
WHEREAS, the parties hereto desire to restate the 2001
\nAgreement as so amended, modified and supplemented, in its entirety;<\/p>\n
2<\/p>\n
NOW THEREFORE, in consideration of the premises and mutual
\ncovenants herein contained, the parties hereto hereby agree as follows:<\/p>\n
SECTION 1. DEFINITIONS<\/p>\n
1.1 Defined Terms. As used in this Agreement, the following
\n ————-
\nterms shall have the following meanings:<\/p>\n
“Acceptable L\/C Issuer”: a financial institution whose senior
\n ———————
\n long-term unsecured debt is rated at least A and A2 by S&P and Moody’s,
\n respectively, if rated by both such agencies, or at least A or A2 by
\n S&P or Moody’s respectively, if rated by only one such agency, or if
\n such senior, long-term, unsecured debt is not rated, is issued by a
\n bank whose long-term deposits are rated at least A+ and A1 by S&P and
\n Moody’s, respectively, if rated by both such agencies, or A+ or A1 by
\n S&P or Moody’s, respectively, if rated by only one such agency.<\/p>\n
“Accrual Period”: (i) with respect to any Settlement Date, the
\n ————–
\n period from and including the preceding Settlement Date (or, with
\n respect to the initial Accrual Period, from the Closing Date) to but
\n excluding such Settlement Date and (ii) a Special Settlement Date
\n Accrual Period.<\/p>\n
“Administrative Agent”: the collective reference to the
\n ——————–
\n Managing Facility Agent and the Old Administrative Agent, each in its
\n role as administrative agent hereunder.<\/p>\n
“Affiliate”: as to any Person, (a) any other Person which,
\n ———
\n directly or indirectly, is in control of, is controlled by, or is under
\n common control with, such Person or (b) any other Person who is a
\n director, officer, partner or shareholder of such Person who, in the
\n case of partners and shareholders, owns, directly or indirectly, 10% or
\n more of the voting securities (i) of such Person, (ii) of any
\n Subsidiary of such Person or (iii) of any Person described in the
\n preceding clause (a). For purposes of this definition, “control” of a
\n Person means the power, directly or indirectly, either to (i) vote 10%
\n or more of the securities having ordinary voting power for the election
\n of directors of such Person or (ii) direct or cause the direction of
\n the management and policies of such Person, whether by contract or
\n otherwise.<\/p>\n
“Affiliate Obligor”: each Affiliate of Raytheon Credit
\n —————–
\n obligated to make payments in respect of a Receivable; provided that,
\n such Affiliate is a special purpose entity created solely for the
\n purpose of entering into Applicable Leases and does not and is not
\n expected to own any assets or incur any liabilities except in
\n connection with the performance of its obligations under the Contracts
\n pursuant to which it acquires Aircraft and the Applicable Leases of
\n such Aircraft.<\/p>\n
“Affiliate Receivable”: a Receivable created pursuant to a
\n ——————–
\n Contract (as described in clause (i) of the definition thereof) between
\n Raytheon Credit and an Affiliate Obligor located (within the meaning of
\n Section 9-307 of the New York UCC) within the United States which
\n Receivable (i) is created in connection with the acquisition by such
\n Affiliate Obligor of an Aircraft which is leased by such Affiliate
\n Obligor, as lessor, to an<\/p>\n
3<\/p>\n
Unaffiliated Foreign Lessee pursuant to an Applicable Lease and (ii) is
\n secured by a Lien upon (x) such Aircraft and (y) such Unaffiliated
\n Foreign Lessee’s obligations under such Applicable Lease. In accordance
\n with subsection 2.27, Affiliate Receivables may be categorized as
\n Certified Foreign Receivables or Uncertified Foreign Receivables.<\/p>\n
“Aggregate Exposure”:
\n ——————<\/p>\n
(a) at any time during the Revolving Period, an
\n aggregate amount equal to the Commitments in effect at such
\n time and each Dissenting Purchaser’s Outstanding Purchase
\n Price at such time; and<\/p>\n
(b) at any time during the Amortization Period, an
\n aggregate amount equal to the Outstanding Purchase Price of
\n each Purchaser (including each Dissenting Purchaser) at such
\n time.<\/p>\n
“Aggregate Repurchase Obligation”: at any time, the sum of the
\n ——————————-
\n RARC Repurchase Obligation and the RAC Repurchase Obligation.
\n “Agreement”: this Fourth Amended and Restated Purchase and Sale
\n ———
\n Agreement, as amended, supplemented or otherwise modified from time to
\n time.<\/p>\n
“Aircraft”: the collective reference to Commuter Aircraft and
\n ——–
\n General Aviation Aircraft. When used in connection with a Travel Air
\n Receivable, “Aircraft” shall mean the related Obligor’s undivided
\n interest in the applicable Aircraft.<\/p>\n
“Aircraft Accessories”: any of the items listed in clause (ii)
\n ——————–
\n of the definition of Commuter Aircraft and General Aviation Aircraft,
\n as applicable.<\/p>\n
“Amendment Effective Date”: as defined in Section 5.1.
\n ————————<\/p>\n
“Amortization Adjustment”: the adjustment set forth below for
\n ———————–
\n the number of days since (i) for each Purchaser that is not a
\n Dissenting Purchaser, the commencement of the Amortization Period or
\n (ii) for each Dissenting Purchaser, the commencement of amortization of
\n such Dissenting Purchaser’s Outstanding Purchase Price pursuant to
\n Section 2.8(b):<\/p>\n
Days Adjustment
\n—- ———-<\/p>\n
1 through 180 0.25% per annum<\/p>\n
181 through 360 0.50% per annum<\/p>\n
Thereafter 1.00% per annum<\/p>\n
“Amortization Event”: any of the events described in
\n ——————
\n subsection 8.1, whether or not any of the actions referred to in
\n subsection 8.2 have been taken.<\/p>\n
4<\/p>\n
“Amortization Period”: the period beginning on the first day
\n ——————-
\n after the termination of the Revolving Period and ending on the earlier
\n of (i) the day the Outstanding Purchase Price is reduced to zero as a
\n result of the application of Collections and other payments and (ii)
\n the day on which the Principal Balance of all Purchased Receivables has
\n been reduced to zero as a result of Collections and Net Recoveries.<\/p>\n
“Applicable Lease”: with respect to any Affiliate Receivable,
\n —————-
\n a lease contract (substantially in the form described in clause (ii) of
\n the definition of Contract and which lease contract contains an option
\n to purchase the related Financed Aircraft by the Unaffiliated Foreign
\n Lessee prior to the expiration of such lease contract) between the
\n Affiliate Obligor and the Unaffiliated Foreign Lessee, a Lien upon
\n which secures the repayment of such Affiliate Receivable.<\/p>\n
“Applicable Margin”: (a) for each Purchaser for any
\n —————–
\n Settlement Period, the rate per annum set forth below for Raytheon’s
\n applicable Debt Rating:<\/p>\n
Debt Rating Applicable Margin
\n———– —————–<\/p>\n
BBB+ or the equivalent thereof or above 0.875%<\/p>\n
BBB or the equivalent thereof 1.000%<\/p>\n
BBB- or the equivalent thereof 1.250%<\/p>\n
BB+ or the equivalent thereof 1.625%<\/p>\n
below BB+ or the equivalent thereof 2.125%<\/p>\n
(b) For purposes of this definition, changes to the Debt
\n Rating will be effective for all Settlement Periods commencing on the
\n Settlement Date next succeeding any such change.<\/p>\n
“Applicable Settlement Date”: as defined in the definition of
\n ————————–
\n “Ineligible Receivable.”<\/p>\n
“Assignment”: an assignment, substantially in the form of
\n ———-
\n Exhibit A-1 with appropriate insertions and attachments, executed by
\n the Seller or an Affiliate Obligor, as the case may be, and delivered
\n to the Managing Facility Agent or the Seller, as the case may be, with
\n respect to each purchase or substitution.<\/p>\n
“Available Commitment”: as to any Purchaser at any time, an
\n ——————–
\n amount equal to the excess, if any, of (a) the amount of such
\n Purchaser’s Commitment over (b) the product of such Purchaser’s
\n Available Commitment Percentage multiplied by the aggregate Outstanding
\n Purchase Price (excluding any Dissenting Purchaser’s Outstanding
\n Purchase Price at such time).<\/p>\n
5<\/p>\n
“Available Commitment Percentage”: as to any Purchaser at any
\n ——————————-
\n time, a fraction the numerator of which is the Commitment of such
\n Purchaser at such time and the denominator of which is the aggregate
\n Commitments at such time.<\/p>\n
“Aviation Act”: the Federal Aviation Act of 1958, as amended,
\n ————
\n and all applicable rules and regulations thereunder.<\/p>\n
“Bailee”: any Person (other than the Administrative Agent and
\n ——
\n the Seller) which enters a Bailment Agreement.<\/p>\n
“Bailment Agreement”: each agreement, substantially in the
\n ——————
\n form of Exhibit F-1 or F-2 with such changes thereto as are reasonably
\n satisfactory in form and substance to the Managing Facility Agent,
\n among an Administrative Agent, the Seller and the Person therein
\n designated, which Person shall be acceptable to the Managing Facility
\n Agent in its reasonable discretion, to maintain custody, as the bailee
\n of the Administrative Agent and the Purchasers, of the letter of credit
\n related to each L\/C Receivable sold or substituted hereunder on the
\n terms and subject to the conditions set forth therein, as any of the
\n same may be amended, supplemented or otherwise modified from time to
\n time.<\/p>\n
“Base Rate”: for any day, the higher of (a) 0.50% per annum
\n ———
\n above the latest Federal Funds Rate and (b) the rate of interest in
\n effect for such day as publicly announced from time to time by Bank of
\n America, N.A. in Charlotte, North Carolina, as its “reference rate”.
\n The “reference rate” is a rate set by Bank of America, N.A. based upon
\n various factors including Bank of America, N.A.’s costs and desired
\n return, general economic conditions and other factors, and is used as a
\n reference point for pricing some loans, which may be priced at, above,
\n or below such announced rate. Any change in the reference rate
\n announced by Bank of America, N.A. shall take effect at the opening of
\n business on the day specified in the public announcement of such
\n change.<\/p>\n
“Benefitted Purchaser”: as defined in subsection 11.7(a).
\n ——————–<\/p>\n
“Business Day”: a day other than a Saturday, Sunday or other
\n ————
\n day on which commercial banks in New York, New York, Wichita, Kansas,
\n Boston, Massachusetts, or San Francisco, California are authorized or
\n required by law to close.<\/p>\n
“Buyout Amount”: as defined in subsection 2.8(b)(iii).
\n ————-<\/p>\n
“Cash Collateral Account”: as defined in subsection 2.14(c)
\n ———————–
\n (i).<\/p>\n
“Cash Equivalents”: (a) securities issued or directly and
\n —————-
\n fully guaranteed or insured by the United States Government or any
\n agency or instrumentality thereof having maturities not later than the
\n Settlement Date following the date of acquisition, (b) certificates of
\n deposit and eurodollar time deposits with maturities not later than the
\n Settlement Date following the date of acquisition, bankers’ acceptances
\n with maturities not later than the Settlement Date following the date
\n on which such investment is made and overnight bank deposits, in each
\n case, with any commercial bank (i) the short-term indebtedness of which
\n is rated at least A-1 or P-1 by S&P or Moody’s, respectively, and<\/p>\n
6<\/p>\n
(ii) with capital and surplus in excess of $500,000,000, (c)
\n repurchase obligations with a term of not more than seven days for
\n underlying securities of the types described in clauses (a) and (b)
\n entered into with any financial institution meeting the
\n qualifications specified in clause (b) above, and (d) commercial
\n paper rated at least A-1 or P-1 by S&P or Moody’s, respectively, and
\n in each case with maturities not later than the Settlement Date
\n following the date of acquisition.<\/p>\n
“Cash Flow Cutoff Date”: as of any Settlement Date and with
\n ———————
\n respect to any Extended Term Receivable, (i) so long as no Rating Event
\n has occurred and is continuing, the date which is thirteen years after
\n such Settlement Date and (ii) during the continuation of a Rating
\n Event, the date which is ten years after such Settlement Date.<\/p>\n
“Certified Foreign Receivable”: each Affiliate Receivable and
\n —————————-
\n each Foreign Receivable (i) in the case of a Foreign Receivable which
\n is not a Lease Receivable, (x) in respect of which the obligations of
\n the related Obligor are secured by a Lien on the related Contract and
\n Financed Aircraft in compliance with subsections 5.2(e)(ii) and (vii),
\n (y) which has been so designated as a Certified Foreign Receivable in
\n compliance with subsection 2.27 and (z) in respect of which the Seller
\n has satisfied the conditions specified in subsection 5.2 (including
\n subsection 5.2(e)), (ii) in the case of a Foreign Receivable which is a
\n Lease Receivable (including a Registerable Lease Receivable with a
\n Foreign Obligor) (x) in respect of which the obligations of the related
\n Obligor are secured by a Lien on the related Contract and Financed
\n Aircraft in compliance with subsections 5.2(e)(iii), (iv) and (vii),
\n (y) which has been so designated as a Certified Foreign Receivable in
\n compliance with subsection 2.27 and (z) in respect of which the Seller
\n has satisfied the conditions specified in subsection 5.2 (including
\n subsection 5.2(e)) and (iii) in the case of an Affiliate Receivable (x)
\n in respect of which the obligations of the related Obligor are secured
\n by a Lien on the related Contract and Financed Aircraft in compliance
\n with subsections 5.2(e)(vi) and (vii), (y) which has been so designated
\n as a Certified Foreign Receivable in compliance with subsection 2.27
\n and (z) in respect of which the Seller has satisfied the conditions
\n specified in subsection 5.2 (including subsection 5.2(e)).<\/p>\n
“Certified Opinion Delivery Date”: as defined in subsection
\n ——————————-
\n 2.27(c).<\/p>\n
“Closing Date”: March 24, 1997.
\n ————<\/p>\n
“Code”: the Internal Revenue Code of 1986, as amended from
\n —-
\n time to time.<\/p>\n
“Collateral”: as defined in subsection 11.11(b).
\n ———-<\/p>\n
“Collection Account”: as defined in subsection 2.14(a).
\n ——————<\/p>\n
“Collections”: with respect to any Purchased Receivable, all
\n ———–
\n cash collections (including, without limitation, Principal Collections,
\n Finance Charge Collections and other payments (including penalties, if
\n any)), rent paid under any Contract (whether as Principal Collections
\n or Finance Charge Collections), all security deposits (including,
\n without limitation, any engine reserve account), any payments pursuant
\n to guarantees and<\/p>\n
7<\/p>\n
all amounts paid by any Obligor or Unaffiliated Foreign Lessee upon the
\n exercise of any purchase option under any Contract (including any
\n amounts financed by the Seller), the amount of drawings under a
\n letter of credit related to such Purchased Receivable, any insurance
\n paid in respect of an Exim Bank Receivable, any curtailment payments
\n made by an Obligor in respect of a Wholesale Receivable, and any
\n other cash proceeds of any Purchased Receivable or proceeds of such
\n Purchased Receivable, including, without limitation, any proceeds
\n from realization upon collateral (including, without limitation, any
\n Financed Aircraft, Applicable Lease, insurance proceeds, letters of
\n credit, security deposits, curtailment payments, indemnity payments
\n or any other cash payments under or with respect to the related
\n Contract) and any amounts withdrawn from the Cash Collateral Account
\n pursuant to subsection 2.14(c).<\/p>\n
“Commitment”: as to any Purchaser, the obligation of such
\n ———-
\n Purchaser to purchase undivided interests in Eligible Receivables from
\n the Seller in an amount at any one time outstanding not to exceed the
\n amount set forth opposite such Purchaser’s name on Schedule I, as
\n reduced from time to time in accordance with the terms hereof; as to
\n all the Purchasers on the Amendment Effective Date, not to exceed an
\n aggregate amount of $1,400,000,000.<\/p>\n
“Commitment Fee”: as defined in subsection 2.17(d).
\n ————–<\/p>\n
“Commitment Percentage”:
\n ———————<\/p>\n
(a) at any time during the Revolving Period and as to
\n any Purchaser other than a Dissenting Purchaser, a fraction,
\n the numerator of which is the Commitment of such Purchaser
\n in effect at such time and the denominator of which is equal
\n to the Aggregate Exposure at such time;<\/p>\n
(b) at any time during the Revolving Period and as to a
\n Dissenting Purchaser, a fraction, the numerator of which is
\n the Outstanding Purchase Price of such Dissenting Purchaser
\n at such time and the denominator of which is equal to the
\n Aggregate Exposure at such time; and<\/p>\n
(c) at any time during the Amortization Period and as to
\n any Purchaser, including a Dissenting Purchaser, a fraction
\n the numerator of which is equal to the Outstanding Purchase
\n Price of such Purchaser at such time and the denominator of
\n which is equal to the Aggregate Exposure at such time.<\/p>\n
“Commitment Transfer Supplement”: a Commitment Transfer
\n ——————————
\n Supplement, substantially in the form of Exhibit D.<\/p>\n
“Commonly Controlled Entity”: with respect to a Person, an
\n ————————–
\n entity, whether or not incorporated, which is under common control with
\n such Person within the meaning of Section 4001 of ERISA or is part of a
\n group which includes such Person and which is treated as a single
\n employer under Section 414 of the Code.<\/p>\n
8<\/p>\n
“Commuter Aircraft”: the Models 1300, 1900 and 99 Beechcraft
\n —————–
\n manufactured by RAC and comparable general aviation aircraft used for
\n commuter airline purposes manufactured by any other Person including,
\n in all cases, without limitation, (i) any and all airframes, engines,
\n (including, without limitation, any replacement or substituted engines)
\n and avionics, equipment and accessories at any time attached to,
\n connected with or located in any such aircraft and, to the extent
\n covered by the recording system of the Aviation Act, all logs, manuals
\n and maintenance records with respect thereto and (ii) any and all
\n avionics, equipment and accessories removed from any Aircraft and, to
\n the extent not covered by the recording system of the Aviation Act, all
\n logs, manuals and maintenance records.<\/p>\n
“Commuter Receivable”: a Receivable the Obligor of which owns
\n ——————-
\n and operates a commuter airline.<\/p>\n
“Concentration Account”: as defined in subsection 2.14(b).
\n ———————<\/p>\n
“Concentration Receivables”: as defined in subsection 2.7(b).
\n ————————-<\/p>\n
“Consolidated Capitalization”: at a particular date, the sum
\n —————————
\n of Consolidated Debt, Mandatorily Redeemable Equity Securities and
\n Consolidated Net Worth at such date.<\/p>\n
“Consolidated Debt”: at a particular date, all amounts which
\n —————–
\n would be included as indebtedness (including capitalized leases) on a
\n consolidated balance sheet of Raytheon and its consolidated
\n Subsidiaries, determined in accordance with GAAP.<\/p>\n
“Consolidated EBITDA”: for any period, the sum of (a)
\n ——————-
\n Consolidated Net Income for such period and (b) the aggregate amounts
\n deducted in determining Consolidated Net Income in respect of (i)
\n Consolidated Net Interest Expense for such period, (ii) income taxes,
\n depreciation and amortization of Raytheon and its consolidated
\n Subsidiaries for such period determined in accordance with GAAP and
\n (iii) write-offs of goodwill as required, or as would be required in
\n the next succeeding fiscal year of Raytheon, by Statement of Financial
\n Accounting Standards No. 142, Goodwill and Other Intangible Assets.<\/p>\n
“Consolidated Net Income”: for any period, the consolidated
\n ———————–
\n net income (or deficit) of Raytheon and its consolidated Subsidiaries
\n for such period, determined in accordance with GAAP; provided that (i)
\n ——–
\n for the fiscal quarter of Raytheon and its consolidated Subsidiaries
\n ending April 1, 2001, such Consolidated Net Income shall be increased
\n by $325,000,000 representing one-time charges recorded in connection
\n with the discontinued operations of Raytheon Engineers and
\n Constructors, (ii) for the fiscal quarter of Raytheon and its
\n consolidated Subsidiaries ending July 1, 2001, such Consolidated Net
\n Income shall be increased by an aggregate amount not to exceed
\n $272,000,000 for such fiscal quarter, representing additional one-time
\n charges to the extent recorded in connection with the discontinued
\n operations of Raytheon Engineers and Constructors during such fiscal
\n quarter and (iii) for the fiscal quarter of Raytheon and its
\n consolidated Subsidiaries ending September 30, 2001, such Consolidated
\n Net Income shall be increased by an aggregate amount not to exceed
\n $750,000,000 representing one-<\/p>\n
9<\/p>\n
time charges recorded in connection with the inventory write-down and
\n valuation reserve related to various aircraft.<\/p>\n
“Consolidated Net Interest Expense”: for any period, net
\n ———————————
\n interest expense of Raytheon and its consolidated Subsidiaries for
\n such period, determined in accordance with GAAP.<\/p>\n
“Consolidated Net Worth”: at a particular date, all amounts
\n ———————-
\n which would, in conformity with GAAP, be included under stockholders’
\n equity on a consolidated balance sheet of Raytheon and its
\n consolidated Subsidiaries at such date.<\/p>\n
“Contract”: with respect to a Receivable, the collective
\n ——–
\n reference to (a) the promissory notes, security agreements, leases,
\n financing and security agreements, contracts, documents and instruments
\n between the Seller and the Obligor thereon on the Seller’s standard
\n form therefor (as in effect on the Closing Date) or such other forms as
\n shall contain substantially similar provisions to such standard forms,
\n pursuant to which the Seller has (i) lent the Obligor funds to purchase
\n an Aircraft or, in the case of the Travel Air Receivables, an undivided
\n interest therein, and the Obligor has agreed to make installment
\n payments in respect of such purchase, or (ii) leased an aircraft or, in
\n the case of the Travel Air Receivables, an undivided interest therein;
\n to the Obligor, in each case, as amended, supplemented or otherwise
\n modified from time to time and (b) upon the occurrence of an event of
\n the type described in subsection 8.1(j) affecting the Seller, each and
\n every promissory note, security agreement, lease, financing and
\n security agreement, contract, document and instrument executed in
\n replacement or supersession of another Contract described in clause (a)
\n with the same Obligor, or executed upon extension, modification or
\n amendment of such Contract, whether in connection with an agreement
\n pursuant to Section 1110 of the Bankruptcy Code (11 USC [sec] 1110) or
\n otherwise. Whenever used in connection with any Purchased Receivables,
\n unless the context otherwise requires “Contract” shall include any
\n Applicable Lease securing the obligations of the Affiliate Obligor
\n under such Purchased Receivable.<\/p>\n
“Contractual Obligation”: as to any Person, any provision of
\n ———————-
\n any security issued by such Person or of any agreement, instrument or
\n other undertaking to which such Person is a party or by which it or
\n any of its property is bound.<\/p>\n
“Credit and Collection Policy”: those credit and collection
\n —————————-
\n policies and practices of the Seller and the Servicer existing on the
\n Closing Date relating to the Receivables (including, without
\n limitation, policies relating to writeoffs of Receivables and policies
\n and practices maintained by the Seller’s or the Servicer’s computer
\n system and policies set forth in the form previously delivered to the
\n Purchasers, as modified from time to time in accordance with subsection
\n 7.1(c).<\/p>\n
“Dealer”: any independent dealer or Affiliate of Raytheon
\n ——
\n Credit which markets and sells Aircraft.<\/p>\n
“Debt Rating”: at any date of determination, Raytheon’s
\n ———–
\n long-term unsecured senior debt rating, determined in accordance with
\n the following:<\/p>\n
10<\/p>\n
(a) for purposes of determining a Debt Rating as used in
\n the definition of “Applicable Margin” and as used in
\n calculating the Commitment Fee pursuant to Section 2.17(d), if
\n on any date on which a Debt Rating is to be determined,
\n Moody’s and S&P are providing long-term unsecured senior debt
\n ratings for Raytheon, the Debt Rating will be the lower of
\n such ratings; provided that (i) if Raytheon’s long-term
\n ——–
\n unsecured senior debt is rated at least BBB- or the equivalent
\n thereof by both Moody’s and S&P and (ii) the differential
\n between the Moody’s and S&P rating is more than one ratings
\n level (i.e. the difference between A and A+ being one ratings
\n level), then the Debt Rating will equal the lower of such
\n ratings plus one ratings level; and<\/p>\n
(b) for all other purposes, if on any date on which a
\n Debt Rating is to be determined, either one or both of Moody’s
\n and S&P are providing long-term unsecured senior debt ratings
\n for Raytheon, the Debt Rating will be the higher of the
\n ratings (or the rating, in the case of a rating by only one of
\n Moody’s and S&P) so provided.<\/p>\n
A debt rating shall be deemed to be in effect on the date of
\n announcement or publication by the applicable rating agency. References
\n in this Agreement to alphabetical rating classifications are references
\n to the S&P ratings. Notwithstanding the foregoing, the Seller and the
\n Purchasers may at any time and from time to time agree to utilize a
\n rating agency other than Moody’s or S&P to determine the Debt Rating,
\n in which case the Debt Rating shall be such levels as quoted by such
\n rating agencies as, in each case, the Seller and the Purchasers, by
\n unanimous consent, shall agree.<\/p>\n
“Debt Ratio”: at a particular date, the ratio of Consolidated
\n ———-
\n Debt at such date to Consolidated Capitalization at such date.<\/p>\n
“Default Rate”: as defined in subsection 2.17(c).
\n ————<\/p>\n
“Defaulted Applicable Lease”: an Applicable Lease (i) as to
\n ————————–
\n which any payment thereon or part thereof remains unpaid by the
\n Unaffiliated Foreign Lessee thereon for (x) 120 days in the case of a
\n GA Receivable or (y) 150 days in the case of a Commuter Receivable,
\n from, in each case, the original due date for such payment by such
\n Unaffiliated Foreign Lessee, (ii) as to which the Unaffiliated Foreign
\n Lessee thereof has taken or suffered any action of the type described
\n in subsection 8.1(j) with respect to such Person or (iii) which,
\n consistent with the Credit and Collection Policy, would be written off
\n the Seller’s books as uncollectible.<\/p>\n
“Defaulted Receivable”: a Receivable, (i) in the case of a GA
\n ——————–
\n Receivable or a Travel Air Receivable, as to which any payment on such
\n Receivable or part thereof remains unpaid by the Obligor thereon for
\n 120 days from the original due date for such payment by such Obligor,
\n (ii) in the case of a Commuter Receivable, as to which any payment on
\n such Receivable or part thereof remains unpaid by the Obligor thereon
\n for 150 days from the original due date for such payment by such
\n Obligor, (iii) in the case of a Wholesale Receivable, as to which any
\n payment on such Receivable or part thereof remains unpaid by the
\n Obligor thereon for 60 days from the original due date for such<\/p>\n
11<\/p>\n
payment by such Obligor, (iv) in the case of an Affiliate Receivable,
\n as to which the Applicable Lease related thereto is a Defaulted
\n Applicable Lease or (v) any Receivable as to which the Obligor thereof
\n has taken or suffered any action of the type described in subsection
\n 8.1(j) with respect to such Obligor or which, consistent with the
\n Credit and Collection Policy, would be written off the Seller’s books
\n as uncollectible.<\/p>\n
“Delinquent Receivable”: an Eligible Receivable a payment
\n ———————
\n under which is more than 90 days past due from the original due date
\n therefor, but which is not otherwise a Defaulted Receivable.<\/p>\n
“Discount Amount”: as of the date of the first occurrence of a
\n —————
\n Discount Event (which is not also a Rating Event), the product of the
\n Outstanding Purchase Price (as of the Settlement Date preceding such
\n date of occurrence, or, if such date of occurrence is a Settlement
\n Date, then such Settlement Date) multiplied by the Purchase Discount
\n applicable on such date of occurrence.<\/p>\n
“Discount Event”: any time on or prior to the Expiration Date
\n ————–
\n when Raytheon’s Debt Rating is lower than BBB- or the equivalent
\n thereof.<\/p>\n
“Dissenting Purchaser”: as defined in subsection 2.8(b).
\n ——————–<\/p>\n
“Domestic Wholesale Receivable”: a Receivable arising under a
\n —————————–
\n wholesale financing arrangement between Raytheon Credit and, as Obligor
\n thereunder, a Dealer which is located (within the meaning of Section
\n 9-307 of the New York UCC) in the United States.<\/p>\n
“Effective Date”: as defined in Section 5.1 of the 1997
\n ————–
\n Agreement.<\/p>\n
“Eligible Applicable Lease”: (x) with respect to each
\n ————————-
\n Affiliate Receivable other than an Existing Affiliate Receivable, at
\n the time of purchase or substitution of such Affiliate Receivable
\n pursuant to this Agreement, an Applicable Lease related thereto:<\/p>\n
(a) the Unaffiliated Foreign Lessee of which (i) is not
\n an Affiliate of Raytheon Credit or the Servicer, (ii) is not
\n located in a Prohibited Jurisdiction, (iii) is not, except to
\n the extent permitted under subsection 2.7, a Governmental
\n Authority unless the Affiliate Obligor, Raytheon Credit and
\n the Seller have complied with the requirements of each
\n applicable Requirement of Law pertaining to the assignment of
\n accounts receivable the obligor of which is a Governmental
\n Authority, all in a manner satisfactory to the Managing
\n Facility Agent and the Required Purchasers in their reasonable
\n discretion and (iv) is not the Unaffiliated Foreign Lessee or
\n the Obligor, or an Affiliate of an Obligor or Unaffiliated
\n Foreign Lessee, on any Receivable or Applicable Lease which is
\n a Defaulted Receivable or Defaulted Applicable Lease, as
\n appropriate;<\/p>\n
(b) which is neither more than 30 days past due from the
\n original due date therefor nor otherwise a Defaulted
\n Applicable Lease;<\/p>\n
12<\/p>\n
(c) which arose in the ordinary course of Raytheon
\n Credit’s business from financing the retail purchase or lease
\n financing of an Aircraft and relates to an Aircraft which will
\n be used for general aviation purposes or with respect to the
\n ownership and operation of a commuter airline, but not for
\n military purposes;<\/p>\n
(d) which is subject only to adjustment for changes in
\n payments in accordance with the terms thereof resulting from
\n changes in the interest rates thereunder and the payment terms
\n of which are identical to the payment terms set forth in the
\n related Affiliate Receivable;<\/p>\n
(e) which is an “account” or a “general intangible” or
\n which constitutes “chattel paper” within the meaning of the
\n UCC of the State of Kansas or the law of the state where the
\n Seller or the Servicer maintains the books, records and
\n documents with respect to such Receivable;<\/p>\n
(f) which is denominated and payable only in United
\n States dollars in the United States;<\/p>\n
(g) which (i) has been duly authorized by each party
\n thereto (or, if any such party is an individual, such party
\n has the capacity to enter into) and each of the parties
\n thereto is in compliance therewith in all material respects,
\n (ii) was not originated with any conduct constituting fraud or
\n a material misrepresentation on the part of the Affiliate
\n Obligor, Raytheon Credit or the Seller, (iii) was not
\n originated with any conduct constituting fraud or a material
\n misrepresentation by the Unaffiliated Foreign Lessee party
\n thereto of which Raytheon Credit, the Seller or the Affiliate
\n Obligor thereto knew or should have known based on the
\n exercise of reasonable care, (iv) constitutes the legal, valid
\n and binding obligation of the Unaffiliated Foreign Lessee
\n thereof enforceable against such Unaffiliated Foreign Lessee
\n in accordance with its terms, except as enforceability may be
\n limited by applicable bankruptcy, insolvency, reorganization,
\n moratorium or similar laws affecting the enforcement of
\n creditors’ rights generally and by general equitable
\n principles (whether enforcement is sought by proceedings in
\n equity or at law), (v) contains enforceable provisions such
\n that the rights and remedies of the holder of the security
\n interest created therein are adequate for the realization of
\n the benefits of such security interest against the related
\n Unaffiliated Foreign Lessee and the other collateral therefor
\n and (vi) if the engine for the related Financed Aircraft has
\n 750 or more rated takeoff horsepower (or the equivalent of
\n such horsepower), accurately describes the engines of such
\n Financed Aircraft as provided for in such Applicable Lease;<\/p>\n
(h) which is not subject to any existing material
\n dispute, offset, counterclaim or defense whatsoever
\n (including, but not limited to, breach of warranty) of which
\n Raytheon Credit, the Seller or the Servicer knows or should
\n have known;<\/p>\n
(i) which does not, or at the time of lease of the
\n Financed Aircraft did not, contravene any Requirements of Law
\n applicable thereto in any material respect<\/p>\n
13<\/p>\n
(including, without limitation, laws, rules and regulations
\n relating to truth in lending, fair credit billing, fair credit
\n reporting, equal credit opportunity, fair debt collection
\n practices and privacy) and with respect to which no party
\n thereto is in violation of any such Requirement of Law in any
\n material respect;<\/p>\n
(j) which was originated in accordance with the Credit
\n and Collection Policy and satisfied all requirements thereof;<\/p>\n
(k) on which either at least one payment or a down
\n payment (including a trade-in) has been made prior to the
\n Closing Date or the Settlement Date on which the related
\n Affiliate Receivable is purchased or substituted;<\/p>\n
(l) the payment terms of which have not been modified
\n other than (i) in accordance with the Credit and Collection
\n Policy and (ii) to an extent and in an amount not in excess of
\n the limitations specified in subsection 7.1(b)(iv)(x); and<\/p>\n
(m) of which the Affiliate Obligor, at the time of
\n transfer of the related Affiliate Receivable to the
\n Purchasers, has good and marketable title, free and clear of
\n any Lien other than any Permitted Receivable Lien; and<\/p>\n
(y) with respect to any Existing Affiliate Receivable, at the date of
\n its purchase or substitution under the Existing Agreement pursuant to
\n which such Receivable was sold to the Old Administrative Agent, the
\n Applicable Lease related thereto was an “Eligible Applicable Lease” (as
\n defined in such applicable Existing Agreement) at such date.<\/p>\n
“Eligible Receivable”: (x) with respect to each Receivable
\n ——————-
\n other than an Existing Receivable, at the time of purchase or
\n substitution pursuant to this Agreement, a Receivable:<\/p>\n
(a) except with respect to an Affiliate Receivable, the
\n Obligor of which is not an Affiliate of Raytheon Credit, the
\n Seller or the Servicer;<\/p>\n
(b) except with respect to a Foreign Receivable, the
\n Obligor of which is located (within the meaning of Section
\n 9-307 of the New York UCC) within the United States and is a
\n Citizen of the United States (as defined in the Aviation Act);
\n and, with respect to a Foreign Receivable, the Obligor of
\n which is not located in a Prohibited Jurisdiction;<\/p>\n
(c) except with respect to an ExIm Bank Receivable and
\n except as otherwise permitted in subsection 2.7(a)(xii), the
\n Obligor of which is not a Governmental Authority unless each
\n of Raytheon Credit and the Seller has complied with the
\n requirements of the Federal Assignment of Claims Act or any
\n other applicable Requirement of Law pertaining to the
\n assignment of accounts receivable the Obligor of which is a
\n Governmental Authority, all in a manner satisfactory to the
\n Managing Facility Agent and the Required Purchasers in their
\n reasonable discretion; provided that if a Rating Event has
\n ——–
\n occurred and is continuing, any Affiliate Receivable in
\n respect of which the Unaffiliated Foreign<\/p>\n
14<\/p>\n
Lessee under the related Applicable Lease is any Governmental
\n Authority other than a United States Federal Governmental
\n Authority shall not be eligible for purchase or substitution
\n under this Agreement regardless of any action taken by
\n Raytheon Credit or the Seller with respect to the assignment
\n of such Applicable Lease;<\/p>\n
(d) the Obligor of which is not the Obligor or an
\n Affiliate of an Obligor on any other Receivable which is a
\n Defaulted Receivable;<\/p>\n
(e) which is neither more than 30 days past due from the
\n original due date therefor nor otherwise a Defaulted
\n Receivable;<\/p>\n
(f) which arose in the ordinary course of Raytheon
\n Credit’s business from financing the retail purchase or lease
\n or, in the case of a Wholesale Receivable, the wholesale
\n purchase of an Aircraft and relates to an Aircraft which will
\n be used for general aviation purposes or in connection with
\n commuter airline operations, but not for military purposes,
\n and which was purchased by the Seller from Raytheon Credit
\n pursuant to the Intercompany Purchase Agreement in the
\n ordinary course of the Seller’s business;<\/p>\n
(g) with respect to GA Receivables, subject only to
\n adjustment for changes in payments in accordance with the
\n related Contract resulting from changes in the interest rates
\n thereunder, (i) which, except as set forth in clause (ii)
\n below, is required to be paid in consecutive monthly
\n installments or is a Quarterly Receivable or a Semi-Annual
\n Receivable or (ii) which (A) is a Nonstandard Receivable or
\n (B) has a maturity within six months from the date such
\n Receivable becomes a Purchased Receivable, provided that no
\n such Receivable will have a maturity later than six months
\n after the invoice date for such Receivable;<\/p>\n
(h) which is an “account” or a “general intangible” or
\n which constitutes “chattel paper” within the meaning of the
\n UCC of the State of Kansas or the law of the state where the
\n Seller or the Servicer maintains the books, records and
\n documents with respect to such Receivable;<\/p>\n
(i) which is denominated and payable only in United
\n States dollars in the United States;<\/p>\n
(j) which arises under a Contract which (i) has been duly
\n authorized by each party thereto (or, if any such party is an
\n individual, such party has the capacity to enter into) and
\n each party thereto is in compliance therewith in all material
\n respects, (ii) was not originated with any conduct
\n constituting fraud or a material misrepresentation on the part
\n of the Seller or Dealer (if different from the Obligor
\n thereto), (iii) was not originated with any conduct
\n constituting fraud or a material misrepresentation by an
\n Obligor party thereto of which the Seller or Dealer (if
\n different from the Obligor) knew or should have known based on
\n the exercise of reasonable care, (iv) constitutes the legal,
\n valid and binding obligation of the Obligor thereof
\n enforceable against such Obligor in accordance with its<\/p>\n
15<\/p>\n
terms, except as enforceability may be limited by applicable
\n bankruptcy, insolvency, reorganization, moratorium or similar
\n laws affecting the enforcement of creditors’ rights generally
\n and by general equitable principles (whether enforcement is
\n sought by proceedings in equity or at law), (v) except with
\n respect to each L\/C Receivable, contains enforceable
\n provisions such that the rights and remedies of the holder of
\n the security interest created thereby are adequate for the
\n realization of the benefits of such security interest against
\n the related Financed Aircraft and the other collateral
\n therefor and (vi) accurately describes the engines, if any, of
\n the related Financed Aircraft having 750 or more rated takeoff
\n horsepower (or the equivalent of such horsepower) as provided
\n for in such Contract;<\/p>\n
(k) (i) except with respect to a L\/C Receivable, a Lease
\n Receivable, a Travel Air Receivable and an Unsecured
\n Receivable, which is secured by a valid and perfected first
\n priority security interest in favor of the Seller in the
\n Financed Aircraft related thereto (other than, in the case of
\n GA Receivables, any engines having less than 750 or more rated
\n takeoff horsepower, or its equivalent) and, with respect to an
\n Affiliate Receivable, in the related Applicable Lease, (ii)
\n with respect to a Registerable Lease Receivable and with
\n respect to an ExIm Bank Receivable, the related Financed
\n Aircraft of which is registered with the FAA Registry in the
\n name of the Seller and relates to a Financed Aircraft in which
\n the Seller has a valid ownership interest, (iii) with respect
\n to a Lease Receivable which is not a Registerable Lease
\n Receivable, the related Financed Aircraft of which is
\n registered in the name of the Seller in each jurisdiction
\n necessary to evidence the valid ownership interest of the
\n Seller in the Financed Aircraft related thereto and (iv) with
\n respect to a Travel Air Receivable, which is secured by a
\n valid and perfected first priority security interest in favor
\n of the Seller in the Obligor’s undivided interest in the
\n Financed Aircraft and Travel Air Contracts related thereto;<\/p>\n
(l) except with respect to a L\/C Receivable and an
\n Unsecured Receivable, the security or ownership interest, as
\n the case may be, of Raytheon Credit in the Financed Aircraft
\n related thereto is assignable by Raytheon Credit and, except
\n as permitted under subsection 2.7(a)(x), has been so assigned
\n as a first priority security interest to the Seller and by the
\n Seller to the Administrative Agent for the ratable benefit of
\n the Purchasers to secure the obligations under the related
\n Receivable and which Financed Aircraft is subject to no other
\n Liens other than Permitted Aircraft Liens; including (i)
\n except with respect to a Foreign Receivable (other than a
\n Registerable Lease Receivable with a Foreign Obligor), of
\n which the security interest granted by the Obligor in favor of
\n Raytheon Credit and assigned to the Seller and\/or, in the case
\n of a Lease Receivable, by the Seller in favor of the
\n Administrative Agent (including, with respect to a
\n Registerable Lease Receivable, the security interest in the
\n Financed Aircraft in favor of the Administrative Agent)
\n encumbering the related Financed Aircraft (other than, for GA
\n Receivables, Aircraft Accessories with respect thereto and
\n engines of such Financed Aircraft, if any, having a rated
\n takeoff power of 750 horsepower or its<\/p>\n
16<\/p>\n
equivalent) has been duly registered and recorded with the FAA
\n Registry, (ii) with respect to a Foreign Receivable (other
\n than a L\/C Receivable and a Lease Receivable with a Foreign
\n Obligor) of which the security interest encumbering the
\n related Financed Aircraft has been duly filed, registered or
\n recorded with each office in each jurisdiction in which such
\n filing, registration or recordation is necessary to perfect
\n the security interest therein granted (x) by the Obligor
\n thereon in favor of Raytheon Credit, (y) by Raytheon Credit in
\n favor of the Seller and (z) by the Seller in favor of the
\n Administrative Agent for the ratable benefit of the Purchasers
\n and (iii) with respect to a Lease Receivable with a Foreign
\n Obligor (other than a Registerable Lease Receivable with a
\n Foreign Obligor) of which the security interest encumbering
\n the related Financed Aircraft has been duly filed, registered
\n or recorded with each office in each jurisdiction in which
\n such filing, registration or recordation is necessary to
\n perfect the security interest therein granted by the Seller in
\n favor of the Administrative Agent for the ratable benefit of
\n the Purchasers;<\/p>\n
(m) as to which, upon the transfer of such Receivable
\n pursuant to this Agreement, either (i) the Purchasers have a
\n perfected, valid and enforceable first priority ownership
\n interest in such Receivable or (ii) the Administrative Agent
\n for the ratable benefit of the Purchasers has a valid,
\n perfected and first priority security interest in such
\n Receivable, in each case free and clear of all Liens other
\n than Permitted Receivable Liens;<\/p>\n
(n) of which (i) with respect to each Receivable other
\n than a Lease Receivable and a Travel Air Receivable, the
\n related Financed Aircraft is owned by the Obligor on the
\n related Contract, (ii) with respect to each Lease Receivable,
\n except as permitted under subsection 2.7(a)(x), the related
\n Financed Aircraft is owned by the Seller and (iii) with
\n respect to each Travel Air Receivable, an undivided interest
\n in the related Financed Aircraft is owned by the related
\n Obligor;<\/p>\n
(o) of which the related Financed Aircraft is (i) with
\n respect to each Financed Aircraft registered in the name of
\n the Seller, Raytheon Credit, Travel Air or the related Obligor
\n with the FAA, duly certified by the FAA as to type and
\n airworthiness and (ii) in all other cases, duly certified by
\n the appropriate governmental authorities in the applicable
\n foreign jurisdiction as to type and airworthiness;<\/p>\n
(p) which is not subject to any existing material
\n dispute, offset, counterclaim or defense whatsoever
\n (including, but not limited to, breach of warranty) of which
\n Raytheon Credit, the Seller or the Servicer knows or should
\n have known;<\/p>\n
(q) which, together with the Contract and the Financed
\n Aircraft related thereto, does not, or at the time of sale (or
\n lease, as the case may be) of the Financed Aircraft did
\n not, contravene any Requirements of Law applicable thereto in
\n any material respect (including, without limitation, laws,
\n rules and<\/p>\n
17<\/p>\n
regulations relating to truth in lending, fair credit billing,
\n fair credit reporting, equal credit opportunity, fair debt
\n collection practices and privacy) and with respect to which no
\n party to the Contract related thereto is in violation of any
\n such Requirement of Law in any material respect;<\/p>\n
(r) which was originated in accordance with the Credit
\n and Collection Policy and satisfied all requirements thereof
\n and of the related Contract;<\/p>\n
(s) which, except for an Extended Term Receivable, has a
\n Final Payment Date not later than (i) so long as no Rating
\n Event has occurred and is continuing, thirteen years after the
\n Settlement Date on which such Receivable is purchased or
\n substituted and (ii) during the continuance of a Rating Event,
\n ten years after the Settlement Date on which such Receivable
\n is purchased or substituted;<\/p>\n
(t) (i) for Receivables other than those Receivables
\n referred to in clause (g)(ii)(B) of this definition, the
\n related Financed Aircraft has been delivered to the Obligor
\n (x) so long as Raytheon’s Debt Rating is no lower than BBB- or
\n the equivalent thereof, no later than the second Settlement
\n Date following the Settlement Date on which undivided
\n interests in such Receivable are sold to the Purchasers and
\n (y) in all other cases, no later than the Settlement Date on
\n which undivided interests in such Receivable are sold to the
\n Purchasers or (ii) for those Receivables referred to in clause
\n (g)(ii)(B) of this definition, the related Financed Aircraft
\n has been delivered to the Obligor no later than six months
\n after the invoice date for such Receivable;<\/p>\n
(u) except with respect to a Wholesale Receivable, on
\n which either at least one payment or a down payment (including
\n a trade-in) has been made prior to the Settlement Date on
\n which it is purchased or substituted;<\/p>\n
(v) the payment terms of which have not been modified
\n other than (i) in accordance with the Credit and Collection
\n Policy and (ii) to an extent and in an amount not in excess of
\n the limitations specified in subsection 7.1(b)(iv)(x);<\/p>\n
(w) of which the related Financed Aircraft is insured
\n against loss, damage, theft, hull and such other casualties as
\n may be required pursuant to the related Contract, including
\n without limitation passenger legal liability, public legal
\n liability and property damages legal liability, the policy or
\n policies of which shall (i) provide that Raytheon Credit or
\n any Affiliate Obligor, as the case may be, is named thereunder
\n as loss payee and is entitled to receive 30 days prior notice
\n of cancellation thereof, (ii) contain a breach of warranty
\n endorsement in favor of Raytheon Credit or any Affiliate
\n Obligor as the case may be, (iii) provide for insurance in an
\n amount, after calculation of any deductible, at least equal to
\n the outstanding principal of the Contract at any time and (iv)
\n be maintained with financially sound and reputable insurance
\n companies;<\/p>\n
(x) if a Lease Receivable (i) prior to the Settlement
\n Date on which such Lease Receivable is purchased or
\n substituted, with respect to which all actions<\/p>\n
18<\/p>\n
required under the related lease to assign to the
\n Administrative Agent on behalf of the Purchasers the Seller’s
\n and Raytheon Credit’s respective rights thereunder (including,
\n without limitation, any notice to, consent of or acceptance by
\n the lessee party thereto) shall have been duly performed, (ii)
\n prior to the Settlement Date on which such Lease Receivable is
\n purchased or substituted, a determination shall have been made
\n if such Receivable is a Registerable Lease Receivable in
\n accordance with the definition of such term, (iii) on the
\n Settlement Date on which such Lease Receivable is purchased or
\n substituted, no Rating Event shall have occurred and be
\n continuing and (iv) such Lease Receivable is carried on the
\n books of the Seller as a “sale” under GAAP;<\/p>\n
(y) if a L\/C Receivable, with respect to which the
\n related letter of credit (i) either (A) is issued by an
\n Acceptable L\/C Issuer or (B) if the issuer of the related
\n letter of credit is not an Acceptable L\/C Issuer, at the time
\n of purchase or substitution no Rating Event has occurred and
\n is continuing, (ii) is issued or confirmed by a financial
\n institution located in the United States or which otherwise
\n provides that drawings thereunder may be made in the United
\n States, (iii) is an irrevocable standby letter of credit
\n providing for drawings upon the occurrence of a default under
\n the related Contract on sight or upon presentation of
\n certificates specified therein, (iv) at any date of
\n determination has an available amount equal to the then
\n outstanding Principal Balance of such Receivable, (v) is in
\n full force and effect and (vi) either (A) has an expiration
\n date which is at least five Business Days following the last
\n scheduled payment date under the related Contract or (B)
\n provides for automatic extensions without amendment, notice or
\n other act by or to any Person or permits the Seller to draw
\n the aggregate amount then available to be drawn thereunder if
\n not extended;<\/p>\n
(z) which is not an Operating Lease Receivable;<\/p>\n
(aa) if an ExIm Bank Receivable, (i) at least 85% of the
\n Principal Balance of which is insured by the related insurance
\n policy and such insurance policy is in full force and effect
\n and all premiums have been paid in full, (ii) the related
\n Contract of which requires the Obligor to purchase the
\n Aircraft at the end of the term thereof, (iii) at the time of
\n purchase or substitution of which no Rating Event has occurred
\n and is continuing and (iv) prior to the Settlement Date on
\n which such ExIm Bank Receivable is purchased or substituted,
\n all actions required to assign to the Administrative Agent on
\n behalf of the Purchasers the Seller’s and Raytheon Credit’s
\n respective rights to amounts payable under the related
\n insurance policy and the Seller’s rights under any lease of
\n the related Aircraft by an Obligor on such ExIm Bank
\n Receivable (including, without limitation, any notice to,
\n consent of or acceptance by the insurer or lessee thereunder)
\n shall have been duly performed;<\/p>\n
(bb) if a Wholesale Receivable, (i) the Principal Balance
\n of which (together with interest thereon) is payable in
\n accordance with the original terms thereof no later than 180
\n days after the original date of the Contract related<\/p>\n
19<\/p>\n
thereto, and (ii) the original maturity date thereof has not
\n been extended more than twice;<\/p>\n
(cc) if a Domestic Wholesale Receivable, the related
\n Financed Aircraft of which has not been sold more than once or
\n to more than one other independent Dealer (exclusive of
\n Dealers owned by Raytheon Credit or RAC);<\/p>\n
(dd) if a Nonstandard Receivable, a Rating Event shall
\n not have occurred and be continuing;<\/p>\n
(ee) if an Affiliate Receivable, (x) prior to the
\n Settlement Date on which such Affiliate Receivable is
\n purchased or substituted, all actions required to assign (1)
\n to Raytheon Credit, and from Raytheon Credit to the Seller,
\n the Affiliate Obligor’s rights under the Applicable Lease and
\n Financed Aircraft and (2) to the Administrative Agent, the
\n Seller’s rights under the Financed Aircraft and the Applicable
\n Lease (including, without limitation, in case of clauses (1)
\n and (2), any notice to, consent of or acceptance by the
\n Unaffiliated Foreign Lessee party thereto) shall have been
\n duly performed and the Administrative Agent, for the ratable
\n benefit of the Purchasers, shall have a valid, perfected and
\n first priority security interest in such Financed Aircraft and
\n Applicable Lease as collateral security for the Affiliate
\n Obligor’s obligations under such Affiliate Receivable, free
\n and clear of all Liens other than (i) the Lien created in
\n favor of Raytheon Credit and the Seller, (ii) the Lien created
\n under this Agreement in favor of the Administrative Agent for
\n the ratable benefit of the Purchasers and (iii) any Permitted
\n Receivable Lien, (y) on the Settlement Date on which such
\n Affiliate Receivable is purchased or substituted, no Rating
\n Event shall have occurred and be continuing and (z) the
\n Applicable Lease related thereto is an Eligible Applicable
\n Lease;<\/p>\n
(ff) which is an “Eligible Receivable” under and as
\n defined in the Intercompany Purchase Agreement; and<\/p>\n
(gg) with respect to a Receivable that has previously
\n been a Defaulted Receivable or Delinquent Receivable that was
\n repurchased or for which a substitution has been made, such
\n Receivable was repurchased at least 6 months prior to its
\n resale to the Purchasers and in respect of which the
\n applicable Obligor has been in full compliance with its
\n payment obligations thereunder for at least 3 consecutive
\n months;<\/p>\n
(y) with respect to any Existing Receivable, at the date of its
\n purchase or substitution under the Existing Agreement pursuant to which
\n it was sold to the Old Administrative Agent, such Receivable which was
\n an “Eligible Receivable” (as defined in such applicable Existing
\n Agreement) at such date.<\/p>\n
Notwithstanding any provision set forth in this definition of “Eligible
\n Receivable” (except clause (x)(ff)), any Receivable which otherwise
\n qualifies to be an “Eligible Receivable” and for which the Financed
\n Aircraft related thereto receives a conveyance<\/p>\n
20<\/p>\n
number from the FAA on or prior to the Applicable Settlement Date after
\n the sale or substitution of such Receivable shall be deemed to be an
\n “Eligible Receivable. Further, a Receivable (other than an Existing
\n Receivable) created pursuant to a Contract under which (at the time of
\n purchase or substitution thereof) the amount scheduled to be
\n outstanding on any annual anniversary of the execution date of such
\n Contract (assuming all scheduled payments have been made prior to such
\n date) is greater than the amount which would have been so outstanding
\n on such date if payments on such Contract prior to such anniversary had
\n been made on a thirteen year mortgage-type amortization method,
\n assuming a balloon payment of 30% of the original sales price scheduled
\n for repayment at the end of the thirteenth year, shall not be an
\n “Eligible Receivable.”<\/p>\n
“ERISA”: the Employee Retirement Income Security Act of 1974,
\n —–
\n as amended from time to time.<\/p>\n
“Excess Mesa Receivables”: as of any date of determination,
\n ———————–
\n the Principal Balances of all Purchased Receivables in respect of Mesa
\n and all of its respective Affiliates to the extent such aggregate
\n Principal Balances exceed an amount equal to 10% of the Outstanding
\n Purchase Price on such date of determination (calculated after giving
\n effect to all proposed purchases and substitutions on such date but
\n excluding the Outstanding Purchase Price of Wholesale Receivables).<\/p>\n
“Excess Spread”: as defined in subsection 2.16(b)(vi).
\n ————-<\/p>\n
“Excluded Taxes” means, with respect to the Managing Facility
\n ————–
\n Agent, the Administrative Agent, either Co-Administrative Agent, any
\n Purchaser or any other recipient of any payment to be made by or on
\n account of any obligation of the Seller hereunder, (a) income or
\n franchise taxes imposed on (or measured by) its net income by the
\n United States of America or by the jurisdiction under the laws of which
\n such recipient is organized or in which its principal office is located
\n or, in the case of any Purchaser, in which its applicable purchasing
\n office is located, (b) any branch profits taxes imposed by the United
\n States of America or any similar tax imposed by any other jurisdiction
\n in which the Seller is located and (c) in the case of a Foreign
\n Purchaser (other than an assignee pursuant to a request by the Seller
\n under subsection 2.26(b)), any withholding tax that is imposed on
\n amounts payable to such Foreign Purchaser at the time such Foreign
\n Purchaser becomes a party to this Agreement or is attributable to such
\n Foreign Purchaser’s failure or inability to comply with Section
\n 2.23(e), except to the extent that such Foreign Purchaser’s assignor
\n (if any) was entitled, at the time of assignment, to receive additional
\n amounts from the Seller with respect to such withholding tax pursuant
\n to Section 2.23(a).<\/p>\n
“ExIm Bank”: the Export-Import Bank of the United States and
\n ———
\n any successor thereto.<\/p>\n
“ExIm Bank Receivable”: a Receivable, the payments of which
\n ——————–
\n are insured by the ExIm Bank.<\/p>\n
21<\/p>\n
“Existing Agreements”: the collective reference to the
\n ——————-
\n Existing Commuter Agreement and the Existing GA Agreement.<\/p>\n
“Existing Affiliate Receivable”: each Existing Receivable
\n —————————–
\n which, on and as of the Effective Date, is an “Affiliate Receivable”
\n under and as defined in the Existing Agreement pursuant to which the
\n Old Administrative Agent purchased such Receivable.<\/p>\n
“Existing Certified Receivable”: each Existing Receivable
\n —————————–
\n which, on and as of the Effective Date, is a “Certified Foreign
\n Receivable” under and as defined in the Existing Agreement pursuant to
\n which the Old Administrative Agent purchased such Receivable.<\/p>\n
“Existing Commuter Agreement”: the Amended and Restated
\n —————————
\n Purchase and Sale Agreement dated as of March 8, 1996 among Raytheon
\n Credit, the purchasers referred to therein, Swiss Bank Corporation, New
\n York Branch, as administrative agent, Bank of America NT&SA, as
\n documentation agent and co-agent, and Swiss Bank Corporation, New York
\n Branch, as co-agent, as amended, supplemented or otherwise modified
\n from time to time.<\/p>\n
“Existing GA Agreement”: the Second Amended and Restated
\n ———————
\n Purchase and Sale Agreement dated as of March 8, 1996 among Raytheon
\n Credit, the purchasers referred to therein and Swiss Bank Corporation,
\n New York Branch, as agent, as amended, supplemented or otherwise
\n modified from time to time.<\/p>\n
“Existing Outstanding Balance”: as of any date of
\n —————————-
\n determination for any Existing Receivable, the “Outstanding Balance”
\n thereof as determined under the Existing Agreement pursuant to which
\n such Existing Receivable was purchased prior to the Effective Date.<\/p>\n
“Existing Outstanding Purchase Price”: as of any date of
\n ———————————–
\n determination for any Purchaser, the sum of such Purchaser’s
\n “Outstanding Purchase Price”, if any, under each of the Existing
\n Agreements.<\/p>\n
“Existing Principal Balance”: as of any date of determination
\n ————————–
\n for any Existing Receivable, the “Principal Balance” thereof as
\n determined under the Existing Agreement pursuant to which such Existing
\n Receivable was purchased by the administrative agent or agent under
\n such Existing Agreement.<\/p>\n
“Existing Receivables”: on the Effective Date, the collective
\n ——————–
\n reference to the outstanding “Purchased Receivables” under and as
\n defined in the Existing Agreements.<\/p>\n
“Existing Registerable Lease Receivables”: on the Effective
\n —————————————
\n Date, the collective reference to the outstanding “Registerable Lease
\n Receivables” under and as defined in the Existing Agreements.<\/p>\n
“Existing Uncertified Foreign Receivables”: on the Effective
\n —————————————-
\n Date, the collective reference to the outstanding “Foreign Uncertified
\n Receivables” under and as defined in the Existing Agreements.<\/p>\n
22<\/p>\n
“Expense Amounts”: the collective reference to amounts
\n —————
\n required to be paid pursuant to (i) subsections 2.17(a), 2.17(b),
\n 2.17(c) and 2.17(d) and (ii) subsections 2.22, 2.23, 2.24 and 11.5 (to
\n the extent that the Managing Facility Agent, the Administrative Agent
\n or a Purchaser has made a demand therefor).<\/p>\n
“Expiration Date”: March 7, 2003 or, if the Revolving Period
\n —————
\n is extended pursuant to subsection 2.8, 364 days after the date of the
\n Expiration Date in effect at the time of such extension.<\/p>\n
“Extended Term Receivable”: as of any Settlement Date, any
\n ————————
\n Receivable the Final Payment Date of which is later than (i) so long as
\n no Rating Event has occurred and is continuing, thirteen years after
\n such Settlement Date and (ii) during the continuance of a Rating Event,
\n ten years after such Settlement Date, and, for purposes of subsection
\n 2.15, any Receivable the Final Payment Date of which is extended
\n pursuant to subsection 7.1(b)(iv) to such later date.<\/p>\n
“FAA”: the Federal Aviation Administration or any successor
\n —
\n thereto.<\/p>\n
“FAA Assignment”: the assignment, certificate or other
\n ————–
\n document to be filed with the FAA Registry on or before the Closing
\n Date or any Settlement Date with respect to a Financed Aircraft related
\n to an Eligible Receivable to be purchased on the Closing Date or
\n purchased or substituted on such Settlement Date, substantially in the
\n form of (i) in the case of an assignment by the Seller of a security
\n interest in a Financed Aircraft granted by an Obligor in favor of the
\n Seller, Exhibit A-2 (for filing on the Closing Date) or Exhibit A-3
\n (for filing on each Settlement Date) or, (ii) with respect to a
\n Registerable Lease Receivable or an ExIm Bank Receivable, if the
\n Financed Aircraft related thereto is (or the lessee under the related
\n lease agrees will be) registered under the Aviation Act, in the case of
\n the grant by the Seller in favor of the Administrative Agent for the
\n ratable benefit of the Purchasers of a security interest in a Financed
\n Aircraft and amounts payable under the related lease entered into with
\n respect to such Lease Receivable or ExIm Bank Receivable, substantially
\n in the form of Exhibit A-4 (for filing on the Closing Date) or Exhibit
\n A-5 (for filing on a Settlement Date); in each case, with appropriate
\n modifications which may be required as a result of changes in any
\n Requirements of Law after the Closing Date pertaining to filings and
\n recordings with the FAA Registry.<\/p>\n
“FAA Filing Date”: as defined in subsection 6.1(n)(ii).
\n —————<\/p>\n
“FAA Registry”: the FAA Aircraft Registry maintained on the
\n ————
\n Closing Date at the office of the FAA located in Oklahoma City,
\n Oklahoma.<\/p>\n
“Final Payment Date”: with respect to a Purchased Receivable,
\n ——————
\n the scheduled final maturity date (which, with respect to a Lease
\n Receivable, shall be the final scheduled rent payment date under the
\n related Contract) of such Receivable.<\/p>\n
“Finance Charge Collections”: (i) with respect to Purchased
\n ————————–
\n Receivables constituting Lease Receivables a portion of the Collections
\n thereunder representing the interest component of such lease, such
\n interest component reflecting the interest rate as<\/p>\n
23<\/p>\n
set forth in such lease and such portion being calculated in accordance
\n with Credit and Collection Policy, (ii) with respect to all other
\n Purchased Receivables, Collections on account of accrued finance
\n charges, late fees and similar items in respect of such Purchased
\n Receivables calculated, in each case, in accordance with the Credit and
\n Collection Policy and (iii) Collections deemed by the Managing Facility
\n Agent to be Finance Charge Collections pursuant to Section 2.16(a).<\/p>\n
“Financed Aircraft”: the Aircraft, together with all
\n —————–
\n accessions thereto, securing an Obligor’s indebtedness under a
\n Contract; provided that, the term “Financed Aircraft” when used herein
\n ——–
\n or in any other document, instrument or certificate delivered pursuant
\n hereto shall mean or refer to, with respect to a Lease Receivable or an
\n ExIm Bank Receivable, the Aircraft leased under the Contract pursuant
\n to which such Lease Receivable was created, together with all
\n accessions thereto.<\/p>\n
“Foreign Assignment”: with respect to each Foreign Receivable
\n ——————
\n (other than a L\/C Receivable) and each Affiliate Receivable, each
\n document, instrument, agreement (whether an assignment, security
\n agreement, mortgage or otherwise) and certificate appropriate for
\n filing in the applicable office in the applicable jurisdiction and
\n necessary to evidence (i) in the case of Affiliate Receivables and of
\n Foreign Receivables which are not Lease Receivables, the Lien in the
\n related Financed Aircraft granted by the Obligor thereon in favor of
\n Raytheon Credit and the assignment thereof by Raytheon Credit to the
\n Seller and (ii) in the case of all such Foreign Receivables and all
\n Affiliate Receivables, the Lien in the related Financed Aircraft
\n granted by the Seller (or, as applicable, the Lien thereon assigned by
\n the Seller) in favor of the Administrative Agent for the ratable
\n benefit of the Purchasers; and all other filings and recordings
\n necessary to perfect the Purchasers’ first priority ownership or
\n security interests in and to the Foreign Receivables or the Affiliate
\n Receivables, as the case may be, and the related Contracts (including
\n Applicable Leases) and Financed Aircraft.<\/p>\n
“Foreign Obligor”: an Obligor which is not located (within the
\n —————
\n meaning of Section 9-307 of the New York UCC) within the United States
\n and is not a citizen of the United States (as defined in the Aviation
\n Act).<\/p>\n
“Foreign Purchaser” means any Purchaser that is not organized
\n —————–
\n under the laws of the United States of America or a state thereof.<\/p>\n
“Foreign Receivable”: a Receivable the Obligor of which is a
\n ——————
\n Foreign Obligor.<\/p>\n
“Foreign Wholesale Receivable”: a Receivable arising under a
\n —————————-
\n wholesale financing arrangement entered into by Raytheon Credit and, as
\n Obligor thereunder, a Dealer located (within the meaning of Section
\n 9-307 of the New York UCC) outside the United States.<\/p>\n
“Frozen Pool”: as defined in subsection 2.8(b)(ii).
\n ———–<\/p>\n
“GAAP”: generally accepted accounting principles applied on a
\n —-
\n consistent basis.<\/p>\n
24<\/p>\n
“GA Receivable”: a Receivable as to which the related Aircraft
\n ————-
\n is a General Aviation Aircraft and the Obligor of which does not own
\n and operate a commuter airline.<\/p>\n
“General Aviation Aircraft”: the collective reference to any
\n ————————-
\n aircraft manufactured (including sub-assembly) by RAC for general
\n aviation purposes, and comparable general aviation aircraft
\n manufactured by any other Person including, in all cases, without
\n limitation, (i) any airframe, engines (whether or not any such engine
\n has 750 or more rated takeoff horsepower or the equivalent of such
\n horsepower, and including any replacement or substituted engine), and
\n avionics, equipment and accessories at any time attached to, connected
\n with or located in any such aircraft and, to the extent covered by the
\n recording system of the Aviation Act, all logs, manuals and maintenance
\n records with respect thereto and (ii) any avionics, equipment and
\n accessories removed from any Aircraft and, to the extent not covered by
\n the recording system of the Aviation Act, all logs, manuals and
\n maintenance records.<\/p>\n
“Governmental Authority”: any nation or government, any state
\n ———————-
\n or other political subdivision thereof and any entity exercising
\n executive, legislative, judicial, regulatory or administrative
\n functions of or pertaining to government.<\/p>\n
“Guarantee”: the Amended and Restated Guarantee, substantially
\n ———
\n in the form of Exhibit B, to be made by Raytheon in favor of the
\n Managing Facility Agent and the Purchasers, as the same may be amended,
\n supplemented or otherwise modified from time to time.<\/p>\n
“Guarantee Reaffirmation”: the Reaffirmation, executed by the
\n ———————–
\n Guarantor and dated the Amendment Effective Date, consenting to the
\n execution of this Agreement by the Seller and the Servicer and
\n reaffirming the Guarantor’s obligations under the Guarantee.<\/p>\n
“Guarantor”: Raytheon.
\n ———<\/p>\n
“Increasing Purchaser”: as defined in Section 5.3.
\n ——————–<\/p>\n
“Indebtedness”: with respect to any Person at any date, (a)
\n ————
\n all indebtedness of such Person for borrowed money or for the deferred
\n purchase price of property or services (other than current liabilities
\n incurred in the ordinary course of business and payable in accordance
\n with customary trade practices) or which is evidenced by a note, bond,
\n debenture or similar instrument, (b) all obligations of such Person
\n under capital leases, (c) all obligations of such Person in respect of
\n acceptances issued or created for the account of such Person and (d)
\n all liabilities secured by any Lien on any property owned by such
\n Person even though such Person has not assumed or otherwise become
\n liable for the payment thereof.<\/p>\n
“Indemnified Amounts”: as defined in subsection 9.1(a).
\n ——————-<\/p>\n
“Indemnified Person”: as defined in subsection 9.1(a).
\n ——————<\/p>\n
“Indemnified Taxes”: Taxes other than Excluded Taxes.
\n —————–<\/p>\n
25<\/p>\n
“Indemnitee”: as defined in subsection 11.5(c).
\n ———-<\/p>\n
“Ineligibility Event”: with respect to any Purchased
\n ——————-
\n Receivable, any event of the type specified in (1) clauses (i), (ii) or
\n (iii) of subsection 2.11 or (2) clauses (vi) or (xii) of subsection
\n 9.1(a).<\/p>\n
“Ineligible Receivable”: (a) with respect to any Purchased
\n ———————
\n Receivable other than an Existing Receivable, such Receivable, (i) at
\n the date of its purchase or substitution, was not an Eligible
\n Receivable at such date, (ii) relates to a Financed Aircraft which did
\n not receive a conveyance number from the FAA on or prior to the third
\n Settlement Date (or if Raytheon’s Debt Rating is no lower than A\/A2,
\n the fourth Settlement Date; the third or fourth Settlement Date, as
\n applicable, the “Applicable Settlement Date”) following the date of its
\n ————————–
\n purchase or substitution or (iii) relates to a Financed Aircraft which
\n becomes a Remarketed Aircraft; and<\/p>\n
(b) with respect to any Existing Receivable, such Receivable<\/p>\n
(x)(i) at the date of its purchase or substitution under the
\n Existing Agreement pursuant to which it was sold to the
\n administrative agent or agent under such Existing Agreement,
\n was not an “Eligible Receivable” (as defined in such
\n applicable Existing Agreement) at such date or (ii) relates to
\n a Financed Aircraft which did not receive a conveyance number
\n from the FAA on or prior to the third Settlement Date (or if
\n Raytheon’s Debt Rating is no lower than A\/A2, the fourth
\n Settlement Date following the date of its purchase or
\n substitution under the applicable Existing Agreement; or<\/p>\n
(y) relates to a Financed Aircraft which becomes a Remarketed
\n Aircraft; or<\/p>\n
(z) on and as of the Closing Date (after giving effect to the
\n transactions contemplated under the Intercompany Purchase
\n Agreement on such date) such Receivable did not satisfy the
\n criteria specified in the following clauses under the
\n definition of “Eligible Receivable” herein (assuming for
\n purposes hereof, that such clauses are applicable to the
\n Existing Receivables): clauses (c), (h), (k), (l) (other than
\n any requirement that the related Financed Aircraft be free and
\n clear of Liens on such Effective Date), (m) (other than any
\n requirement that such Receivable be free and clear of Liens on
\n such Effective Date), (n)(ii), (o)(i), (x)(i), (y)(vi)(B),
\n (aa)(iv) or (ee)(x) except, that, (1) with respect to Existing
\n —— —-
\n Certified Receivables, prior to the Certified Opinion Delivery
\n Date, and with respect to all Existing Registerable Lease
\n Receivables, prior to the FAA Filing Date, any such Existing
\n Registerable Lease Receivable which does not satisfy any of
\n the criteria specified in such clauses (to the extent such
\n clauses are applicable to Existing Registerable Lease
\n Receivables) solely as a result of the failure to make any of
\n the filings, if any, required by subsection 6.1(n) shall not
\n be an Ineligible Receivable and (2) with respect to Existing
\n Uncertified Foreign Receivables, any such Existing Receivable
\n which does not satisfy any of the criteria specified in such
\n clauses (to the extent such clauses are applicable to such
\n type of Existing Receivable) solely as a result of the failure
\n to make any filing, if any, necessary to<\/p>\n
26<\/p>\n
(x) continue the Lien, if any, of the Administrative Agent, on
\n behalf of the Purchasers, in such Receivables, related
\n Financed Aircraft and Applicable Leases (if applicable) and
\n Collections thereon with the same priority thereon as in
\n effect immediately prior to the Effective Date or (y) perfect
\n the transfer by Raytheon Credit of such Receivables, the
\n related Financed Aircraft and Applicable Leases (if
\n applicable) and Collections thereon to the Seller pursuant to
\n the Intercompany Purchase Agreement shall not be an Ineligible
\n Receivable.<\/p>\n
“Interbank Rate”: for any Special Settlement Date Accrual
\n ————–
\n Period, the sum of (i) the rate of interest per annum (rounded upward
\n to the next 1\/16th of 1%) determined by the Managing Facility Agent as
\n follows:<\/p>\n
IBOR
\n —————————————-
\n 1.00 – Eurodollar Reserve Percentage<\/p>\n
plus (ii) the Applicable Margin;<\/p>\n
Where,<\/p>\n
Eurodollar Reserve Percentage means for any day for any Special
\n Settlement Date Accrual Period, the maximum reserve percentage
\n (expressed as a decimal, rounded upward to the next 1\/100th of 1%) in
\n effect on such day (whether or not applicable to any Purchaser) under
\n regulations issued from time to time by the Board of Governors of the
\n Federal Reserve System for determining the maximum reserve requirement
\n (including any emergency, supplemental or other marginal reserve
\n requirement) with respect to Eurocurrency funding (currently referred
\n to as “Eurocurrency liabilities”); and<\/p>\n
IBOR means the rate of interest per annum determined by the Managing
\n Facility Agent as the rate at which dollar deposits in the approximate
\n amount of the Managing Facility Agent’s Purchase amount for such
\n Special Settlement Date Accrual Period, would be offered by Bank of
\n America, N.A.’s Grand Cayman Branch, Grand Cayman B.W.I. (or by Bank of
\n America, N.A.), to major banks in the offshore dollar interbank market
\n at their request at approximately 11:00 a.m. (New York City time) two
\n Business Days prior to the commencement of such Special Settlement Date
\n Accrual Period.<\/p>\n
“Intercompany Purchase Agreement”: the Intercompany Purchase
\n ——————————-
\n and Contribution Agreement, dated as of March 20, 1997, between
\n Raytheon Credit and the Seller, as amended, supplemented or otherwise
\n modified from time to time.<\/p>\n
“Interest Coverage Ratio”: for any period, the ratio of
\n ———————–
\n Consolidated EBITDA for such period to Consolidated Net Interest
\n Expense for such period.<\/p>\n
“L\/C Receivable”: a Foreign Receivable which at any time is
\n ————–
\n supported by a standby letter of credit in an amount at least equal to
\n the outstanding Principal Balance on such Receivable issued in favor of
\n the Seller and otherwise satisfying the requirements of clause (y) of
\n the definition of “Eligible Receivables”.<\/p>\n
“Lease Collateral”: as defined in subsection 11.12(a).
\n —————-<\/p>\n
27<\/p>\n
“Lease Obligations”: as defined in subsection 11.12(a).
\n —————–<\/p>\n
“Lease Receivable”: any Receivable (other than an ExIm Bank
\n —————-
\n Receivable) created pursuant to a Contract which is a lease between
\n Raytheon Credit, as lessor, and the Obligor thereunder, as lessee, with
\n respect to the Aircraft described therein, other than any such
\n Receivable which is also a L\/C Receivable.<\/p>\n
“LIBO Rate”: for any Accrual Period (other than a Special
\n ———
\n Settlement Date Accrual Period), (A) the per annum rate (carried to the
\n fifth decimal place) equal to (i) the rate determined by the Managing
\n Facility Agent to be the offered rate that appears on the page of the
\n Telerate Screen that displays an average British Bankers Association
\n Interest Settlement Rate (such page currently being page number 3750)
\n for deposits (for delivery on the Settlement Date which is the first
\n day of such Accrual Period) with a term approximately equivalent to
\n such Accrual Period, determined as of approximately 11:00 a.m. (London,
\n England time) two Working Days prior to the Settlement Date which is
\n the first day of such Accrual Period or (ii) in the event the rate
\n referenced in the preceding clause does not appear on such page or
\n service if such page or service shall cease to be available, the rate
\n determined by the Managing Facility Agent to be the offered rate on
\n such other page or other service that displays an average British
\n Bankers Association Interest Settlement Rate for deposits (for delivery
\n on the Settlement Date which is the first day of such Accrual Period)
\n with a term approximately equivalent to such Accrual Period, determined
\n as of approximately 11:00 a.m. (London, England time) two Working Days
\n prior to the Settlement Date which is the first day of such Accrual
\n Period, (B) if such rate cannot be calculated in accordance with clause
\n (A), the “LIBO Rate” for that Accrual Period will be the rate per annum
\n equal to the average (rounded upward to the nearest 1\/16th of 1%) of
\n the respective rates notified to the Managing Facility Agent by each
\n Reference Bank as the rate at which such Reference Bank is offered U.S.
\n dollar deposits in the London interbank eurodollar market for a period
\n comparable in length to such Accrual Period, at or about 11:00 a.m.
\n (London, England time) two Working Days prior to such Settlement Date
\n and in an amount comparable to such Reference Bank’s pro rata share of
\n the Outstanding Purchase Price; or (C) if the LIBO Rate is not able to
\n be determined pursuant to clauses (A) or (B), the rate per annum
\n determined by the Managing Facility Agent in good faith, after
\n consultation with the Purchasers, as reasonably reflecting the
\n aggregate funding costs of the Purchasers.<\/p>\n
“Lien”: any mortgage, pledge, hypothecation, assignment,
\n —-
\n deposit arrangement, encumbrance, lien (statutory or other), or
\n preference, priority or other security agreement or preferential
\n arrangement of any kind or nature whatsoever (including, without
\n limitation, any conditional sale or other title retention agreement or
\n any financing lease having substantially the same economic effect as
\n any of the foregoing, and the filing of any financing statement under
\n the UCC or comparable law of any jurisdiction in respect of any of the
\n foregoing).<\/p>\n
“Liquidity Bank”: for any SPC, at any date of determination,
\n ————–
\n the collective reference to the financial institutions which at such
\n date are providing liquidity and\/or credit facilities to or for the
\n account of such SPC to fund such SPC’s obligations<\/p>\n
28<\/p>\n
hereunder or to support the securities (if any) issued by such SPC to
\n fund such obligations.<\/p>\n
“Low Wholesale Value”: of any Aircraft at any date of
\n ——————-
\n determination, the low wholesale value shown in the Aircraft Blue Book
\n Price Digest most recently published prior to such date of
\n determination for aircraft of substantially similar age and with
\n comparable features as such Aircraft.<\/p>\n
“Majority Purchasers”: at any time, Purchasers the Commitment
\n ——————-
\n Percentages of which aggregate at least 51%; provided that the
\n ——–
\n Commitment Percentage of any Dissenting Purchaser shall not be included
\n in determinations of Majority Purchasers with respect to purchases or
\n substitutions of Receivables or other matters not otherwise affecting
\n Dissenting Purchasers; provided, further, that any action taken by the
\n ——– ——-
\n Managing Facility Agent and the Purchasers under subsection 8.2 (with
\n the exception of subsection 8.2(b)) shall be deemed to affect a
\n Dissenting Purchaser.<\/p>\n
“Managing Facility Agent”: as defined in the preamble to this
\n ———————–
\n Agreement.<\/p>\n
“Mandatorily Redeemable Equity Securities” shall mean the
\n —————————————-
\n 17,250,000 equity security units, including any remarketed securities,
\n issued by Raytheon in May 2001. Each equity security unit consists of a
\n contract to purchase shares of Raytheon’s common stock on May 15, 2004,
\n and a mandatorily redeemable equity security, with a stated liquidation
\n amount of $50.00 due on May 15, 2004. The mandatorily redeemable equity
\n security represents an undivided interest in the assets of RC Trust I,
\n a Delaware business trust, formed for the purpose of issuing these
\n securities and whose assets consist solely of subordinated notes issued
\n by Raytheon.<\/p>\n
“Material Adverse Effect”: (i) with respect to the Seller, a
\n ———————–
\n material adverse effect on (a) the Purchased Receivables taken as a
\n whole, (b) the ability of the Seller to perform its obligations under
\n this Agreement, (c) the validity or enforceability of this Agreement or
\n the rights or remedies of the Managing Facility Agent or the Purchasers
\n under any Purchase Document or (d) the business, assets, properties or
\n condition (financial or other) of the Seller and (ii) with respect to
\n the Servicer, a material adverse effect on (a) the Purchased
\n Receivables taken as a whole, (b) the ability of the Servicer to
\n perform its obligations under this Agreement, (c) the validity or
\n enforceability of this Agreement or the rights or remedies of the
\n Managing Facility Agent or the Purchasers under any Purchase Document
\n or (d) the business, assets, properties or condition (financial or
\n other) of the Servicer.<\/p>\n
“Mesa”: Mesa Airlines, Inc., a New Mexico corporation.
\n —-<\/p>\n
“Moody’s”: Moody’s Investors Service, Inc.
\n ——-<\/p>\n
“Multiemployer Plan”: a Plan which is a multiemployer plan as
\n ——————
\n defined in Section 4001(a)(3) of ERISA.<\/p>\n
29<\/p>\n
“Net Recoveries”: all monies collected by the Seller, the
\n ————–
\n Servicer or any other Person (from whatever source, including, without
\n limitation, from the refinancing of the related Financed Aircraft) on
\n account of a Defaulted Receivable (including, without limitation, from
\n the sale or other disposition of the Financed Aircraft) net of any
\n expenses incurred by the Seller, the Servicer or such Person in
\n connection with the collection on such Defaulted Receivable and the
\n refurbishment, disposition or disposal of the related Financed
\n Aircraft.<\/p>\n
“1997 Agreement”: the Purchase and Sale Agreement, dated as of
\n ————–
\n March 20, 1997, among the Seller, the Servicer, the financial
\n institutions from time to time parties thereto (the “1997 Purchasers”),
\n —————
\n The First National Bank of Boston, Bank of Montreal, The First National
\n Bank of Chicago, Fleet National Bank, The Fuji Bank, Limited, New York
\n Branch, The Sanwa Bank Limited, New York Branch and Westdeustche
\n Landesbank Girozentrale, New York Branch, as co-agents for the 1997
\n Purchasers, Swiss Bank Corporation, New York Branch, Bank of America
\n National Trust and Savings Association, Canadian Imperial Bank of
\n Commerce, New York Agency, The Chase Manhattan Bank, Citibank, N.A.,
\n Credit Suisse First Boston, New York Branch, The Industrial Bank of
\n Japan, Limited, Morgan Guaranty Trust Company of New York, and Wachovia
\n Bank of Georgia, N.A., as agents for the 1997 Purchasers, and Swiss
\n Bank Corporation, New York Branch, as administrative agent for the 1997
\n Purchasers.<\/p>\n
“90% Repurchase Receivables”: at any date of determination,
\n ————————–
\n the collective reference to the following types of Receivables:<\/p>\n
(a) L\/C Receivables, the related letters of credit of
\n which are not issued by commercial banks which qualify as
\n Acceptable L\/C Issuers at such date, it being understood that
\n an L\/C Receivable shall be a 25% Repurchase Receivable if the
\n issuer of the related letter of credit does not qualify as an
\n Acceptable L\/C Issuer at the time such Receivable is purchased
\n or substituted hereunder but does so qualify on such date of
\n determination;<\/p>\n
(b) Uncertified Foreign Receivables (including Affiliate
\n Receivables which are Uncertified Foreign Receivables) which
\n are not L\/C Receivables;<\/p>\n
(c) Foreign Wholesale Receivables;<\/p>\n
(d) Receivables which have not received conveyance
\n numbers from the FAA on or prior to the Applicable Settlement
\n Date after the sale or substitution of such Receivable;
\n provided, however, that (i) any such Receivable shall be
\n ——–
\n repurchased by the Seller on such Applicable Settlement Date
\n and (ii) Receivables which are subject to this paragraph (d)
\n that are so repurchased by the Seller shall not be subject to
\n subsection 2.7(a)(viii);<\/p>\n
(e) Excess Mesa Receivables; and<\/p>\n
(f) all other Receivables which are not 25% Repurchase
\n Receivables or 75% Repurchase Receivables.<\/p>\n
30<\/p>\n
“Nonstandard Receivable”: a Receivable (other than a Wholesale
\n ———————-
\n Receivable or a Receivable which has Mesa as the Obligor) created
\n pursuant to a Contract under which (at the time of purchase or
\n substitution thereof) the amount scheduled to be outstanding on any
\n annual anniversary of the execution date of such Contract (assuming all
\n scheduled payments have been made prior to such date) is greater than
\n the amount which would have been so outstanding on such date if
\n payments on such Contract prior to such anniversary had been made on a
\n thirteen year mortgage-type amortization method, assuming a balloon
\n payment of 20% (in the case of both a GA Receivable or a Commuter
\n Receivable) of the original sales price scheduled for repayment at the
\n end of the thirteenth year.<\/p>\n
“Note Rate”: with respect to any Accrual Period, a rate per
\n ———
\n annum equal to the LIBO Rate plus the Applicable Margin and the
\n Amortization Adjustment, if any, calculated in accordance with this
\n Agreement.<\/p>\n
“Note Rate Amortization Event”: an Amortization Event of the
\n —————————-
\n type described in subsection 8.1(b), (c), (d), (e), (f), (g), (h), (i),
\n (j), (l), (m) or (n).<\/p>\n
“Obligations”: as defined in the Guarantee.
\n ———–<\/p>\n
“Obligor”: each Person obligated to make payments in respect
\n ——-
\n of a Receivable, including each Affiliate Obligor under an Affiliate
\n Receivable.<\/p>\n
“Occurrence”: as defined in subsection 10.5.
\n ———-<\/p>\n
“Old Administrative Agent”: UBS AG, Stamford Branch, as
\n ————————
\n successor to Swiss Bank Corporation, Stamford Branch, as successor to
\n Swiss Bank Corporation, New York Branch.<\/p>\n
“Operating Lease Receivables”: Lease Receivables which are
\n —————————
\n carried on the books of Raytheon Credit or the Seller as operating
\n leases.<\/p>\n
“Other Taxes” means any and all present or future stamp or
\n ———–
\n documentary taxes or any other excise or property taxes, charges or
\n similar levies arising from any payment made hereunder or from the
\n execution, delivery or enforcement of, or otherwise with respect to,
\n this Agreement or any other Purchase Document.<\/p>\n
“Outstanding Balance”: with respect to any Receivable at any
\n ——————-
\n date of determination, the Purchase Price paid with respect to such
\n Receivable less all Principal Collections and any reductions pursuant
\n to subsection 2.6A applied to such Receivable on and prior to such date
\n of determination.<\/p>\n
“Outstanding Purchase Price”: (a) as to all the Purchasers at
\n ————————–
\n any date of determination, the aggregate Purchase Prices which at such
\n date have been paid to purchase Purchased Receivables (or portions
\n thereof) in accordance with this Agreement minus the amount of
\n —–
\n Principal Collections which have been received by the Purchasers
\n (including, without limitation, Principal Collections which have been
\n used to purchase additional Eligible Receivables pursuant to subsection
\n 2.15(b)) minus the amount, if any,
\n —–<\/p>\n
31<\/p>\n
of Excess Spread which has been paid to the Purchasers pursuant to
\n subsection 2.16(b)(vi)(2) minus the amount, if any, of reductions in
\n —–
\n the Outstanding Purchase Price pursuant to subsection 2.6A and (b) as
\n to any Purchaser, its pro rata share of the Outstanding Purchase Price,
\n — —-
\n as determined pursuant to clause (a) above.<\/p>\n
“Participant”: as defined in subsection 11.6(b).
\n ———–<\/p>\n
“Participated Receivable”: a Receivable in which the Seller
\n ———————–
\n has a Seller’s Interest pursuant to subsection 2.4(a).<\/p>\n
“Permitted Aircraft Lien”: with respect to any Financed
\n ———————–
\n Aircraft which is related to a Purchased Receivable, (A) any
\n materialman’s, mechanic’s, workman’s, repairman’s or other like Lien
\n which (i) arises in favor of a Person contracted by and on behalf of
\n the Obligor or the Unaffiliated Foreign Lessee on the related Contract,
\n (ii) arises in the ordinary course of business and (iii) (X) has been
\n released or bonded against (or other credit assurances provided) in
\n favor of the Administrative Agent and the Purchasers in an amount at
\n least equal to the obligations secured by such Lien and otherwise in a
\n manner reasonably satisfactory to the Managing Facility Agent and the
\n Required Purchasers not more than 90 days after the earliest date on
\n which the Seller, the Servicer or RAC knew of such Lien or (Y) secures
\n obligations which are being contested in good faith by appropriate
\n proceedings, so long as such proceedings do not involve any material
\n danger of the sale, forfeiture or loss of such Financed Aircraft or any
\n interest therein, or (B) any Lien which (i) is involuntary in nature,
\n (ii) secures either (X) state taxes not yet due by the Obligor on the
\n related Contract or which are being contested in good faith by
\n appropriate proceedings by the Obligor or (Y) any judgment or decree
\n entered against such Obligor, (iii) secures obligations which are
\n immaterial in amount in relation to such Purchased Receivable and (iv)
\n does not involve any material danger of the sale, forfeiture or loss of
\n such Financed Aircraft, or (C) solely with respect to a Lease
\n Receivable, a Lien on the Financed Aircraft related thereto arising
\n under the related lease if the obligations of the lessee thereunder
\n are, in accordance with GAAP, required to be capitalized on such
\n lessee’s balance sheet or (D) solely with respect to a Travel Air
\n Receivable, Liens on the undivided interest(s) in the related Financed
\n Aircraft which are not owned by the Seller, any affiliate of the
\n Seller, or any Obligor under such Travel Air Receivable.<\/p>\n
“Permitted Receivable Lien”: with respect to any Purchased
\n ————————-
\n Receivable, if for any reason the Purchased Receivables are held to be
\n the property of the Seller or the Affiliate Obligor, as the case may
\n be, or if for any other reason this Agreement and the Assignments are
\n held or deemed not to effect an absolute sale of the Purchased
\n Receivables, any Lien which (i) is involuntary in nature, (ii) secures
\n either (A) state taxes not yet due by the Seller or which are being
\n contested in good faith by appropriate proceedings by the Seller or any
\n of its Affiliates (so long as adequate reserves with respect thereto
\n are maintained on the books of the Seller or such Affiliate in
\n conformity with GAAP) or (B) any judgment or decree entered against the
\n Seller or, with respect to an Affiliate Receivable, the related
\n Affiliate Obligor, (iii) secures obligations which are immaterial in
\n amount in relation to the Purchased Receivables taken as a whole and
\n the related Contracts and Financed Aircraft and (iv) does not involve
\n any material danger of the sale, forfeiture or loss of any Purchased
\n Receivable, the Collections with respect<\/p>\n
32<\/p>\n
thereto and the related Contract (including any Applicable Lease), and
\n Financed Aircraft or any other Material Adverse Effect.<\/p>\n
“Person”: an individual, partnership, limited liability
\n ——
\n company, corporation, business trust, joint stock company, trust,
\n unincorporated association, joint venture, Governmental Authority or
\n other entity of whatever nature.<\/p>\n
“Plan”: with respect to a Person, at a particular time, any
\n —-
\n employee benefit plan which is covered by ERISA and in respect of which
\n such Person or a Commonly Controlled Entity is (or, if such plan were
\n terminated at such time, would under Section 4069 of ERISA be deemed to
\n be) an “employer” as defined in Section 3(5) of ERISA.<\/p>\n
“Principal Balance”: at any date of determination, whether
\n —————–
\n before or after the occurrence and continuance of a Rating Event, the
\n actual unpaid principal balance (or with respect to a Lease Receivable
\n the aggregate amount of unpaid lease payments discounted at the
\n lessor’s implicit interest rate for the respective lease Contract) of a
\n Receivable at such date of determination; provided that (i) the
\n ——–
\n Principal Balance of any Participated Receivable or Extended Term
\n Receivable shall be a reference only to that portion of the actual
\n unpaid principal balance of such Participated Receivable or Extended
\n Term Receivable sold to the Purchasers hereunder at such date of
\n determination and (ii) the Principal Balance of any Purchased
\n Receivable on account of which a portion of the Discount Amount has
\n been distributed pursuant to subsection 2.6A shall be a reference only
\n to that portion of the actual unpaid principal balance of such
\n Purchased Receivable held by the Purchasers hereunder and not
\n constituting the Seller’s Interest pursuant to subsection 2.6A at such
\n date of determination.<\/p>\n
“Principal Collections”: with respect to each Purchased
\n ———————
\n Receivable during any Settlement Period, Collections on account of such
\n Purchased Receivable received during such Settlement Period minus the
\n amount of Finance Charge Collections for such Purchased Receivable for
\n such Settlement Period. Principal Collections shall include, without
\n limitation, payments by the Seller in respect of repurchases of
\n Purchased Receivables pursuant to subsections 2.7(b), 2.10, 2.10A,
\n 2.11, 2.12, the first sentence of subsection 2.13 and subsection
\n 7.1(b)(iv) and after the occurrence and continuance of a Rating Event,
\n the portion of Net Recoveries allocated as Principal Collections
\n pursuant to subsection 2.15(d).<\/p>\n
“Pro Rata Credit”: as defined in subsection 2.1(d)(iii).
\n —————<\/p>\n
“Pro Rata Debit”: as defined in subsection 2.1(d)(iii).
\n ————–<\/p>\n
“Prohibited Jurisdiction”: each jurisdiction listed on
\n ———————–
\n Schedule III and any jurisdiction notified from time to time to the
\n Seller and the Servicer by the Managing Facility Agent, on behalf of
\n the Purchasers, as a jurisdiction in which any Purchaser (an “Affected
\n ——–
\n Purchaser”) is prohibited, as a result of any conflict with a
\n ———
\n Requirement of Law or with any policy of such Affected Purchaser, from
\n making loans or other extensions of credit.<\/p>\n
33<\/p>\n
“Purchase Discount”: during the continuance of a Discount
\n —————–
\n Event, with respect to all Receivables, 25%.<\/p>\n
“Purchase Documents”: the collective reference to this
\n ——————
\n Agreement, the Intercompany Purchase Agreement, each Assignment, each
\n FAA Assignment, each Foreign Assignment, the Repurchase Agreement and
\n the Guarantee.<\/p>\n
“Purchase Price”: (a) with respect to any Receivable to be
\n ————–
\n purchased from the Seller or substituted by the Seller on any
\n Settlement Date, an amount equal to the Principal Balance of such
\n Receivable on the last day of the Settlement Period preceding such
\n Settlement Date on which such Receivable is purchased or substituted,
\n and<\/p>\n
(b) with respect to a Substituted Lease Receivable substituted
\n pursuant to subsection 2.13(e), the amount equal to the Principal
\n Balance of such Receivable on the date on which such Substituted Lease
\n Receivable is substituted;<\/p>\n
provided that, (x) if a Rating Event has occurred and is continuing as
\n ——– —-
\n of such Settlement Date, the Purchase Price for a Wholesale Receivable
\n purchased or substituted shall be reduced by the amount of the security
\n or other deposit made by the Obligor thereon and (y) if a Discount
\n Event has occurred and is continuing as of such Settlement Date, the
\n Purchase Price for each Receivable purchased shall be the Principal
\n Balance thereof multiplied by a percentage equal to 100% less the
\n Purchase Discount (and less amounts referred to in clause (x), if
\n applicable).<\/p>\n
“Purchase Report”: each purchase report, substantially in the
\n —————
\n form of Exhibit I, to be delivered by the Seller on each Settlement
\n Date.<\/p>\n
“Purchased Receivable”: a Receivable (or a portion thereof in
\n ——————–
\n the case of a Participated Receivable or an Extended Term Receivable)
\n which is purchased or substituted pursuant to Section 2 (including,
\n without limitation, subsection 2.3).<\/p>\n
“Purchasers”: as defined in the preamble of this Agreement.
\n ———-<\/p>\n
“Purchasing Party”: as defined in subsection 11.6(c).
\n —————-<\/p>\n
“Quarterly Receivable”: any Receivable which is required to be
\n ——————–
\n paid in quarterly installments.<\/p>\n
“RAC”: Raytheon Aircraft Company, a Kansas corporation and an
\n —
\n Affiliate of Raytheon Credit.<\/p>\n
“RAC Repurchase Obligation”: as defined in the Repurchase
\n ————————-
\n Agreement.<\/p>\n
“RARC Repurchase Obligation”: as defined in subsection
\n ————————–
\n 2.10(b).<\/p>\n
“RARC Repurchase Percentage”: means 10%.
\n ————————–<\/p>\n
34<\/p>\n
“Rating Event”: any time when (a) Raytheon’s Debt Rating is
\n ————
\n below BB+ or the equivalent thereof, or if for any reason Raytheon’s
\n long-term senior unsecured debt is not rated (whether by reason of
\n suspension or withdrawal of a rating, or otherwise), (b) an
\n Amortization Event described in subsection 8.1(o) shall have occurred
\n and be continuing or (c) a Discount Event (which is not otherwise also
\n a Rating Event) occurs and the Seller elects not to exercise its option
\n to pay the Discount Amount pursuant to subsection 2.6A.<\/p>\n
“Raytheon”: Raytheon Company, a Delaware corporation and
\n ——–
\n indirect parent of the Seller, and its successors and assigns (as
\n permitted by the Guarantee).<\/p>\n
“Raytheon Credit”: as defined in the preamble of this
\n —————
\n Agreement.<\/p>\n
“Raytheon Authorized Officers”: the Chairman of the Board of
\n —————————-
\n Directors, the President, the Executive Vice President-Chief Financial
\n Officer and the Senior Vice President-Treasurer of Raytheon.<\/p>\n
“Receivable”: the right to receive all amounts (including fees
\n ———-
\n and premiums if any) payable by the Obligor under a Contract including
\n without limitation any amounts payable by the Obligor or an
\n Unaffiliated Foreign Lessee upon the exercise of a purchase option or a
\n prepayment option under any Contract, security deposits, engine reserve
\n accounts and all other right, title and interest of the Seller under
\n and with respect to a Contract, including, without limitation, all
\n amounts from time to time payable and all rights to damages and to
\n exercise remedies thereunder (including fees and premiums, if any), all
\n collateral security therefor (including, without limitation, any
\n Applicable Lease related thereto, and the related Financed Aircraft),
\n guarantees thereof (whether by the Obligor, RAC or any of such Person’s
\n Affiliates or by any financial institution pursuant to a letter of
\n credit issued in favor of the Seller or any of its Affiliates), rights
\n to payment (whether by the Obligor thereon, any insurer or letter of
\n credit issuer with respect thereto or any other Person) with respect
\n thereto and all agreements or inducements made by or on behalf of RAC
\n with respect to such related Contract or Financed Aircraft and all
\n proceeds of the foregoing.<\/p>\n
“Reference Banks”: JPMorgan Chase Bank and Bank of America,
\n —————
\n N.A.<\/p>\n
“Refinanced Aircraft”: except with respect to a new Aircraft
\n ——————-
\n related to a Domestic Wholesale Receivable sold or substituted
\n hereunder which has been sold to more than one Dealer, any Financed
\n Aircraft (i) manufactured (including subassembly) by RAC, the related
\n Obligor or Unaffiliated Foreign Lessee of which is not the initial
\n purchaser or lessee thereof (including any Person who has assumed the
\n obligations of an Obligor or Unaffiliated Foreign Lessee under a
\n Contract in connection with the transfer of the related Aircraft, but
\n excluding any Obligor or Unaffiliated Foreign Lessee who is a
\n wholly-owned Affiliate of such initial purchaser) or (ii) manufactured
\n by any other Person the acquisition of which has been financed or
\n refinanced by Raytheon Credit.<\/p>\n
“Register”: as defined in subsection 11.6(d).
\n ——–<\/p>\n
35<\/p>\n
“Registerable Lease Receivable”: any Lease Receivable the
\n —————————–
\n related Financed Aircraft of which is determined to be property
\n registerable in accordance with the Aviation Act in the Seller’s name
\n with the FAA Registry, such determination to be made by either (i) an
\n opinion of counsel of the FAA or (ii) an opinion of Crowe & Dunlevy (or
\n any other law firm acceptable to the Managing Facility Agent in its
\n reasonable discretion) issued, in each case, as a result of a review of
\n the related lease prior to filing thereof in accordance with this
\n Agreement.<\/p>\n
“Regulation U”: Regulation U of the Board of Governors of the
\n ————
\n Federal Reserve System.<\/p>\n
“Reimbursable Obligations”: as defined in subsection 2.14(c)
\n ————————
\n (iii).<\/p>\n
“Remarketed Aircraft”: any Financed Aircraft which Raytheon
\n ——————-
\n Credit or any of its Affiliates, at the request of the Obligor or
\n Unaffiliated Foreign Lessee on the related Contract, has agreed to
\n market and sell on behalf of such Person after such Person has notified
\n the Seller or any of its Affiliates (in writing or otherwise) that it
\n is or will be on the date its next scheduled payment is due unable to
\n continue to meet its obligations under the related Contract. A Financed
\n Aircraft shall be deemed to be a Remarketed Aircraft on the date
\n Raytheon Credit or any of its Affiliates agrees to market such Financed
\n Aircraft on such Person’s behalf.<\/p>\n
“Remittance Event”: any time Raytheon’s Debt Rating is below
\n —————-
\n BBB- or the equivalent thereof, or if for any reason Raytheon’s
\n long-term senior unsecured debt is not rated (whether by reason of
\n suspension or withdrawal of a rating, or otherwise).<\/p>\n
“Removed Receivable”: as defined in subsection 2.13(a).
\n ——————<\/p>\n
“Replaced Lease Receivable”: as defined in subsection 2.13(e).
\n ————————-<\/p>\n
“Reporting Date”: with respect to a Settlement Period, the
\n ————–
\n fifth Business Day following the last day of such Settlement Period,
\n with the first such Reporting Date occurring hereunder on April 5,
\n 2002.<\/p>\n
“Repurchase Agreement”: that certain Second Amended and
\n ——————–
\n Restated Repurchase Agreement, substantially in the form of Exhibit G,
\n dated as of the Amendment Effective Date, between RAC and the Managing
\n Facility Agent on behalf of the Purchasers, as amended, supplemented or
\n otherwise modified from time to time.<\/p>\n
“Repurchase Price”:
\n —————-<\/p>\n
(a) with respect to a repurchase of or substitution for any
\n Ineligible Receivable, an amount equal to the Principal Balance of such
\n Ineligible Receivable on the last day of the Settlement Period
\n preceding the Settlement Date on which such repurchase or substitution
\n is to be made (as shown from the Settlement Statement delivered for
\n such Settlement Period) less, if such Ineligible Receivable was
\n —-
\n purchased after the occurrence of a Discount Event at a discount
\n pursuant to subsection 2.6, an amount equal to such Principal Balance
\n at such last day times the Purchase Discount in effect on the
\n Settlement<\/p>\n
36<\/p>\n
Date such Ineligible Receivable was purchased plus, after a Trigger
\n Amortization Event, accrued interest;<\/p>\n
(b) with respect to a repurchase of or substitution for any
\n Purchased Receivable which becomes a Defaulted Receivable during the
\n Revolving Period, an amount equal to the Principal Balance of such
\n Defaulted Receivable on the last day of the Settlement Period preceding
\n the Settlement Date on which such repurchase or substitution is to be
\n made (as shown from the Settlement Statement delivered for such
\n Settlement Period) less, if such Defaulted Receivable was purchased
\n —-
\n after the occurrence of a Discount Event at a discount pursuant to
\n subsection 2.6, an amount equal to such Principal Balance at such last
\n day times the Purchase Discount in effect on the Settlement Date such
\n Defaulted Receivable was purchased; and<\/p>\n
(c) with respect to a repurchase of or substitution for any
\n Purchased Receivable which becomes a Defaulted Receivable during the
\n Amortization Period, an amount equal to the Principal Balance of such
\n Defaulted Receivable on the last day of the Settlement Period preceding
\n the Settlement Date on which such repurchase or substitution is to be
\n made (as shown from the Settlement Statement delivered for such
\n Settlement Period).<\/p>\n
“Required Purchasers”: at any time, Purchasers the Commitment
\n ——————-
\n Percentages of which aggregate at least 67%; provided that the
\n ——–
\n Commitment Percentage of any Dissenting Purchaser shall not be included
\n in determinations of Required Purchasers with respect to purchases or
\n substitutions of Receivables or other matters not otherwise affecting
\n Dissenting Purchasers; provided, further, that any action taken by the
\n ——– ——-
\n Managing Facility Agent and the Purchasers under subsection 8.2 (with
\n the exception of subsection 8.2(b)) shall be deemed to affect a
\n Dissenting Purchaser.<\/p>\n
“Requirement of Law”: as to any Person, any law, treaty, rule
\n ——————
\n or regulation or final determination (after exhaustion of all appeals)
\n of an arbitrator or a court or other Governmental Authority, in each
\n case applicable to or binding upon such Person or any of its property
\n or to which such Person or any of its property is subject.<\/p>\n
“Resale”: as defined in subsection 11.24.
\n ——<\/p>\n
“Resale Purchase Price”: as defined in subsection 11.24.
\n ———————<\/p>\n
“Resold Receivable”: as defined in subsection 11.24.
\n —————–<\/p>\n
“Responsible Officer”: the president or chief credit officer
\n ——————-
\n of the Seller.<\/p>\n
“Revolving Period”: the period from and including the
\n —————-
\n Amendment Effective Date to and including the earlier of (i) the
\n Expiration Date and (ii) the date on which the Revolving Period is
\n terminated pursuant to subsection 8.2(b) as a result of the occurrence
\n of an Amortization Event.<\/p>\n
“S&P”: Standard & Poor’s Ratings Services.
\n —<\/p>\n
37<\/p>\n
“Secured Lease Receivables”: the collective reference to (i)
\n ————————-
\n each Receivable which is a Lease Receivable purchased after the date
\n hereof and in respect of which the filings referred to in subsection
\n 5.2(e) have been made and (ii) each Existing Receivable which is a
\n “Registerable Lease Receivable” under the Existing Agreement pursuant
\n to which such Receivable was purchased by the Old Administrative Agent
\n and with respect to which all filings required under subsection
\n 6.1(n)(ii) have been made.<\/p>\n
“Security Interest Leases”: as defined in subsection 11.12.
\n ————————<\/p>\n
“Seller”: as defined in the preamble of this Agreement.
\n ——<\/p>\n
“Seller’s Interest”: an amount equal to the subordinated
\n —————–
\n participating interest in the Purchased Receivables purchased by the
\n Seller (i) pursuant to subsection 2.4(a) and subject to the terms of
\n subsection 2.4(b), (ii) pursuant to subsection 2.5(a) and subject to
\n the terms of subsection 2.5(b) and (iii) after the occurrence of a
\n Discount Event, pursuant to subsection 2.6(b) and subject to the terms
\n of subsection 2.6(c), and\/or upon the occurrence of a Discount Event
\n (which is not also a Rating Event) pursuant to subsection 2.6A and
\n subject to the terms thereof.<\/p>\n
“Semi-Annual Receivable”: any Receivable which is required to
\n ———————-
\n be paid in semi-annual payments.<\/p>\n
“Servicer”: the Person appointed as servicer of the Purchased
\n ——–
\n Receivables pursuant to subsection 3.1.<\/p>\n
“Servicer Letter of Credit”: an irrevocable standby letter of
\n ————————-
\n credit issued in favor of the Managing Facility Agent and the
\n Purchasers which:<\/p>\n
(a) supports the obligations of the Servicer under this
\n Agreement;<\/p>\n
(b) provides for drawings on sight or upon presentation
\n of certificates specified therein;<\/p>\n
(c) is issued by a commercial bank, the short term
\n unsecured indebtedness of which, at the date the Servicer
\n Letter of Credit is issued and at all times thereafter, is
\n rated at least A-1 and P-1 by S&P and Moody’s, respectively;<\/p>\n
(d) at any date of determination, has an expiration date
\n which is not earlier than the second succeeding Settlement
\n Date after such date of determination;<\/p>\n
(e) at any date of determination, has an available amount
\n equal to the aggregate amount of Principal Collections and
\n Finance Charge Collections for the three Settlement Periods
\n preceding such date of determination; and<\/p>\n
(f) is otherwise in form and substance satisfactory to
\n the Managing Facility Agent and the Majority Purchasers.<\/p>\n
38<\/p>\n
“Servicing Fee”: the fee which the Servicer is entitled to
\n ————-
\n receive pursuant to subsection 3.4.<\/p>\n
“Settlement Date”: (i) with respect to a Settlement Period,
\n —————
\n the tenth Working Day following the last day of such Settlement Period,
\n with the first such Settlement Date under this Agreement occurring on
\n March 8, 2002 and (ii) each Special Settlement Date.<\/p>\n
“Settlement Period”: each fiscal monthly period of the Seller
\n —————–
\n during each of its fiscal years during the term of this Agreement.<\/p>\n
“Settlement Statement”: a Settlement Statement delivered by
\n ——————–
\n the Seller pursuant to this Agreement, substantially in the form of
\n Exhibit C for delivery during the Revolving Period and with appropriate
\n modifications thereto for delivery during the Amortization Period, in
\n each case with appropriate insertions.<\/p>\n
“75% Repurchase Receivables”: at any date of determination,
\n ————————–
\n the collective reference to the following types of Receivables:<\/p>\n
(a) Commuter Receivables the Obligor under which is
\n located (within the meaning of Section 9-307 of the New York
\n UCC) in the United States;<\/p>\n
(b) Certified Foreign Receivables (including Affiliate
\n Receivables which are Certified Foreign Receivables); and<\/p>\n
(c) the Travel Air Receivables.<\/p>\n
“Solvent”: as to any Person at any time, that (a) the fair
\n ——-
\n value of the property of such Person is greater than the amount of such
\n Person’s liabilities (including disputed, contingent and unliquidated
\n liabilities) as such value is established and liabilities evaluated for
\n purposes of Section 101(31) of the Bankruptcy Code (11 USC ss.
\n 101(31)); (b) the present fair saleable value of the property of such
\n Person in an orderly liquidation of such Person is not less than the
\n amount that will be required to pay the probable liability of such
\n Person on its debts as they become absolute and matured; (c) such
\n Person is able to realize upon its property and pay its debts and other
\n liabilities (including disputed, contingent and unliquidated
\n liabilities) as they mature in the normal course of business; (d) such
\n Person does not intend to, and does not believe that it will, incur
\n debts or liabilities beyond such Person’s ability to pay as such debts
\n and liabilities mature; and (e) such Person is not engaged in business
\n or a transaction, and is not about to engage in a business or a
\n transaction, for which such Person’s property would constitute
\n unreasonably small capital.<\/p>\n
“SPC”: each Purchaser which is a special purpose corporation
\n —
\n identified as such on the signature pages hereto next to the caption
\n “SPC” and each special purpose corporation identified as such in a
\n Commitment Transfer Supplement or a Transfer Notice.<\/p>\n
“SPC Bank”: each Purchaser which is identified as such on the
\n ——–
\n signature pages hereto next to the caption “SPC Bank” and immediately
\n below the signature of its SPC.<\/p>\n
39<\/p>\n
“Special Settlement Date”: each of March 29, 2002, June 28,
\n ———————–
\n 2002, September 27, 2002 and December 31, 2002.<\/p>\n
“Special Settlement Date Accrual Period”: with respect to any
\n ————————————–
\n Special Settlement Date, the period beginning on the third Working Day
\n after such Special Settlement Date and ending on the next Settlement
\n Date; provided that, if the notice provided for in Section 2.3 is
\n ——– —-
\n delivered to the Managing Facility Agent at least three Working Days
\n before any Special Settlement Date, the Special Settlement Date Accrual
\n Period with respect to such Special Settlement Date shall begin on such
\n Special Settlement Date.<\/p>\n
“Specified Amortization Event”: (i) an Amortization Event of
\n —————————-
\n the type described in subsection 8.1(a), (b), (e), (f), (j) (unless
\n applicable to the Servicer which is neither Raytheon Credit nor an
\n Affiliate of Raytheon Credit), (m), (n) or (o), or (ii) an Amortization
\n Event of the type described in subsection 8.1(d) if such Amortization
\n Event could reasonably be expected to have a Material Adverse Effect.<\/p>\n
“Specified Resales”: as defined in subsection 11.24(a).
\n —————–<\/p>\n
“Stipulated Aircraft Value”: the Stipulated Aircraft Value as
\n ————————-
\n set forth in any lease Contract with respect to the related Financed
\n Aircraft.<\/p>\n
“Subsidiary”: as to any Person, a corporation, partnership or
\n ———-
\n other entity of which shares of stock or other ownership interests
\n having ordinary voting power (other than stock or such other ownership
\n interests having such power only by reason of the happening of a
\n contingency) to elect a majority of the board of directors or other
\n managers of such corporation, partnership or other entity are at the
\n time owned, or the management of which is otherwise controlled,
\n directly or indirectly through one or more intermediaries, or both, by
\n such Person.<\/p>\n
“Substituted Receivable”: as defined in subsection 2.13(a).
\n ———————-<\/p>\n
“Substituted Lease Receivable”: as defined in subsection
\n —————————-
\n 2.13(e).<\/p>\n
“Syndication Materials”: the collective reference to (i) the
\n ———————
\n document dated February 2002 furnished on behalf of the Seller to the
\n Purchasers with respect to the transactions contemplated by the
\n Purchase Documents and (ii) those materials relating to the Receivables
\n and related Contracts and Financed Aircraft and the business and
\n operations of the Seller, RAC, Raytheon Credit and Raytheon.<\/p>\n
“Taxes”: means any and all present or future taxes, levies,
\n —–
\n imposts, duties, deductions, charges or withholdings imposed by any
\n Governmental Authority.<\/p>\n
“Third Party Buyer”: as defined in subsection 11.24.
\n —————–<\/p>\n
“Transferee”: as defined in subsection 11.6(f).
\n ———-<\/p>\n
“Transfer Notice”: as defined in subsection 11.6(c).
\n —————<\/p>\n
40<\/p>\n
“Transferred Property”: as defined in subsection 11.13(a)(i).
\n ——————–<\/p>\n
“Travel Air”: Raytheon Travel Air Company, a Kansas
\n ———-
\n corporation.
\n “Travel Air Aircraft”: Aircraft the undivided interests in
\n ——————-
\n which are sold to Obligors pursuant to Travel Air Contracts.<\/p>\n
“Travel Air Contracts”: those purchase, management and other
\n ——————–
\n agreements, substantially in the form of Exhibit I hereto, pursuant to
\n which Travel Air has sold to an Obligor an undivided interest in an
\n aircraft and agreed to the management (including interchange
\n arrangements) with respect thereto.<\/p>\n
“Travel Air Receivables”: the collective reference to each
\n ———————-
\n Receivable secured by the applicable Obligor’s rights and interests in
\n and to the Travel Air Aircraft and the Travel Air Contracts.<\/p>\n
“Trigger Amortization Event”: any Amortization Event which
\n ————————–
\n occurs during, or which pursuant to subsection 8.2(b) results in the
\n commencement of, the Amortization Period.<\/p>\n
“25% Repurchase Receivables”: at any date of determination,
\n ————————–
\n the collective reference to the following types of Receivables:<\/p>\n
(a) Receivables arising from the financing of General
\n Aviation Aircraft, the Obligor under which is located (within
\n the meaning of Section 9-307 of the New York UCC) in the
\n United States;<\/p>\n
(b) ExIm Bank Receivables; and<\/p>\n
(c) L\/C Receivables with a letter of credit issued by an
\n Acceptable L\/C Issuer and held by the Bailee under the
\n Bailment Agreement.<\/p>\n
“UCC”: with respect to a specified jurisdiction, the Uniform
\n —
\n Commercial Code as from time to time in effect in such jurisdiction.<\/p>\n
“Unadjusted Outstanding Balance”: with respect to any
\n ——————————
\n Receivable at any date of determination, the Purchase Price of such
\n Receivable (without giving effect to any reduction of the Principal
\n Balance, and thus the Purchase Price, on account of the payment of any
\n Discount Amount with regard to such Receivable), plus any Purchase
\n Discount attributable to such Receivable if purchased or substituted
\n when a Discount Event shall exist, less all Principal Collections
\n applied to such Receivable on and prior to such date of determination.<\/p>\n
“Unaffiliated Foreign Lessee”: with respect to any Affiliated
\n —————————
\n Receivable, the lessee under the related Applicable Lease.<\/p>\n
“Uncertified Foreign Receivables”: Foreign Receivables and
\n ——————————-
\n Affiliate Receivables which are not Certified Foreign Receivables.<\/p>\n
41<\/p>\n
“Unsecured Foreign Receivable”: a Receivable arising from the
\n —————————-
\n purchase of an Aircraft by an Obligor not located (within the meaning
\n of Section 9-307 of the New York UCC) within the United States, the
\n Principal Balance of which is less than $500,000 at the time of
\n purchase or substitution hereunder.<\/p>\n
“Uncertified Lease Receivables”: A Foreign Receivable which is
\n —————————–
\n a Lease Receivable with a Foreign Obligor for which a Lien on the
\n Financed Aircraft has not been granted by the Seller to the
\n Administrative Agent under Sections 2.27(a)(iii)(A) and
\n 2.27(a)(iii)(B).<\/p>\n
“Unsecured Receivables”: the collective reference to each
\n ———————
\n Receivable which is (i) an Unsecured Foreign Receivable, (ii) an
\n Existing Certified Receivable with respect to which the requirements of
\n subsection 6.1(n)(i) have not been satisfied, (iii) an Existing
\n Receivable which is an “Uncertified Foreign Receivable” under and as
\n defined in the Existing Agreement pursuant to which such Receivable was
\n purchased, (iv) an Existing Receivable which is a “Registerable Lease
\n Receivable” under the Existing Agreement pursuant to which such
\n Receivable was purchased and with respect to which the requirements of
\n subsection 6.1(n)(ii) have not been satisfied and (v) an Uncertified
\n Lease Receivable.<\/p>\n
“Wholesale Receivable”: a Domestic Wholesale Receivable or a
\n ——————–
\n Foreign Wholesale Receivable.<\/p>\n
“Working Day”: any Business Day on which dealings in foreign
\n ———–
\n currencies and exchange between banks may be carried on in London,
\n England.<\/p>\n
1.2 Other Definitional Provisions. (a) Unless otherwise
\n —————————–
\nspecified therein, all terms defined in this Agreement shall have the defined
\nmeanings when used in any certificate or other document made or delivered
\npursuant hereto.<\/p>\n
(b) As used herein and in any certificate or other document
\nmade or delivered pursuant hereto, accounting terms relating to the Seller and
\nits Subsidiaries not defined in subsection 1.1 and accounting terms partly
\ndefined in subsection 1.1, to the extent not defined, shall have the respective
\nmeanings given to them under GAAP.<\/p>\n
(c) When used in this Agreement, “purchase” and its
\ncorrelative meanings shall refer to purchases of Eligible Receivables by the
\nPurchasers pursuant to and subject to the terms and conditions of, this
\nAgreement.<\/p>\n
(d) The words “hereof”, “herein” and “hereunder” and words of
\nsimilar import when used in this Agreement shall refer to this Agreement as a
\nwhole and not to any particular provision of this Agreement, and Section,
\nsubsection, Schedule and Exhibit references are to this Agreement unless
\notherwise specified.<\/p>\n
(e) The meanings given to terms defined herein shall be
\nequally applicable to both the singular and plural forms of such terms.<\/p>\n
42<\/p>\n
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS<\/p>\n
2.1 Agreement to Purchase and Sell; Special Purpose
\n ———————————————–
\nPurchasers; Initial Utilization and Pro Ration. (a) Subject to the terms and
\n———————————————-
\nconditions hereof, the Seller agrees to sell to each Purchaser, and each
\nPurchaser severally agrees to purchase from the Seller from time to time during
\nthe Revolving Period, undivided interests in Receivables with an Outstanding
\nPurchase Price at any one time as to such Purchaser not to exceed the amount of
\nsuch Purchaser’s Commitment. The Outstanding Purchase Price of all Purchased
\nReceivables (exclusive of the interests of Dissenting Purchasers) at any one
\ntime shall not exceed the aggregate Commitments then in effect. Each purchase
\nand sale of Receivables shall, subject to the terms and conditions hereof, take
\nplace on the Closing Date or on any Settlement Date during the Revolving Period.
\nEach Purchaser’s Available Commitment Percentage of the Purchase Price for the
\nReceivables being purchased on the Closing Date or such Settlement Date shall
\nnot exceed such Purchaser’s Available Commitment at such date (calculated before
\ngiving effect to any such purchase). Upon the expiration of the Revolving
\nPeriod, the Commitments will be canceled, the Purchasers will have no further
\ncommitment to purchase Receivables hereunder and Collections on the Purchased
\nReceivables will continue to be applied in respect of the Outstanding Purchase
\nPrice in accordance with the terms of this Agreement.<\/p>\n
(b) In consideration of the agreements set forth herein, upon
\neach purchase of Receivables hereunder, the Seller will sell, assign and
\ntransfer to the Purchasers all of its right, title and interest in and to the
\nReceivables, the related Contracts (including any Applicable Leases) and
\nFinanced Aircraft.<\/p>\n
(c) Except for Three Rivers Funding Corporation, nothing
\ncontained herein shall constitute a commitment by an SPC to make purchases. For
\nany Purchaser which is an SPC Bank, any purchase to be made by such Purchaser
\nmay from time to time be made by the related SPC in its sole discretion and
\nnothing herein contained shall constitute a commitment to make purchases by such
\nSPC; provided that if any SPC elects not to make a purchase, its SPC Bank agrees
\n ——–
\nit will make such purchase pursuant to the terms hereof. Any purchase by an SPC
\nshall constitute a utilization of the Commitment of the SPC Bank.<\/p>\n
(d) It is expressly agreed that on the Closing Date,
\nimmediately following the purchases and sales provided for above in subsection
\n2.1(d) of the 1997 Agreement, each Existing Agreement was deemed amended and
\nrestated by the 1997 Agreement.<\/p>\n
2.2 Procedures for Making Purchases. The Seller shall give the
\n ——————————-
\nManaging Facility Agent irrevocable notice, which notice must be received by the
\nManaging Facility Agent prior to 10:00 a.m., New York City time, on the
\nReporting Date prior to the Settlement Date (other than a Special Settlement
\nDate) on which the Seller wishes to sell Eligible Receivables hereunder (or, in
\nthe case of the initial purchase, three Working Days prior to the Closing Date).
\nEach such notice of a proposed purchase shall specify the date of purchase
\n(which shall be the Closing Date or the Settlement Date next succeeding such
\nReporting Date), the aggregate Outstanding Purchase Price of the Purchased
\nReceivables prior to such proposed purchase (after giving effect to the
\napplication of Collections on the related Settlement Date), the Principal
\nBalance and the Purchase Price for each Receivable which the Seller proposes to
\nsell on the Closing Date or such Settlement Date and any other information which
\nthe Managing Facility<\/p>\n
43<\/p>\n
Agent, in its reasonable discretion, may require prior to the Closing Date or
\nsuch Settlement Date. Upon receipt of any such notice from the Seller, the
\nManaging Facility Agent shall promptly notify each Purchaser thereof. Prior to
\n11:00 a.m., New York City time, on each such Settlement Date on which a purchase
\nhas been requested to be made, each Purchaser shall make available to the
\nManaging Facility Agent, in immediately available funds at the Managing Facility
\nAgent’s office specified in subsection 11.2, the amount of such Purchaser’s pro
\n —
\nrata share of such aggregate Purchase Price for all Receivables being purchased
\n—-
\non such Settlement Date. Subject to the terms and conditions hereof, the
\nproceeds of such purchase will then be made available (or deemed made available
\nif subsection 2.15 is applicable) to the Seller by the Managing Facility Agent
\ncrediting the account of the Seller on the books of such office with the
\naggregate of the amounts made available to the Managing Facility Agent by the
\nPurchasers and in like funds as received by the Managing Facility Agent.<\/p>\n
2.3 Special Settlement Dates. On each Special Settlement Date,
\n ————————
\nthe Seller will be permitted to sell Eligible Receivables to the Purchasers. In
\nconnection with any purchase of Eligible Receivables on any Special Settlement
\nDate, the Seller shall give the Managing Facility Agent irrevocable notice,
\nwhich notice must be received by the Managing Facility Agent prior to 10:00
\na.m., New York City time on the day which is one Business Day prior to such
\nSpecial Settlement Date. Each such notice, which shall be in the form of Exhibit
\nH, shall specify (i) the aggregate Outstanding Purchase Price of the Purchased
\nReceivables prior to such proposed purchase, (ii) the Principal Balance and the
\nPurchase Price for each Receivable which the Seller proposes to sell on such
\nSpecial Settlement Date and (iii) the amount of 90% Repurchase Receivables, 75%
\nRepurchase Receivables and 25% Repurchase Receivables, respectively, included in
\nthe Receivables which the Seller proposes to sell on such Special Settlement
\nDate. Upon receipt of any notice from the Seller, the Managing Facility Agent
\nshall promptly notify each Purchaser thereof. Prior to 11:00 a.m., New York City
\ntime, on such Special Settlement Date, each Purchaser shall make available to
\nthe Managing Facility Agent, in immediately available funds at the Managing
\nFacility Agent’s office specified in Section 11.2, the amount of such
\nPurchaser’s pro rata share of the aggregate Purchase Price for all Receivables
\n — —-
\nbeing purchased on such Special Settlement Date. Subject to the terms and
\nconditions hereof, the proceeds of such purchase will then be made available to
\nthe Seller by the Managing Facility Agent crediting the account of the Seller on
\nthe books of such office with the aggregate of the amounts made available to the
\nManaging Facility Agent by the Purchasers and in like funds as received by
\nManaging Facility Agent.<\/p>\n
2.4 Participated Receivables. (a) In the event that on any
\n ————————
\nSettlement Date the aggregate Available Commitments are less than the aggregate
\nPurchase Price of Eligible Receivables the Seller proposes to sell on such
\nSettlement Date, and so long as no Rating Event has occurred and is continuing,
\nthe Purchasers agree, subject to the terms and conditions in this Agreement, to
\npurchase an interest in each such Receivable, the Purchase Price of which would
\notherwise exceed the amount of the Available Commitments, up to the aggregate
\nAvailable Commitments then in effect. The Purchase Price for each such
\nReceivable shall be deemed to be the Principal Balance able to be purchased
\nunder the Available Commitments; provided that the Available Commitments shall
\n ——–
\nfirst be applied to purchase Receivables other than Participated Receivables to
\nthe fullest extent available and next to purchase Participated Receivables. The
\nportion of each such Receivable not available to be purchased by the Purchasers
\nshall be an<\/p>\n
44<\/p>\n
interest of the Seller in such Receivable and shall represent the Seller’s
\nInterest in such Participated Receivable. The Seller’s Interest in each
\nParticipated Receivable shall be subordinated and junior to the rights of the
\nPurchasers in accordance with the terms and conditions of subsection 2.4(b). The
\nportion of any Participated Receivable representing the Seller’s Interest
\ntherein shall be, subject to the terms and conditions of this Agreement,
\navailable as a Receivable for purchase by the Purchasers on subsequent
\nSettlement Dates.<\/p>\n
(b) The Seller’s Interest in and to each Participated
\nReceivable shall be subordinate and junior in right of payment and all other
\nrights to the rights of the Purchasers with respect to such Participated
\nReceivable, including, but not limited to, the rights of the Purchasers to
\nreceive all Principal Collections and Finance Charge Collections on such
\nParticipated Receivable. Such subordination shall be in effect until the
\nPrincipal Balance purchased by the Purchasers of the Participated Receivable,
\nafter application of Principal Collections received on account of such
\nParticipated Receivable, has been reduced to zero and, accordingly, the Seller
\nshall not (except as provided in subsection 2.16(b)) be entitled to receive any
\namounts with respect to a Participated Receivable on account of the Seller’s
\nInterest therein until such time. If the Seller receives any payment on account
\nof the Seller’s Interest in any Participated Receivable prior to the time at
\nwhich it is entitled to retain such payment pursuant to this subsection 2.4(b),
\nthe Seller shall hold such payment in trust for the Managing Facility Agent and
\nthe Purchasers and shall immediately deposit such payment into the Concentration
\nAccount.<\/p>\n
2.5 Extended Term Receivables. (a) The Purchasers agree,
\n ————————-
\nsubject to the terms and conditions of this Agreement, on the Closing Date and
\nany Settlement Date to purchase Extended Term Receivables, up to each
\nPurchaser’s Available Commitment, for a Purchase Price equal to (a) the actual
\nunpaid Principal Balance of such Receivable on the last day of the Settlement
\nPeriod preceding the date of purchase less (b) the aggregate amount of principal
\npayments scheduled to be made thereon after the Cash Flow Cutoff Date for such
\nExtended Term Receivable. The portion of each such Receivable not available to
\nbe purchased by the Purchasers shall be an interest of the Seller in such
\nReceivable and shall represent the Seller’s Interest in such Extended Term
\nReceivable. The Seller’s Interest in each Extended Term Receivable shall be
\nsubordinated and junior to the rights of the Purchasers in accordance with the
\nterms and conditions of subsection 2.5(b). The portion of the actual unpaid
\nprincipal balance of any Extended Term Receivable representing the Seller’s
\nInterest therein shall be, subject to the terms and conditions hereof
\n(including, without limitation, that principal payments scheduled to be made
\nafter the applicable Cash Flow Cutoff Date at any date of determination are not
\navailable for purchase under this Agreement), available for purchase by the
\nPurchasers on subsequent Settlement Dates.<\/p>\n
(b) The Seller’s Interest in and to each Extended Term
\nReceivable shall be subordinate and junior in right of payment and all other
\nrights to the rights of the Purchasers with respect to such Extended Term
\nReceivable, including, but not limited to, the rights of the Purchasers to
\nreceive all Principal Collections and Finance Charge Collections on such
\nExtended Term Receivable. Such subordination shall be in effect until the
\nPrincipal Balance purchased by the Purchasers of the Extended Term Receivable,
\nafter application of Principal Collections received on account of such Extended
\nTerm Receivable, has been reduced to zero and, accordingly, the Seller shall not
\nbe entitled to receive any amounts with respect to a Extended Term Receivable on
\naccount of the Seller’s Interest therein until such time. If the Seller receives<\/p>\n
45<\/p>\n
any payment on account of the Seller’s Interest in any Extended Term Receivable
\nprior to the time at which it is entitled to retain such payment pursuant to
\nthis subsection 2.5(b), the Seller shall hold such payment in trust for the
\nManaging Facility Agent and the Purchasers and shall immediately deposit such
\npayment into the Concentration Account.<\/p>\n
2.6 Certain Actions Following a Rating Event and a Discount
\n ——————————————————-
\nEvent. (a) If a Rating Event shall occur, then no later than the 20th Business
\n—–
\nDay following such occurrence (provided such Rating Event shall then be
\ncontinuing) the Seller shall deposit cash into the Cash Collateral Account in an
\namount equal to the RARC Repurchase Obligation (as of the Settlement Date
\npreceding such date of deposit). As long as any Rating Event continues, (i) the
\nSeller shall deposit cash into the Cash Collateral Account in an amount equal to
\nany incremental increase in the RARC Repurchase Obligation resulting from
\npurchases of Receivables after the occurrence of such Rating Event immediately
\nafter such incremental increase and (ii) any amounts deposited in the Cash
\nCollateral Account shall be applied from time to time in accordance with
\nsubsection 2.14(c). If such Rating Event shall cease to continue, the Managing
\nFacility Agent shall, upon written request of the Seller, withdraw amounts so
\ndeposited in the Cash Collateral Account and deliver such amounts to the Seller
\n(or upon its order).<\/p>\n
(b) On each Settlement Date after the occurrence and during
\nthe continuance of a Discount Event, each purchase of Eligible Receivables in
\naccordance with the terms and conditions specified in this Agreement shall be at
\na discount as specified in the proviso contained in the definition of “Purchase
\n ——-
\nPrice” and the portion of such Receivable’s Principal Balance equal to the sum
\nof the reductions and discounts required pursuant to such proviso clause shall
\n ——-
\nbe an interest of the Seller in such Receivable and shall constitute the
\nSeller’s Interest; as necessary to evidence such interest, Assignments in
\nsubstantially the form attached hereto and reflecting applicable changes shall
\nbe executed and delivered. The Seller’s Interest in each Purchased Receivable
\ncreated pursuant to this clause (b) shall be subordinated and junior to the
\nrights of the Purchasers in accordance with the terms and conditions of
\nsubsection 2.6(c). If a Discount Event is no longer continuing, the portion of
\nany Receivable representing the Seller’s Interest created therein pursuant to
\nthis clause (b) shall, subject to the terms and conditions of this Agreement, be
\ndeemed to be available as a Receivable for purchase by the Purchasers on
\nsubsequent Settlement Dates.<\/p>\n
(c) The Seller’s Interest in and to each Purchased Receivable
\na portion of which is an interest of the Seller pursuant to subsection 2.6(b)
\nshall be subordinate and junior in right of payment and all other rights to the
\nrights of the Purchasers with respect to the Purchased Receivables, including,
\nbut not limited to, the rights of the Purchasers to receive all Principal
\nCollections and Finance Charge Collections on the Purchased Receivables until
\nthe Outstanding Purchase Price has been reduced to zero and all other amounts
\nowing to the Managing Facility Agent or any Purchaser under any Purchase
\nDocument have been paid in full and, accordingly, the Seller shall not (except
\nas provided in subsection 2.16(b)) be entitled to receive any amounts on account
\nof the Seller’s Interest in such Purchased Receivables until the Outstanding
\nPurchase Price has been reduced to zero and all other amounts owing to the
\nManaging Facility Agent or any Purchaser under any Purchase Document have been
\npaid in full, provided that during the Revolving Period, the Seller shall have a
\n ——–
\nright to receive Principal Collections in respect of such Seller’s Interest in
\naccordance with subsection 2.16(a).<\/p>\n
46<\/p>\n
(d) If a Rating Event shall occur and be continuing, Lease
\nReceivables, 90% Repurchase Receivables, Unsecured Foreign Receivables,
\nNonstandard Receivables, ExIm Bank Receivables, Affiliate Receivables and
\nReceivables (other than Wholesale Receivables) the payments of which are not
\nrequired to be made at least monthly and Receivables the Obligor of which is a
\nGovernmental Authority (other than a United States Federal Governmental
\nAuthority) will not be eligible for purchase or substitution hereunder
\n(including Lease Receivables under subsection 2.13(e)).<\/p>\n
(e) If a Rating Event shall occur and be continuing and the
\nServicer makes a drawing under any letter of credit related to a L\/C Receivable
\npursuant to subsection 3.2(a), the Servicer shall deposit the amount of such
\ndrawing in the Collection Account on the date deposits are required to be made
\nhereunder pursuant to subsection 2.14(a).<\/p>\n
(f) [Intentionally Omitted.]<\/p>\n
(g) If a Rating Event shall occur or be continuing, the other
\nprovisions of this Agreement regarding such event including, without limitation,
\nthose specified in clause (k) of the definition of “Eligible Applicable Lease”,
\nclauses (c), (x), (y), (aa), (dd) and (ee) of the definition of “Eligible
\nReceivable”, the definition of “Purchase Price”, and subsections 2.4, 2.5, 2.10,
\n2.11, 2.14, 2.15, 2.16, 11.1 and 11.7 hereof, shall apply.<\/p>\n
2.6A. Certain Actions Following a Discount Event. (a) Upon the
\n ——————————————
\nfirst occurrence of a Discount Event (which is not also a Rating Event), the
\nSeller shall have the option to either (i) deem such Discount Event to be also a
\nRating Event or (ii) determine and pay the Discount Amount in accordance with
\nparagraph (b) below.<\/p>\n
(b) If, upon the first occurrence of a Discount Event (which
\nis not also a Rating Event), the Seller elects to exercise its option in clause
\n(ii) above to determine and pay the Discount Amount, then not later than the 5th
\nBusiness Day following such occurrence, the Seller shall pay or shall cause to
\nbe paid to the Managing Facility Agent, for the ratable benefit of the
\nPurchasers in immediately available funds, the Discount Amount, determined as of
\nthe date of such Discount Event. Upon such payment, the Managing Facility Agent
\nshall distribute the Discount Amount pro rata to the Purchasers in accordance
\nwith each Purchaser’s Outstanding Purchase Price, and, without duplication, the
\nthen Outstanding Purchase Price shall be reduced by an amount equal to such
\ndistribution and the Outstanding Balance and the Principal Balance of each
\nPurchased Receivable then existing shall be reduced by its pro rata share of
\nsuch distribution. The interest in the Purchased Receivables allocable to the
\nDiscount Amount shall be an interest of the Seller in such Receivables and shall
\nconstitute the Seller’s Interest; as necessary to evidence such interest,
\nAssignments in substantially the form attached hereto and reflecting applicable
\nchanges shall be executed and delivered by the Administrative Agent on behalf of
\nthe Purchasers in favor of the Seller and each of the Purchasers hereby
\nauthorizes the Administrative Agent to execute and deliver on behalf of such
\nPurchaser any such Assignments. The Seller’s Interest in and to each Purchased
\nReceivable created pursuant to this subsection 2.6A(b) shall be subordinate and
\njunior in right of payment and all other rights to the rights of the Purchasers
\nwith respect to the Purchased Receivables, including, but not limited to, the
\nrights of the Purchasers to receive all Principal Collections and Finance Charge
\nCollections on the Purchased Receivables until the Outstanding Purchase Price
\nhas been reduced to zero and all<\/p>\n
47<\/p>\n
other amounts owing to the Managing Facility Agent or any Purchaser under any
\nPurchase Document have been paid in full and, accordingly, the Seller shall not
\nbe entitled to receive any amounts on account of the Seller’s Interest in such
\nPurchased Receivables until the Outstanding Purchase Price has been reduced to
\nzero and all other amounts owing to the Managing Facility Agent or any Purchaser
\nunder any Purchase Document have been paid in full, provided that during the
\nRevolving Period, the Seller shall have a right to receive Principal Collections
\nin respect of such Seller’s Interest in accordance with subsection 2.16(a). If
\nsuch Discount Event is no longer continuing, the portion of any Receivable
\nrepresenting the Seller’s Interest created therein pursuant to this subsection
\n2.6A(b) shall, subject to the terms and conditions of this Agreement, be deemed
\nto be available as a Receivable for purchase by the Purchasers on subsequent
\nSettlement Dates.<\/p>\n
2.7 Concentration Limits. (a) The Seller shall not sell or
\n ——————–
\nsubstitute Eligible Receivables on any Settlement Date if, and to the extent
\nthat, after giving effect to such sales and substitutions on such date (unless
\nthe Managing Facility Agent and all of the Purchasers otherwise agree with
\nrespect to clauses (i) and (ii) below and unless the Managing Facility Agent and
\nthe Required Purchasers otherwise agree with respect to clauses (iii) through
\n(xvi) below):<\/p>\n
(i) the aggregate outstanding Principal Balances of
\n all Purchased Receivables in respect of a single Obligor and
\n all of its Affiliates or a single Unaffiliated Foreign Lessee
\n and all of its Affiliates would exceed an amount equal to 10%
\n of the Outstanding Purchase Price on such Settlement Date,
\n provided, that (x) if no Amortization Event has occurred and
\n ——–
\n is continuing, the Servicer may request that the 10%
\n concentration limit with respect to any Obligor be waived and
\n such waiver may be granted with the unanimous written consent
\n of the Purchasers; and (y) the 10% concentration limit is
\n hereby waived with respect to Mesa, and a 13% concentration
\n limit shall be applicable to Mesa;<\/p>\n
(ii) the aggregate outstanding Principal Balances of
\n Purchased Receivables of the five Obligors and all of their
\n Affiliates with the largest aggregate outstanding Principal
\n Balances would exceed an amount equal to 35% of the
\n Outstanding Purchase Price on such Settlement Date. For
\n purposes of this subsection 2.7(a)(ii), the Obligor under an
\n Affiliate Receivable shall be deemed to be the Unaffiliated
\n Foreign Lessee thereunder;<\/p>\n
(iii) the aggregate outstanding Principal Balances of
\n Purchased Receivables created in connection with the financing
\n or refinancing of Refinanced Aircraft would constitute more
\n than 50% of the Outstanding Purchase Price paid for all
\n Receivables (other than Wholesale Receivables) on such
\n Settlement Date;<\/p>\n
(iv) the aggregate outstanding Principal Balances of
\n all Nonstandard Receivables would exceed an amount equal to
\n 35% of the Outstanding Purchase Price on such Settlement Date;<\/p>\n
(v) the aggregate outstanding Principal Balances of
\n all Secured Lease Receivables would exceed an amount equal to
\n 45% of the Outstanding Purchase Price on such Settlement Date;<\/p>\n
48<\/p>\n
(vi) the aggregate outstanding Principal Balances of
\n all Uncertified Foreign Receivables (other than L\/C
\n Receivables and Foreign Wholesale Receivables) would exceed an
\n amount equal to 40% of the Outstanding Purchase Price on such
\n Settlement Date;<\/p>\n
(vii) the aggregate outstanding Principal Balances of
\n all Purchased Receivables which are not required to be paid in
\n consecutive monthly installments (including, without
\n limitation, Quarterly Receivables and Semi-Annual Receivables
\n but excluding those Receivables referred to in clause
\n (g)(ii)(B) of the definition of “Eligible Receivables”) would
\n exceed 20% of the Outstanding Purchase Price on such
\n Settlement Date;<\/p>\n
(viii) the aggregate outstanding Principal Balances of
\n all Purchased Receivables with respect to which the FAA
\n Assignment for the Financed Aircraft related thereto (if
\n required by subsection 5.2(e) hereof) is without a conveyance
\n number from the FAA on such Settlement Date would exceed 20%
\n of the Outstanding Purchase Price on such Settlement Date;
\n provided that if Raytheon’s Debt Rating is below BBB- or the
\n ——–
\n equivalent thereof, the concentration limit shall be 0%;<\/p>\n
(ix) with respect to each foreign jurisdiction (other
\n than Brazil, Turkey and Venezuela) whose long-term foreign
\n currency debt rating is rated below BBB- or the equivalent
\n thereof, the aggregate outstanding Principal Balances of all
\n Purchased Receivables which are Foreign Receivables having a
\n Foreign Obligor located in such jurisdiction would exceed an
\n amount equal to 5% or, in the case of each of Brazil, Turkey
\n and Venezuela, 10% of the Outstanding Purchase Price on such
\n Settlement Date. For purposes of this clause (ix), the Obligor
\n under an Affiliate Receivable shall be deemed to be the
\n Unaffiliated Foreign Lessee thereunder;<\/p>\n
(x) the aggregate outstanding Principal Balances of
\n all Unsecured Receivables on any Settlement Date would exceed
\n an amount equal to 30% of the Outstanding Purchase Price on
\n such Settlement Date;<\/p>\n
(xi) the aggregate outstanding Principal Balances of
\n all Wholesale Receivables would exceed an amount equal to 20%
\n of the Outstanding Purchase Price on such Settlement Date;<\/p>\n
(xii) the aggregate outstanding Principal Balances of
\n all Unsecured Foreign Receivables the Obligor of which is a
\n Governmental Authority would exceed an amount equal to 2% of
\n the Outstanding Purchase Price on such Settlement Date;<\/p>\n
(xiii) the aggregate outstanding Principal Balances of
\n all Extended Term Receivables would exceed an amount equal to
\n 50% of the Outstanding Purchase Price on such Settlement Date;<\/p>\n
49<\/p>\n
(xiv) the aggregate outstanding Principal Balances of
\n all Purchased Receivables with respect to Aircraft
\n manufactured by any Person other than RAC would exceed an
\n amount equal to 5% of the Outstanding Purchase Price on such
\n Settlement Date;<\/p>\n
(xv) [Intentionally omitted];<\/p>\n
(xvi) [Intentionally omitted];<\/p>\n
(xvii) the aggregate outstanding Principal Balances of
\n all Travel Air Receivables on any Settlement Date would exceed
\n an amount equal to 15% of the Outstanding Purchase Price on
\n such Settlement Date; or<\/p>\n
(xviii) the aggregate outstanding Principal Balances of
\n Receivables referred to in clause (g)(ii)(B) of the definition
\n of “Eligible Receivable” that are not Wholesale Receivables
\n would exceed $75,000,000 on such Settlement Date.<\/p>\n
(b) If any such sale or substitution on any Settlement Date
\nshall cause a breach of any of the limitations specified in subsections
\n2.7(a)(i) through 2.7(a)(xvii), the Seller shall, subject to subsection 2.13,
\nrepurchase from the Purchasers, on the Settlement Date immediately following the
\ndate the Managing Facility Agent notifies the Seller of such breach, the fewest
\nnumber of Receivables necessary such that after such repurchase such breach
\nshall have been remedied (each Receivable required to be so repurchased, a
\n“Concentration Receivable”). The Seller shall effect such repurchase by
\n ————————
\ndepositing into the Concentration Account on such Settlement Date cash in an
\namount equal to the aggregate Outstanding Balances of the Concentration
\nReceivables plus, if a Trigger Amortization Event has occurred and is
\ncontinuing, accrued and unpaid interest thereon at the rate under the related
\nContract except to the extent (without duplication) of any payment made pursuant
\nto subsection 2.18 for the Settlement Period during which such interest accrued
\nand was not paid by the related Obligor. The amount of any such deposit shall be
\napplied and distributed in accordance with subsections 2.15 and 2.16.<\/p>\n
2.8 Term of Revolving Period. (a) So long as no Amortization
\n ————————
\nEvent has occurred and is continuing, no more than 60 and no less than 45 days
\nprior to the applicable Expiration Date, the Seller may request, through the
\nManaging Facility Agent, that each Purchaser extend the Revolving Period, which
\ndecision will be made by each Purchaser in its sole discretion. Such request by
\nthe Seller shall be accompanied by an amortization schedule of Purchased
\nReceivables in form and substance satisfactory to the Managing Facility Agent
\nand the Purchasers. Upon receipt of any such request, the Managing Facility
\nAgent shall promptly notify each Purchaser thereof. At least 30 but not more
\nthan 45 days prior to the applicable Expiration Date, each Purchaser shall
\nnotify the Managing Facility Agent of such Purchaser’s willingness to extend the
\nRevolving Period, and the Managing Facility Agent shall notify the Seller of
\nsuch willingness by the Purchasers on such 30th day. The approval of the
\nManaging Facility Agent and at least the Majority Purchasers (calculated as to
\nPurchasers which are not Dissenting Purchasers prior to the applicable
\nExpiration Date) shall be required to extend such Expiration Date.<\/p>\n
50<\/p>\n
(b) (i) Any Purchaser not wishing to extend the Revolving
\nPeriod (a “Dissenting Purchaser”) may in its sole discretion elect to terminate
\n ——————–
\nits Commitment on the Expiration Date in effect prior to any such extension of
\nthe Revolving Period. The Dissenting Purchaser shall give the Managing Facility
\nAgent notice of such election at least 30 days prior to the applicable
\nExpiration Date, provided that failure to expressly notify the Managing Facility
\n ——–
\nAgent of a willingness to extend the Expiration Date in accordance with
\nsubsection 2.8(a) shall be deemed an election by such Purchaser to terminate its
\nCommitment on the Expiration Date. Upon receipt of any notice the Managing
\nFacility Agent shall promptly notify each other Purchaser and the Seller
\nthereof. The Seller, by notice to the Managing Facility Agent, may (but shall
\nnot be required to) request one or more other Purchasers, or seek another
\nfinancial institution acceptable to the Managing Facility Agent and the Seller,
\nin their reasonable discretion, to acquire the Commitment of the Dissenting
\nPurchaser and all amounts payable to it hereunder in accordance with subsection
\n11.6(c). Unless otherwise specified in connection with a transfer made pursuant
\nto subsection 11.6(c), a Purchaser shall become a Dissenting Purchaser pursuant
\nto this subsection 2.8(b) on the first day following the Expiration Date on
\nwhich its Commitment is terminated.<\/p>\n
(ii) If any Dissenting Purchaser’s Commitment is not acquired
\npursuant to subsection 11.6(c), such Dissenting Purchaser shall, on each
\nSettlement Date after the Expiration Date on which its Commitment terminates,
\n(A) be paid such Dissenting Purchaser’s pro rata share of Principal Collections
\n — —-
\nreceived after such Expiration Date solely (except as provided in subsection
\n2.13(c)) on account of Eligible Receivables purchased or substituted on or
\nbefore such Expiration Date (based on such Dissenting Purchaser’s Commitment
\nPercentage at the time its Commitment terminated) (as to such Dissenting
\nPurchaser, its “Frozen Pool”), (B) not purchase any additional Receivables after
\n ———–
\nsuch Expiration Date and (C) be paid interest in accordance with subsection 2.17
\nin respect of its Outstanding Purchase Price.<\/p>\n
(iii) So long as the Revolving Period has not expired or
\nterminated, if on any Settlement Date after a Purchaser becomes a Dissenting
\nPurchaser its Outstanding Purchase Price is less than 10% (after giving effect
\nto the application of Collections on such Settlement Date) of such Dissenting
\nPurchaser’s maximum Outstanding Purchase Price at any time prior to the date
\nsuch Purchaser became a Dissenting Purchaser, then the Seller may give the
\nManaging Facility Agent irrevocable notice, which must be received by the
\nManaging Facility Agent by 10:00 a.m., New York City time, on the Reporting Date
\nprior to the next succeeding Settlement Date, (A) requesting that each other
\nPurchaser purchase a pro rata share (based on such other Purchaser’s Available
\n — —-
\nCommitment Percentage as in effect on such next succeeding Settlement Date) of
\nsuch Dissenting Purchaser’s Outstanding Purchase Price (the “Buyout Amount”)
\n ————-
\nsubject to the approval of the Managing Facility Agent and the Majority
\nPurchasers or (B) stating that the Seller or an Affiliate of the Seller will
\nrepurchase all the Dissenting Purchaser’s interests in and to the Receivables in
\nthe Frozen Pool by payment of the Buyout Amount on such next succeeding
\nSettlement Date; provided that no such purchase by the Purchasers shall be made
\n ——–
\nif the Buyout Amount to be paid by such Purchasers exceeds the aggregate
\nAvailable Commitments in effect on such next succeeding Settlement Date (after
\ngiving effect to purchases from the Seller on such date). Any such purchase of
\nthe Buyout Amount by the Purchasers shall be subject to, and shall be made upon
\nsatisfaction of, the conditions set forth in subsection 5.2 and, in connection
\ntherewith, the Seller shall be deemed to have made the representations and<\/p>\n
51<\/p>\n
warranties set forth in subsection 4.2 with respect to the Receivables
\nconstituting the Frozen Pool as if such Receivables were being sold to the
\nPurchasers on such Settlement Date. Payment for the purchase by the Purchasers
\nor the repurchase by the Seller of the Frozen Pool, as the case may be, shall be
\nmade to the Managing Facility Agent for the account of such Dissenting Purchaser
\non such Settlement Date by deposit into the Concentration Account on the
\nSettlement Date required by this subsection 2.8(b)(iii).<\/p>\n
2.9 Termination or Reduction of Commitments. (a) On any
\n —————————————
\nSettlement Date, the Seller shall have the right to terminate the Commitments or
\nreduce the amount thereof by notice to the Managing Facility Agent on the
\npreceding Reporting Date; provided that no such termination or reduction shall
\n ——–
\nbe permitted if, after giving effect thereto and to any distributions on account
\nof the Outstanding Purchase Price made on such Settlement Date, the then
\nOutstanding Purchase Price (exclusive of the interests of Dissenting Purchasers)
\nwould exceed the Commitments then in effect. Any such reduction shall be in an
\namount equal to $50,000,000 or a multiple of $1,000,000 in excess thereof and
\nshall permanently reduce the Commitments then in effect.<\/p>\n
(b) On each Settlement Date the aggregate Commitment of the
\nPurchasers shall be reduced by increments of $25,000,000 to the extent such
\nreductions shall not exceed an amount equal to (i) the aggregate amount of
\nSpecified Resales which occurred prior to or during the related Settlement
\nPeriod pursuant to clause (x) of subsection 11.24(a) less (ii) the aggregate
\namount of any prior reduction of the aggregate Commitment of the Purchasers
\npursuant to this subsection 2.9(b), provided that the first such reduction made
\n ——–
\nafter the Amendment Effective Date must be in an aggregate amount equal to
\n$50,000,000 or $25,000,000 increments in excess thereof.<\/p>\n
(c) If on any date, the Debt Rating shall be equal to or less
\nthan BB+, the Seller shall reduce the amount of the Commitments by an aggregate
\namount of $200,000,000. Such reduction of the Commitments shall be accompanied
\nby prepayment of the Outstanding Purchase Price to the extent, if any, that the
\nOutstanding Purchase Price exceeds the amount of the Commitments as so reduced.<\/p>\n
(d) Each Purchaser’s Commitment shall terminate upon the
\nexpiration of the Revolving Period as to such Purchaser.<\/p>\n
2.10 Defaulted Receivables; Application of Lease Security
\n —————————————————-
\nDeposits. (a) (i) On each Settlement Date (other than a Special Settlement Date)
\n——–
\nthe Seller agrees to repurchase from the Purchasers, up to the RARC Repurchase
\nObligation, all Receivables which became Defaulted Receivables during each
\npreceding Settlement Period with respect to which the Seller has not substituted
\nan Eligible Receivable pursuant to subsection 2.13, as indicated on the
\nSettlement Statement delivered on the related Reporting Date. Subject to
\nsubsections 2.10(b), 2.13, 2.15(b) and clause sixth of subsection 2.16(b), the
\n —–
\nSeller shall repurchase such Defaulted Receivables by depositing into the
\nConcentration Account on such Settlement Date cash in an amount equal to the
\naggregate Outstanding Balances of the Defaulted Receivables plus, if a Trigger
\nAmortization Event has occurred and is continuing, accrued and unpaid interest
\nthereon at the rate under the related Contract except to the extent (without
\nduplication) of any payment made pursuant to subsection 2.18 for the Settlement
\nPeriod during which such interest accrued and was not paid by<\/p>\n
52<\/p>\n
the Obligor under such Contract. The amount of any such deposit shall be applied
\nand distributed in accordance with subsections 2.15 and 2.16. If on any
\nSettlement Date the Repurchase Price to be paid by the Seller for any Defaulted
\nReceivable would cause the RARC Repurchase Obligation then in effect (determined
\non such Settlement Date) to be exceeded, the Seller shall be deemed to acquire
\nonly a fractional interest in each Defaulted Receivable repurchased on such
\nSettlement Date. The numerator of such fraction shall be the RARC Repurchase
\nObligation then in effect determined on such Settlement Date and the denominator
\nthereof shall be the aggregate Repurchase Price for all Defaulted Receivables on
\nsuch Settlement Date. Upon any repurchase of a Defaulted Receivable with respect
\nto which there exists a Seller’s Interest pursuant to this subsection or the
\nRepurchase Agreement, the Seller’s Interest shall be reduced by an amount equal
\nto the Purchase Discount times the Principal Balance of such Defaulted
\nReceivable on the last day of the Settlement Period preceding the Settlement
\nDate on which such repurchase is made. Any Purchased Receivable related to a
\nRemarketed Aircraft which is repurchased or substituted for in accordance with
\nsubsection 2.11 or 2.13, respectively, shall not be deemed to be a Defaulted
\nReceivable.<\/p>\n
(ii) In the event that a Rating Event occurs and is
\ncontinuing, any Net Recoveries received by the Seller on account of any
\nDefaulted Receivable which none of the Seller, RAC nor the Guarantor has
\nrepurchased, shall be deposited into the Cash Collateral Account. In the event
\nthat the Amortization Period ends pursuant to clause (ii) of the definition of
\nsuch term, any Net Recoveries received by the Seller after such time on account
\nof any Defaulted Receivable which none of the Seller, RAC nor the Guarantor has
\nrepurchased, shall be deposited into the Cash Collateral Account. The Seller
\nshall make any deposit required to be made by this subsection 2.10(a)(ii) within
\ntwo Business Days after the Seller’s receipt of such Net Recoveries and such
\ndeposits shall be applied in accordance with subsections 2.15 and 2.16. The
\nobligation of the Seller to deposit such Net Recoveries shall survive the
\ntermination of this Agreement.<\/p>\n
(iii) The Seller agrees that, to the extent it has received a
\nsecurity deposit in respect of any Lease Receivable, at the time the Seller
\napplies any or all of such security deposit or any or all of such security
\ndeposit is applied (in each case pursuant to the related Contract or otherwise)
\nagainst the amounts owed in respect of a Receivable, on the next succeeding
\nSettlement Date the Seller shall be obligated to pay the Purchasers their pro
\nrata share of the amount of such application in the same manner as if such
\napplied funds actually were Collections. The Seller shall pay such obligation by
\ndepositing into the Concentration Account on such Settlement Date cash in an
\namount equal to such application. The amount of any such deposit shall be
\napplied and distributed in accordance with subsections 2.15 and 2.16.<\/p>\n
(b) The maximum repurchase obligation of the Seller with
\nrespect to Defaulted Receivables (the “RARC Repurchase Obligation”) shall be
\n ————————–
\nequal to (a) at any time during the Revolving Period, an amount equal to the
\nRARC Repurchase Percentage of the excess of (A) the sum of (i) 25% of the
\naggregate Unadjusted Outstanding Balances of the 25% Repurchase Receivables,
\n(ii) 75% of the aggregate Unadjusted Outstanding Balances of the 75% Repurchase
\nReceivables and (iii) 90% of the aggregate Unadjusted Outstanding Balances of
\nthe 90% Repurchase Receivables over (B) the amount of any Discount Amount paid
\n —-
\nand the amount of any Purchase Discount resulting from the purchase or
\nsubstitution of Receivables during the existence of a Discount Event, in each
\ncase at the time the RARC Repurchase Obligation is calculated;<\/p>\n
53<\/p>\n
provided that,
\n ——–<\/p>\n
(i) the RARC Repurchase Obligation shall not at any
\n time decrease below an amount equal to the RARC Repurchase
\n Percentage of (x) with respect to any Purchaser other than a
\n Dissenting Purchaser, an amount equal to the greater of such
\n Purchaser’s share of (1) 15% of the maximum aggregate
\n Outstanding Balances of the Purchased Receivables which
\n existed at any time during the Revolving Period and (2) the
\n sum of the Outstanding Balances on the last day of the
\n Revolving Period of the three Obligors (and all of their
\n Affiliates) of Purchased Receivables with the largest
\n aggregate outstanding Principal Balances and (y) with respect
\n to any Dissenting Purchaser, an amount equal to the greater of
\n such Purchaser’s share of (1) 15% of the maximum aggregate
\n Outstanding Balances of the sum of the Purchased Receivables
\n which existed at any time prior to the date such Purchaser
\n became a Dissenting Purchaser and (2) the sum of the
\n Outstanding Balances on the day on which such Purchaser became
\n a Dissenting Purchaser of the three Obligors (and all of their
\n Affiliates) of Purchased Receivables with the largest
\n aggregate outstanding Principal Balances, minus, in each such
\n case, to the extent not already deducted in calculating such
\n Outstanding Balances, such Purchaser’s allocated share of the
\n amount of any Discount Amount paid and the amount of any
\n Purchase Discount resulting from the purchase or substitution
\n of Receivables during the existence of a Discount Event and<\/p>\n
(ii) notwithstanding clause (i) immediately above, the
\n RARC Repurchase Obligation shall not at any time exceed an
\n amount equal to the RARC Repurchase Percentage of the
\n Outstanding Purchase Price<\/p>\n
or (b) during the Amortization Period, (A) the RARC Repurchase
\n Obligation, as calculated in accordance with clause (a) above, in
\n effect on the last Settlement Date prior to the commencement of the
\n Amortization Period minus (B) the aggregate Repurchase Prices of
\n —–
\n Defaulted Receivables which were repurchased by the Seller pursuant to
\n subsection 2.10(a) since the beginning of the Amortization Period minus
\n —–
\n (C) amounts deposited by the Seller into the Cash Collateral Account
\n pursuant to subsection 2.14(c)(ii) plus (D) all Net Recoveries received
\n —-
\n by the Seller with respect to such Defaulted Receivables (or portion
\n thereof) so repurchased by the Seller since the beginning of the
\n Amortization Period and not required to be deposited into the Cash
\n Collateral Account pursuant to subsection 2.10(a)(ii).<\/p>\n
2.10A Delinquent Receivables. If on any Settlement Date the
\n ———————-
\noutstanding balance of Delinquent Receivables shall cause an Amortization Event
\nof the type described in subsection 8.1(p), below, the Seller may either
\nsubstitute Eligible Receivables for such Delinquent Receivables pursuant to
\nSection 2.13 or repurchase from the Purchasers sufficient Delinquent
\nReceivables, in each case, with the consent of the Managing Facility Agent,
\nbeginning with those Delinquent Receivables with the oldest outstanding balance,
\nsuch that after such repurchase or substitution such Amortization Event shall
\nhave been cured. Seller shall repurchase such Delinquent Receivables being
\nrepurchased on such Settlement Date by depositing into the Concentration Account
\non such Settlement Date cash in an amount equal to<\/p>\n
54<\/p>\n
the Outstanding Balance of such Delinquent Receivables. Any amounts received by
\nthe Administrative Agent, or deposited into the Concentration Account, in
\nrespect of Delinquent Receivables sold pursuant to this Section 2.10A shall be
\napplied and distributed in accordance with subsections 2.15 and 2.16.<\/p>\n
2.11 Ineligible Receivables. The Seller agrees to repurchase
\n ———————-
\non each Settlement Date, and the Purchasers agree to sell to the Seller on such
\ndate and in accordance with the terms hereof, any Purchased Receivable if such
\nReceivable is (i) an Ineligible Receivable, (ii) an Existing Certified
\nReceivable in respect of which the Old Administrative Agent shall not have
\nreceived on or prior to the Certified Opinion Delivery Date (x) an opinion of
\nforeign counsel satisfying the requirements of subsection 2.27(c) or (y)
\nevidence of the filings, if any, referred to in subsection 6.1(n)(i) or (iii) an
\nExisting Receivable in respect of which the Old Administrative Agent shall not
\nhave received on or prior to the FAA Filing Date evidence of the filings, if
\nany, referred to in subsection 6.1(n)(ii) provided that, during the Amortization
\n ——–
\nPeriod, the Purchasers, by unanimous consent, in their sole discretion may
\nchoose not to sell any Receivable referred to in clauses (i), (ii) or (iii) to
\nthe Seller. The Seller shall make such repurchase on the Settlement Date first
\nsucceeding the earlier of (x) the date on which the Seller becomes aware of
\nfacts and circumstances giving rise to such event of ineligibility or (y) the
\ndate on which the Managing Facility Agent notifies the Seller that such event of
\nineligibility has occurred and is continuing. Subject to subsections 2.13 and
\n2.15(b), the Seller shall make such repurchase by depositing in the
\nConcentration Account cash in an amount equal to the Repurchase Price for such
\nIneligible Receivable at the date such deposit is made, except to the extent
\n(without duplication) of any payment made pursuant to subsection 2.18, for the
\nSettlement Period during which such interest accrued and was not paid by the
\nObligor under such Contract. The amount of any such deposit shall be applied and
\ndistributed in accordance with subsections 2.15 and 2.16. Except as provided in
\nsubsection 9.1, the sole obligation of the Seller with respect to an Ineligible
\nReceivable of the type described in clause (i) of this subsection 2.11 shall be
\nthe requirement to repurchase or substitute for such Receivable pursuant to this
\nsubsection 2.11 or subsection 2.13, respectively.<\/p>\n
2.12 Rebated Receivables. If on any date the Principal Balance
\n ——————-
\nof any Purchased Receivable is, or is deemed to be, reduced or adjusted or no
\nlonger payable as a result of any rebate, discount, refund or other adjustment
\nof such Purchased Receivable, or any other reduction or adjustment of any
\npayment under any Purchased Receivable, other than any such rebate, discount
\nrefund or adjustment permitted under subsection 7.1(b)(iv)(x), the Seller shall
\nbe deemed to have received on such day a Collection in respect of such Purchased
\nReceivable in the amount of such reduction or adjustment or in the amount no
\nlonger payable (as applicable) and shall, subject to subsection 2.15(b), deposit
\ncash into the Concentration Account on the next succeeding Settlement Date in an
\namount equal to such reduction or adjustment or such amount no longer payable
\n(as applicable) plus if a Trigger Amortization Event has occurred and is
\ncontinuing, accrued and unpaid interest thereon at the rate under the related
\nContract except to the extent (without duplication) of any payment made pursuant
\nto subsection 2.18 for the Settlement Period during which such interest accrued
\nand was not paid by the Obligor under such Contract. The amount of any such
\ndeposit shall be applied and distributed in accordance with subsections 2.15 and
\n2.16.<\/p>\n
55<\/p>\n
2.13 Substitution of Receivables. (a) Whenever the Seller is
\n —————————
\nrequired or permitted in accordance with the terms of this Agreement to
\nrepurchase Concentration Receivables, Defaulted Receivables, Delinquent
\nReceivables or Ineligible Receivables pursuant to subsection 2.7(b), 2.10, 2.10A
\nor 2.11, respectively, the Seller may, subject to the terms hereof, in lieu of
\nmaking such repurchase, substitute one or more Eligible Receivables (each, a
\n“Substituted Receivable”) therefor on the Settlement Date on which the
\n ———————-
\nrepurchase is required to be made; provided that the Settlement Statement
\n ——–
\ndelivered on the Reporting Date prior to such Settlement Date shall contain the
\ninformation required thereby with respect to such proposed substitution. The
\noption of the Seller to substitute one or more Substituted Receivables for any
\nReceivables as aforesaid is subject to the following conditions precedent: (i)
\nno Trigger Amortization Event has occurred and is then continuing, (ii) if such
\nsubstitution occurs during the Amortization Period, and provided that no Trigger
\nAmortization Event has occurred and is then continuing, the Majority Purchasers
\nhave approved such substitution, (iii) if the substitution is of a Delinquent
\nReceivable pursuant to Section 2.10A, the Managing Facility Agent has consented
\nto such substitution and (iv) either the Substituted Receivable has a Final
\nPayment Date which is not after the Final Payment Date of the replaced
\nReceivable (each, replaced Receivable, a “Removed Receivable”), or if the Final
\n ——————
\nPayment Date of the Substituted Receivable is after that of the Removed
\nReceivable, then only that portion of the Principal Balance of such proposed
\nSubstituted Receivable which is scheduled to be paid on or prior to the Final
\nPayment Date of the Removed Receivable shall be included as a Substituted
\nReceivable. All Defaulted Receivables, then all Delinquent Receivables, shall be
\nreplaced with Substituted Receivables prior to replacement of Ineligible
\nReceivables or Concentration Receivables with Substituted Receivables and, in
\neach case, shall be replaced with Substituted Receivables in the following order
\nof priority: (i) first, with Substituted Receivables which are 25% Repurchase
\n —–
\nReceivables, (ii) second, with Substituted Receivables which are 75% Repurchase
\n ——
\nReceivables, and (iii) third, with Substituted Receivables which are 90%
\n —–
\nRepurchase Receivables. The making of such substitution shall be subject to the
\nsatisfaction of the conditions set forth in paragraphs subsection 5.2,
\nincluding, without limitation, the delivery of an Assignment and, if applicable,
\nan FAA Assignment or Foreign Assignment.<\/p>\n
(b) If the Repurchase Price of the Removed Receivable proposed
\nto be replaced by one or more Substituted Receivables is greater than the
\naggregate Principal Balances of such Substituted Receivables, the Seller shall
\ndeposit cash into the Concentration Account in an amount equal to such excess.
\nAlternatively, if the Repurchase Price of such Removed Receivable is less than
\nthe aggregate Principal Balances of the corresponding Substituted Receivable or
\nReceivables, during the Revolving Period the Seller may, so long as no
\nAmortization Event has occurred and is continuing, request the Purchasers to
\npurchase such excess, to the extent of the Available Commitments, pursuant to
\nsubsection 2.2. If such excess is not purchased for any reason set forth in this
\nAgreement, then each Substituted Receivable able to be substituted to the
\nfullest extent shall first be substituted and any remaining Substituted
\nReceivable shall be a Participated Receivable subject to the provisions of
\nsubsection 2.4. During the Revolving Period, if any Substituted Receivable is an
\nExtended Term Receivable, then such Substituted Receivable shall be subject to
\nsubsection 2.5 and the Cash Flow Cutoff Date for such Substituted Receivable
\nshall be deemed to be, initially, (i) so long as no Rating Event has occurred
\nand is continuing, thirteen years after the date of substitution of such
\nSubstituted Receivable and (ii) during the continuance of a Rating Event, ten
\nyears after the date of<\/p>\n
56<\/p>\n
substitution of such Substituted Receivable. Substitution for a Defaulted
\nReceivable shall not reduce the Aggregate Repurchase Obligation.<\/p>\n
(c) If a Dissenting Purchaser holds an undivided interest in
\nany Removed Receivable then:<\/p>\n
(i) if such Removed Receivable is an Ineligible Receivable, a
\nDelinquent Receivable or a Concentration Receivable, the Seller shall pay to the
\nManaging Facility Agent for the account of such Dissenting Purchaser an amount
\nequal to the sum of (A) the product of such Dissenting Purchaser’s Commitment
\nPercentage (determined at the time such Dissenting Purchaser’s Commitment
\nterminated) times the Outstanding Balance for such Removed Receivable and (B) if
\n —–
\na Trigger Amortization Event has occurred and is continuing, the Dissenting
\nPurchaser’s pro rata share (determined at the time such Dissenting Purchaser’s
\n — —-
\ncommitment terminated) of accrued and unpaid interest on such Removed Receivable
\nat the rate under the related Contract except to the extent (without
\nduplication) of any payment made pursuant to subsection 2.18 for the Settlement
\nPeriod during which such interest accrued and was not paid by the Obligor under
\nsuch Contract; and<\/p>\n
(ii) if such Removed Receivable is a Defaulted Receivable, (A)
\nand if the aggregate Available Commitments in effect on the Settlement Date on
\nwhich such substitution is to be made exceed an amount equal to (x) the
\nDissenting Purchaser’s Commitment Percentage (determined at the time such
\nDissenting Purchaser’s Commitment terminated) times (y) the Outstanding Balance
\n —–
\nfor such Removed Receivable (the “Dissenting Purchaser’s Share”), each Purchaser
\n —————————-
\nother than a Dissenting Purchaser shall be deemed to purchase its Commitment
\nPercentage of the Dissenting Purchaser’s Share by making funds therefor
\navailable to the Managing Facility Agent for the account of such Dissenting
\nPurchaser on the Settlement Date on which such substitution is proposed to be
\nmade; provided that such purchases shall be subject to the satisfaction of the
\n ——–
\nconditions set forth in subsection 5.2 and, in connection therewith, the Seller
\nshall be deemed to have made the representations and warranties set forth in
\nsubsection 4.2 with respect to the Purchased Receivables constituting the
\nDissenting Purchaser’s Share as if the Seller were selling such Receivables to
\nthe Purchasers on such Settlement Date; or (B) if for any reason a purchase
\ncannot be made pursuant to the foregoing clause (A), the Seller shall
\nrepurchase, up to the amount of the RARC Repurchase Obligation on the date of
\nsuch purchase, such Dissenting Purchaser’s Share on such Settlement Date up to
\nsuch Dissenting Purchaser’s Commitment Percentage (determined at the time such
\nDissenting Purchaser’s Commitment terminated) of the Aggregate Repurchase
\nObligation in effect on such Settlement Date (in each case after giving effect
\nto purchases, substitutions and repurchases on such Settlement Date) plus, if a
\nTrigger Amortization Event has occurred and is continuing, the Dissenting
\nPurchaser’s pro rata share (determined at the time such Dissenting Purchaser’s
\n — —-
\nCommitment terminated) of accrued and unpaid interest on such Removed Receivable
\nat the rate under the related Contract except to the extent (without
\nduplication) of any payment made pursuant to subsection 2.18 for the Settlement
\nPeriod during which such interest accrued and was not paid by the Obligor under
\nsuch Contract. It is understood that determinations of the RARC Repurchase
\nObligation with respect to a Dissenting Purchaser pursuant to this subsection
\n2.13(c)(ii) shall be, with respect to a L\/C Receivable, made on the Settlement
\nDate on which such determination is made in accordance with the definitions of
\nthe terms “90% Repurchase Receivable” and “25% Repurchase Receivable” and the
\nstatus of such L\/C Receivable at such Settlement Date.<\/p>\n
57<\/p>\n
(d) Any repurchases of Receivables made pursuant to subsection
\n2.13(c) shall be made on the Settlement Date on which the related substitution
\nof Receivables is to be made.<\/p>\n
(e) On any Settlement Date (other than a Special Settlement
\nDate) the Seller may, with the consent of the Managing Facility Agent,
\nsubstitute a Lease Receivable which is an Eligible Receivable (a “Substituted
\n ———–
\nLease Receivable”) for a Lease Receivable (other than a Lease Receivable which
\n—————-
\nis a Defaulted Receivable, a Delinquent Receivable, a Concentration Receivable
\nor an Ineligible Receivable) which was previously sold or substituted hereunder
\n(a “Replaced Lease Receivable”) if the Seller, in the ordinary course of
\n ————————-
\nbusiness and in accordance with the Credit and Collection Policy, is entering
\ninto a new Contract with the same Person which is the Obligor under the Contract
\nrelated to such Replaced Lease Receivable (or an Affiliate of such Person);
\nprovided that during the Amortization Period the prior consent of the Majority
\n——–
\nPurchasers shall be required to effect any such substitution; provided, further,
\n ——– ——-
\nthat if a Remittance Event has occurred and is continuing and if the Principal
\nBalance of a Substituted Lease Receivable is less than the Principal Balance of
\nthe Replaced Lease Receivable such substitution shall occur only on a Settlement
\nDate and within two Business Days after such substitution is made, the Seller
\nshall deposit into the Concentration Account an amount equal to the difference
\nbetween the Outstanding Balance of the Replaced Lease Receivable and the
\nPurchase Price of the Substituted Lease Receivable. The Settlement Statement
\nwith respect to the Settlement Period in which such substitution occurs (or the
\nSettlement Statement delivered with respect to the Settlement Date on which such
\nsubstitution occurs, in the case of substitutions made on a Settlement Date in
\naccordance with the final proviso of the preceding sentence) shall contain the
\ninformation required thereby with respect to such substitution. Upon such
\nsubstitution, the Principal Balance of the Replaced Lease Receivable shall be
\ndeemed to be reduced to zero. The provisions of subsection 2.13(b) (except for
\nthe first sentence thereof) shall apply as if a Replaced Lease Receivable and a
\nSubstituted Lease Receivable are, respectively, a Removed Receivable and a
\nSubstituted Receivable and the provisions of subsection 2.13(c)(i) (A) (without
\nregard to clause (B) of subsection 2.13(c)(i)) shall apply as if a Replaced
\nLease Receivable is a Removed Receivable; provided that, in accordance with
\n ——–
\nsubsection 2.13(d) and notwithstanding the date of substitution of a Substituted
\nLease Receivable in accordance with this subsection 2.13(e), payments shall be
\nmade to the Dissenting Purchaser with respect to a Substituted Lease Receivable
\non the Settlement Date related to the Settlement Statement which contains
\ninformation with respect to such substitution. The making of such substitution
\nshall be subject to the satisfaction of the conditions set forth in subsection
\n5.2, including in each case, without limitation, the delivery of an Assignment
\nand FAA Assignment or a Foreign Assignment, as applicable, with respect to each
\nsuch Substituted Lease Receivable on or before the Business Day such Substituted
\nLease Receivable is substituted.<\/p>\n
2.14 Accounts. (a) On or before the Closing Date the Seller
\n ——–
\nshall establish in its name a segregated account with a commercial bank
\nsatisfactory to the Managing Facility Agent (the “Collection Account”). Upon the
\n ——————
\noccurrence and during the continuance of a Remittance Event, and unless the
\nServicer has provided a Servicer Letter of Credit in accordance with subsection
\n2.15(a), the Seller or the Servicer shall within two Business Days after its
\nreceipt, (i) deposit all Collections received by it directly into the Collection
\nAccount and (ii) transfer or cause to be transferred to the Concentration
\nAccount any Collections so deposited. Any amounts received by the Seller and not
\nrelated to the Purchased Receivables or the related Contracts or<\/p>\n
58<\/p>\n
Financed Aircraft shall not be deposited into the Collection Account. Any
\namounts at any time on deposit in the Collection Account shall be transferred
\nonly to the Concentration Account and to no other deposit or other account
\n(including, but not limited to, any account or sub-account maintained pursuant
\nto Raytheon’s cash management system). The Seller hereby grants to the Managing
\nFacility Agent for the ratable benefit of the Purchasers a security interest in
\nthe Collection Account and all amounts from time to time on deposit therein to
\nsecure the Obligations. The Seller shall have no right to withdraw any amounts
\non deposit in the Collection Account.<\/p>\n
(b) On or before the Closing Date there shall be established
\nwith and in the name of the Managing Facility Agent a segregated account (the
\n“Concentration Account”) which shall be maintained as a cash collateral account
\n ———————
\nsubject to the exclusive dominion and control of the Managing Facility Agent for
\nthe ratable benefit of the Purchasers. The Seller hereby grants to the Managing
\nFacility Agent for the ratable benefit of the Purchasers a security interest in
\nany of its right, title and interest in the Concentration Account and all
\namounts from time to time on deposit therein and all income from the investment
\nof such amounts to secure, in each case, the Obligations. Funds on deposit from
\ntime to time in the Concentration Account shall bear interest at the then
\nprevailing rate paid by the Managing Facility Agent for deposit accounts with
\nsimilar amounts on deposit from time to time. If at any time funds on deposit in
\nthe Concentration Account are greater than $100,000, the Managing Facility Agent
\nmay, but shall not be required to, unless it receives a request from the Seller
\nor Raytheon, invest such funds in Cash Equivalents with maturities not later
\nthan the next succeeding Settlement Date, to the extent such requested Cash
\nEquivalents are available for investment. Any investment request by the Seller
\nor Raytheon shall be given to the Managing Facility Agent one Business Day prior
\nto the day the investment is to be made (which shall be a Business Day in New
\nYork, New York and San Francisco, California) and shall specify the particular
\nCash Equivalents and maturities thereof. Any interest or investment earnings on
\namounts in the Concentration Account on related investments shall be retained in
\nthe Concentration Account to be withdrawn in accordance with this subsection
\n2.14(b). The Managing Facility Agent shall have the right to withdraw amounts
\nfrom the Concentration Account to make the payments required to be made
\nhereunder from Collections. Neither the Managing Facility Agent nor any
\nPurchaser shall have any responsibility for any such investment and the Managing
\nFacility Agent shall be permitted to liquidate any such investment, without
\nliability for any loss occurring by reason of such liquidation, to the extent
\nnecessary to make payments and distributions under this Agreement. The Seller
\nshall have no right to withdraw amounts on deposit from time to time in the
\nConcentration Account.<\/p>\n
(c) (i) On or before the Closing Date there shall be
\nestablished with and in the name of the Managing Facility Agent a segregated
\ntrust account comprised of two segregated sub-accounts, the Seller cash
\ncollateral sub-account (the “Seller Cash Collateral Sub-Account”) and the RAC
\n ———————————-
\ncash collateral sub-account (the “RAC Cash Collateral Sub-Account,” the Seller
\n ——————————-
\nCash Collateral Sub-Account and the RAC Cash Collateral Sub-Account being
\nreferred to collectively as the “Cash Collateral Account”) which shall be
\n ———————–
\nmaintained as a cash collateral account subject to the exclusive dominion and
\ncontrol of the Managing Facility Agent for the ratable benefit of the
\nPurchasers. The Seller hereby grants to the Managing Facility Agent for the
\nratable benefit of the Purchasers a first priority security interest in the Cash
\nCollateral<\/p>\n
59<\/p>\n
Account and all amounts on deposit from time to time therein and all income from
\nthe investment of such amounts to secure, in each case, the Obligations. Funds
\non deposit from time to time in the Seller Cash Collateral Sub-Account shall
\nbear interest at the then prevailing rate paid by the Managing Facility Agent
\nfor deposit accounts with similar amounts on deposit from time to time. If at
\nany time funds on deposit in the Seller Cash Collateral Sub-Account are greater
\nthan $100,000, the Managing Facility Agent may, but shall not be required to,
\nunless it receives a request from the Seller, invest funds on deposit in the
\nSeller Cash Collateral Sub-Account in Cash Equivalents with maturities not later
\nthan the next succeeding Settlement Date (or such other maturities as the Seller
\nshall request and the Managing Facility Agent shall approve), to the extent such
\nrequested Cash Equivalents are available for investment. Any investment request
\nby the Seller shall be given to the Managing Facility Agent one Business Day
\nprior to the day the investment is to be made (which shall be a Business Day in
\nNew York, New York and San Francisco, California) and shall specify the
\nparticular Cash Equivalents and maturities thereof. Any interest or investment
\nearnings on amounts in the Seller Cash Collateral Sub-Account or related
\ninvestments shall be retained in the Seller Cash Collateral Sub-Account to be
\nwithdrawn in accordance with paragraphs (ii), (iii) and (iv) of this subsection
\n2.14(c). Neither the Managing Facility Agent nor any Purchaser shall have any
\nresponsibility for any such investment and the Managing Facility Agent shall be
\npermitted to liquidate any such investment, without liability for any loss
\noccurring by reason of such liquidation, to the extent necessary to make
\npayments and distributions under this Agreement. The Seller shall have no right
\nto withdraw amounts on deposit from time to time in the Cash Collateral Account.<\/p>\n
(ii) If on any Settlement Date on which the Seller is required
\nto repurchase Defaulted Receivables pursuant to subsection 2.10 and fails for
\nany reason to repurchase such Defaulted Receivables or substitute for such
\nDefaulted Receivables pursuant to subsection 2.13, whether or not RAC fails to
\nrepurchase such Defaulted Receivables under the Repurchase Agreement, the
\nManaging Facility Agent may withdraw from amounts on deposit in the Seller Cash
\nCollateral Sub-Account on account of such Defaulted Receivable an amount equal
\nto the lesser of (A) the Repurchase Price for such Defaulted Receivable plus any
\naccrued and unpaid interest thereon required to be paid by subsection 2.10 and
\n(B) the amount then on deposit in the Seller Cash Collateral Sub-Account. It is
\nspecifically understood and agreed that amounts on deposit in the Seller Cash
\nCollateral Sub-Account, whether on account of 25% Repurchase Receivables, 75%
\nRepurchase Receivables or 90% Repurchase Receivables, may be withdrawn as
\naforesaid on account of any Defaulted Receivable, regardless of the RARC
\nRepurchase Percentage associated therewith or whether the RAC Repurchase
\nObligation shall be outstanding. Any amounts so withdrawn shall be deposited
\ninto the Concentration Account and allocated and distributed pursuant to
\nsubsections 2.15 and 2.16, respectively. The Seller agrees with the Managing
\nFacility Agent and the Purchasers to deposit into the Seller Cash Collateral
\nSub-Account, without any requirement for notice or demand therefor, the lesser
\nof the amount withdrawn therefrom or the sum of the RARC Repurchase Obligation
\nthen in effect on the date such withdrawal is made, plus interest thereon at a
\nrate per annum equal to the Default Rate for the period from such date of
\nwithdrawal to such date of deposit. Deposit of amounts into the Seller Cash
\nCollateral Sub-Account pursuant to the preceding sentence shall, to the extent
\nof such deposit, satisfy the Seller’s obligation to repurchase such Defaulted
\nReceivable pursuant to subsection 2.10.<\/p>\n
60<\/p>\n
(iii) If the Seller or the Servicer (if then Raytheon Credit
\nor any Affiliate thereof) shall fail to make any deposit, payment or transfer of
\nfunds required to be made by the Seller or the Servicer under this Agreement or
\nany other document executed and delivered in connection herewith, including,
\nwithout limitation, any payment, deposit or transfer of funds or payment of any
\nindemnity required to be made pursuant to subsection 2.7(b), 2.10, 2.10A, 2.11,
\n2.12, 2.18 or 9.1 (each such payment, deposit or transfer, a “Reimbursable
\n ————
\nObligation”), then the Managing Facility Agent with the consent of the Majority
\n———-
\nPurchasers may, in addition to any similar rights in favor of the Managing
\nFacility Agent under the Repurchase Agreement, withdraw from the Seller Cash
\nCollateral Sub-Account on the date such Reimbursable Obligation is due hereunder
\nan amount equal to the lesser of (A) such Reimbursable Obligation and (B) the
\namount then on deposit in the Seller Cash Collateral Sub-Account. The Seller
\nagrees with the Managing Facility Agent and the Purchasers to deposit in the
\nSeller Cash Collateral Sub-Account, without any requirement for notice or demand
\ntherefor, the amount withdrawn on the date such withdrawal is made, plus
\ninterest thereon at a rate per annum equal to the Default Rate for the period
\nfrom such date of withdrawal to such date of deposit.<\/p>\n
(iv) No amounts on deposit in the Seller Cash Collateral Sub-
\nAccount (including interest or investment earnings) shall be released to the
\nSeller until the Outstanding Purchase Price is reduced to zero and all other
\namounts owing to the Managing Facility Agent or any Purchaser hereunder are paid
\nin full, provided, that,
\n ——– —-<\/p>\n
(x) on each Settlement Date (other than a Special Settlement
\n Date) occurring during the continuance of a Rating Event, after giving
\n effect to all collections and distributions on such date, the amounts
\n on deposit in the Cash Collateral Account in excess of the Aggregate
\n Repurchase Obligation on such Settlement Date shall be released pro
\n —
\n rata based upon their respective repurchase obligations, to the Seller
\n —-
\n and to RAC;<\/p>\n
(y) on each Settlement Date occurring during the continuance
\n of a Rating Event following a Settlement Period during which Finance
\n Charges on Wholesale Receivables which are Quarterly Receivables have
\n been paid, the excess of (A) amounts which were on previous Settlement
\n Dates, pursuant to subsection 2.16(b)(vi), deposited into the Cash
\n Collateral Account as accrued Finance Charge Collections on such
\n Quarterly Receivables, over (B) any portion of such amounts so
\n previously deposited which are on such Settlement Date withdrawn from
\n the Cash Collateral Account by the Managing Facility Agent and applied
\n pursuant to subsection 2.14(c) shall be released to the Seller; and<\/p>\n
(z) on the Business Day after the date on which the
\n Outstanding Purchase Price is reduced to zero and all other amounts
\n owing to the Managing Facility Agent and the Purchasers hereunder have
\n been paid in full, all amounts on deposit in the Seller Cash Collateral
\n Sub-Account shall be released to the Seller.<\/p>\n
2.15 Remittance and Allocation of Collections. (a) The Seller
\n —————————————-
\nor the Servicer shall, subject to subsection 2.14(a), deposit into or transfer
\nto the Concentration Account all Collections within two Business Days following
\nreceipt thereof; provided that so long as (i) a Remittance Event has not
\n ——–
\noccurred and is continuing or (ii) following the occurrence and during the
\ncontinuance of a Remittance Event, the Servicer has provided a Servicer Letter
\nof Credit, the<\/p>\n
61<\/p>\n
Seller or the Servicer shall make such deposit in or transfer to the
\nConcentration Account not later than the Settlement Date following the
\nSettlement Period during which such Collections were received; provided,
\n ——–
\nfurther, that after the occurrence and during the continuance of a Rating Event,
\n——-
\nthe Seller or the Servicer shall, at the times required by and otherwise in
\naccordance with this subsection 2.15(a), also deposit into or transfer to the
\nConcentration Account interest payments made by RAC on behalf of an Obligor
\nunder a Wholesale Receivable. It is understood and agreed that until Collections
\nare required to be transferred to the Concentration Account in accordance with
\nthe foregoing provisions, these funds may be commingled with other funds of
\nRaytheon and its Subsidiaries in connection with Raytheon’s integrated cash
\nmanagement program.<\/p>\n
(b) On each Reporting Date the Servicer shall allocate all
\nCollections received on account of the Purchased Receivables during the
\npreceding Settlement Period between Principal Collections and Finance Charge
\nCollections. All Finance Charge Collections shall be deposited in the
\nConcentration Account in accordance with subsection 2.15(a) and distributed
\npursuant to subsection 2.16(b). All Principal Collections shall be deposited in
\nthe Concentration Account in accordance with subsection 2.15(a) and applied in
\naccordance with subsection 2.16(a); provided that (i) if on any Settlement Date
\n ——–
\nduring the Revolving Period the aggregate Purchase Price to be paid for
\npurchases to be made on such Settlement Date exceeds amounts deposited or to be
\ndeposited into the Concentration Account by the Seller or the Servicer, as the
\ncase may be, on or during the Settlement Period prior to such Settlement Date on
\naccount of Principal Collections, the Seller may retain such Principal
\nCollections, or to the extent previously deposited into the Concentration
\nAccount shall make payments therefrom, as application for such aggregate
\nPurchase Price to be paid to the Seller on such Settlement Date and amounts so
\nretained by or paid to the Seller shall be treated as a payment (in whole or in
\npart, as applicable) for such Purchase Price and (ii) to the extent the amount
\nof such Principal Collections exceeds the aggregate Purchase Price of Eligible
\nReceivables available to be purchased on such Settlement Date, the Seller or the
\nServicer, as the case may be, shall deposit, to the extent not previously
\ndeposited, such excess in the Concentration Account on or prior to such
\nSettlement Date for distribution in accordance with subsection 2.16. Any
\npurchases made pursuant to the foregoing clause (i) shall be subject to the
\nsatisfaction of the conditions set forth in paragraphs (a) through (h) of
\nsubsection 5.2. During the Amortization Period, all Principal Collections shall
\nbe deposited into the Concentration Account in accordance with subsection
\n2.15(a) and, on the Settlement Date on or following such date of deposit, shall
\nbe distributed in accordance with subsection 2.16. The portion of any deposit
\nto be made into the Concentration Account required to be made pursuant to
\nsubsections 2.10, 2.10A, 2.11 or 2.12 or the first sentence of 2.13(b)
\n(including, without limitation, on account of a Substituted Lease Receivable)
\nrepresenting the Repurchase Price for any Receivable shall be subject to the
\nprovisions of this subsection 2.15(b).<\/p>\n
(c) Any Principal Collections received on account of an
\nExtended Term Receivable during the Revolving Period shall, subject to the
\nsatisfaction of the conditions set forth in paragraphs (a) through (h) of
\nsubsection 5.2, be applied to purchase the next succeeding monthly payments of
\nsuch Receivable which have not been purchased and which are payable prior to the
\nCash Flow Cutoff Date then applicable to such Receivable.<\/p>\n
(d) All Net Recoveries required to be deposited in accordance
\nwith subsection 2.10(a)(ii) shall be deposited into the Concentration Account as
\nCollections. On the Reporting<\/p>\n
62<\/p>\n
Date following the Settlement Period in which such deposit is made, such Net
\nRecoveries shall be allocated by the Managing Facility Agent as Principal
\nCollections and Finance Charge Collections and the Managing Facility Agent shall
\nnotify the Servicer of such allocation the Business Day following such Reporting
\nDate. Such allocation shall be conclusive in the absence of manifest error or
\nunless the Managing Facility Agent receives notice from the Servicer of any
\nerror made in such allocation on or before the third Business Day after such
\nnotice is given to the Servicer and, in the event of any dispute between the
\nManaging Facility Agent and the Servicer with respect to such allocation, the
\nallocation of such Net Recoveries shall be conclusively made by the Managing
\nFacility Agent’s independent certified public accountants prior to the next
\nsucceeding Reporting Date. Such Net Recoveries shall be distributed pursuant to
\nsubsection 2.16.<\/p>\n
2.16 Distribution and Application of Collections. (a)
\n ——————————————-
\nPrincipal Collections. Principal Collections on Purchased Receivables shall be
\n———————
\npayable to the Purchasers up to the amount of the Outstanding Purchase Price
\nfrom time to time as specified herein. On each Settlement Date during the
\nRevolving Period (i) Principal Collections received during the prior Settlement
\nPeriod that are allocable to Purchased Receivables in which a Seller’s Interest
\nhas been created pursuant to subsections 2.6 or 2.6A shall be paid 25% to the
\nSeller in respect of such Seller’s Interest, with the remaining 75% of such
\nPrincipal Collections allocated together with all other Principal Collections in
\naccordance with clause (ii) hereof and (ii) Principal Collections received
\nduring the prior Settlement Period and not allocated to the Seller pursuant to
\nclause (i) hereof shall be first, applied to the aggregate Purchase Price of
\n —–
\nEligible Receivables purchased on such Settlement Date in accordance with the
\nterms and conditions of this Agreement and second, paid to the Purchasers on
\n ——
\nsuch Settlement Date and applied in respect of the Outstanding Purchase Price.
\nOn each Settlement Date during the Amortization Period, Principal Collections
\nreceived during the prior Settlement Period shall be paid to the Purchasers on
\nsuch Settlement Date and applied in respect of the Outstanding Purchase Price.
\nFollowing an Amortization Event, Principal Collections on account of the
\nPurchase Discount applied to the Purchase Price of Receivables purchased during
\na Discount Event may, at the discretion of the Managing Facility Agent, be
\ndeemed Finance Charge Collections available to be distributed pursuant to
\nsubsections 2.16(b)(ii) and (b)(iii).<\/p>\n
(b) Finance Charge Collections. On each Settlement Date (other
\n ————————–
\nthan a Special Settlement Date) funds on deposit in the Concentration Account
\nrepresenting Finance Charge Collections in respect of the preceding Settlement
\nPeriod shall be distributed by the Managing Facility Agent as follows, to the
\nextent of funds available therefor:<\/p>\n
(i) first, to the Servicer as payment of the
\n —–
\n Servicing Fee for the preceding Settlement Period;<\/p>\n
(ii) second, to the Purchasers pro rata as payment of
\n —— — —-
\n all interest due pursuant to subsection 2.17(a) and (c) for
\n the preceding Accrual Period;<\/p>\n
(iii) third, to the Managing Facility Agent and each
\n —–
\n Purchaser which has made a demand prior to the Reporting Date
\n preceding such Settlement Date, to costs payable pursuant to
\n subsections 2.22, 2.23, 2.24 and 11.5;<\/p>\n
63<\/p>\n
(iv) fourth, to the Purchasers pro rata as payment of
\n ——
\n the Commitment Fees for the preceding Accrual Period pursuant
\n to subsection 2.17(d) and second, to the Managing Facility
\n ——
\n Agent as payment of the fees referred to in subsection 2.17(e)
\n to the extent such fees have not been paid directly by the
\n Seller;<\/p>\n
(v) fifth, if a Rating Event has occurred and is
\n —–
\n continuing, to the extent of funds available therefor, to the
\n Managing Facility Agent for deposit into the Cash Collateral
\n Account an amount equal to Finance Charges on those Wholesale
\n Receivables which are Quarterly Receivables which Finance
\n Charges have accrued during the preceding Settlement Period
\n and are payable under the related Contract on a subsequent
\n Settlement Date; and<\/p>\n
(vi) sixth, any remaining Finance Charge Collections
\n —–
\n (such remainder, “Excess Spread”) shall be distributed as
\n ————-
\n follows: (1) so long as no Trigger Amortization Event has
\n occurred and is continuing, to the Seller or its designees and
\n (2) in all other cases, 100% thereof shall be paid to the
\n Purchasers pro rata as payment in respect of the Outstanding
\n Purchase Price.<\/p>\n
(c) All Collections received from an Obligor of any Purchased
\nReceivable shall be applied to Purchased Receivables of such Obligor in the
\norder of the age of such Purchased Receivables, starting with the oldest
\noutstanding amount of such Purchased Receivable (i.e., the most delinquent of
\n —
\nsuch Purchased Receivables), except if the payment is designated by such Obligor
\nfor application to specific Receivables. All Principal Collections received on
\naccount of any Extended Term Receivable and not used to purchase monthly
\npayments of such Receivable payable after its most recent Cash Flow Cutoff Date
\nshall be applied in the direct order of maturity thereof. Payments made by an
\nObligor on account of a Receivable shall, except as otherwise specified by such
\nObligor or otherwise required by contract or law and unless otherwise instructed
\nby the Managing Facility Agent and the Required Purchasers, be applied as a
\nCollection of any Purchased Receivable of such Obligor to the extent of any
\namounts then due and payable thereunder before being applied to any other
\nindebtedness of such Obligor to the Seller or Raytheon Credit.<\/p>\n
2.17 Interest and Fees. (a) Except as provided in paragraph
\n —————–
\n(b) below, each Purchaser’s Outstanding Purchase Price shall bear interest for
\neach day during an Accrual Period at a rate per annum equal to the Note Rate for
\nsuch Purchaser and shall be payable on each Settlement Date (other than a
\nSpecial Settlement Date) for the immediately preceding Accrual Period. To the
\nextent that the Outstanding Purchase Price has not been reduced to zero on the
\ndate the Amortization Period ends pursuant to clause (ii) of the definition of
\nsuch term, interest shall accrue pursuant to this subsection 2.17(a) regardless
\nof whether the Seller shall be obligated to pay Expense Amounts under subsection
\n2.18.<\/p>\n
(b) The Outstanding Purchase Price for Receivables purchased
\non a Special Settlement Date shall bear interest (i) at a rate per annum equal
\nto the Base Rate for the first three Working Days following such Special
\nSettlement Date and (ii) thereafter at a rate per annum equal to the Interbank
\nRate for each day of the Special Settlement Date Accrual Period; provided that,
\nif the Seller provides the Managing Facility Agent with the notice provided for
\nin Section 2.3 at least three Working Days prior to the applicable Special
\nSettlement Date, then<\/p>\n
64<\/p>\n
interest shall be calculated in accordance with clause (ii) from such Special
\nSettlement Date until the end of the related Special Settlement Date Accrual
\nPeriod. Interest payable under this Section 2.17(b) shall be payable on the next
\nSettlement Date. Beginning with the first Settlement Date after any Special
\nSettlement Date, interest with respect to the Receivables purchased on such
\nSpecial Settlement Date shall be calculated in accordance with paragraph (a)
\nabove.<\/p>\n
(c) If all or any portion of any amount (including interest)
\npayable by the Seller hereunder shall not be paid when due, such overdue amount
\nshall bear interest at a rate per annum equal to the Note Rate plus 1% (the
\n —-
\n“Default Rate”) from the date of such non-payment until such amount is paid in
\n ————
\nfull (after as well as before judgment). The Outstanding Purchase Price shall
\nbear interest pursuant to, and at the times specified in, subsection 8.2(a) for
\neach day during an Accrual Period at a rate per annum equal to the Default Rate
\nuntil the Outstanding Purchase Price is reduced to zero (after as well as before
\njudgment). Any amount payable pursuant to this subsection 2.17(c) shall be
\npayable on each Settlement Date (other than a Special Settlement Date), or on
\ndemand after any judgment. To the extent that the Outstanding Purchase Price has
\nnot been reduced to zero on the date the Amortization Period ends pursuant to
\nclause (ii) of the definition of such term, interest shall accrue pursuant to
\nthis subsection 2.17(c) regardless of whether the Seller shall be obligated to
\npay Expense Amounts under subsection 2.18. Interest accruing pursuant to this
\nsubsection 2.17(c) shall be payable from time to time on demand.<\/p>\n
(d) During the period from and including the Amendment
\nEffective Date to the date on which the Revolving Period ends, a commitment fee
\n(a “Commitment Fee”) shall be payable to the Managing Facility Agent for the
\n ————–
\naccount of each Purchaser, payable monthly in arrears on each Settlement Date
\n(other than a Special Settlement Date) and computed at the rate per annum based
\non Raytheon’s Debt Rating in effect on such day, as set forth under the relevant
\ncolumn heading below, on the actual daily amount of the Available Commitment of
\nsuch Purchaser during each Accrual Period ending prior to the Settlement Date on
\nwhich the Commitment Fee is paid, commencing on the first such Settlement Date
\nto occur after the Amendment Effective Date:<\/p>\n
Debt Rating Commitment Fee
\n ———– ————–
\nBBB+ or the equivalent thereof or above 0.125%
\nBBB or the equivalent thereof 0.150%
\nBBB- or the equivalent thereof 0.175%
\nBB+ or the equivalent thereof 0.225%
\nBelow BB+ or the equivalent thereof 0.375%<\/p>\n
(e) The Seller agrees to pay (i) to the Managing Facility
\nAgent for its account the fees set forth in the Fee Letter, dated March 8, 2002,
\namong the Managing Facility Agent, the Seller and the Guarantor in the amounts
\nand on the dates set forth therein and (ii) to the Syndication Agent for its
\naccount the fees set forth in the Fee Letter, dated February 7, 2002, among the
\nSyndication Agent, the Seller and the Guarantor in the amounts and on the dates
\nset forth therein.<\/p>\n
65<\/p>\n
(f) Interest and fees required to be paid under this
\nsubsection 2.17 shall be payable regardless of whether sufficient Finance Charge
\nCollections therefore are on deposit in the Concentration Account on the date or
\ndates such interest or fees are required to be paid.<\/p>\n
2.18 Yield Adjustment. If on any Settlement Date (other than a
\n —————-
\nSpecial Settlement Date) any Expense Amount is not paid in full on such
\nSettlement Date, then on such Settlement Date the Seller will pay to the
\nManaging Facility Agent for the account of each Purchaser the amounts required
\nto pay all such Expense Amounts in full provided, that the Seller’s obligation
\n ——–
\nunder this subsection 2.18 in favor of any Purchaser in any calendar year shall
\nnot exceed an amount equal to the product of the applicable Note Rate as of such
\ndate times such Purchaser’s Outstanding Purchase Price as of such date. The
\nSeller shall not be obligated to pay pursuant to this subsection 2.18 any
\nExpense Amounts which accrue after the date the Amortization Period ends;
\nprovided that the Seller shall remain obligated to pay any Expense Amount which
\n——–
\naccrued prior to such date (whether or not claimed prior to such date) so long
\nas a claim for such Expense Amount is made prior to the times set forth in the
\nsubsection hereof governing such Expense Amount.<\/p>\n
2.19 Computations and Payments. (a) All amounts to be paid or
\n ————————-
\ndeposited by or on behalf of the Seller hereunder shall be paid or deposited in
\naccordance with the terms hereof no later than 11:00 a.m., New York City time,
\non the day when due in lawful money of the United States of America and in
\nimmediately available funds. All computations of Commitment Fees, interest and
\nother fees and amounts payable hereunder shall be made on the basis of a year of
\n360 days for the actual number of days elapsed (including the first but
\nexcluding the last day). The Managing Facility Agent shall as soon as
\npracticable notify the Seller and the Purchasers of each determination of a LIBO
\nRate or an Interbank Rate.<\/p>\n
(b) Each determination of the Note Rate, the Interbank Rate or
\nthe Default Rate by the Managing Facility Agent pursuant to any provision of
\nthis Agreement shall be conclusive and binding on the Seller and the Purchasers
\nin the absence of manifest error. The Managing Facility Agent shall, at the
\nrequest of the Seller, deliver to the Seller a statement showing the quotations
\nused by the Managing Facility Agent in determining the Note Rate for any Accrual
\nPeriod.<\/p>\n
(c) If any Reference Bank’s Commitment shall terminate for any
\nreason whatsoever, such Reference Bank shall thereupon cease to be a Reference
\nBank, and if, as a result of the foregoing, there shall only be one Reference
\nBank remaining, the Managing Facility Agent (after consultation with the Seller
\nand the Purchasers) shall, by notice to the Seller and the Purchasers, designate
\nanother Purchaser as a Reference Bank so that there shall at all times be at
\nleast two Reference Banks.<\/p>\n
(d) Each Reference Bank shall use its best efforts to furnish
\nquotations of rates to the Managing Facility Agent to the extent contemplated by
\nthe definition of “LIBO Rate”. If any Reference Bank shall be unable or shall
\notherwise fail to supply such rates to the Managing Facility Agent upon its
\nrequest, the LIBO Rate shall be determined on the basis of the quotations of the
\nremaining Reference Banks or Reference Bank.<\/p>\n
66<\/p>\n
2.20 Pro Rata Treatment. (a) Except with respect to payments
\n ——————
\nto a Dissenting Purchaser pursuant to subsection 2.8(b)(ii) or 2.13(c), (i) each
\npurchase by the Purchasers hereunder, each payment by the Seller in respect of
\nthe Commitment Fees and any reduction of the Commitments shall be made pro rata
\n — —-
\naccording to the respective Available Commitment Percentages of the Purchasers
\nand (ii) each payment by the Seller in respect of the Outstanding Purchase Price
\nand interest thereon and any repurchase of Receivables shall be made pro rata
\n — —-
\naccording to the respective Commitment Percentages of the Purchasers. The
\nManaging Facility Agent shall distribute payments received by or on behalf of
\nthe Seller to the Purchasers promptly upon receipt in like funds as received.<\/p>\n
(b) Unless the Managing Facility Agent shall have been
\nnotified in writing by any Purchaser prior to a Settlement Date that such
\nPurchaser will not make available to the Managing Facility Agent the amount that
\nwould constitute its Available Commitment Percentage of the aggregate Purchase
\nPrice to be paid on such date, the Managing Facility Agent may assume that such
\nPurchaser has made such amount available to the Managing Facility Agent on such
\nSettlement Date, and the Managing Facility Agent may, in reliance upon such
\nassumption, make available to the Seller a corresponding amount. If such amount
\nis made available to the Managing Facility Agent on a date after such Settlement
\nDate, such Purchaser shall pay to the Managing Facility Agent on demand an
\namount equal to the product of (i) the daily average Federal funds rate during
\nsuch period as quoted by the Managing Facility Agent, times (ii) the amount of
\nsuch Purchaser’s Available Commitment Percentage of such aggregate Purchase
\nPrice, times (iii) a fraction the numerator of which is the number of days that
\nelapse from and including such Settlement Date to the date on which such
\nPurchaser’s Available Commitment Percentage of such aggregate Purchase Price
\nshall have become immediately available to the Managing Facility Agent and the
\ndenominator of which is 360. A certificate of the Managing Facility Agent
\nsubmitted to any Purchaser with respect to any amounts owing under this
\nsubsection shall be conclusive in the absence of manifest error. If such
\nPurchaser’s Available Commitment Percentage of such aggregate Purchase Price is
\nnot in fact made available to the Managing Facility Agent by such Purchaser
\nwithin three Business Days after such Settlement Date, then on the fourth
\nBusiness Day after such Settlement Date the Seller shall be deemed to have
\nrepurchased participating interests in the Receivables in an amount equal to
\nsuch Purchaser’s Available Commitment Percentage of the aggregate Purchase Price
\npaid on such Settlement Date, together with interest on such amount at the rate
\nper annum equal to the LIBO Rate, such repurchase to be made by a cash payment
\nto the Managing Facility Agent for its own account; provided that such
\n ——–
\nrepurchase shall not limit the rights of the Seller against the Purchaser which
\nfailed to make available its Available Commitment Percentage of such aggregate
\nPurchase Price.<\/p>\n
2.21 Illegality. Notwithstanding any other provision herein,
\n ———-
\nif any change in any Requirement of Law or in the interpretation or application
\nthereof shall make it unlawful for any Purchaser to make or maintain its
\nproportionate share of the Outstanding Purchase Price based on the LIBO Rate as
\ncontemplated by this Agreement, (a) the Commitment of such Purchaser hereunder
\nto make purchases shall forthwith be canceled and (b) the Outstanding Purchase
\nPrice of such Purchaser shall be paid on each Settlement Date thereafter as if
\nsuch Purchaser were a Dissenting Purchaser under subsection 2.8.<\/p>\n
67<\/p>\n
2.22 Requirements of Law. (a) In the event that any change in
\n ——————-
\nany Requirement of Law or in the interpretation or application thereof or
\ncompliance by any Purchaser with any request or directive (whether or not having
\nthe force of law) from any central bank or other Governmental Authority (each, a
\n“Change in Law”) made subsequent to the date hereof (or with respect to a
\n ————-
\nPurchasing Party which becomes a party hereto pursuant to subsection 11.6(c),
\nmade subsequent to the date such Purchasing Party became a party hereto) shall:<\/p>\n
(i) impose, modify or deem applicable any reserve,
\n special deposit or similar requirement against assets of,
\n deposits with or for the account of, or credit extended by,
\n any Purchaser (except any such reserve requirement reflected
\n in the LIBO Rate); or<\/p>\n
(ii) impose on any Purchaser or the London interbank
\n market any other condition affecting this Agreement or the
\n making of purchases or the maintaining of a proportionate
\n share of the Outstanding Purchase Price by such Purchaser;<\/p>\n
and the result of any of the foregoing shall be to increase the cost to such
\nPurchaser of making purchases or maintaining its proportionate share of the
\nOutstanding Purchase Price (or of maintaining its obligation to do any of the
\nforegoing) or to reduce the amount of any sum received or receivable by such
\nPurchaser hereunder (whether of principal, interest or otherwise), then the
\nSeller will pay to such Purchaser such additional amount or amounts as will
\ncompensate such Purchaser for such additional costs incurred or reduction
\nsuffered.<\/p>\n
(b) If any Purchaser determines that any Change in Law
\nregarding capital requirements has or would have the effect of reducing the rate
\nof return on such Purchaser’s capital or on the capital of such Purchaser’s
\nholding company, if any, as a consequence of this Agreement or such Purchaser’s
\nobligations hereunder, to a level below that which such Purchaser or such
\nPurchaser’s holding company could have achieved but for such Change in Law
\n(taking into consideration such Purchaser’s policies and the policies of such
\nPurchaser’s holding company with respect to capital adequacy), then from time to
\ntime the Seller will pay to such Purchaser such additional amount or amounts as
\nwill compensate such Purchaser or such Purchaser’s holding company for any such
\nreduction suffered.<\/p>\n
(c) A certificate of a Purchaser setting forth the amount or
\namounts necessary to compensate such Purchaser or its holding company, as the
\ncase may be, as specified in paragraph (a) or (b) of this subsection shall be
\ndelivered to the Seller and shall be conclusive absent manifest error. The
\nSeller shall pay such Purchaser the amount shown as due on any such certificate
\nwithin 10 days after receipt thereof.<\/p>\n
(d) Failure or delay on the part of any Purchaser to demand
\ncompensation pursuant to this subsection shall not constitute a waiver of such
\nPurchaser’s right to demand such compensation; provided that the Seller shall
\n ——–
\nnot be required to compensate a Purchaser pursuant to this subsection for any
\nincreased costs or reductions incurred more than six months prior to the date
\nthat such Purchaser notifies the Seller of the Change in Law giving rise to such
\nincreased costs or reductions and of such Purchaser’s intention to claim
\ncompensation therefor; provided further that, if the Change in Law giving rise
\n ——– ——-
\nto such increased costs or reductions is retroactive,<\/p>\n
68<\/p>\n
then the six-month period referred to above shall be extended to include the
\nperiod of retroactive effect thereof.<\/p>\n
2.23 Taxes. (a) Any and all payments by or an account of any
\n —–
\nobligation of the Seller hereunder shall be made free and clear of and without
\ndeduction for any Indemnified Taxes or Other Taxes; provided that if the Seller
\nshall be required to deduct any Indemnified Taxes or Other Taxes from such
\npayments, then (i) the sum payable shall be increased as necessary so that after
\nmaking all required deductions (including deductions applicable to additional
\nsums payable under this subsection) the Managing Facility Agent,
\nCo-Administrative Agent or Purchaser (as the case may be) receives an amount
\nequal to the sum it would have received had no such deductions been made, (ii)
\nthe Seller shall make such deductions and (iii) the Seller shall pay the full
\namount deducted to the relevant Governmental Authority in accordance with
\napplicable law.<\/p>\n
(b) In addition, the Seller shall pay any Other Taxes to the
\nrelevant Governmental Authority in accordance with applicable law.<\/p>\n
(c) The Seller shall indemnify the Managing Facility Agent,
\neach Co-Administrative Agent and each Purchaser, within 10 days after written
\ndemand therefor, for the full amount of any Indemnified Taxes or Other Taxes
\n(including Indemnified Taxes or Other Taxes imposed or asserted on or
\nattributable to amounts payable under this subsection) paid by the Managing
\nFacility Agent, such Co-Administrative Agent or such Purchaser, as the case may
\nbe, and any penalties, interest and reasonable expenses arising therefrom or
\nwith respect thereto, whether or not such Indemnified Taxes or Other Taxes were
\ncorrectly or legally imposed or asserted by the relevant Governmental Authority.
\nA certificate as to the amount of such payment or liability delivered to the
\nSeller by a Purchaser, or by the Managing Facility Agent on its own behalf or on
\nbehalf of a Purchaser or a Co-Administrative Agent shall be conclusive absent
\nmanifest error.<\/p>\n
(d) As soon as practicable after any payment of Indemnified
\nTaxes or Other Taxes by the Seller to a Governmental Authority, the Seller shall
\ndeliver to the Managing Facility Agent the original or a certified copy of a
\nreceipt issued by such Governmental Authority evidencing such payment, a copy of
\nthe return reporting such payment or other evidence of such payment reasonably
\nsatisfactory to the Managing Facility Agent.<\/p>\n
(e) Any Foreign Purchaser that is entitled to an exemption
\nfrom or reduction of withholding tax under the law of the jurisdiction in which
\nthe Seller is located, or any treaty to which such jurisdiction is a party, with
\nrespect to payments under this Agreement shall deliver to the Seller (with a
\ncopy to the Managing Facility Agent), at the time or times prescribed by
\napplicable law or reasonably requested by the Seller, such properly completed
\nand executed documentation prescribed by applicable law as will permit such
\npayments to be made without withholding or at a reduced rate.<\/p>\n
2.24 Reemployment Costs. The Seller agrees to indemnify each
\n ——————
\nPurchaser and to hold each Purchaser harmless from any loss or expense
\n(including, but not limited to, any such loss or expense arising from interest
\nor fees payable by a Purchaser to lenders of funds obtained by it or them to
\npurchase or maintain an interest in the Purchased Receivables with respect to<\/p>\n
69<\/p>\n
which the Note Rate is determined by reference to the LIBO Rate) as a
\nconsequence of (a) default by the Seller in the performance of its obligations
\nhereunder, (b) any reduction in the Outstanding Purchase Price prior to the last
\nday of any Settlement Period, (c) the failure of the Seller or the Servicer to
\nmake any amounts available to the Managing Facility Agent when due hereunder or
\n(d) any expenses (excluding legal expenses) incurred by any Purchaser pursuant
\nto subsection 2.21. A certificate of such Purchaser submitted to the Seller
\ncertifying, in reasonably specific detail, the basis for, calculation of and
\namounts of such additional costs shall be conclusive in the absence of manifest
\nerror. This covenant shall survive for a period of two years following the date
\non which the Amortization Period ends.<\/p>\n
2.25 Seller’s Obligations Absolute and Unconditional. The
\n ———————————————–
\nSeller’s obligations under this Section 2 to make payments, deposits and
\nrepurchases shall be absolute and unconditional and shall be performed without
\nregard to any set-off which the Seller at any time may have available to it.<\/p>\n
2.26 Mitigation Obligations; Replacement of Purchaser. (a) If
\n ————————————————
\nany Purchaser requests compensation under subsection 2.22, or if the Seller is
\nrequired to pay any additional amount to any Purchaser or any Governmental
\nAuthority for the account of any Purchaser pursuant to subsection 2.23, then
\nsuch Purchaser shall use reasonable efforts to designate a different lending
\noffice for funding or booking its purchases hereunder or to assign its rights
\nand obligations hereunder to another of its offices, branches or affiliates, if,
\nin the judgment of such Purchaser, such designation or assignment (i) would
\neliminate or reduce amounts payable pursuant to subsection 2.22 or 2.23, as the
\ncase may be, in the future and (ii) would not subject such Purchaser to any
\nunreimbursed cost or expense and would not otherwise be disadvantageous to such
\nPurchaser. The Seller hereby agrees to pay all reasonable costs and expenses
\nincurred by any Purchaser in connection with any such designation or assignment.<\/p>\n
(b) If any Purchaser requests compensation under subsection
\n2.22, or if the Seller is required to pay any additional amount to any Purchaser
\nor any Governmental Authority for the account of any Purchaser pursuant to
\nsubsection 2.23, or if any Purchaser defaults in its obligation hereunder to
\nmake purchases or maintain its proportionate share of the Outstanding Purchase
\nPrice or if at any time after the Effective Date any Purchaser shall cause the
\nManaging Facility Agent to notify the Seller and the Servicer of a Prohibited
\nJurisdiction, then the Seller may, at its sole expense and effort, upon notice
\nto such Purchaser and the Managing Facility Agent, require such Purchaser to
\nassign and delegate, without recourse (in accordance with and subject to the
\nrestrictions contained in subsection 11.6), all its interests, rights and
\nobligations under this Agreement to an assignee that shall assume such
\nobligations (which assignee may be another Purchaser, if a Purchaser accepts
\nsuch assignment); provided that (i) the Seller shall have received the prior
\n ——–
\nwritten consent of the Managing Facility Agent, which consent shall not
\nunreasonably be withheld, (ii) such Purchaser shall have received payment of an
\namount equal to such Purchaser’s Outstanding Purchase Price, accrued interest
\nthereon, accrued fees and all other amounts payable to it hereunder, from the
\nassignee (to the extent of such outstanding principal and accrued interest and
\nfees) or the Seller (in the case of all other amounts), (iii) in the case of any
\nsuch assignment resulting from a claim for compensation under subsection 2.22 or
\npayments required to be made pursuant to subsection 2.23, such assignment will
\nresult in a reduction in such compensation or payments and (iv) in the case of
\nany such assignment resulting from a request to add an additional Prohibited
\nJurisdiction, such assignee will not request that such<\/p>\n
70<\/p>\n
jurisdiction be so categorized. A Purchaser shall not be required to make any
\nsuch assignment and delegation if, prior thereto, as a result of a waiver by
\nsuch Purchaser or otherwise, the circumstances entitling the Seller to require
\nsuch assignment and delegation cease to apply.<\/p>\n
2.27 Designation of Affiliate Receivables and Foreign
\n ————————————————
\nReceivables. (a) Each Affiliate Receivable and each Foreign Receivable (other
\n———–
\nthan L\/C Receivables, Unsecured Foreign Receivables and Existing Receivables)
\nshall be designated as a Certified Foreign Receivable or an Uncertified Foreign
\nReceivable in accordance with this subsection 2.27.<\/p>\n
Except as provided in subsections 2.27(c) and (d) below, no
\nless than 45 days prior to the Settlement Date on which the Seller proposes to
\nsell or substitute an Affiliate Receivable or Foreign Receivable (other than a
\nL\/C Receivable), the Seller shall deliver to the Servicer the following:<\/p>\n
(i) with respect to each such Foreign Receivable
\n other than a Lease Receivable with a Foreign Obligor,<\/p>\n
(A) the form(s) of Foreign Assignment(s) with respect
\n to the Financed Aircraft related to such Receivable, which
\n Foreign Assignment(s) shall be effective to perfect (A) the
\n Lien granted by the Obligor thereon in favor of Raytheon
\n Credit, (B) the assignment thereof by Raytheon Credit in favor
\n of the Seller and (C) the assignment of such Lien by the
\n Seller in favor of the Administrative Agent, in each case, in
\n all respects reasonably satisfactory in form and substance to
\n the Managing Facility Agent and its counsel,<\/p>\n
(B) the forms of all other filings and recordings
\n (including, without limitation, any UCC filings with filing
\n offices in the jurisdictions listed on Schedule II) necessary
\n or advisable, in the opinion of the Managing Facility Agent
\n after consultation with its counsel or the Servicer, to
\n perfect the Purchasers’ first priority ownership or security
\n interests in and to such Foreign Receivable and the related
\n Contracts and Financed Aircraft and the Collections with
\n respect thereto, and<\/p>\n
(C) (x) a form of legal opinion of counsel (a copy of
\n which shall be delivered to the Managing Facility Agent)
\n admitted to practice in the foreign jurisdiction in which the
\n related Foreign Obligor is located (within the meaning of
\n Section 9-307 of the New York UCC), addressed to the Managing
\n Facility Agent, the Co-Administrative Agents and the
\n Purchasers (1) to the effect that (x) the Lien granted by the
\n Obligor in favor of Raytheon Credit in the related Financed
\n Aircraft constitutes a duly perfected, first priority Lien
\n thereon, (y) each of the assignment of such Lien by Raytheon
\n Credit to the Seller and by the Seller in favor of the
\n Administrative Agent (for the ratable benefit of the
\n Purchasers) in the related Financed Aircraft constitutes (as
\n of its effectiveness) a duly perfected, first priority Lien
\n thereon (except as set forth in paragraph (l) of the
\n definition of “Eligible Receivables”) and (z) the assignment
\n of such Foreign Receivable by Raytheon Credit to the Seller
\n and by the Seller in favor of the Administrative Agent (for
\n the ratable benefit of the Purchasers) constitutes (as of its<\/p>\n
71<\/p>\n
effectiveness) a duly perfected, first priority Lien thereon
\n (except for Permitted Receivables Liens) and (2) covering such
\n other matters as the Managing Facility Agent shall reasonably
\n request, and in all respects satisfactory in form and
\n substance to the Managing Facility Agent and its counsel, or<\/p>\n
(y) if the Obligor of such Receivable is located (within the
\n meaning of Section 9-307 of the New York UCC) in a
\n jurisdiction covered by a previously delivered and accepted
\n (by the Managing Facility Agent on behalf of the Purchasers)
\n legal opinion, a form of certificate of a Responsible Officer
\n of the Seller which represents and warrants to the Managing
\n Facility Agent, for the benefit of the Purchasers, that the
\n Seller has taken all actions specified in such previously
\n delivered opinion and all other actions known to the Seller to
\n ensure that the Liens referenced in clause (A) of this
\n paragraph (i) are enforceable and have been duly perfected to
\n the same extent as set forth in such previously delivered and
\n accepted legal opinion;<\/p>\n
(ii) with respect to each such Foreign Receivable
\n which is a Registerable Lease Receivable with a Foreign
\n Obligor,<\/p>\n
(A) the form of FAA Assignment with respect to the
\n Financed Aircraft related to such Receivable, which FAA
\n Assignment shall be effective to perfect the Lien granted by
\n the Seller thereon in favor of the Administrative Agent, in
\n each case, in all respects reasonably satisfactory in form and
\n substance to the Managing Facility Agent and its counsel,<\/p>\n
(B) the forms of all other filings and recordings
\n (including, without limitation, any UCC filings with filing
\n offices in the jurisdictions listed on Schedule II) necessary
\n or advisable, in the opinion of the Managing Facility Agent
\n after consultation with its counsel or the Servicer, to
\n perfect the Purchasers’ first priority ownership or security
\n interests in and to such Foreign Receivable and the related
\n Contracts and Financed Aircraft and the Collections with
\n respect thereto, and<\/p>\n
(C) (x)(1) a form of legal opinion of special FAA
\n counsel to the Seller to the effect that (A) the Lien granted
\n by the Seller in favor of the Administrative Agent (for the
\n ratable benefit of the Purchasers) in the related Financed
\n Aircraft constitutes a duly perfected, first priority Lien
\n thereon (except as set forth in paragraph (l) of the
\n definition of “Eligible Receivables”) and (B) the assignment
\n of such Foreign Receivable by the Seller in favor of the
\n Administrative Agent (for the ratable benefit of the
\n Purchasers) constitutes a duly perfected, first priority Lien
\n thereon (except for Permitted Receivables Liens) and (2) a
\n form of legal opinion of counsel (a copy of which shall be
\n delivered to the Managing Facility Agent) admitted to practice
\n in the foreign jurisdiction in which the related Foreign
\n Obligor is located (within the meaning of Section 9-307 of the
\n New York UCC), addressed to the Managing Facility Agent, the
\n Co-Administrative Agents and the Purchasers to the effect that
\n the assignment of such Foreign Receivable by the Seller in
\n favor of the Administrative Agent (for the ratable benefit of
\n the<\/p>\n
72<\/p>\n
Purchasers) constitutes a duly perfected, first priority Lien
\n thereon (except for Permitted Receivables Liens); each such
\n opinion shall also cover such other matters as the Managing
\n Facility Agent shall reasonably request, and shall be in all
\n respects satisfactory in form and substance to the Managing
\n Facility Agent and its counsel, or<\/p>\n
(y) if the Foreign Obligor of such Foreign Receivable is so
\n located in a jurisdiction covered by a previously delivered
\n and accepted (by the Managing Facility Agent on behalf of the
\n Purchasers) legal opinion of foreign counsel (as described in
\n clause (C)(x) above), a form of certificate of a Responsible
\n Officer of the Seller which represents and warrants to the
\n Managing Facility Agent, for the benefit of the Purchasers,
\n that the Seller has taken all actions specified in such
\n previously delivered opinion and all other actions known to
\n the Seller to ensure that the assignment of the Foreign
\n Receivable is enforceable and has been duly perfected to the
\n same extent as set forth in such previously delivered and
\n accepted legal opinion;<\/p>\n
(iii) with respect to each such Foreign Receivable
\n which is a Lease Receivable with a Foreign Obligor, but is not
\n a Registerable Lease Receivable,<\/p>\n
(A) the form of Foreign Assignment with respect to
\n the Financed Aircraft related to such Receivable, which
\n Foreign Assignment shall be effective to perfect the Lien
\n granted thereon by the Seller in favor of the Administrative
\n Agent for the ratable benefit of the Purchasers, in each case,
\n in all respects reasonably satisfactory in form and substance
\n to the Managing Facility Agent and its counsel,<\/p>\n
(B) the forms of all other filings and recordings
\n (including, without limitation, any UCC filings with filing
\n offices in the jurisdictions listed on Schedule II) necessary
\n or advisable, in the opinion of the Managing Facility Agent
\n after consultation with its counsel or the Servicer, to
\n perfect the Purchasers’ first priority ownership or security
\n interests in and to such Foreign Receivable and the related
\n Contracts and Financed Aircraft and the Collections with
\n respect thereto, and<\/p>\n
(C) (x) a form of legal opinion of counsel (a copy of
\n which shall be delivered to the Managing Facility Agent)
\n admitted to practice in the foreign jurisdiction in which the
\n related Foreign Obligor is located (within the meaning of
\n Section 9-307 of the New York UCC), addressed to the Managing
\n Facility Agent, the Co-Administrative Agents and the
\n Purchasers (1) to the effect that (A) the Lien granted by the
\n Seller in favor of the Administrative Agent (for the ratable
\n benefit of the Purchasers) in the related Financed Aircraft
\n constitutes a duly perfected, first priority Lien thereon
\n (except as set forth in paragraph (l) of the definition of
\n “Eligible Receivables”), (B) the assignment by the Seller in
\n favor of the Administrative Agent (for the ratable benefit of
\n the Purchasers) of such Receivable constitutes a duly
\n perfected, first priority Lien thereon (except for Permitted
\n Receivables Liens) and (2) covering such other matters as the<\/p>\n
73<\/p>\n
Managing Facility Agent shall reasonably request, and in all
\n respects satisfactory in form and substance to the Managing
\n Facility Agent and its counsel, or<\/p>\n
(y) if the Foreign Obligor of such Foreign Receivable is so
\n located in a jurisdiction covered by a previously delivered
\n and accepted (by the Managing Facility Agent on behalf of the
\n Purchasers) legal opinion, a form of certificate of a
\n Responsible Officer of the Seller which represents and
\n warrants to the Managing Facility Agent, for the benefit of
\n the Purchasers, that the Seller has taken all actions
\n specified in such previously delivered opinion and all other
\n actions known to the Seller to ensure that the Liens
\n referenced in clause (C)(x)(1)(A) and (B) of this paragraph
\n (iii) are enforceable and have been duly perfected to the same
\n extent as set forth in such previously delivered and accepted
\n legal opinion;<\/p>\n
provided, however, that notwithstanding the provisions of this subsection
\n——–
\n2.27(a)(iii), the Seller may, at its option, decline to perform any of the
\nrequirements of this subsection 2.27(a)(iii) with respect to any Uncertified
\nLease Receivable; and<\/p>\n
(iv) with respect to each Affiliate Receivable,<\/p>\n
(A) the form(s) of Foreign Assignment(s) with
\n respect to the Financed Aircraft related to such Receivable,
\n which Foreign Assignment(s) shall be effective to perfect (A)
\n the Lien granted thereon by the Affiliate Obligor in favor of
\n Raytheon Credit, (B) an assignment of such Lien by Raytheon
\n Credit in favor of the Seller and (B) an assignment of such
\n Lien by the Seller in favor of the Administrative Agent for
\n the ratable benefit of the Purchasers, in each case, in all
\n respects reasonably satisfactory in form and substance to the
\n Managing Facility Agent and its counsel,<\/p>\n
(B) the forms of all other filings and recordings
\n (including, without limitation, any UCC filings with filing
\n offices in the jurisdictions listed on Schedule II) necessary
\n or advisable, in the opinion of the Managing Facility Agent
\n after consultation with its counsel or the Servicer, to
\n perfect (A) Raytheon Credit’s first priority perfected
\n interest in the Applicable Lease related thereto, the Financed
\n Aircraft and the Collections with respect thereto, (B) the
\n assignment by Raytheon Credit of such Affiliate Receivable and
\n Raytheon Credit’s interest in the Applicable Lease related
\n thereto, the Financed Aircraft and the Collections with
\n respect thereto to the Seller and (C) the Purchasers’ first
\n priority ownership or security interests in and to such
\n Affiliate Receivable and the related Contracts and Financed
\n Aircraft and the Collections with respect thereto, and<\/p>\n
(C) (x) a form of legal opinion of counsel (a copy of
\n which shall be delivered to the Managing Facility Agent)
\n admitted to practice in the foreign jurisdiction in which the
\n related Unaffiliated Foreign Lessee is located (within the
\n meaning of Section 9-307 of the New York UCC), addressed to
\n the Managing Facility Agent, the Co-Administrative Agents and
\n the Purchasers (1) to the effect that (A) the Lien in favor of
\n Raytheon Credit in the related Financed Aircraft constitutes a
\n duly perfected, first priority Lien thereon (except as set
\n forth in<\/p>\n
74<\/p>\n
paragraph (l) of the definition of “Eligible Receivables”),
\n (B) the assignment by Raytheon Credit in favor of the Seller
\n of such Affiliate Receivable and Raytheon Credit’s interest in
\n the Applicable Lease related thereto, the Financed Aircraft
\n and the Collections with respect thereto constitutes a duly
\n perfected assignment thereof and (C) the assignment thereof by
\n the Seller in favor of the Administrative Agent, for the
\n ratable benefit of the Purchasers of such Affiliate
\n Receivable, constitutes a duly perfected, first priority Lien
\n thereon (except for Permitted Receivables Liens and except as
\n set forth in paragraph (l) of the definition of “Eligible
\n Receivables”) and (2) covering such other matters as the
\n Managing Facility Agent shall reasonably request, and in all
\n respects satisfactory in form and substance to the Managing
\n Facility Agent and its counsel, or<\/p>\n
(y) if the Unaffiliated Foreign Lessee of such Affiliate
\n Receivable is so located in a jurisdiction covered by a
\n previously delivered and accepted (by the Managing Facility
\n Agent on behalf of the Purchasers) legal opinion, a form of
\n certificate of a Responsible Officer of the Seller which
\n represents and warrants to the Managing Facility Agent, for
\n the benefit of the Purchasers, that the Seller has taken all
\n actions specified in such previously delivered opinion and all
\n other actions known to the Seller to ensure that the Liens
\n referenced in clause (C)(x)(1)(A), (B) and (C) of this
\n paragraph (iv) are enforceable and have been duly perfected to
\n the same extent as set forth in such previously delivered and
\n accepted legal opinion.<\/p>\n
(b) Except as provided in subsection 2.27(c) below, within 30
\ndays of receipt of such forms of assignment, legal opinions and other specified
\ndocuments, the Servicer shall notify the Seller whether or not the related
\nAffiliate Receivables and Foreign Receivables will, subject to the satisfaction
\nof the conditions specified in subsection 5.2(e), constitute Certified Foreign
\nReceivables, Uncertified Foreign Receivables or Ineligible Receivables. Subject
\nto the satisfaction of the conditions specified in subsection 5.2(e), such
\ndesignation will be applied from and after the date of such notification. In the
\nabsence of such notification, such Receivable shall constitute an Uncertified
\nForeign Receivable, provided, however, that at any time thereafter, the Seller
\n ——– ——-
\nmay request that the Servicer determine whether any Uncertified Foreign
\nReceivable due to a change of circumstance is eligible to qualify as a Certified
\nForeign Receivable. Within 45 days of receipt of such request (or such shorter
\nperiod as shall be reasonably practicable) the Servicer shall determine the
\neligibility of the Uncertified Foreign Receivable referred to above to qualify
\nas a Certified Foreign Receivable in accordance with the provisions of this
\nsubsection 2.27 and notify the Seller.<\/p>\n
(c) Notwithstanding the foregoing, but subject to the further
\nprovisions of this subsection 2.27(c) and the provisions of subsection 2.27(d),
\non the Closing Date Existing Certified Receivables shall be designated Certified
\nForeign Receivables hereunder. Within 180 days of the Closing Date (such date,
\nthe “Certified Opinion Delivery Date”), the Seller shall deliver to the Old
\n ——————————–
\nAdministrative Agent, with respect to each Existing Certified Receivable, a form
\nof legal opinion of counsel (satisfactory to the Old Administrative Agent)
\nadmitted to practice in the foreign jurisdiction in which the related
\nUnaffiliated Foreign Lessee is located (within the meaning of Section 9-103 of
\nthe New York UCC as in effect at such time), addressed to the Old Administrative
\nAgent and the Purchasers (x) to the effect that no further action need be taken
\nin order to (1) perfect the transfer by Raytheon Credit to the Seller of such
\nExisting<\/p>\n
75<\/p>\n
Certified Receivable, the related Financed Aircraft and Applicable Lease (if
\napplicable) and Collections thereon in accordance with the Intercompany Purchase
\nAgreement and (2) continue the Lien in favor of the Administrative Agent of such
\nExisting Certified Receivable, the related Financed Aircraft and Applicable
\nLease (if applicable) and Collections thereon as a duly perfected Lien having
\nthe same priority as in effect immediately prior to the Effective Date and (y)
\nif any actions had been required in order to render the opinions set forth in
\nclause (x), setting forth such actions and (z) covering such other matters as
\nthe Old Administrative Agent shall reasonably request, which opinion shall be in
\nall respects satisfactory in form and substance to the Old Administrative Agent
\nand its counsel.<\/p>\n
(d) On the first Settlement Date (other than a Special
\nSettlement Date) following the Certified Opinion Delivery Date, the Seller shall
\nrepurchase from the Purchasers and the Purchasers agree to sell to the Seller on
\nsuch date in accordance with the terms hereof, each Existing Certified
\nReceivable and each Existing GA Receivable (the Foreign Obligor of which is
\nlocated in Canada, France or Australia) as to which the Purchasers shall not
\nhave received a legal opinion to the effect set forth in subsection 2.27(c)
\nhereof. Subject to subsections 2.13 and 2.15(b), the Seller shall make such
\nrepurchase by depositing in the Concentration Account cash an amount for each
\nsuch Receivable equal to the amount set forth in clause (a) of the definition of
\n“Repurchase Price”, calculated at the date such deposit is made, except to the
\nextent (without duplication) of any payment made pursuant to subsection 2.18,
\nfor the Settlement Period during which such interest accrued and was not paid by
\nthe Foreign Obligor under the related Contract. The amount of any such deposit
\nshall be applied and distributed in accordance with subsections 2.15 and 2.16.
\nExcept as provided in subsection 9.1, the sole obligation of the Seller with
\nrespect to a Receivable of the type described in this subsection 2.27(d) shall
\nbe the requirement to repurchase or substitute for such Receivable pursuant to
\nthis subsection 2.27(d).<\/p>\n
SECTION 3. THE SERVICER AND SERVICING OF PURCHASED RECEIVABLES<\/p>\n
3.1 Designation of Servicer; Removal. (a) The servicing,
\n ———————————
\nadministering and collection of Purchased Receivables shall be conducted by such
\nPerson (the “Servicer”) so designated from time to time in accordance with this
\n ——–
\nsubsection 3.1. Until the Required Purchasers give notice to the Seller of the
\ndesignation of a new Servicer pursuant to subsection 3.1(b), Raytheon Credit is
\nhereby designated as, and hereby agrees to perform the duties and obligations
\nof, the Servicer for the Purchased Receivables sold hereunder. The Servicer may,
\nwith the prior consent of the Required Purchasers, subcontract with any other
\nPerson to perform, in accordance with applicable laws, the servicing,
\nadministering or collecting of Purchased Receivables, provided that the Servicer
\n ——–
\nshall remain liable for the performance of the duties and obligations of the
\nServicer pursuant to the terms hereof. With respect to the Existing Receivables,
\nthe capacity of the Servicer shall be a continuation by Raytheon Credit of its
\ncapacity as Servicer under and as defined in each of the Existing Agreements.<\/p>\n
(b) At any time after the occurrence and during the
\ncontinuance of a Specified Amortization Event, the Required Purchasers may
\nremove Raytheon Credit (or any successor Servicer) as the Servicer and appoint
\nas a successor Servicer any Person to succeed Raytheon Credit (or any successor
\nServicer) as Servicer, on the condition that such successor Servicer agrees to
\nperform the duties and obligations of the Servicer pursuant to the terms hereof.
\nAny such removal of Raytheon Credit (or any successor Servicer) as the Servicer
\nshall not become<\/p>\n
76<\/p>\n
effective until such successor Servicer accepts its appointment and agrees to be
\nbound by the terms and conditions of this Agreement with respect to the Servicer
\nin a writing satisfactory in form and substance to the Managing Facility Agent
\nand the Required Purchasers. The Servicer agrees to cooperate with the Managing
\nFacility Agent, the Purchasers and any successor Servicer if the Servicer is
\nterminated under this Agreement, including transferring to the successor
\nServicer all cash amounts or documents or instruments relating to the Purchased
\nReceivables held by the Servicer at the time of its removal.<\/p>\n
(c) The authorization of the Servicer under this Agreement
\nshall terminate when all the obligations under this Agreement have been paid in
\nfull.<\/p>\n
3.2 Duties of Servicer. (a) The Servicer shall take or cause
\n ——————
\nto be taken all such actions as may be necessary or advisable to administer,
\nservice and collect each Purchased Receivable from time to time, all in
\naccordance with applicable laws, rules and regulations, with reasonable care and
\ndiligence, and solely in accordance with the Credit and Collection Policy. The
\nSeller, the Managing Facility Agent and each Purchaser each agrees that the
\nServicer may enforce its rights and interests in and under the Purchased
\nReceivables and the Contracts and with respect to the Financed Aircraft. The
\nServicer shall remit Collections in accordance with subsections 2.14 and 2.15(a)
\nand until such remittances are made, in the circumstance described in Section
\n2.15(a), without regard to the proviso, shall hold such Collections in trust for
\nthe account of the Purchasers. The Servicer may not extend, amend or otherwise
\nmodify the terms of any Purchased Receivable, or amend, modify or waive any term
\nor condition of any Contract related thereto, or extend, amend or otherwise
\nmodify the rights of the Seller except (i) in accordance with subsection 7.1(b)
\nand (ii) if the Servicer is not then Raytheon Credit, with the Seller’s prior
\nconsent. No Servicer (if not Raytheon Credit) may commence or settle any legal
\naction to enforce collection of any Purchased Receivable without the prior
\nconsent of the Required Purchasers. The Seller shall deliver to the Servicer (if
\nnot the Seller) all computer tapes or disks and, upon the Managing Facility
\nAgent’s request, all documents, instruments or other records which evidence or
\nrelate to Purchased Receivables (the foregoing, the “Contract Files”).<\/p>\n
(b) The Servicer (if not Raytheon Credit) shall as soon as
\npracticable following receipt turn over to the Seller or any other party
\nentitled thereto the Collections on any Receivable which is not a Purchased
\nReceivable less all reasonable and appropriate out-of-pocket costs and expenses
\nof the Servicer of servicing, collecting and administering such Receivable to
\nthe extent not covered by the Servicing Fee received by it. The Servicer, if
\nother than the Seller, shall as soon as practicable upon demand deliver to the
\nSeller all documents, instruments and records in its possession which evidence
\nor relate to Receivables other than Purchased Receivables, and copies of
\ndocuments, instruments and records in its possession which evidence or relate to
\nReceivables other than Purchased Receivables. The Servicer unconditionally and
\nabsolutely agrees to take any and all action requested by the Managing Facility
\nAgent in connection with the exercise by the Managing Facility Agent and the
\nPurchasers of their rights under subsection 8.2, 11.11, 11.12 or 11.13.<\/p>\n
(c) With respect to any L\/C Receivable the related letter of
\ncredit of which expires on the last date of the Contract related thereto, the
\nServicer shall prepare any drawing request required under such letter of credit
\nand, if the payment due under such Contract is not<\/p>\n
77<\/p>\n
made by the drawing deadline under such letter of credit, the Servicer shall
\nmake a drawing thereunder. Further, if the expiration date of any letter of
\ncredit related to any L\/C Receivable is not extended when a Principal Balance of
\nsuch Receivable remains outstanding, the Servicer shall, or shall cause the
\nSeller or Raytheon Credit to, draw the aggregate available amount under such
\nletter of credit prior to the expiration thereof.<\/p>\n
3.3 Servicer Reports. The Servicer shall deliver to the
\n —————-
\nManaging Facility Agent, with sufficient copies for each Purchaser:<\/p>\n
(a) Within 45 days after the end of each of the first three
\nfiscal quarters of the Servicer, beginning with the first such quarter to end
\nafter the Closing Date, a report with respect to such fiscal quarter, certified
\nby a Responsible Officer (if the Seller is then the Servicer) or by the
\npresident or officer responsible for financial affairs of the Servicer, to the
\neffect that the Servicer has reviewed its servicing, administration and
\ncollection of Purchased Receivables, Collections with respect thereto and the
\nrelated Contracts and Financed Aircraft, that no errors and irregularities were
\ndetected with respect to such servicing, administration and collection and that
\nsuch servicing, collection and administration was conducted in compliance with
\nthe applicable provisions of this Agreement; and<\/p>\n
(b) Within 90 days after the last day of each fiscal year of
\nthe Servicer, a report of a firm of nationally recognized independent public
\naccountants (which may also render other services to the Servicer, the Seller or
\nRaytheon or any Affiliate thereof) to the effect that (i) such firm has made an
\nexamination, in accordance with attestation standards established by the
\nAmerican Institute of Certified Public Accountants, of management’s assertion
\nthat the Servicer’s Receivables Administration Department maintained effective
\ninternal control over financial reporting as of the most recent fiscal year
\nbased on criteria established in Internal Control – Integrated Framework issued
\nby the Committee of Sponsoring Organizations of the Treadway Commission (COSO)
\nand (ii) such firm has performed the procedures set out in Exhibit K (agreed
\nupon procedures relating to Settlement Statements and receivables files).<\/p>\n
3.4 Servicing Fee. As compensation for its servicing
\n ————-
\nactivities hereunder and reimbursement for its reasonable fees, disbursements
\nand expenses incurred in connection with its activities hereunder, the Servicer
\nshall be entitled to receive a per annum servicing fee of .85% of the
\nOutstanding Purchase Price, payable monthly in arrears on each Settlement Date
\n(other than a Special Settlement Date) in respect of the Outstanding Purchase
\nPrice at the end of the Accrual Period preceding the Settlement Date on which
\nthe Servicing Fee is paid. The Servicing Fee shall be calculated on the basis
\nof a 360-day year for the actual number of days elapsed during such Accrual
\nPeriod.<\/p>\n
3.5 Merger or Consolidation of, or Assumption of the
\n ————————————————
\nObligations of, the Servicer. The Servicer shall not consolidate with or merge
\n—————————-
\ninto any other Person or convey or transfer its properties and assets
\nsubstantially as an entirety to any Person, unless:<\/p>\n
(i) the Person formed by such consolidation or into
\n which the Servicer is merged or the Person which acquires by
\n conveyance or transfer the properties and assets of the
\n Servicer substantially as an entirety shall be, if the
\n Servicer is not the surviving entity, organized and existing
\n under the laws of the United States of<\/p>\n
78<\/p>\n
America or any State or the District of Columbia and shall
\n expressly assume, by an agreement in form reasonably
\n satisfactory to the Managing Facility Agent and the Required
\n Purchasers, the performance of every covenant and obligation
\n of the Servicer hereunder, and shall benefit from all the
\n rights granted to the Servicer, as applicable hereunder;<\/p>\n
(ii) the Servicer has delivered to the Managing
\n Facility Agent a certificate of the Chief Financial Officer or
\n President thereof and an opinion of counsel (which counsel
\n shall be reasonably satisfactory to the Managing Facility
\n Agent) each stating that such consolidation, merger,
\n conveyance or transfer and such agreement comply with this
\n Section 3.5 and that all conditions precedent herein provided
\n for relating to such transaction have been complied with and,
\n in the case of the opinion of counsel, that such agreement is
\n legal, valid and binding with respect to the Servicer; and<\/p>\n
(iii) after giving effect thereto, no Amortization Event
\n shall have occurred and be continuing.<\/p>\n
3.6 Limitation on Liability of the Servicer and Others.
\n —————————————————
\nNeither the Servicer (except as otherwise provided herein) nor any of the
\ndirectors or officers or employees or agents of the Servicer shall be under any
\nliability to the Managing Facility Agent, the Co-Administrative Agents or the
\nPurchasers or any other Person for any action taken or for refraining from the
\ntaking of any action pursuant to this Agreement whether arising from express or
\nimplied duties under this Agreement; provided, however, that this provision
\n ——– ——-
\nshall not protect the Servicer against any liability which would otherwise be
\nimposed by reason of its willful misfeasance, bad faith or gross negligence in
\nthe performance of duties or by reason of its willful misconduct hereunder or by
\nreason of Section 3.7. The Servicer and any director or officer or employee or
\nagent of the Servicer may rely in good faith on any document of any kind prima
\nfacie properly executed and submitted by any Person respecting any matters
\narising hereunder.<\/p>\n
3.7 Indemnification of the Seller, the Managing Facility
\n —————————————————-
\nAgent, the Administrative Agent, the Co-Administrative Agents and each
\n———————————————————————-
\nPurchaser. The Servicer shall indemnify and hold harmless the Seller, the
\n———
\nManaging Facility Agent, the Administrative Agent and each Purchaser from and
\nagainst any loss, liability, expense, damage or injury suffered or sustained by
\nreason of any acts, omissions or alleged acts or omissions of the Servicer with
\nrespect to activities of the Seller or the Purchasers for which the Servicer is
\nresponsible pursuant to this Agreement, including those arising from acts or
\nomissions of the Servicer pursuant to this Agreement, including, but not limited
\nto any judgment, award, settlement, reasonable attorneys’ fees and other costs
\nor expenses incurred in connection with the defense of any actual or threatened
\naction, proceeding or claim. Notwithstanding the foregoing, (i) the Servicer
\nshall not indemnify the Seller, the Managing Facility Agent, the Administrative
\nAgent, any Co-Administrative Agent or any Purchaser if such acts, omissions or
\nalleged acts constitute fraud, gross negligence or breach of fiduciary duty by
\nsuch Person; (ii) the Servicer shall not indemnify the Seller, the Managing
\nFacility Agent, the Administrative Agent, the Co-Administrative Agents or any
\nPurchaser for any liabilities, costs or expenses with respect to any action
\ntaken by or at the request of any Purchasers, the Managing Facility Agent, the
\nAdministrative Agent, any Co-Administrative Agent, any Co-Agent or any Agent;
\n(iii) the Servicer shall not indemnify the<\/p>\n
79<\/p>\n
Seller, the Managing Facility Agent, the Administrative Agent, the
\nCo-Administrative Agents or any Purchaser as to any losses, claims or damages
\nincurred by any of them in their capacities as investors, including without
\nlimitation losses incurred as a result of Defaulted Receivables which are
\nwritten off as uncollectible; and (iv) the Servicer shall not indemnify the
\nSeller, the Managing Facility Agent, the Administrative Agent, the
\nCo-Administrative Agents or any Purchaser for any liabilities, costs or expenses
\nof any such Person arising under any tax law, including without limitation any
\nfederal, state or local income or franchise taxes or any other tax imposed on or
\nmeasured by income (or any interest or penalties with respect thereto or arising
\nfrom a failure to comply therewith) required to be paid by any such Person in
\nconnection herewith to any taxing authority. The provisions of this indemnity
\nshall run directly to and be enforceable by an injured party subject to the
\nlimitations hereof.<\/p>\n
The obligations of the Servicer under this subsection 3.7
\nshall survive the payment in full of the obligations hereunder.<\/p>\n
3.8 The Servicer Not to Resign. The Servicer shall not resign
\n ————————–
\nfrom the obligations and duties hereby imposed on it except upon determination
\nthat (i) the performance of its duties hereunder is or becomes impermissible
\nunder applicable law and (ii) there is no reasonable action which the Servicer
\ncould take to make the performance of its duties hereunder permissible under
\napplicable law. Any such determination permitting the resignation of the
\nServicer shall be evidenced as to clause (i) above by an opinion of counsel
\n(satisfactory to the Managing Facility Agent and its counsel) to such effect
\ndelivered to the Managing Facility Agent. No such resignation shall become
\neffective until a successor Servicer shall have assumed the responsibilities and
\nobligations of the Servicer hereunder. Any delegation of duties permitted under
\nsubsection 3.1 shall not relieve the Servicer of its liability and
\nresponsibility with respect to such duties, and shall not constitute a
\nresignation within the meaning of this subsection 3.8.<\/p>\n
3.9 Access to Certain Documentation and Information Regarding
\n ———————————————————
\nthe Contracts. The Servicer shall provide to the Managing Facility Agent access
\n————-
\nto the documentation regarding the Purchased Receivables (including the
\nContracts) and the related Financed Aircraft, such access being afforded without
\ncharge but only (i) upon reasonable request, (ii) during normal business hours,
\n(iii) subject to the Servicer’s normal security and confidentiality procedures
\nand (iv) at offices designated by the Servicer.<\/p>\n
3.10 Marking of Records. The Servicer shall mark the Contract
\n ——————
\nfiles with a legend (or, in the case of computer tapes and disks, other
\nappropriate electronic mark or tag) that such Purchased Receivables have been
\nsold to the Managing Facility Agent and each Purchaser.<\/p>\n
3.11 Additional Covenants of the Servicer. The Servicer hereby
\n ————————————
\ncovenants that:<\/p>\n
(a) Contract Files. The Servicer will, at its own cost
\n ————–
\n and expense, maintain all Contract files in its possession in trust for
\n the Seller, the Managing Facility Agent and the Purchasers and in
\n accordance with the Credit and Collection Policy and customary
\n standards in the aircraft finance industry. Without limiting the
\n generality of the preceding sentence, the Servicer will not dispose of
\n any such items in any manner which is inconsistent with the performance
\n of its obligations as the Servicer pursuant to this<\/p>\n
80<\/p>\n
Agreement and will not dispose of any Contract except as contemplated
\n by this Agreement.<\/p>\n
(b) Compliance with Law. The Servicer will comply, in all
\n ——————-
\n material respects, with all laws and regulations of any Governmental
\n Authority applicable to the Servicer, the Contracts related to the
\n Purchased Receivables, the related Financed Aircraft and the Contract
\n Files or any part thereof; provided that the Servicer may contest any
\n ——–
\n such law or regulation in any reasonable manner which will not
\n materially and adversely affect the value of (or the rights of the
\n Managing Facility Agent or the Purchasers, with respect to) the
\n Purchased Receivables and related Financed Aircraft.<\/p>\n
(c) Preservation of Security Interest. The Servicer will
\n ———————————
\n execute and file such financing and continuation statements and any
\n other documents reasonably requested by the Managing Facility Agent to
\n be filed or which may be required by any law or regulation of any
\n Governmental Authority to preserve and protect fully the interest of
\n the Managing Facility Agent and the Purchasers in, to and under the
\n Purchased Receivables and related Financed Aircraft (in each case as
\n contemplated by the other provisions of this Agreement).<\/p>\n
(d) Obligations with Respect to Contracts; Modifications. The
\n —————————————————-
\n Servicer will duly fulfill and comply with, in all material respects,
\n all obligations on the part of the Seller to be fulfilled or complied
\n with under or in connection with each Contract related to Purchased
\n Receivables and will do nothing to impair the rights of the
\n Administrative Agent or the Purchasers in, to and under the Purchased
\n Receivables and the related Financed Aircraft. The Servicer will
\n perform such obligations under the Contracts and will not change or
\n modify the Contracts, except as otherwise provided in subsection
\n 7.1(b)(iv) of this Agreement.<\/p>\n
(e) No Bankruptcy Petition. Prior to the date that is one year
\n ———————-
\n and one day after the payment in full of all amounts owing hereunder,
\n the Servicer will not institute against the Seller, or join any other
\n Person in instituting against the Seller, any bankruptcy,
\n reorganization, arrangement, insolvency or liquidation proceedings or
\n other similar proceedings under the laws of the United States or any
\n state of the United States. This Section 3.11(e) will survive the
\n termination of this Agreement.<\/p>\n
SECTION 4. REPRESENTATIONS AND WARRANTIES<\/p>\n
4.1 Representations and Warranties Relating to the Seller. To
\n —————————————————–
\ninduce the Purchasers to enter into this Agreement and to purchase the
\nReceivables the Seller hereby represents and warrants to the Managing Facility
\nAgent and each Purchaser on the date hereof, on the Amendment Effective Date and
\n(except as provided in subsection 4.1(j)) on each Settlement Date (including
\neach Special Settlement Date) on which a purchase or substitution is made that:<\/p>\n
(a) Corporate Existence; Compliance with Law. The Seller
\n —————————————-
\n (i) is duly organized, validly existing and in good standing under the
\n laws of the jurisdiction of its organization, (ii) has the corporate
\n power and authority, and the legal right, to own and<\/p>\n
81<\/p>\n
operate its property, to lease the property it operates as lessee and
\n to conduct the business in which it is currently engaged, (iii) is duly
\n qualified and in good standing under the laws of each jurisdiction
\n where its ownership, lease or operation of property or the conduct of
\n its business requires such qualification except to the extent that
\n failure so to qualify could not reasonably be expected to have a
\n Material Adverse Effect and (iv) is in compliance with all Requirements
\n of Law (whether or not the determination of any arbitrator, court or
\n other Governmental Authority has been appealed and is final) except to
\n the extent that the failure to comply therewith could not, in the
\n aggregate, reasonably be expected to have a Material Adverse Effect.<\/p>\n
(b) Corporate Power; Authorization; Enforceable
\n ——————————————-
\n Obligations. The Seller has the corporate power and authority, and the
\n ———–
\n legal right, to execute and deliver, and to perform its obligations
\n under, this Agreement, each Assignment, each FAA Assignment and each
\n Foreign Assignment and to sell or substitute the Receivables hereunder,
\n to grant and assign the Liens as contemplated herein and has taken all
\n necessary corporate action to authorize the sales, purchases and
\n substitutions and the granting and assigning of Liens in connection
\n therewith on the terms and conditions of this Agreement and to
\n authorize the execution, delivery and performance of this Agreement and
\n each other Purchase Document to which it is a party. No consent or
\n authorization of, filing with or other act by or in respect of, any
\n Governmental Authority or any other Person is required in connection
\n with the sales, purchases and substitutions to be made hereunder, the
\n granting and assignment of Liens in connection therewith or with the
\n execution, delivery, performance, validity or enforceability of this
\n Agreement or any other Purchase Document to which it is a party. This
\n Agreement has been, and each Assignment, FAA Assignment and Foreign
\n Assignment will be, duly executed and delivered on behalf of the
\n Seller. This Agreement constitutes, and each Assignment, FAA Assignment
\n and Foreign Assignment when executed and delivered will constitute, a
\n legal, valid and binding obligation of the Seller enforceable against
\n the Seller in accordance with its terms, except as enforceability may
\n be limited by applicable bankruptcy, insolvency, reorganization,
\n moratorium or similar laws affecting the enforcement of creditors’
\n rights generally and by general equitable principles (whether
\n enforcement is sought by proceedings in equity or at law).<\/p>\n
(c) No Legal Bar. Each sale and purchase and each
\n ————
\n substitution to be made hereunder, the use of the proceeds of any such
\n purchase and sale, each granting or assigning of the Liens in
\n connection with any such purchase and sale or substitution and the
\n execution, delivery and performance of this Agreement and each other
\n Purchase Document to which it is a party will not violate the Seller’s
\n certificate of incorporation or by-laws or any Requirement of Law
\n (including, but not limited to, bulk transfer or similar statutory
\n provisions in effect in any applicable jurisdiction) or Contractual
\n Obligation of the Seller and will not result in, or require, the
\n creation or imposition of any Lien on any of its properties or revenues
\n pursuant to the Seller’s certificate of incorporation or by-laws or any
\n such Requirement of Law or Contractual Obligation, other than the Liens
\n in favor of the Administrative Agent and the Purchasers created hereby.<\/p>\n
(d) No Material Litigation. No litigation, investigation
\n ———————-
\n or proceeding of or before any arbitrator or Governmental Authority is
\n pending by or against the Seller or, to the<\/p>\n
82<\/p>\n
Seller’s knowledge, pending against RAC, or threatened by or against
\n the Seller or RAC, or against any of their respective properties or
\n revenues (i) with respect to this Agreement or any other Purchase
\n Document to which the Seller is a party or any of the transactions
\n contemplated hereby or thereby or (ii) which could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
(e) No Default. Neither the Seller nor, to the Seller’s
\n ———-
\n knowledge, RAC is in default under or with respect to any of its
\n Contractual Obligations in any respect which could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
(f) Federal Regulations. No part of the proceeds of any
\n ——————-
\n purchase will be used for “purchasing” or “carrying” any “margin stock”
\n within the respective meanings of each of the quoted terms under
\n Regulation U of the Board of Governors of the Federal Reserve System as
\n now and from time to time hereafter in effect or for any purpose which
\n violates the provisions of the Regulations of such Board of Governors.
\n If requested by any Purchaser or the Managing Facility Agent, the
\n Seller will furnish to the Managing Facility Agent and each Purchaser a
\n statement to the foregoing effect in conformity with the requirements
\n of FR Form U-1 referred to in said Regulation U.<\/p>\n
(g) ERISA. During the five-year period prior to the date
\n —–
\n on which this representation is made or deemed made with respect to any
\n Plan, each Plan has complied in all material respects with the
\n applicable provisions of ERISA and the Code and neither the Seller nor
\n any Commonly Controlled Entity has incurred any liability with respect
\n to any Plan (other than contributions and payments required to be made
\n in a timely fashion under the terms of such Plan which were so made),
\n where a failure to comply or such liability could reasonably be
\n expected to have a Material Adverse Effect. Neither the Seller nor any
\n Commonly Controlled Entity would become subject to any liability under
\n ERISA if the Seller or any such Commonly Controlled Entity were to
\n withdraw completely from all Multiemployer Plans as of the valuation
\n date most closely preceding the date on which this representation is
\n made or deemed made which could reasonably be expected to have a
\n Material Adverse Effect.<\/p>\n
(h) Investment Company Act; Other Regulations. The Seller
\n —————————————–
\n is not an “investment company”, or a company “controlled” by an
\n “investment company”, within the meaning of the Investment Company Act
\n of 1940, as amended. The Seller is not subject to regulation under any
\n Federal or State statute or regulation which limits its ability to
\n incur indebtedness.<\/p>\n
(i) Place of Business. The Seller is organized under the
\n —————–
\n laws of the State of Kansas. The chief place of business and chief
\n executive office of the Seller and the offices where the Seller keeps
\n all its books, records and documents evidencing the Purchased
\n Receivables and the related Contracts are located at the address of the
\n Seller referred to in subsection 11.2 (or, in the case of books,
\n records and documents evidencing the Purchased Receivables, at such
\n other locations, notified to the Managing Facility Agent in accordance
\n with subsection 11.2, in jurisdictions where all action required by
\n subsection 6.1(l) has been taken and completed).<\/p>\n
83<\/p>\n
(j) Information. All information set forth in the
\n ———–
\n Syndication Materials is accurate in all material respects on and as of
\n the Amendment Effective Date and does not contain any untrue statement
\n of a material fact or omit to state any material fact of which the
\n Seller knows or should have known which is necessary to make the
\n statements herein or therein, in light of the circumstances in which
\n they were made, not misleading.<\/p>\n
4.2 Representations and Warranties Relating to the
\n ———————————————-
\nReceivables. To induce the Purchasers to purchase the Receivables the Seller
\n———–
\nhereby represents and warrants to the Managing Facility Agent and each Purchaser
\nwith respect to Receivables being purchased or substituted on each Settlement
\nDate (including each Special Settlement Date) or the Closing Date that:<\/p>\n
(a) Eligible Receivables. Each Purchased Receivable is on
\n ——————–
\n its date of purchase or substitution hereunder an Eligible Receivable.<\/p>\n
(b) Ownership or Perfected First Security Interest. Upon
\n ———————————————-
\n each purchase or substitution, the Purchasers will acquire a valid and
\n perfected first priority ownership or security interest in each
\n Purchased Receivable, the Collections with respect thereto and each
\n related Contract and, except with respect to any Unsecured Receivable
\n described in clause (i), (iii) or (v) of the definition of “Unsecured
\n Receivable”, the related Financed Aircraft, free and clear of any Lien
\n other than (i) with respect to such Purchased Receivable and the
\n related Contracts, the Lien in favor of the Administrative Agent for
\n the ratable benefit of the Purchasers and any Permitted Receivable Lien
\n on such Purchased Receivable and related Contracts, (ii) solely with
\n respect to a Financed Aircraft, (u) the Lien created by the Obligor
\n (including an Affiliate Obligor) in favor of Raytheon Credit and
\n assigned to the Seller, (v) with respect to Existing Certified
\n Receivables, prior to the Certified Opinion Delivery Date, the Lien
\n created by the Obligor in favor of Raytheon Credit (but solely to the
\n extent a filing is required in a foreign jurisdiction to transfer such
\n Lien to the Seller and such filing has not been made), (w) with respect
\n to all Existing Receivables, prior to the FAA Filing Date, the Lien
\n created by the Obligor in favor of Raytheon Credit (but solely to the
\n extent a filing is required with the FAA to transfer such Lien to the
\n Seller and such filing has not been made), (x) the assignment of each
\n such Lien by the Seller in favor of the Administrative Agent for the
\n ratable benefit of the Purchasers or (y) solely with respect to a Lease
\n Receivable, the Lien created by the Seller in favor of the
\n Administrative Agent for the ratable benefit of the Purchasers, and
\n (iii) any Permitted Aircraft Lien on such Financed Aircraft; and no
\n effective document or instrument covering any Purchased Receivable or
\n Collections with respect thereto or the related Contract(s) or Financed
\n Aircraft is on file or of record in any recording office (including,
\n but not limited to, the FAA Registry or the comparable registry with
\n respect to any Foreign Receivable (excluding any L\/C Receivable))
\n except (1) the filings with the appropriate foreign registry with
\n respect to Affiliate Receivables in order to perfect the Lien in favor
\n of the Seller in the Applicable Leases and Financed Aircraft related to
\n such Affiliate Receivables and (2) the filing with the FAA Registry or
\n the comparable registry with respect to any Foreign Receivable or any
\n Affiliate Receivable (excluding any L\/C Receivable) in order to perfect
\n the Lien encumbering a Financed Aircraft and any related Applicable
\n Leases which was granted by the related Obligor in favor of the Seller
\n and (3) as may be filed in favor of the<\/p>\n
84<\/p>\n
Administrative Agent for the ratable benefit of the Purchasers in
\n accordance with this Agreement.<\/p>\n
(c) Assignment. The information set forth on Annex I to an
\n ———-
\n Assignment, with respect to Eligible Receivables to be purchased or
\n substituted on a Settlement Date or purchased on the Closing Date, is
\n true and correct on and as of such Settlement Date or the Closing Date.<\/p>\n
(d) No Material Adverse Change. Since the date of the last
\n ————————–
\n Settlement Statement, there has been no material adverse change in the
\n collectibility of the Purchased Receivables taken as a whole.<\/p>\n
(e) Substituted Receivables. If on any Settlement Date the
\n ———————–
\n Seller sells or substitutes less than substantially all the Eligible
\n Receivables available for purchase or substitution on such Settlement
\n Date, the Seller or the Servicer has not utilized any selection
\n procedure intended to result in a selection of Purchased Receivables to
\n be purchased or substituted on such Settlement Date which could be
\n materially adverse to the rights of the Managing Facility Agent and
\n the Purchasers as of such Settlement Date.<\/p>\n
(f) No Violation. Immediately following each purchase or
\n ————
\n substitution, the Seller will not have violated the limitations
\n contained in subsection 2.7.<\/p>\n
(g) Entitlement to Section 1110 Benefits. With respect to
\n ————————————
\n each Purchased Receivable which is a Commuter Receivable (other than a
\n Foreign Receivable and an Affiliate Receivable), Raytheon Credit or the
\n Seller shall be entitled to the benefits of Section 1110 of the
\n Bankruptcy Code (11 USC [sec]. 1110) with respect to each Contract and
\n repossession of the related Financed Aircraft under which each such
\n Purchased Receivable arises, and the Administrative Agent, for the
\n ratable benefit of the Purchasers, pursuant to subsection 11.13, shall
\n be entitled to such Section 1110 benefits of Raytheon Credit and the
\n Seller after the occurrence and during the continuance of a Specified
\n Amortization Event or in connection with any action taken pursuant to
\n subsection 11.11(c) or subsection 11.12(b).<\/p>\n
(h) Stipulated Aircraft Value. The Stipulated Aircraft
\n ————————-
\n Value with respect to any Financed Aircraft as set forth in any lease
\n Contract related to a Receivable at any time is equal to or greater
\n than the Outstanding Balance of such Receivable at such time assuming
\n all current payments are made.<\/p>\n
(i) Finance Charge Collections. The Finance Charge
\n ————————–
\n Collections have been calculated in compliance with the Credit and
\n Collection Policy.<\/p>\n
4.3 Representations and Warranties Relating to the Servicer.
\n ——————————————————–
\nTo induce the Purchasers to enter into this Agreement and to purchase the
\nReceivables the Servicer hereby represents and warrants to the Managing Facility
\nAgent and each Purchaser on the date hereof, on the Amendment Effective Date and
\n(except as provided in subsection 4.3(i)) on each Settlement Date (including
\neach Special Settlement Date) on which a purchase or substitution is made that:<\/p>\n
85<\/p>\n
(a) Corporate Existence; Compliance with Law. The
\n —————————————-
\n Servicer (i) is duly organized, validly existing and in good standing
\n under the laws of the jurisdiction of its organization, (ii) has the
\n corporate power and authority, and the legal right, to own and operate
\n its property, to lease the property it operates as lessee and to
\n conduct the business in which it is currently engaged, (iii) is duly
\n qualified and in good standing under the laws of each jurisdiction
\n where its ownership, lease or operation of property or the conduct of
\n its business requires such qualification except to the extent that
\n failure so to qualify could not reasonably be expected to have a
\n Material Adverse Effect and (iv) is in compliance with all Requirements
\n of Law (whether or not the determination of any arbitrator, court or
\n other Governmental Authority has been appealed and is final) except to
\n the extent that the failure to comply therewith could not, in the
\n aggregate, reasonably be expected to have a Material Adverse Effect.<\/p>\n
(b) Corporate Power; Authorization; Enforceable
\n ——————————————-
\n Obligations. The Servicer has the corporate power and authority, and
\n ————
\n the legal right, to execute and deliver, and to perform its obligations
\n under, this Agreement and each other Purchase Document to which it is a
\n party and has taken all necessary corporate action to authorize the
\n execution, delivery and performance of this Agreement and each other
\n Purchase Document to which it is a party. No consent or authorization
\n of, filing with or other act by or in respect of, any Governmental
\n Authority or any other Person is required in connection with the
\n execution, delivery, performance, validity or enforceability of this
\n Agreement or any other Purchase Document to which it is a party. This
\n Agreement has been duly executed and delivered on behalf of the
\n Servicer. This Agreement constitutes, and each other Purchase Document
\n to which it is a party, when executed and delivered by it, will
\n constitute, a legal, valid and binding obligation of the Servicer
\n enforceable against the Servicer in accordance with its terms, except
\n as enforceability may be limited by applicable bankruptcy, insolvency,
\n reorganization, moratorium or similar laws affecting the enforcement of
\n creditors’ rights generally and by general equitable principles
\n (whether enforcement is sought by proceedings in equity or at law).<\/p>\n
(c) No Legal Bar. The execution, delivery and performance
\n ————
\n of this Agreement and each other Purchase Document to which it is a
\n party will not violate the Servicer’s certificate of incorporation or
\n by-laws or any Requirement of Law (including, but not limited to, bulk
\n transfer or similar statutory provisions in effect in any applicable
\n jurisdiction) or Contractual Obligation of the Servicer and will not
\n result in, or require, the creation or imposition of any Lien on any of
\n its properties or revenues pursuant to the Servicer’s certificate of
\n incorporation or by-laws or any such Requirement of Law or Contractual
\n Obligation.<\/p>\n
(d) No Material Litigation. No litigation, investigation
\n ———————-
\n or proceeding of or before any arbitrator or Governmental Authority is
\n pending by or against the Servicer or, to the Servicer’s knowledge,
\n pending against RAC, or threatened by or against the Servicer or RAC,
\n or against any of their respective properties or revenues (i) with
\n respect to this Agreement or any other Purchase Document to which the
\n Servicer is a party or any of the transactions contemplated hereby or
\n thereby or (ii) which could reasonably be expected to have a Material
\n Adverse Effect.<\/p>\n
86<\/p>\n
(e) No Default. Neither the Servicer nor, to the
\n ———-
\n Servicer’s knowledge, RAC is in default under or with respect to any of
\n its Contractual Obligations in any respect which could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
(f) ERISA. During the five-year period prior to the date
\n —–
\n on which this representation is made or deemed made with respect to any
\n Plan, each Plan has complied in all material respects with the
\n applicable provisions of ERISA and the Code and neither the Servicer
\n nor any Commonly Controlled Entity has incurred any liability with
\n respect to any Plan (other than contributions and payments required to
\n be made in a timely fashion under the terms of such Plan which were so
\n made), where a failure to comply or such liability could reasonably be
\n expected to have a Material Adverse Effect. Neither the Servicer nor
\n any Commonly Controlled Entity would become subject to any liability
\n under ERISA if the Servicer or any such Commonly Controlled Entity were
\n to withdraw completely from all Multiemployer Plans as of the valuation
\n date most closely preceding the date on which this representation is
\n made or deemed made which could reasonably be expected to have a
\n Material Adverse Effect.<\/p>\n
(g) Investment Company Act; Other Regulations. The
\n —————————————–
\n Servicer is not an “investment company”, or a company “controlled” by
\n an “investment company”, within the meaning of the Investment Company
\n Act of 1940, as amended. The Servicer is not subject to regulation
\n under any Federal or State statute or regulation which limits its
\n ability to incur indebtedness.<\/p>\n
(h) Place of Business. The “location” (as such term is
\n —————–
\n defined in Section 9-307 of the New York UCC), chief place of business
\n and chief executive office of the Servicer and the offices where the
\n Servicer keeps all its books, records and documents evidencing the
\n Purchased Receivables and the related Contracts are located at the
\n address of the Servicer referred to in subsection 11.2 (or, in the case
\n of books, records and documents evidencing the Purchased Receivables,
\n at such other locations, notified to the Managing Facility Agent in
\n accordance with subsection 11.2, in jurisdictions where all action
\n required by subsection 6.1(l) has been taken and completed).<\/p>\n
(i) Information. All information set forth in the
\n ———–
\n Syndication Materials is accurate in all material respects on and as of
\n the Amendment Effective Date and does not contain any untrue statement
\n of a material fact or omit to state any material fact of which the
\n Servicer knows or should have known which is necessary to make the
\n statements herein or therein, in light of the circumstances in which
\n they were made, not misleading.<\/p>\n
SECTION 5. CONDITIONS PRECEDENT<\/p>\n
5.1 Conditions to Effectiveness. The effectiveness of this
\n —————————
\nAgreement is subject to the satisfaction, of the following conditions precedent
\n(the first date on which such conditions are satisfied, which shall be a
\nBusiness Day, being herein called the “Amendment Effective Date”):
\n ————————<\/p>\n
(a) Purchase and Other Documents. The Managing Facility
\n —————————-
\n Agent shall have received, with a copy for each Purchaser, (i) this
\n Agreement executed and delivered by a<\/p>\n
87<\/p>\n
duly authorized officer of each party hereto and (ii) the Repurchase
\n Agreement executed and delivered by a duly authorized officer of RAC
\n and (iii) the Guarantee Reaffirmation executed and delivered by a duly
\n authorized officer of Raytheon.<\/p>\n
(b) Corporate Proceedings and Contracts. The Managing
\n ———————————–
\n Facility Agent shall have received, with a counterpart for each
\n Purchaser, a copy of the resolutions, in form and substance
\n satisfactory to the Managing Facility Agent, of the Boards of Directors
\n of the Seller, Raytheon Credit, RAC and Raytheon authorizing, (i) in
\n the case of the Seller, the execution, delivery and performance of this
\n Agreement, (ii) in the case of Raytheon Credit, authorizing the
\n execution and delivery of this Agreement, (iii) in the case of RAC,
\n authorizing the execution and delivery of the Repurchase Agreement and
\n (iv), in the case of Raytheon, acknowledging the execution and delivery
\n of this Agreement and authorizing the execution and delivery of the
\n Guarantee Reaffirmation, certified by the Secretary or an Assistant
\n Secretary of the Seller, Raytheon Credit, RAC or Raytheon, as the case
\n may be, as of the Amendment Effective Date, which certificate shall
\n state that the resolutions thereby certified have not been amended,
\n modified, revoked or rescinded and shall be in form and substance
\n satisfactory to the Managing Facility Agent.<\/p>\n
(c) Corporate Documents; Good Standing Certificates. The
\n ———————————————–
\n Managing Facility Agent shall have received, with a copy for each
\n Purchaser, (i) true and complete copies of the certificate of
\n incorporation and by-laws of each of the Seller, Raytheon Credit, RAC
\n and Raytheon, certified by the Secretary or Assistant Secretary thereof
\n as of the Amendment Effective Date as complete and correct copies
\n thereof and (ii) good standing certificates with respect to Raytheon
\n from the Secretary of State of the State of Delaware, with respect to
\n Raytheon Credit from the Secretary of State of the State of Kansas,
\n with respect to RAC from the Secretary of State of the State of Kansas
\n and with respect to the Seller from the Secretary of State of the State
\n of Kansas.<\/p>\n
(d) Evidence of Incumbency. The Managing Facility Agent
\n ———————-
\n shall have received, with a counterpart for each Purchaser, a
\n certificate, in form and substance satisfactory to the Managing
\n Facility Agent, of the Secretary or Assistant Secretary of each of the
\n Seller, Raytheon Credit, RAC and Raytheon certifying as to the names
\n and true signatures of the officers authorized on such Person’s behalf
\n to sign any of this Agreement, the Repurchase Agreement and the
\n Guarantee Reaffirmation to which it is a party.<\/p>\n
(e) Officer’s Certificates. The Managing Facility Agent
\n ———————-
\n shall have received, with a counterpart for each Purchaser, (i)
\n certificates, in form and substance satisfactory to the Managing
\n Facility Agent, of a vice president of each of the Seller, Raytheon,
\n RAC and Raytheon Credit that the representations and warranties made by
\n such Person in the Purchase Documents to which it is a party are true
\n and correct on and as of the Amendment Effective Date as though made on
\n and as of the Amendment Effective Date and (ii) a certificate of the
\n Vice President and Treasurer of Raytheon setting forth in the
\n certificate delivered on behalf of Raytheon the Debt Ratio on the last
\n day of its fiscal quarter ending December 31, 2001, the Interest
\n Coverage Ratio for the period of four consecutive fiscal quarters
\n ending December 31, 2001 and calculations thereof in reasonable
\n detail.<\/p>\n
88<\/p>\n
(f) Legal Opinions. The Managing Facility Agent shall have
\n ————–
\n received, with a counterpart for each Purchaser, the following executed
\n legal opinions, each dated the Amendment Effective Date and each
\n addressed to the Managing Facility Agent and the Purchasers:<\/p>\n
(i) the executed legal opinion of Wayne Wallace,
\n General Counsel to RAC, substantially in the form of Exhibit
\n E-1;<\/p>\n
(ii) the executed legal opinion of David A. Williams,
\n General Counsel to Raytheon Credit and the Seller,
\n substantially in the form of Exhibit E-2;<\/p>\n
(iii) the executed legal opinion of an in-house
\n attorney of Raytheon who is satisfactory to the Managing
\n Facility Agent, substantially in the form of Exhibit E-3<\/p>\n
(iv) the executed legal opinion of special counsel to
\n the Seller and Raytheon Credit regarding UCC matters and such
\n other matters as the Managing Facility Agent may reasonably
\n request, substantially in the form of Exhibit E-4; and<\/p>\n
(v) the executed legal opinion of Bingham Dana LLP,
\n special counsel to Raytheon Credit, regarding bankruptcy
\n matters, substantially in the form of Exhibit E-4.<\/p>\n
Each such legal opinion shall cover such other matters incident to the
\n transactions contemplated by the Purchase Documents as the Managing
\n Facility Agent may reasonably require. Furthermore, not later than 30
\n days after the Amendment Effective Date the Managing Facility Agent
\n shall have received an executed legal opinion of special Kansas counsel
\n to the Seller and Raytheon Credit regarding priority of perfection
\n under the Kansas UCC, in form and substance acceptable to the Managing
\n Facility Agent; non-delivery of such opinion within such time shall
\n constitute an Amortization Event.<\/p>\n
(g) Fees. (i) The Seller shall have paid to the
\n —-
\n Syndication Agent and the Managing Facility Agent for their respective
\n accounts the fees set forth in their respective fee letters with the
\n Seller required to be paid on or prior to the Amendment Effective Date.<\/p>\n
(ii) The Seller shall have paid to the Managing
\n Facility Agent, for the account of each Purchaser, an upfront
\n fee in an amount agreed to by such Purchaser.<\/p>\n
(h) Amendment to the Intercompany Purchase Agreement. The
\n ————————————————
\n Managing Facility Agent shall have received counterparts of the
\n Amendment to the Intercompany Purchase Agreement duly executed by the
\n Servicer and the Seller, substantially in the form of Exhibit J hereto.<\/p>\n
89<\/p>\n
5.2 Conditions to Each Purchase or Substitution. The agreement
\n ——————————————-
\nof each Purchaser to make any purchase requested to be made by it on the Closing
\nDate or any Settlement Date (including, without limitation, its initial purchase
\nand any other purchase the Purchase Price for which is netted from Collections
\npursuant to subsections 2.15 and 2.16(a) but excluding the purchases among the
\nPurchasers contemplated by subsection 2.1(d)) and the right of the Seller to
\nsubstitute Receivables pursuant to subsection 2.13 are each subject to the
\nsatisfaction of the following conditions precedent:<\/p>\n
(a) Representations and Warranties. The representations
\n ——————————
\n and warranties made by each of the Seller, Raytheon Credit, RAC and
\n Raytheon in or pursuant to the Purchase Documents to which it is a
\n party shall be true and correct in all material respects on and as of
\n such date as if made on and as of such date and the Seller, if
\n applicable, shall have made the representations and warranties required
\n by subsection 5.2(f).<\/p>\n
(b) Amortization Event. No Amortization Event shall have
\n ——————
\n occurred and be continuing on such date or after giving effect to the
\n purchases or substitutions to be made on such date.<\/p>\n
(c) Settlement Statement. The Managing Facility Agent
\n ——————–
\n shall have received the Settlement Statement most recently due.<\/p>\n
(d) Assignments. On or prior to such date, the Managing
\n ———–
\n Facility Agent shall have received an Assignment with respect to
\n Receivables to be purchased or substituted on such date, dated such
\n date and executed and delivered by a duly authorized Responsible
\n Officer.<\/p>\n
(e) Perfection Matters. The Servicer shall have received
\n ——————
\n the following:<\/p>\n
(i) with respect to Eligible Receivables other than
\n Affiliate Receivables, Foreign Receivables and Registerable
\n Lease Receivables, evidence that each FAA Assignment (in the
\n appropriate form for filing on the Closing Date or such
\n Settlement Date) with respect to the Financed Aircraft related
\n to such Eligible Receivables to be purchased on the Closing
\n Date or purchased or substituted on such Settlement Date,
\n shall have been filed with the FAA Registry,<\/p>\n
(ii) with respect to Eligible Receivables which are
\n Foreign Receivables (other than Foreign Receivables which are
\n Lease Receivables with a Foreign Obligor), evidence that each
\n Foreign Assignment (in the appropriate form for filing on the
\n Closing Date or such Settlement Date) with respect to the
\n Financed Aircraft related to such Eligible Receivables to be
\n purchased on the Closing Date or purchased or substituted on
\n such Settlement Date, shall have been filed in each office in
\n each jurisdiction necessary to perfect (A) the Lien granted by
\n the Obligor thereon in favor of Raytheon Credit, (B) the
\n transfer of such Lien by Raytheon Credit to the Seller and (C)
\n the assignment of such Lien by the Seller in favor of the
\n Administrative Agent for the ratable benefit of the
\n Purchasers,<\/p>\n
90<\/p>\n
(iii) with respect to Eligible Receivables which are
\n Foreign Receivables which are Lease Receivables with a Foreign
\n Obligor (other than any such Receivable which is a
\n Registerable Lease Receivable with a Foreign Obligor or an
\n Uncertified Lease Receivable), evidence that each Foreign
\n Assignment (in the appropriate form for filing on the Closing
\n Date or such Settlement Date) with respect to the Financed
\n Aircraft related to such Eligible Receivables to be purchased
\n on the Closing Date or purchased or substituted on such
\n Settlement Date, shall have been filed in each office in each
\n jurisdiction necessary to perfect (x) the transfer by Raytheon
\n Credit of its ownership interest therein to the Seller and (y)
\n the Lien granted thereon by the Seller in favor of the
\n Administrative Agent for the ratable benefit of the
\n Purchasers,<\/p>\n
(iv) with respect to Eligible Receivables which are
\n Registerable Lease Receivables, evidence that each FAA
\n Assignment (in the appropriate form for filing on the Closing
\n Date or such Settlement Date) with respect to the Financed
\n Aircraft related to such Eligible Receivables to be purchased
\n on the Closing Date or purchased or substituted on such
\n Settlement Date, shall have been filed with the FAA Registry
\n in a manner satisfactory to perfect (x) the transfer by
\n Raytheon Credit of its ownership interest therein to the
\n Seller and (y) the Lien granted thereon by the Seller in favor
\n of the Administrative Agent for the ratable benefit of the
\n Purchasers,<\/p>\n
(v) with respect to each L\/C Receivable, an
\n acknowledgement, substantially in the form of Schedule I to
\n the Bailment Agreement, by the Bailee of its receipt of the
\n related letters of credit,<\/p>\n
(vi) with respect to Eligible Receivables which are
\n Affiliate Receivables, evidence that each Foreign Assignment
\n (in the appropriate form for filing on such Settlement Date)
\n with respect to the Financed Aircraft related to such Eligible
\n Receivables to be purchased or substituted on such Settlement
\n Date, shall have been filed in each office in each
\n jurisdiction necessary to perfect (x) the Lien thereon granted
\n by the Affiliate Obligor in favor of Raytheon Credit, (y) the
\n transfer of such Lien by Raytheon Credit to the Seller and (z)
\n the Lien granted thereon by the Seller in favor of the
\n Administrative Agent for the ratable benefit of the
\n Purchasers, and<\/p>\n
(vii) with respect to each of the foregoing Eligible
\n Receivables, evidence that all other filings and recordings
\n (including, without limitation, any UCC filings with filing
\n offices in the jurisdictions listed on Schedule II, filings
\n with the FAA Registry and filings in other jurisdictions as
\n applicable) and all other actions necessary or advisable to
\n perfect (x) the Purchasers’ first priority ownership or
\n security interests in and to such Eligible Receivables to be
\n sold or substituted on such date and (y) the Purchasers’ first
\n priority security interest and, in the case of an Affiliate
\n Receivable, the Affiliate Obligor’s first priority ownership
\n interest or the Seller’s ownership or security interest, as
\n applicable, in and to the related Contracts and, with respect
\n to any Travel Air Receivables, the<\/p>\n
91<\/p>\n
Travel Air Contracts and, if required pursuant to the
\n foregoing, Financed Aircraft and the Collections with respect
\n thereto shall have been duly taken or made.<\/p>\n
From and after the Amendment Effective Date, all filings, assignments
\n and other similar documents required to perfect a Lien hereunder with
\n respect to Receivables (and related Aircraft) purchased after such
\n date, which names the Administrative Agent shall be made in the name of
\n Bank of America, N.A., as Administrative Agent.<\/p>\n
(f) Certificates. With respect to each Certified Foreign
\n ————
\n Receivable, the Servicer shall have received an executed certificate
\n from a Responsible Officer of the Seller to the Managing Facility
\n Agent, dated the date of such proposed sale and in the form approved by
\n the Managing Facility Agent pursuant to subsection 2.27.<\/p>\n
(g) Marking Records. The Seller shall have, or shall have
\n —————
\n caused the Servicer to have, marked its books and records with respect
\n to the Purchased Receivables to be sold or substituted on such date in
\n accordance with subsection 6.1(h).<\/p>\n
(h) L\/C Receivables. On or prior to the related Reporting
\n —————
\n Date, a letter of credit shall have been issued in connection with each
\n L\/C Receivable to be purchased or substituted on such Settlement Date
\n and each such letter of credit shall meet the eligibility criteria set
\n forth herein.<\/p>\n
(i) Refinanced Aircraft. If the Receivable proposed to be
\n ——————-
\n purchased (including, without limitation, a purchase the Purchase Price
\n for which is netted from Collections pursuant to subsections 2.15 and
\n 2.16(a)) or substituted has been or will be created in connection with
\n the financing or refinancing of a Refinanced Aircraft, the Seller shall
\n have caused a Lien search to be made with the FAA Registry with respect
\n to such Refinanced Aircraft and at the date of such purchase or
\n substitution, no Lien shall have been recorded at the FAA Registry with
\n respect to such Refinanced Aircraft other than any Permitted Aircraft
\n Lien or the Lien created in favor of Raytheon Credit and transferred to
\n the Seller and assigned to the Administrative Agent for the ratable
\n benefit of the Purchasers.<\/p>\n
(j) Purchase Report. The Managing Facility Agent, with
\n —————
\n sufficient copies for each Purchaser, shall have received from the
\n Seller a Purchase Report in the form of Exhibit I.<\/p>\n
(k) Additional Documents. The Managing Facility Agent, with
\n ——————–
\n sufficient copies for each Purchaser, shall have received each
\n additional document, instrument, legal opinion or item of information
\n reasonably requested by it.<\/p>\n
(l) Additional Matters. All corporate and other proceedings,
\n ——————
\n and all documents, instruments and other legal matters in connection
\n with the transactions contemplated by this Agreement shall be
\n reasonably satisfactory in form and substance to the Managing Facility
\n Agent, and the Managing Facility Agent shall have received such other
\n documents and legal opinions in respect of any aspect or consequence
\n of the transactions contemplated hereby or thereby as it shall
\n reasonably request.<\/p>\n
92<\/p>\n
Each purchase (including, without limitation, a purchase the Purchase Price for
\nwhich is netted from the Collections pursuant to subsections 2.15 and 2.16(a))
\nand each substitution of Receivables hereunder shall constitute a representation
\nand warranty by the Seller as of the Closing Date or the Settlement Date
\n(including a Special Settlement Date, if applicable) on which such purchase or
\nsubstitution is made that the conditions contained in paragraphs (a) through (i)
\nof this subsection 5.2 have been satisfied.<\/p>\n
5.3 Reallocation of Commitments; Addition of New Purchasers.
\n ——————————————————-
\nOn the Amendment Effective Date, any SPC may assign to its SPC Bank all or any
\nportion of such SPC’s undivided interest in the Purchased Receivables, and any
\nSPC Bank may assign to its SPC all or any portion of such SPC Bank’s undivided
\ninterest in the Purchased Receivables. Such assignments may be evidenced by such
\ndocuments as shall be agreeable between the SPC and its SPC Bank. Each SPC Bank
\nparticipating in any such assignments shall advise the Managing Facility Agent
\nof such assignment, the amount thereof and certain administrative information
\nrequested by the Managing Facility Agent. The following allocations and payments
\nshall be made following the foregoing assignments.<\/p>\n
On the Amendment Effective Date each entity identified on the
\nsignature pages hereto as a “New Purchaser” shall be and become a Purchaser
\nhereunder having a Commitment equal to the amount set forth opposite such New
\nPurchaser’s name on Schedule I hereto and each entity identified on the
\nsignature pages hereto as a “Withdrawing Purchaser” shall cease to be a
\nPurchaser except to the extent expressly provided otherwise herein.<\/p>\n
On the Amendment Effective Date, immediately following the
\naddition referred to in the immediately preceding paragraph, but subject to the
\nterms and conditions hereof, each Purchaser shall sell and assign to each other
\nPurchaser, and each Purchaser shall purchase from each other Purchaser,
\nundivided interests in each then outstanding Purchased Receivable to the extent
\nnecessary so that, after giving effect to such purchases and sales, each
\nPurchaser’s undivided interest in each Purchased Receivable will equal its
\nCommitment Percentage (as defined in clause (a) of the definition thereof and
\nutilizing the Commitments set forth on Schedule I hereto) thereof. Other than
\nthe representation and warranty that each of them is the legal and beneficial
\nowner of the respective interest being assigned hereby free and clear of any
\nadverse claim, the selling Purchasers make no representation or warranty to the
\npurchasing Purchasers and assume no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with this
\nAgreement or the execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of this Agreement or any instrument or document furnished
\npursuant thereto. The amounts payable to each Purchaser whose undivided
\ninterests are being reduced (each, a “Reducing Purchaser”) in accordance with
\n ——————
\nthe foregoing (such amount for each such Purchaser, its “Pro Rata Credit”); the
\n —————
\namounts payable by each Purchaser whose undivided interests are being increased
\nor created (each, an “Increasing Purchaser”) in accordance with the foregoing
\n ——————–
\n(such amount for each such Purchaser, its “Pro Rata Debit”), in each case as a
\n ————–
\nresult of the foregoing sales and purchases; and the amount of each Purchaser’s
\nOutstanding Purchase Price immediately after giving effect to the foregoing
\nsales and purchases shall be set forth in a letter from the Managing Facility
\nAgent dated the Amendment Effective Date and satisfactory to each Purchaser.
\nPrior to 11:00 a.m., New York City time, on the Amendment Effective Date each
\nIncreasing Purchaser shall make available to the Managing Facility Agent, in
\nimmediately available funds at the Managing Facility Agent’s<\/p>\n
93<\/p>\n
office specified in subsection 11.2 hereto, the amount of such Purchaser’s Pro
\nRata Debit. Promptly after receipt of the aggregate amount of Pro Rata Debits,
\nthe Managing Facility Agent will transfer to each Reducing Purchaser the amount
\nof such Purchaser’s Pro Rata Credit. Such sales and purchases shall be effective
\non the Amendment Effective Date without further act of assignment.<\/p>\n
Notwithstanding any contrary provision of this Agreement, on
\nthe Amendment Effective Date, the Managing Facility Agent shall pay to each
\nPurchaser, including each Withdrawing Purchaser, from funds received from the
\nSeller pursuant to subsection 2.17, interest on such Purchaser’s Outstanding
\nPurchase Price for the Accrual Period ending on the Amendment Effective Date.<\/p>\n
SECTION 6. AFFIRMATIVE COVENANTS<\/p>\n
6.1 Affirmative Covenants of the Seller. The Seller hereby
\n ———————————–
\nagrees that, so long as the Commitments remain in effect, the Outstanding
\nPurchase Price has not been reduced to zero or any other amount is owing to any
\nPurchaser or the Managing Facility Agent hereunder, the Seller shall:<\/p>\n
(a) Reporting Requirements. (i) Settlement Statements. On or
\n ———————- ———————
\nbefore each Reporting Date, furnish or cause the Servicer to furnish to the
\nManaging Facility Agent, with sufficient copies for each Purchaser, a Settlement
\nStatement in the form of Exhibit C for the preceding Settlement Period, setting
\nforth:<\/p>\n
(x) information and calculations with respect to (A) the
\n Purchased Receivables, Collections thereon, the related Contracts and
\n Financed Aircraft and any Remarketed Aircraft, (B) the Outstanding
\n Purchase Price (separately identifying the portion thereof representing
\n the Purchase Price, if any, of Receivables purchased on the most recent
\n Special Settlement Date), the Note Rate, the Default Rate (if any), the
\n Interbank Rate (if applicable) and Commitment Fees for the related
\n Accrual Period, (C) purchases of specified Eligible Receivables
\n requested to be made on the succeeding Settlement Date (including a
\n specific reference to any new Foreign Obligors), (D) Defaulted
\n Receivables, Ineligible Receivables, Substituted Receivables and
\n adjustments of Receivables made under subsection 2.12, (E) any
\n Permitted Receivable Liens and Permitted Aircraft Liens, (F) the
\n concentration limits as described in subsection 2.7, (G) any
\n Receivables of which the scheduled principal payments are being
\n deferred pursuant to subsection 7.1(b)(iv)(x), (H) the total amount of
\n the Participated Receivables, (I) the total amount of the Extended Term
\n Receivables and (J) Net Recoveries; and<\/p>\n
(y) such other information with respect to the Receivables
\n from the Seller and the Servicer as the Managing Facility Agent or any
\n other Purchaser may from time to time request;<\/p>\n
each Settlement Statement shall be certified by a Responsible Officer of the
\nServicer as being true and correct;<\/p>\n
94<\/p>\n
(ii) Officer’s Certificate. Within 45 days after the end of
\n ———————
\neach fiscal quarter of the Seller, deliver to the Managing Facility Agent, with
\nsufficient copies for each Purchaser, a certificate of a Responsible Officer of
\nthe Seller stating that, to the best of such officer’s knowledge, after due and
\ndiligent inquiry, the Seller during such period has observed or performed all of
\nits covenants and other agreements, and satisfied every condition, contained in
\nthis Agreement and that such officer, after due and diligent inquiry, has
\nobtained no knowledge of any Amortization Event, Discount Event, Rating Event,
\nRemittance Event or Ineligibility Event or any errors in any amounts or other
\ninformation set forth in any Settlement Statement or any Assignment, FAA
\nAssignment or Foreign Assignment delivered with respect to any Settlement Period
\noccurring during such fiscal quarter except as specified in such certificate;<\/p>\n
(iii) Servicer Reports. Cause the Servicer to deliver the
\n —————-
\nreports required by subsection 3.3 in accordance with the terms thereof;<\/p>\n
(iv) Credit and Collection Policy. Deliver to the Managing
\n —————————-
\nFacility Agent, with sufficient copies for each Purchaser, promptly after
\nadoption thereof, any change in the Credit and Collection Policy;<\/p>\n
(v) Financing Programs. Concurrently with the distribution or
\n ——————
\npublication to any of Raytheon Credit’s Affiliates or Dealers, deliver to the
\nManaging Facility Agent, with sufficient copies for each Purchaser, a copy of
\neach report setting forth Raytheon Credit’s retail financing programs;<\/p>\n
(vi) Additional Information. Furnish to the Managing Facility
\n ———————-
\nAgent and each Purchaser, promptly, such additional financial and other
\ninformation, documents, records or reports with respect to the Seller, the
\nServicer (if Raytheon Credit or an Affiliate of Raytheon Credit is then the
\nServicer) or RAC, any Purchased Receivable or the Contract, Obligor,
\nUnaffiliated Foreign Lessee or Financed Aircraft with respect thereto, or the
\nbusiness, operations, property or condition (financial or otherwise) of the
\nSeller, as the Managing Facility Agent or any Purchaser may from time to time
\nreasonably request; and<\/p>\n
(vii) Notices. Promptly give notice to the Managing Facility
\n ——-
\nAgent and each Purchaser, after the Seller knows or should have known, of: (1)
\nthe occurrence of any Amortization Event, Discount Event, Rating Event,
\nRemittance Event or Ineligibility Event; (2) any Lien (other than the security
\ninterest created hereunder in favor of the Administrative Agent and the
\nPurchasers) on or claim asserted against any Purchased Receivable, the
\nCollections with respect thereto or the related Contract or material claim
\nasserted with respect to the related Financed Aircraft; (3) a development or
\nevent which has had a Material Adverse Effect; (4) any loss of a Financed
\nAircraft or of the use thereof due to theft, destruction, damage beyond repair
\nor damage to an extent which makes repair uneconomical, or the confiscation or
\nseizure of any material portion thereof, or requisition of title to or for the
\nuse thereof by any Governmental Authority; and (5) any litigation, investigation
\nor proceeding which may exist at any time between the Seller, Raytheon Credit,
\nRAC or any Person which, in either case, could reasonably be expected to have a
\nMaterial Adverse Effect. Each notice pursuant to this subsection shall be
\naccompanied by a statement of a Responsible Officer setting forth details of the
\noccurrence referred to therein and stating what action the Seller proposes to
\ntake with respect thereto.<\/p>\n
95<\/p>\n
(viii) Fiscal Months. No later than December 15 of each
\n ————-
\ncalendar year the Seller shall send the Managing Facility Agent written
\nnotification of each of the Seller’s fiscal monthly periods for the immediately
\nfollowing calendar year.<\/p>\n
(b) Compliance with Laws, Etc. Comply, and cause each
\n ————————-
\nAffiliate Obligor to comply, in all respects with all applicable Requirements of
\nLaw and all Contractual Obligations with respect to it, its business and
\nproperties and all Purchased Receivables and the related Contracts and Financed
\nAircraft except to the extent that failure to comply therewith could not
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
(c) Conduct of Business and Maintenance of Existence. Continue
\n ————————————————
\nto engage in business of the same general type as now conducted by it and
\npreserve, renew and keep in full force and effect its corporate existence and
\ntake all reasonable actions to maintain all rights, privileges and franchises
\nnecessary or desirable in the normal conduct of its business except where the
\nfailure to preserve and maintain such existence, rights, franchises, privileges
\nand qualification could not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
(d) Maintenance of Property; Insurance. Keep all property
\n ———————————-
\nuseful and necessary in its business in good working order and condition;
\nmaintain with financially sound and reputable insurance companies insurance on
\nall its property in at least such amounts and against at least such risks as are
\nconsidered reasonable and prudent by the Seller; cause each Financed Aircraft
\n(including, without limitation, any Financed Aircraft repossessed by the Seller
\nor the Servicer) related to a Purchased Receivable to be covered by insurance
\nmeeting the requirements of paragraph (w) of the definition of “Eligible
\nReceivable”; and furnish to each Purchaser, upon request, full information as to
\nthe insurance carried.<\/p>\n
(e) Keeping of Records and Books of Account. Maintain and
\n —————————————
\nimplement administrative and operating procedures (including, without
\nlimitation, maintaining the ability to recreate records evidencing Purchased
\nReceivables in the event of the destruction of the originals thereof), and keep
\nand maintain all documents, books (with true and correct entries in conformity
\nwith generally accepted accounting principles as in effect from time to time and
\nall material Requirements of Law), records and other information reasonably
\nnecessary or advisable for the administration, servicing and collection of all
\nPurchased Receivables and the monitoring of the Contracts, the related Obligors
\nand Unaffiliated Foreign Lessees and Financed Aircraft (including, without
\nlimitation, records adequate to permit the daily identification of all
\nCollections of and adjustments to each Purchased Receivable).<\/p>\n
(f) Location of Records. Keep its “location” (as such term is
\n ——————-
\ndefined in Section 9-307 of the New York UCC), chief place of business and chief
\nexecutive office, and the offices where it keeps its records concerning the
\nPurchased Receivables and all Contracts related thereto (and all original
\ndocuments relating thereto), at its address referred to in subsection 11.2 or,
\nupon 30 days’ prior written notice to the Managing Facility Agent, at such other
\nlocations in jurisdictions where all actions required by subsection 6.1(l) shall
\nhave been taken and completed.<\/p>\n
(g) Access. From time to time during regular business hours
\n ——
\nupon reasonable prior notice, permit the Managing Facility Agent or any
\nPurchaser, or their respective agents or representatives (a) to examine and make
\ncopies of and abstracts from all books, records and<\/p>\n
96<\/p>\n
documents (including, without limitation, computer tapes and disks) in the
\npossession or under the control of the Seller or its Affiliates relating to
\nPurchased Receivables, including, without limitation, the related Contracts and
\nFinanced Aircraft and (b) to visit the offices and properties of the Seller, its
\nAffiliates or its independent certified public accountants for the purpose of
\nexamining such materials described in clause (a) above, and to discuss matters
\nrelating to Purchased Receivables, the Contracts and the Financed Aircraft or
\nthe Seller’s or Servicer’s (if Raytheon Credit or an Affiliate of Raytheon
\nCredit is then the Servicer) performance hereunder with any of the officers or
\nemployees of the Seller or its Affiliates having knowledge of such matters and
\nto discuss the business, operations, properties and financial and other
\ncondition of the Seller with such officers and with its independent certified
\npublic accountants; provided that any information, records and materials
\n ——–
\nobtained by the Managing Facility Agent or any Purchaser pursuant to this
\nsubsection 6.1(g) shall be used by the Managing Facility Agent or such Purchaser
\nsolely in connection with its participation in the transactions contemplated by
\nthe Purchase Documents (including pursuant to subsections 11.6(b) and (c)) and
\nshall be treated as confidential by the Managing Facility Agent or such
\nPurchaser in accordance with subsection 11.22.<\/p>\n
(h) Marking of Records. At its expense, mark (or cause the
\n ——————
\nServicer to mark) the computer files evidencing the Purchased Receivables and
\nrelated Contracts with a legend evidencing that such Purchased Receivables and
\nrelated Contracts have been sold in accordance with this Agreement and deliver
\nevidence satisfactory thereto in form and substance to the Managing Facility
\nAgent in accordance with subsection 5.2(g).<\/p>\n
(i) Credit and Collection Policy. Comply in all material
\n —————————-
\nrespects with the Credit and Collection Policy with respect to each Purchased
\nReceivable (including but not limited to the calculation of the Finance Charge
\nCollections) and the related Contract and Financed Aircraft.<\/p>\n
(j) Performance and Compliance with Receivables and Contracts.
\n ———————————————————
\nAt its own expense, timely and fully perform and comply with, and enforce and
\ndefend, or, with respect to Affiliate Receivables, cause the related Affiliate
\nObligor to perform and comply with and enforce and defend, all material
\nprovisions, covenants and other promises (which promises are required to be
\nobserved by it) under the Contracts (other than the payment by such Affiliate
\nObligor of the principal of and interest on the promissory note included in such
\nContract) and any policy of insurance issued in connection with an ExIm Bank
\nReceivable and with respect to the Financed Aircraft related to the Purchased
\nReceivables in accordance with the Credit and Collection Policy; and defend the
\nright, title and interest of the Administrative Agent and each Purchaser in and
\nto such Purchased Receivable, the Collections with respect thereto and the
\nrelated Contract and Financed Aircraft against the claims and demands of any
\nPersons whomsoever (other than of the Administrative Agent or any Purchaser).<\/p>\n
(k) [Intentionally omitted.]<\/p>\n
(l) Further Action Evidencing Interests of Administrative
\n —————————————————–
\nAgent and Purchasers. At any time and from time to time, upon the request of
\n——————–
\nthe Managing Facility Agent or the request of the Managing Facility Agent as
\ndirected by the Majority Purchasers and at the sole expense of the Seller,
\npromptly execute and deliver and cause each Affiliate Obligor to execute and
\ndeliver all further instruments and documents and take all further actions and
\ncause each<\/p>\n
97<\/p>\n
Affiliate Obligor to take all further actions that the Managing Facility Agent
\nor the Managing Facility Agent as directed by the Majority Purchasers may
\nrequest in order to perfect, protect or more fully evidence the ownership or
\nsecurity interests of the Administrative Agent and the Purchasers in the
\nPurchased Receivables, the Collections with respect thereto and the related
\nContracts and Financed Aircraft, or to enable any of them or the Administrative
\nAgent to exercise or enforce any of their respective rights with respect
\nthereto, including, but not limited to: (a) execute and file such financing or
\ncontinuation statements, or amendments thereto or assignments thereof, and such
\nother instruments or notices, as may be necessary or appropriate; and (b) mark
\nconspicuously each invoice evidencing each Purchased Receivable and the related
\nContract with a legend, in a form acceptable to the Managing Facility Agent,
\nevidencing that such Contract has been assigned to the Administrative Agent for
\nthe ratable benefit of the Purchasers and, in connection therewith, the Seller
\nhereby (x) authorizes the Administrative Agent to file one or more financing or
\ncontinuation statements, and amendments thereto and assignments thereof,
\nrelative to all or any of the Purchased Receivables now existing or hereafter
\narising without the signature of the Seller or any of its Affiliates where
\npermitted by law and (y) agrees that if the Seller fails to perform any of its
\nagreements or obligations under this Agreement, the Managing Facility Agent may
\n(but shall not be required to) itself perform, or cause performance of, such
\nagreement or obligation, and the expenses of the Managing Facility Agent
\nincurred in connection therewith shall be payable by the Seller as provided in
\nsubsection 11.5.<\/p>\n
(m) Separate Corporate Existence. (i) Maintain its own deposit
\n —————————-
\naccount or accounts, separate from those of any Affiliate, with commercial
\nbanking institutions. The funds of the Seller will not be diverted to any other
\nPerson or for other than corporate uses of the Seller.<\/p>\n
(ii) Ensure that, to the extent that it shares the same
\nofficers or other employees as any of its stockholders or Affiliates, the
\nsalaries of and the expenses related to providing benefits to such officers and
\nother employees shall be fairly allocated among such entities, and each such
\nentity shall bear its fair share of the salary and benefit costs associated with
\nall such common officers and employees.<\/p>\n
(iii) Ensure that, to the extent that it jointly contracts
\nwith any of its stockholders or Affiliates to do business with vendors or
\nservice providers or to share overhead expenses, the costs incurred in so doing
\nshall be allocated fairly among such entities, and each such entity shall bear
\nits fair share of such costs. To the extent that the Seller contracts or does
\nbusiness with vendors or service providers when the goods and services provided
\nare partially for the benefit of any other Person, the costs incurred in so
\ndoing shall be fairly allocated to or among such entities for whose benefit the
\ngoods and services are provided, and each such entity shall bear its fair share
\nof such costs. All material transactions between Seller and any of its
\nAffiliates shall be only on an arm’s length basis.<\/p>\n
(iv) Maintain a principal executive and administrative office
\nthrough which its business is conducted separate from those of its Affiliates.
\nTo the extent that Seller and any of its stockholders or Affiliates have offices
\nin the same location, there shall be a fair and appropriate allocation of
\noverhead costs among them, and each such entity shall bear its fair share of
\nsuch expenses.<\/p>\n
98<\/p>\n
(v) Conduct its affairs strictly in accordance with its
\nCertificate of Incorporation and observe all necessary, appropriate and
\ncustomary corporate formalities, including, but not limited to, holding all
\nregular and special stockholders’ and directors’ meetings appropriate to
\nauthorize all corporate action, keeping separate and accurate minutes of its
\nmeetings, passing all resolutions or consents necessary to authorize actions
\ntaken or to be taken, and maintaining accurate and separate books, records and
\naccounts, including, but not limited to, payroll and intercompany transaction
\naccounts.<\/p>\n
(vi) Take or refrain from taking, as applicable, each of the
\nactivities specified in the “non-substantive consolidation” opinions of each of
\nSullivan & Worcester LLP, delivered on the Effective Date, and Bingham Dana LLP,
\ndelivered on the Amendment Effective Date, upon which the conclusions expressed
\ntherein are based.<\/p>\n
(n) Existing Receivables Perfection Matters. Deliver to the
\n —————————————
\n Managing Facility Agent the following:<\/p>\n
(i) with respect to Existing Certified Receivables,
\n no later than the Certified Opinion Delivery Date, a
\n certificate of a Responsible Officer certifying that all
\n actions set forth in the legal opinions described in
\n subsection 2.27(c) and necessary in order to perfect the Liens
\n and assignments of such Receivables, the related Financed
\n Aircraft and Applicable Leases (if applicable) and Collections
\n thereon, to the extent set forth in such subsection, shall
\n have been taken; and<\/p>\n
(ii) with respect to all Existing Receivables, no
\n later than 90 days after the Effective Date (the “FAA Filing
\n ———-
\n Date”), a certificate of a Responsible Officer certifying that
\n —-
\n all filings, if any, to be made with the FAA as described in
\n the opinion of special FAA counsel delivered pursuant to
\n subsection 5.1(g)(iv) of the 1997 Agreement and necessary to
\n (x) continue the Lien of the Old Administrative Agent, on
\n behalf of the Purchasers, in the Existing Receivables, the
\n related Financed Aircraft and Applicable Leases (if
\n applicable) and Collections thereon with the same priority
\n thereon as in effect immediately prior to the Effective Date
\n and (y) perfect the transfer by Raytheon Credit of the
\n Existing Receivables, the related Financed Aircraft and
\n Applicable Leases (if applicable) and Collections thereon to
\n the Seller pursuant to the Intercompany Purchase Agreement
\n shall have been taken.<\/p>\n
6.2 Affirmative Covenants of the Servicer. The Servicer (so
\n ————————————-
\nlong as it is Raytheon Credit) hereby agrees that, so long as the Commitments
\nremain in effect, the Outstanding Purchase Price has not been reduced to zero or
\nany other amount is owing to any Purchaser or the Managing Facility Agent
\nhereunder, the Servicer shall:<\/p>\n
(a) Compliance with Laws, Etc. Comply in all respects with all
\n ————————-
\n applicable Requirements of Law and all Contractual Obligations with
\n respect to it, its business and properties and all Purchased
\n Receivables and the related Contracts and Financed Aircraft except to
\n the extent that failure to comply therewith could not reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
99<\/p>\n
(b) Conduct of Business and Maintenance of Existence. Continue
\n ————————————————
\n to engage in business of the same general type as now conducted by it
\n and preserve, renew and keep in full force and effect its corporate
\n existence and take all reasonable actions to maintain all rights,
\n privileges and franchises necessary or desirable in the normal conduct
\n of its business except where the failure to preserve and maintain such
\n existence, rights, franchises, privileges and qualification could not
\n reasonably be expected to have a Material Adverse Effect.<\/p>\n
(c) Maintenance of Property; Insurance. Keep all property
\n ———————————-
\n useful and necessary in its business in good working order and
\n condition; maintain with financially sound and reputable insurance
\n companies insurance on all its property in at least such amounts and
\n against at least such risks as are considered reasonable and prudent
\n by the Servicer; cause each Financed Aircraft (including, without
\n limitation, any Financed Aircraft repossessed by the Servicer) related
\n to a Purchased Receivable to be covered by insurance meeting the
\n requirements of paragraph (w) of the definition of “Eligible
\n Receivable”; and furnish to each Purchaser, upon request, full
\n information as to the insurance carried.<\/p>\n
(d) Keeping of Records and Books of Account. Maintain and
\n —————————————
\n implement administrative and operating procedures (including, without
\n limitation, maintaining the ability to recreate records evidencing
\n Purchased Receivables in the event of the destruction of the originals
\n thereof), and keep and maintain all documents, books (with true and
\n correct entries in conformity with generally accepted accounting
\n principles as in effect from time to time and all material
\n Requirements of Law), records and other information reasonably
\n necessary or advisable for the administration, servicing and
\n collection of all Purchased Receivables and the monitoring of the
\n Contracts, the related Obligors and Unaffiliated Foreign Lessees and
\n Financed Aircraft (including, without limitation, records adequate to
\n permit the daily identification of all Collections of and adjustments
\n to each Purchased Receivable).<\/p>\n
(e) Location of Records. Keep its “location” (as such term is
\n ——————-
\n defined in Section 9-307 of the New York UCC), chief place of business
\n and chief executive office, and the offices where it keeps its records
\n concerning the Purchased Receivables and all Contracts related thereto
\n (and all original documents relating thereto), at its address referred
\n to in subsection 11.2 or, upon 30 days’ prior written notice to the
\n Managing Facility Agent, at such other locations in jurisdictions
\n where all actions required by subsection 6.1(l) shall have been taken
\n and completed.<\/p>\n
(f) Access. From time to time during regular business hours
\n ——
\n upon reasonable prior notice, permit the Managing Facility Agent or
\n any Purchaser, or their respective agents or representatives (i) to
\n examine and make copies of and abstracts from all books, records and
\n documents (including, without limitation, computer tapes and disks) in
\n the possession or under the control of the Servicer or its Affiliates
\n relating to Purchased Receivables, including, without limitation, the
\n related Contracts and Financed Aircraft and (ii) to visit the offices
\n and properties of the Servicer, its Affiliates or its independent
\n certified public accountants for the purpose of examining such
\n materials described in clause (i) above, and to discuss matters
\n relating to Purchased Receivables, the Contracts and the Financed
\n Aircraft or the Servicer’s performance hereunder with any of the<\/p>\n
100<\/p>\n
officers or employees of the Servicer or its Affiliates having
\n knowledge of such matters and to discuss the business, operations,
\n properties and financial and other condition of the Servicer with such
\n officers and with its independent certified public accountants;
\n provided that any information, records and materials obtained by the
\n ——–
\n Managing Facility Agent or any Purchaser pursuant to this
\n subsection 6.2(f) shall be used by the Managing Facility Agent or such
\n Purchaser solely in connection with its participation in the
\n transactions contemplated by the Purchase Documents (including
\n pursuant to subsections 11.6(b) and (c)) and shall be treated as
\n confidential by the Managing Facility Agent or such Purchaser in
\n accordance with subsection 11.22. The Servicer hereby consents to the
\n disclosure of any non-public information with respect to it as related
\n to this transaction and the assets sold hereunder by any SPC to any
\n rating agency, commercial paper dealer, or provider of a surety,
\n guaranty or credit or liquidity enhancement to that SPC.<\/p>\n
(g) Credit and Collection Policy. Comply in all material
\n —————————-
\n respects with the Credit and Collection Policy with respect
\n to each Purchased Receivable (including but not limited to the
\n calculation of the Finance Charge Collections) and the related
\n Contract and Financed Aircraft.<\/p>\n
(h) Ownership of Affiliate Obligors. The Servicer shall at
\n ——————————-
\n all times beneficially own, directly or indirectly, 100% of each
\n Affiliate Obligor.<\/p>\n
SECTION 7. NEGATIVE COVENANTS<\/p>\n
7.1 Negative Covenants of the Seller. The Seller hereby agrees
\n ——————————–
\nthat, so long as the Commitments remain in effect, the Outstanding Purchase
\nPrice has not been reduced to zero or any other amount is owing to any Purchaser
\nor the Managing Facility Agent hereunder, the Seller shall not:<\/p>\n
(a) Sales, Liens, Etc. Sell, assign (by operation of law or
\n —————–
\n otherwise) or otherwise dispose of, or create or suffer to
\n exist any Lien (other than Permitted Receivable Liens and other than,
\n but solely with respect to a Financed Aircraft, Permitted Aircraft
\n Liens), upon or with respect to, the Purchased Receivables, the
\n related Contracts and Financed Aircraft or the Collections with
\n respect thereto, or assign any right to receive payments in respect
\n thereof other than to the Managing Facility Agent and the Purchasers
\n pursuant to this Agreement.<\/p>\n
(b) Extension or Amendment of Purchased Receivables. Extend,
\n ———————————————–
\n amend or otherwise modify the terms of any Purchased
\n Receivable, or amend, modify or waive any term or condition of any
\n Contract related thereto or permit the Servicer (if the Seller or an
\n Affiliate of the Seller is then the Servicer) to do any of the
\n foregoing except in the normal course of the Seller’s business and in
\n accordance with the Credit and Collection Policy or pursuant to
\n subsection 7.1(b)(iv)(x) (each, a “Modification”); provided that:
\n ———— ——–<\/p>\n
(i) any Modification made pursuant to this
\n subsection 7.1(b) shall be subject to the provisions of
\n subsection 2.12;<\/p>\n
101<\/p>\n
(ii) if an Amortization Event shall have occurred
\n and be continuing, no Modification shall be made without the
\n prior consent of the Required Purchasers if the effect thereof
\n would be to extend the then average life of the Purchased
\n Receivables taken as a whole, to reduce or increase the
\n Principal Balance of any Purchased Receivable or to reduce the
\n amount or rate of interest thereon or to cause the Stipulated
\n Aircraft Value under a Contract to be less than the
\n Outstanding Balance of the Receivable with respect to such
\n Contract;<\/p>\n
(iii) if an Amortization Event shall have occurred<\/p>\n
and be continuing, no Modification shall be made without the
\n prior consent of each Purchaser if the effect thereof would be
\n to extend the Final Payment Date of a Receivable beyond the
\n then latest Final Payment Date of all Purchased Receivables;<\/p>\n
(iv) the Seller shall not modify the payment terms
\n of any Purchased Receivable except (x) in accordance with the
\n Credit and Collection Policy, except that, (A) with respect to
\n any GA Receivable, the Seller shall not modify the payment
\n terms of any such Purchased Receivable more than once after
\n the Closing Date or Settlement Date on which such Receivable
\n is sold or substituted pursuant to this Agreement or an
\n Existing Agreement, and (B) with respect to a Commuter
\n Receivable, (1) no more than an aggregate of 12 monthly
\n principal payments may be deferred during the term of any
\n Contract and (2) subject to the immediately following
\n sentence, the Final Payment Date may not be extended by more
\n than three years and, (y) so long as no Amortization Event has
\n occurred and is continuing, the Servicer may when necessary to
\n prevent a possible default by the Obligor under any Contract
\n or in order to enhance the collectibility of any Receivable,
\n defer any scheduled payment of principal, in part or in whole,
\n to a later scheduled payment date under such Contract. If,
\n after giving effect to the extension of the Final Payment Date
\n of a Purchased Receivable pursuant to clause (iv)(x)(B)(2) of
\n the foregoing proviso, such extended Final Payment Date
\n exceeds, (I) so long as no Rating Event has occurred and is
\n continuing, 13 years from the date of such extension and, (II)
\n during the continuance of a Rating Event, 10 years from the
\n date of such extension, then on the immediately following
\n Settlement Date (or if such date is a Settlement Date, then on
\n such date) the Seller shall deposit in the Concentration
\n Account an amount equal to the aggregate Principal Collections
\n then scheduled to be paid after such 13th year or 10th year,
\n as the case may be, plus, if a Trigger Amortization Event has
\n occurred and is continuing, accrued and unpaid interest on the
\n amount so deposited at the rate under the related Contract
\n except to the extent (without duplication) of any payment made
\n pursuant to subsection 2.18 for the Settlement Period during
\n which such interest accrued and was not paid by the Obligor
\n under such Contract. The amount of any such deposit shall be
\n applied and distributed in accordance with subsections 2.15
\n and 2.16 provided, however, that any Purchased Receivable so
\n ——– ——-
\n modified shall be deemed an Extended Term Receivable for
\n purposes of subsection 2.15;<\/p>\n
102<\/p>\n
(v) any Modification made in accordance with this
\n subsection 7.1(b) shall not cause the Principal Balance of the
\n applicable Purchased Receivable to exceed 50% of the Low
\n Wholesale Value of the related Financed Aircraft; and<\/p>\n
(vi) the Seller shall not make any Modification
\n which permits the transfer of registered ownership in any
\n Financed Aircraft without the consent of the Required
\n Purchasers, unless after giving effect to such transfer (and
\n any payments made under the Contract at the time of transfer)
\n the related Receivable would satisfy on the date of transfer
\n the criteria contained in the definition of Eligible
\n Receivable; provided that the provisions of this subsection
\n ——–
\n 7.1(b)(vi) shall not apply to a transfer by an Obligor to a
\n wholly-owned Affiliate of such Obligor.<\/p>\n
(c) Change in Business or Credit and Collection Policy. Make
\n ————————————————–
\n any material change in the character of its business or,
\n without the prior written consent of the Required Purchasers, notify
\n any Obligor to remit payments to a location other than that to which
\n such payment would be remitted on the Closing Date; make any change in
\n the Credit and Collection Policy without prior notice to the Managing
\n Facility Agent and each Purchaser; provided that, without the prior
\n ——–
\n consent of the Required Purchasers, the Seller shall not make or
\n permit to be made any such change to the Credit and Collection Policy
\n if such change could reasonably be expected to materially adversely
\n affect the collectibility or maturity of any Purchased Receivable or
\n the interests of the Administrative Agent and the Purchasers in any
\n Purchased Receivable, the related Contract and Financed Aircraft or
\n the Collections with respect thereto.<\/p>\n
(d) No Actions against Obligors. Except in accordance with
\n —————————
\n the Credit and Collection Policy, commence or settle any legal action
\n to enforce collection of any Purchased Receivable.<\/p>\n
(e) Security Interest to Remain in Force. Release, in whole
\n ————————————
\n or in part, any Financed Aircraft, or any other collateral securing or
\n guarantee of the related Contract (including, but not limited to, any
\n letter of credit related thereto issued in favor of the Seller), from
\n the security interest granted by such Contract except, that, the
\n —— —-
\n Seller may or may permit the Servicer to, at its or the Servicer’s own
\n expense, (x) substitute engines in accordance with subsection 7.1(j)
\n and (y) substitute other parts (other than airframes) for any of the
\n parts on any Financed Aircraft as Seller or Servicer may deem
\n desirable in the proper conduct of its business; provided, however,
\n ——– ——-
\n that for purposes of this clause (y), (i) no such substitution(s),
\n individually or in the aggregate, shall diminish the utility or
\n remaining useful life of such Financed Aircraft, or materially
\n diminish the value, or impair the condition or airworthiness, thereof,
\n below the utility, remaining useful life, condition, airworthiness, or
\n value thereof immediately prior to such substitution, (ii) no such
\n substitution shall affect adversely the Lien on such Financed Aircraft
\n (other than the removed avionics) in favor of the Administrative Agent
\n for the benefit of the Purchasers (as such Lien was in effect
\n immediately prior to such substitution), (iii) the Administrative
\n Agent shall have a Lien on the substitute parts with a priority no
\n less than the priority of the Lien in favor of the Administrative
\n Agent on the removed parts and (iv) the new part shall not be subject
\n to any Liens other than Permitted Aircraft Liens.<\/p>\n
103<\/p>\n
Upon substitution of any engine or other parts on any Financed
\n Aircraft, the Lien thereon of the Administrative Agent on behalf of
\n the Purchasers shall, without the requirement for any further act, be
\n automatically released.<\/p>\n
(f) Limitations on Fundamental Changes. Enter into any merger,
\n ———————————-
\n consolidation or amalgamation, or liquidate, wind up or dissolve
\n itself (or suffer any liquidation or dissolution), or convey, sell,
\n lease, assign, transfer or otherwise dispose of, all or substantially
\n all of its property, business or assets (except for sales and
\n substitutions of Purchased Receivables pursuant to this Agreement).<\/p>\n
(g) Transactions with Affiliates. Enter into any transaction,
\n —————————-
\n including, without limitation, any purchase, sale, lease or exchange
\n of property or the rendering of any service, relating to the
\n administration, servicing and collection of the Purchased Receivables,
\n the Collections with respect thereto and the related Contracts and
\n Financed Aircraft, with any Affiliate unless such transaction is
\n otherwise permitted under this Agreement, is in the ordinary course of
\n the Seller’s business and is upon fair and reasonable terms no less
\n favorable to the Seller than it would obtain in a comparable arm’s
\n length transaction with a Person not an Affiliate.<\/p>\n
(h) Fiscal Year. Permit the fiscal year of the Seller to end
\n ———–
\n on a day other than December 31 without 60 days’ prior notice thereof
\n to the Managing Facility Agent.<\/p>\n
(i) Assignment of Contracts. Permit any assignment of any
\n ———————–
\n Contract by either the Seller or Obligor (except for an assignment to
\n the Guarantor) without the prior written consent of the Required
\n Purchasers, provided that such consent shall not be unreasonably
\n withheld to the extent the Contract so provides.<\/p>\n
(j) Substitution of Engines. Permit any engine to be
\n ———————–
\n substituted for an engine originally annexed to any Financed Aircraft
\n related to a Purchased Receivable unless such engine is of the same
\n model number and of the same or improved utility, performance and
\n efficiency, of equivalent age and equivalent or greater value as the
\n replaced engine.<\/p>\n
(k) Indebtedness. Create, incur, assume or suffer to exist any
\n ————
\n Indebtedness or other liability whatsoever, except (i) Indebtedness
\n owing from time to time to Raytheon Credit and incurred to finance a
\n portion of the Purchase Price (as defined in the Intercompany Purchase
\n Agreement) of Receivables, the payment of which Indebtedness is
\n subordinated to the prior payment in full of all amounts owing to the
\n Purchasers, (ii) obligations incurred under this Agreement and (iii)
\n other liabilities incurred in the ordinary course of business.<\/p>\n
(l) Guarantees. Become or remain liable, directly or
\n ———-
\n contingently, in connection with any Indebtedness or other liability
\n of any other Person, whether by guarantee, endorsement (other than
\n endorsements of negotiable instruments for deposit or collection in
\n the ordinary course of business), agreement to purchase or repurchase,
\n agreement to supply or advance funds, or otherwise.<\/p>\n
104<\/p>\n
(m) Investments. Make or suffer to exist any loans or advances
\n ———–
\n to, or extend any credit to, or make any investments (by way of
\n transfer of property, contributions to capital, purchase of stock or
\n securities or evidences of indebtedness, acquisition of the business
\n or assets, or otherwise) in, any Person except (i) for purchases of
\n Receivables pursuant to the Intercompany Purchase Agreement, (ii) for
\n investments in Cash Equivalents in accordance with the terms of this
\n Agreement and (iii) the holding of the demand note made by RAC or
\n Raytheon Credit in favor of the Seller.<\/p>\n
(n) Distributions. Declare or pay, directly or indirectly, any
\n ————-
\n dividend or make any other distribution (whether in cash or other
\n property) with respect to the profits, assets or capital of the Seller
\n or any Person’s interest therein, or purchase, redeem or otherwise
\n acquire for value any of its capital stock now or hereafter
\n outstanding, except that so long as the Seller would continue to be
\n Solvent as a result thereof and after giving effect thereto and no
\n Amortization Event is continuing or would result therefrom, the Seller
\n may declare and pay dividends on its capital stock.<\/p>\n
(o) Agreements. Become a party to, or permit any of its
\n ———-
\n properties to be bound by, any indenture, mortgage, instrument,
\n contract, agreement, lease or other undertaking, except the Contracts,
\n this Agreement and the Intercompany Purchase Agreement or amend or
\n modify the provisions of its Certificate of Incorporation or issue any
\n power of attorney except to the Managing Facility Agent or the
\n Servicer.<\/p>\n
(p) Intercompany Purchase Agreement. Give any material
\n ——————————-
\n consent or fail to exercise in any material respect any right or
\n privilege under the Intercompany Purchase Agreement.<\/p>\n
7.2 Negative Covenants of the Servicer. The Servicer (so long
\n ———————————-
\nas it is Raytheon Credit) hereby agrees that, so long as the Commitments remain
\nin effect, the Outstanding Purchase Price has not been reduced to zero or any
\nother amount is owing to any Purchaser or the Managing Facility Agent hereunder,
\nthe Servicer shall not:<\/p>\n
(a) No Actions against Obligors. Except in accordance with
\n —————————
\n the Credit and Collection Policy, commence or settle any legal action
\n to enforce collection of any Purchased Receivable.<\/p>\n
(b) Security Interest to Remain in Force. Except to the extent
\n ————————————
\n permitted in subsection 7.1(e), release, in whole or in part, any
\n Financed Aircraft, or any other collateral securing or guaranteeing
\n the related Contract (including, but not limited to, any letter of
\n credit related thereto issued in favor of the Seller), from the
\n security interest granted by such Contract.<\/p>\n
(c) Limitations on Fundamental Changes. Enter into any merger,
\n ———————————-
\n consolidation or amalgamation, or liquidate, wind up or dissolve
\n itself (or suffer any liquidation or dissolution), or convey, sell,
\n lease, assign, transfer or otherwise dispose of, all or substantially
\n all of its property, business or assets (except for sales and
\n substitutions of Receivables pursuant to the Intercompany Purchase
\n Agreement), except that any<\/p>\n
105<\/p>\n
Subsidiary of the Servicer may be merged or consolidated with or into
\n the Servicer (so long as the Servicer is the surviving or continuing
\n corporation).<\/p>\n
(d) Transactions with Affiliates. Enter into any transaction,
\n —————————-
\n including, without limitation, any purchase, sale, lease or exchange
\n of property or the rendering of any service, relating to the
\n administration, servicing and collection of the Purchased Receivables,
\n the Collections with respect thereto and the related Contracts and
\n Financed Aircraft, with any Affiliate unless such transaction is
\n otherwise permitted under this Agreement, is in the ordinary course of
\n the Servicer’s business and is upon fair and reasonable terms no less
\n favorable to the Servicer than it would obtain in a comparable arm’s
\n length transaction with a Person not an Affiliate.<\/p>\n
(e) Assignment of Contracts. Permit any assignment of any
\n ———————–
\n Contract by either the Seller or Obligor (except for an assignment to
\n the Guarantor or RAC) without the prior written consent of the
\n Required Purchasers, provided that such consent shall not be
\n unreasonably withheld to the extent the Contract so provides.<\/p>\n
(f) Change in Credit and Collection Policy. Without the prior
\n ————————————–
\n written consent of the Required Purchasers, notify any Obligor to
\n remit payments to a location other than that to which such payment
\n would be remitted on the Closing Date; make any change in the Credit
\n and Collection Policy without prior notice to the Managing Facility
\n Agent and each Purchaser; provided that, without the prior consent of
\n ——–
\n the Required Purchasers, the Servicer shall not make or permit to be
\n made any such change to the Credit and Collection Policy if such
\n change could reasonably be expected to materially adversely affect the
\n collectibility or maturity of any Purchased Receivable or the
\n interests of the Administrative Agent and the Purchasers in any
\n Purchased Receivable, the related Contract and Financed Aircraft or
\n the Collections with respect thereto.<\/p>\n
SECTION 8. AMORTIZATION EVENTS<\/p>\n
8.1 Amortization Events. Any of the following shall
\n ——————-
\nconstitute an Amortization Event (whether it occurs before or during the
\nAmortization Period) hereunder:<\/p>\n
(a) The Seller or the Servicer shall fail to make any deposit
\nor payment (including any payment of interest) required to be made by the Seller
\nor the Servicer, as the case may be, under this Agreement or any other document
\nexecuted and delivered in connection herewith, including, without limitation,
\nany payment or deposit required to be made pursuant to subsection 2.6(a),
\n2.7(b), 2.10, 2.10A, 2.11, 2.12, 2.14(c)(iii), 2.18 or 7.1(b), or the Seller or
\nthe Servicer (if an Affiliate of the Seller is then the Servicer) shall fail to
\ndeliver the Settlement Statement, or the Seller or the Servicer (if an Affiliate
\nof the Seller is then the Servicer) shall fail to take any action required or
\nrequested to be taken pursuant to this Agreement after an Amortization Event has
\noccurred and is continuing, in each case within five days after any such
\ndeposit, payment or delivery is required to be made or any such action is
\nrequested to be taken hereunder; or<\/p>\n
106<\/p>\n
(b) Raytheon shall fail to make any payment required under the
\nGuarantee or RAC shall fail to make any payment required under the Repurchase
\nAgreement within, in each case, five days after any such payment is required to
\nbe made; or<\/p>\n
(c) [Intentionally Omitted]; or<\/p>\n
(d) Any representation or warranty made or deemed made by the
\nSeller, the Servicer (if an Affiliate of the Seller is then the Servicer) or
\nRaytheon in any Purchase Document to which it is a party or which is contained
\nin any certificate, document or financial or other statement furnished at any
\ntime under or in connection with this Agreement shall prove to have been
\nincorrect in any material respect on or as of the date made or deemed made by
\nthe Seller, the Servicer (if an Affiliate of the Seller is then the Servicer) or
\nRaytheon, and shall have continued to be incorrect in such material respect for
\na period of 30 days after such representation or warranty was initially made
\n(other than any representation and warranty with respect to a Receivable which
\nhas been repurchased or substituted pursuant to subsection 2.7(b), 2.10, 2.10A,
\n2.11 or 2.13); or<\/p>\n
(e) (i) The Seller shall default in the observance or
\nperformance of, or Raytheon shall default under the Guarantee in causing the
\nSeller to observe or perform, any agreement contained in Section 7.1 or (ii) the
\nServicer shall default in the observance or performance of, or Raytheon shall
\ndefault under the Guarantee in causing the Servicer to observe or perform, any
\nagreement contained in subsection 7.2; or<\/p>\n
(f) Either of the Seller or the Servicer (if an Affiliate of
\nthe Seller is then the Servicer) shall default in the observance or performance
\nof any other agreement (other than subsection 6.1(n), the remedy for which is
\ncontained in subsection 2.11) contained in this Agreement in any material
\nrespect or Raytheon shall default in the observance or performance of any
\nagreement contained in the Guarantee in any material respect or RAC shall
\ndefault in the observance or performance of any agreement contained in the
\nRepurchase Agreement in any material respect (other than as provided in
\nparagraphs (a) through (e) of this subsection 8.1), and such default shall
\ncontinue unremedied for a period of 30 days after the earlier of (i) notice of
\nsuch default from the Managing Facility Agent or the Majority Purchasers or (ii)
\nknowledge by the Seller, the Servicer (if an Affiliate of the Seller is then the
\nServicer) or Raytheon of any such default, or<\/p>\n
(g) The Debt Ratio of Raytheon shall be greater than 0.55 to
\n1.0 on the last day of any fiscal quarter of Raytheon;<\/p>\n
(h) The Interest Coverage Ratio for any period of four
\nconsecutive fiscal quarters shall be less than 2.5 to 1.0; or<\/p>\n
(i) Raytheon, RAC, Raytheon Credit or the Seller shall default
\nin any payment of principal of or interest of any indebtedness for borrowed
\nmoney (or any guarantee thereof) (other than under the Guarantee or the
\nRepurchase Agreement) with a principal amount in excess of $50,000,000 when due
\n(whether by acceleration, upon maturity or otherwise), beyond the period of
\ngrace (not to exceed 30 days), if any, provided in the instrument or agreement
\nunder which such indebtedness (or guarantee) was created; or<\/p>\n
107<\/p>\n
(j) (i) Raytheon, RAC, Raytheon Credit or the Seller shall
\ncommence any case, proceeding or other action (A) under any existing or future
\nlaw of any jurisdiction, domestic or foreign, relating to bankruptcy,
\ninsolvency, reorganization or relief of debtors, seeking to have an order for
\nrelief entered with respect to it, or seeking to adjudicate it as bankrupt or
\ninsolvent, or seeking reorganization, arrangement, adjustment, winding-up,
\nliquidation, dissolution, composition or other relief with respect to it or its
\ndebts, or (B) seeking appointment of a receiver, trustee, custodian or other
\nsimilar official for it or for all or any substantial part of its assets; or
\n(ii) there shall be commenced against Raytheon, RAC, Raytheon Credit or the
\nSeller any case, proceeding or other action of a nature referred to in clause
\n(i) above which (A) results in the entry of an order for relief or any such
\nadjudication or appointment or (B) remains undismissed, undischarged or unbonded
\nfor a period of 60 days from the entry thereof; or (iii) there shall be
\ncommenced against Raytheon, RAC, Raytheon Credit or the Seller any case,
\nproceeding or other action seeking issuance of a warrant of attachment,
\nexecution, distraint or similar process against all or any substantial part of
\nits assets which results in the entry of an order for any such relief which
\nshall not have been vacated, discharged, or stayed or bonded pending appeal
\nwithin 60 days from the entry thereof; or (iv) Raytheon, RAC, Raytheon Credit or
\nthe Seller shall take any action in furtherance of, or indicating its consent
\nto, approval of, or acquiescence in, any of the acts set forth in clause (i),
\n(ii), or (iii) above; or (v) Raytheon, RAC, Raytheon Credit or the Seller shall
\nmake a general assignment for the benefit of its creditors or shall generally
\nnot, or shall be unable to, or shall admit in writing its inability to, pay its
\ndebts as they become due; or<\/p>\n
(k) Any event or condition shall occur or exist with respect
\nto a Plan that, together with all other such events or conditions, if any, could
\nreasonably be expected to subject Raytheon or any Commonly Controlled Entity to
\nany tax, penalty or other liabilities which in the aggregate could reasonably be
\nexpected to have a Material Adverse Effect or a material adverse effect on the
\nbusiness, assets, property or condition (financial or other) of Raytheon and its
\nSubsidiaries taken as a whole; or<\/p>\n
(l) One or more judgments or decrees shall be entered against
\nRaytheon, RAC, Raytheon Credit or the Seller involving in the aggregate a
\nliability (not paid or fully covered by insurance) of $25,000,000 or more and
\nall such judgments or decrees shall not have been vacated, discharged,
\nsatisfied, stayed or bonded pending appeal within 60 days from the entry
\nthereof; provided that no Amortization Event shall be deemed to occur if any
\n ——–
\nsuch judgment or decree is being contested in good faith by appropriate
\nproceedings and with respect to which no enforcement proceedings to collect any
\nsuch judgment or enforce any such decree have been commenced which could
\nreasonably be expected to have a Material Adverse Effect; or<\/p>\n
(m) The Guarantee shall cease to be in full force and effect
\nor Raytheon shall so assert in writing or the Repurchase Agreement shall cease
\nto be in full force and effect or RAC shall so assert in writing or;<\/p>\n
(n) The ownership or security interests created under this
\nAgreement or any Assignment (including to the extent applicable, each Foreign
\nAssignment) shall cease to be in full force and effect or the Seller or any of
\nits Affiliates shall so assert in writing, or this Agreement or any Assignment
\n(including to the extent applicable, each Foreign Assignment) shall cease, for
\nany reason other than acts or omissions of the Managing Facility Agent or any<\/p>\n
108<\/p>\n
Purchaser, to be effective to grant a perfected first-priority ownership or
\nsecurity interest in the Purchased Receivables, the related Contracts and
\nFinanced Aircraft free and clear of any Lien except (i) to the extent any of the
\nforegoing are violated prior to the dates set forth in subsection 6.1(n) as a
\nresult of the failure to make the filings referred to therein and required to be
\nmade by such dates, (ii) to the extent a Lien of the first priority on the
\nrelated Financed Aircraft is not perfected with respect to L\/C Receivables,
\nUnsecured Foreign Receivables and Existing Uncertified Foreign Receivables,
\n(iii) solely with respect to a Purchased Receivable, to the extent the Lien
\nthereon is subject to a Permitted Receivable Lien, (iv) solely with respect to a
\nFinanced Aircraft, to the extent the Lien thereon is subject to Permitted
\nAircraft Liens or (v) to the extent provided in subsection 4.2(b); or<\/p>\n
(o) (i) Raytheon shall cease to own, directly or indirectly,
\n100% of the issued and outstanding voting stock of RAC, the Seller or Raytheon
\nCredit or (ii) Raytheon Credit shall cease to own 100% of the issued and
\noutstanding voting stock of the Seller; or<\/p>\n
(p) On any Settlement Date on which Raytheon’s Debt Rating is
\nless than A-\/A3, after giving effect to any sales pursuant to subsection 11.25,
\nthe ratio, expressed as a percentage, of the aggregate Outstanding Purchase
\nPrice of all Delinquent Receivables to the Outstanding Purchase Price of all
\nReceivables shall be greater than 7.5%; or<\/p>\n
(q) Raytheon’s Debt Rating shall be less than BB+ or the
\nequivalent thereof or Raytheon’s long-term unsecured senior debt shall not be
\nrated by both S&P and Moody’s or, if the Seller and the Required Purchasers
\nshall have agreed to use a rating agency other than Moody’s or S&P to determine
\nthe Debt Rating, such Debt Rating shall be less than such level as the Seller
\nand the Purchasers, by unanimous consent, shall have agreed.<\/p>\n
8.2 Rights and Remedies. If an Amortization Event should occur
\n ——————-
\nand be continuing, the Managing Facility Agent and the Purchasers shall have
\navailable the following rights and remedies (unless such Amortization Event is
\nwaived pursuant to subsection 11.1) in addition to any other rights and remedies
\navailable under applicable law, such rights and remedies being cumulative and
\nnot exclusive:<\/p>\n
(a) each Purchaser’s Outstanding Purchase Price shall bear
\ninterest for the Accrual Period in which such Amortization Event occurs, payable
\non demand, at the Default Rate for such Purchaser (i) if such event is an
\nAmortization Event specified in subsection 8.1(a), commencing on the date such
\nAmortization Event occurs and (ii) if such Amortization Event is a Note Rate
\nAmortization Event, commencing on the date the Revolving Period and the
\nCommitments are terminated pursuant to subsection 8.2(b) or, if later, on the
\ndate such Note Rate Amortization Event occurs; or<\/p>\n
(b) with the consent of the Majority Purchasers, the Managing
\nFacility Agent may, or upon the request of the Majority Purchasers, the Managing
\nFacility Agent shall, by notice to the Seller declare the Revolving Period and
\nthe Commitments to be terminated forthwith, whereupon the Revolving Period and
\nthe Commitments shall immediately terminate; provided that if such event is an
\n ——–
\nAmortization Event specified in clause (i) or (ii) of subsection 8.1(j),
\nautomatically the Revolving Period and the Commitments shall immediately
\nterminate; or<\/p>\n
109<\/p>\n
(c) if such event is a Specified Amortization Event and the
\nRevolving Period and the Commitments have been terminated pursuant to subsection
\n8.2(b), the Majority Purchasers may in their sole discretion terminate the
\nappointment of Raytheon Credit as the Servicer in accordance with subsection
\n3.1; or<\/p>\n
(d) if such event is a Specified Amortization Event and the
\nRevolving Period and the Commitments have been terminated pursuant to subsection
\n8.2(b), upon five Business Days’ notice to the Seller and the Servicer and at
\nthe Seller’s expense, the Managing Facility Agent may, or upon the request of
\nthe Majority Purchasers the Managing Facility Agent shall, notify, or direct the
\nSeller or the Servicer, as the case may be, to notify, the Obligors of Purchased
\nReceivables, or any of them, of the ownership of the Purchased Receivables by
\nthe Purchasers; or<\/p>\n
(e) if such event is a Specified Amortization Event and the
\nRevolving Period and the Commitments have been terminated pursuant to subsection
\n8.2(b), the Managing Facility Agent may, or upon the request of the Majority
\nPurchasers the Managing Facility Agent shall, direct or request the Seller or
\nthe Servicer, as the case may be, to direct the Obligors of Purchased
\nReceivables, or any of them, that payment of all amounts payable under any such
\nPurchased Receivable be made directly to the Managing Facility Agent or its
\ndesignee for the account of the Purchasers; or<\/p>\n
(f) if the Revolving Period and the Commitments have been
\nterminated pursuant to subsection 8.2(b), the Managing Facility Agent may, or
\nupon the request of the Majority Purchasers the Managing Facility Agent shall,
\ndirect the Seller or the Servicer, as the case may be, to segregate all cash,
\nchecks and other instruments received by it from time to time constituting
\nCollections on account of any Purchased Receivable in a manner acceptable to the
\nManaging Facility Agent and to remit promptly upon receipt all such cash, checks
\nand instruments, duly endorsed or with duly executed instruments of transfer, to
\nthe Managing Facility Agent or its designee for the account of the Purchasers;
\nor<\/p>\n
(g) if the Revolving Period and the Commitments have been
\nterminated pursuant to subsection 8.2(b), the Managing Facility Agent may, or
\nupon the request of the Majority Purchasers the Managing Facility Agent shall,
\ndirect the Seller or the Servicer, as the case may be, to assemble the
\ndocuments, instruments and other records (including, without limitation,
\ncomputer tapes and disks) which evidence the Purchased Receivables, the related
\nContracts and the related Financed Aircraft, or which are otherwise necessary or
\ndesirable to collect the Purchased Receivables, and to make the same available
\nto the Managing Facility Agent at a place selected by the Managing Facility
\nAgent or its designee; or<\/p>\n
(h) if the Revolving Period and the Commitments have been
\nterminated pursuant to subsection 8.2(b), the Managing Facility Agent may, or
\nupon the request of the Majority Purchasers the Managing Facility Agent shall,
\ndirect the Seller or the Servicer to convert the Collection Account to a lockbox
\naccount into which payments on account of the Purchased Receivables are remitted
\nor deposited directly and, in connection therewith, the Seller or the Servicer
\nshall execute and file such documents and take such actions to transfer to the
\nManaging Facility Agent or its agent all post office boxes, deposit and other
\naccounts into which<\/p>\n
110<\/p>\n
Collections are remitted or deposited and to grant to the Managing
\nFacility Agent and the Purchasers perfected first-priority security and\/or
\nownership interests therein; or<\/p>\n
(i) if the Revolving Period and the Commitments have been
\nterminated pursuant to subsection 8.2(b), the Managing Facility Agent may, or
\nupon the request of the Majority Purchasers the Managing Facility Agent shall,
\ndirect the Seller or the Servicer to take any and all steps in the name of the
\nSeller or the Servicer and on behalf of the Managing Facility Agent and the
\nPurchasers which may be necessary or desirable, in the determination of the
\nManaging Facility Agent (or the Managing Facility Agent and the Majority
\nPurchasers, if the Managing Facility Agent is acting at the request of the
\nMajority Purchasers), to collect all amounts due under any and all Purchased
\nReceivables and the related Contracts and Financed Aircraft, including, without
\nlimitation, endorsing the name of the Seller on checks and other instruments
\nrepresenting Collections in respect of such Purchased Receivables and enforcing
\nsuch Purchased Receivables and the related Contracts and Financed Aircraft; or<\/p>\n
(j) if the Revolving Period and the Commitments have been
\nterminated pursuant to subsection 8.2(b), the Managing Facility Agent may, or
\nupon the request of the Majority Purchasers the Managing Facility Agent shall,
\ntake or direct the Seller to take any and all steps in the name of the Seller
\nand on behalf of the Managing Facility Agent and the Purchasers which may be
\nnecessary or desirable, in the determination of the Managing Facility Agent (or
\nthe Managing Facility Agent and the Majority Purchasers, if the Managing
\nFacility Agent is acting at the request of the Majority Purchasers), to enforce
\nand protect the rights and remedies of the Managing Facility Agent and the
\nPurchasers in, to and under the Intercompany Purchase Agreement.<\/p>\n
8.3 Waivers. Except as expressly provided herein,
\n ——-
\npresentment, demand, protest and all other notices of any kind are hereby
\nexpressly waived by the Seller and the Servicer.<\/p>\n
SECTION 9. INDEMNIFICATIONS<\/p>\n
9.1 Indemnities of the Seller. (a) Without limiting any
\n ————————–
\nother rights which the Managing Facility Agent, any Purchaser or any Affiliate
\nthereof may have hereunder or under applicable law, the Seller hereby agrees,
\nsubject to the limitations set forth in this Section 9, to indemnify the
\nManaging Facility Agent, each Administrative Agent, each Co-Administrative
\nAgent, each Purchaser and each Affiliate thereof (each, an “Indemnified
\n ———–
\nPerson”) from and against any and all damages, losses, claims, liabilities and
\n——
\nrelated costs and expenses, including reasonable attorneys’ fees and
\ndisbursements (all of the foregoing, collectively, “Indemnified Amounts”)
\n ——————-
\nawarded against or incurred by any Indemnified Person which arise directly or
\nindirectly from:<\/p>\n
(i) any Purchased Receivable which is not an
\n Eligible Receivable at the date of its purchase or
\n substitution (which date shall be, for each Existing
\n Receivable, the date such Receivable was purchased or
\n substituted under the Existing Agreement applicable to such
\n Existing Receivable) or which is an Ineligible Receivable as
\n defined in clause (b)(z) of the definition of “Ineligible
\n Receivable”;<\/p>\n
111<\/p>\n
(ii) reliance on any representation or warranty made
\n by the Seller (or any of their respective officers) under or
\n in connection with this Agreement or any Settlement
\n Statement which shall have been false or incorrect in any
\n material respect when made or deemed made;<\/p>\n
(iii) the failure by the Seller, any Affiliate
\n Obligor or the Servicer to comply with any applicable
\n Requirement of Law in all material respects with respect to
\n any Purchased Receivable, the related Contract or Financed
\n Aircraft, or the nonconformity in any material respect of
\n any Purchased Receivable or the related Contract or Financed
\n Aircraft with any such applicable Requirement of Law;<\/p>\n
(iv) the failure (A) of the Administrative Agent to
\n have a valid, perfected and first priority security interest
\n in the Financed Aircraft (including the Aircraft
\n Accessories) other than with respect to a Registerable Lease
\n Receivable, Unsecured Foreign Receivable, Existing
\n Uncertified Foreign Receivable or L\/C Receivable, (B) with
\n respect to a Registerable Lease Receivable, of the
\n Administrative Agent to have a valid, perfected and first
\n priority security interest in the Financed Aircraft
\n (including the Aircraft Accessories related thereto) or (C)
\n either (1) to vest and maintain in any Purchaser a
\n perfected, valid and enforceable first priority ownership
\n interest in any Purchased Receivable or (2) to create and
\n maintain in favor of the Administrative Agent for the
\n ratable benefit of the Purchasers a valid, perfected and
\n first priority security interest in such Receivable;<\/p>\n
(v) the failure to file or record any document or
\n instrument (including, without limitation, any FAA Assignment
\n or any Foreign Assignment) with respect to any Receivables
\n constituting, or purporting to constitute, Purchased
\n Receivables, the Contracts or the Financed Aircraft related
\n thereto (other than the Financed Aircraft related to the L\/C
\n Receivables and the Unsecured Foreign Receivables), whether
\n at the time of any purchase or at any time thereafter;<\/p>\n
(vi) any dispute, claim, offset or defense (other
\n than discharge in bankruptcy of the Obligor) of the Obligor
\n to the payment of any Purchased Receivable or of the
\n Unaffiliated Foreign Lessee to the payment of any amount
\n under its Applicable Lease (including, without limitation, a
\n defense based on such Receivable or the related Contract not
\n being a legal, valid and binding obligation of such Obligor
\n or Unaffiliated Foreign Lessee enforceable against it in
\n accordance with its terms or any claims based on the related
\n Financed Aircraft not conforming to any express or implied
\n warranty);<\/p>\n
(vii) any failure of the Seller or the Servicer to
\n perform its duties or obligations in any capacity in
\n accordance with the provisions of this Agreement, including,
\n without limitation, the turnover of amounts pursuant to
\n subsection 2.14 or 2.15;<\/p>\n
112<\/p>\n
(viii) any Lien against or with respect to Purchased
\n Receivables, the Collections with respect thereto or the
\n related Contract or Financed Aircraft, or any sale, pledge,
\n or assignment (by operation of law or otherwise) or other
\n disposition of Collections of Purchased Receivables by the
\n Seller or the Servicer;<\/p>\n
(ix) any failure by the Seller, any Affiliate Obligor
\n or the Servicer to comply (1) in any material respect with
\n any provision, covenant or other promise required to be
\n observed by any such Person under any Contract related to any
\n Purchased Receivable or (2), except as otherwise permitted by
\n this Agreement, with all provisions of the Credit and
\n Collection Policy in all material respects, which failure
\n reduces or impairs the rights of the Administrative Agent or
\n any Purchaser with respect to any Purchased Receivable or the
\n value of any Purchased Receivable including, but not limited
\n to, failure to comply with those provisions of the Credit and
\n Collection Policy relating to the cancellation, extension,
\n amendment, modification, compromise or settlement of any
\n Purchased Receivable or any term thereof, the extension,
\n amendment, modification or waiver of any term or condition of
\n any Contract related thereto, the sale, pledge or assignment
\n of, or grant of security interest in, any Purchased
\n Receivable or the Contract or Financed Aircraft related
\n thereto, any change in the character of its business or in
\n the Credit and Collection Policy or the commencement or
\n settlement of any legal action to enforce collection of any
\n Purchased Receivable;<\/p>\n
(x) any investigation, litigation, or proceeding
\n related to any use of the proceeds of any purchase;<\/p>\n
(xi) any casualty loss, property loss or product
\n liability related to (i) the Purchasers’ ownership of the
\n Purchased Receivables or (ii) the Purchasers’ security
\n interest in the related Financed Aircraft;<\/p>\n
(xii) the failure of any Purchased Receivable at any
\n time after its sale or substitution hereunder or, with
\n respect to the Existing Receivables, under the applicable
\n Existing Agreement to satisfy the criteria under clause (k)
\n or (l) (including, without limitation, the failure of a
\n Permitted Receivable Lien or a Permitted Aircraft Lien to be
\n released or bonded in accordance with the definition of each
\n such term) of the definition of “Eligible Receivable”
\n (notwithstanding that such criteria are required to be
\n satisfied pursuant to such definition on the date a Purchased
\n Receivable is sold or substituted); or<\/p>\n
(xiii) the execution, delivery, performance,
\n administration and enforcement of any of the Purchase
\n Documents.<\/p>\n
(b) Notwithstanding anything to the contrary contained in
\nsubsection 9.1(a), and with respect to any event of the type described in clause
\n(vi) or (xii) of subsection 9.1(a), the Managing Facility Agent, the
\nAdministrative Agent, the Co-Administrative Agents and the Purchasers shall be
\ndeemed to have incurred Indemnified Amounts with respect to a Purchased
\nReceivable as a result of events described in such clause (vi) or (xii) on the
\nearlier of (1) the date on which the Seller becomes aware of the event or events
\nof the type described in either of such<\/p>\n
113<\/p>\n
clauses or (2) the date on which the Managing Facility Agent notifies the Seller
\nthat the event described in either of such clauses has occurred.<\/p>\n
(c) Indemnification payments required to be made hereunder
\nshall be payable at any time on demand by the Managing Facility Agent at the
\nrequest of the applicable Indemnified Persons and shall be promptly deposited in
\nthe Concentration Account and paid out to such Indemnified Persons pro rata with
\n — —-
\nrespect to the Indemnified Amounts incurred and requested by such Indemnified
\nPersons.<\/p>\n
(d) The agreements in this Section 9 shall survive the
\ncompletion of the Amortization Period.<\/p>\n
9.2 Limitations of Seller’s Liability. (a) The Seller
\n ———————————-
\nshall not be required to indemnify an Person pursuant to subsection 9.1 for:<\/p>\n
(i) Indemnified Amounts to the extent resulting
\n from gross negligence or willful misconduct on the part of
\n such Indemnified Person; or<\/p>\n
(ii) recourse for non-payment by an Obligor
\n (except as otherwise provided in this Agreement) for Defaulted
\n Receivables; or<\/p>\n
(iii) any income, franchise or other similar
\n taxes imposed on any Indemnified Person as a result of any of
\n the indemnities provided in subsection 9.1(a) arising out of
\n or as a result of this Agreement or in respect of any
\n Receivables or any Contract; or<\/p>\n
(iv) Indemnified Amounts resulting from actions
\n taken or failed to be taken by a successor Servicer that is
\n not an Affiliate of the Seller appointed pursuant to
\n subsection 3.1(b).<\/p>\n
(b) Each of the Managing Facility Agent, each
\nAdministrative Agent, each Co-Administrative Agent and each Purchaser hereby
\nwaives, to the maximum extent not prohibited by law, any right it may have to
\nclaim or recover as Indemnified Amounts under this Section 9 any special,
\nexemplary, punitive or consequential damages; provided that the waiver contained
\n ——–
\nin this subsection 9.2(b) shall not extend to, and the Managing Facility Agent,
\neach Administrative Agent, each Co-Administrative Agent and each Purchaser does
\nnot waive, any right to claim or recover from the Seller any special, exemplary,
\npunitive or consequential damages for which an Indemnified Person is liable to
\nany Person (other than an Affiliate of such Indemnified Person).<\/p>\n
9.3 Proceedings against Indemnified Person. (a) If any
\n ————————————–
\naction, suit or proceeding shall be brought against one or more of the
\nIndemnified Persons in respect of which indemnity may be sought against the
\nSeller, such Indemnified Person shall, promptly after receipt of notice of
\ncommencement of such action, suit or proceeding, notify the Seller in writing,
\nenclosing a copy of all papers served upon such Indemnified Person; provided
\n ——–
\nthat the failure so to notify the Seller shall not relieve it from any liability
\nwhich it may have under subsection 9.1 except to the extent that the Seller is
\nprejudiced by such failure. The Seller may, and upon such Indemnified Person’s
\nrequest shall, at the Seller’s expense, resist and defend such action, suit or
\nproceeding,<\/p>\n
114<\/p>\n
or cause the same to be resisted or defended by counsel selected by the Seller.
\nIn the event of any failure by the Seller to resist and defend such suit, action
\nor proceeding or cause the same to be resisted or defended by counsel reasonably
\nsatisfactory to such Indemnified Person, the Seller shall pay all reasonable
\ncosts and expenses (including, without limitation, attorney’s fees and
\ndisbursements) incurred by such Indemnified Person in connection with such suit,
\naction or proceeding. In the event that the Seller does assume the defense of
\nsuch suit, action or proceeding, the Seller shall have the sole authority to
\nnegotiate, compromise and settle such claim; provided that such Indemnified
\n ——–
\nPerson shall have the right to employ counsel to represent it in connection with
\nany claim in respect of which indemnity may be sought by such Indemnified Person
\nagainst the Seller under such subsection 9.1 if, in the reasonable judgment of
\nsuch Indemnified Person, such Indemnified Person may have a conflict with the
\nSeller, such Indemnified Person shall be entitled to be represented by separate
\ncounsel, and in that event the fees and expenses of such separate counsel shall
\nbe paid by the Seller. In any event, the Indemnified Person shall retain the
\nright to employ its own counsel, but the Indemnified Person shall, except as
\notherwise provided in this subsection 9.3, bear and shall be solely responsible
\nfor its own costs and expenses.<\/p>\n
(b) The Seller shall be subrogated to an Indemnified
\nPerson’s rights in any matter with respect to which the Seller has actually
\nreimbursed such Indemnified Person for any amounts for which the Indemnified
\nPerson claims indemnification hereunder after the Amortization Period ends.<\/p>\n
SECTION 10. THE MANAGING FACILITY AGENT AND ADMINISTRATIVE AGENT<\/p>\n
10.1 Appointment. Each Purchaser hereby irrevocably
\n ———–
\ndesignates and appoints Bank of America, N.A., as the Managing Facility Agent of
\nsuch Purchaser under this Agreement and the other Purchase Documents and each
\nsuch Purchaser irrevocably authorizes Bank of America, N.A., as the Managing
\nFacility Agent for such Purchaser, to take such action on its behalf under the
\nprovisions of this Agreement and the other Purchase Documents and to exercise
\nsuch powers and perform such duties as are expressly delegated to the Managing
\nFacility Agent by the terms of this Agreement and the other Purchase Documents,
\ntogether with such other powers as are reasonably incidental thereto. Each
\nPurchaser hereby irrevocably designates and appoints each of Bank of America,
\nN.A. and UBS AG, Stamford Branch (as successor to Swiss Bank Corporation,
\nStamford Branch, as successor to Swiss Bank Corporation, New York Branch) as
\nAdministrative Agent under this Agreement and the other Purchase Documents and
\nto be, or continue to be, jointly or individually, the named party or the
\nsecured party for the benefit of the Purchasers with respect to the Receivables
\nand the related Aircraft and in and on all presently existing or hereafter
\nexecuted financing statements, assignments and continuation statements, FAA
\nAssignments and other FAA filings and similar filings in foreign jurisdictions
\nand security interests granted under this Agreement or any predecessor agreement
\n(including pursuant to Sections 11.11 and 11.12) relating to the Receivables and
\nthe related Aircraft. Each Administrative Agent shall act solely in accordance
\nwith the instructions of the Managing Facility Agent (including pursuant to
\nSections 11.10, 11.11 and 11.12) which in the case of the Old Administrative
\nAgent shall be deemed to include any action taken by the Managing Facility Agent
\npursuant to a power of attorney granted by the Old Administrative Agent in favor
\nof the Managing Facility Agent. Notwithstanding any provision to the contrary
\nelsewhere in this Agreement, the Managing Facility Agent and each Administrative
\nAgent shall not have any<\/p>\n
115<\/p>\n
duties or responsibilities, except those expressly set forth herein, or any
\nfiduciary relationship with any Purchaser, and no implied covenants, functions,
\nresponsibilities, duties, obligations or liabilities shall be read into this
\nAgreement or any other Purchase Document or otherwise exist against the Managing
\nFacility Agent or either Administrative Agent.<\/p>\n
10.2 Delegation of Duties. The Managing Facility Agent and
\n ——————–
\neach Administrative Agent may execute any of its duties under this Agreement and
\nthe other Purchase Documents by or through agents or attorneys-in-fact and shall
\nbe entitled to advice of counsel concerning all matters pertaining to such
\nduties. The Managing Facility Agent and each Administrative Agent shall not be
\nresponsible for the negligence or misconduct of any agents or attorneys-in-fact
\nselected by it with reasonable care.<\/p>\n
10.3 Exculpatory Provisions. Neither the Managing Facility
\n ———————–
\nAgent, each Administrative Agent, nor any of their respective officers,
\ndirectors, employees, agents, attorneys-in-fact or Affiliates shall be (a)
\nliable for any action lawfully taken or omitted to be taken by it or such Person
\nunder or in connection with this Agreement or any other Purchase Document
\n(except for its or such Person’s own gross negligence or willful misconduct) or
\n(b) responsible in any manner to any of the Purchasers for any recitals,
\nstatements, representations or warranties made by the Seller, the Servicer or
\nRaytheon or any officer thereof contained in this Agreement or any other
\nPurchase Document or in any certificate, report, statement or other document
\nreferred to or provided for in, or received by the Managing Facility Agent or
\neither Administrative Agent under or in connection with, this Agreement or any
\nother Purchase Document or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of this Agreement or any other Purchase Document
\nor for any failure of the Seller, the Servicer or Raytheon to perform their
\nrespective obligations hereunder or thereunder. The Managing Facility Agent and
\neach Administrative Agent shall not be under any obligation to any Purchaser to
\nascertain or to inquire as to the observance or performance of any of the
\nagreements contained in, or conditions of (except delivery to it of items
\nrequired by Section 5 hereof to be delivered to it), this Agreement or any other
\nPurchase Document, or to inspect the properties, books or records of the Seller,
\nthe Servicer or Raytheon. Without limiting the foregoing, the Old Administrative
\nAgent shall not have any liability for (i) any action, or omission to act, which
\nis made in accordance with the instructions of the Managing Facility Agent or
\n(ii) the failure to act if it has not received any instructions from the
\nManaging Facility Agent.<\/p>\n
10.4 Reliance by Managing Facility Agent and
\n —————————————
\nAdministrative Agent. The Managing Facility Agent and each Administrative Agent
\n——————–
\nshall be entitled to rely, and shall be fully protected in relying, upon any
\nwriting, resolution, notice, consent, certificate, affidavit, letter, cablegram,
\ntelegram, telecopy, telex or teletype message, statement, order or other
\ndocument or conversation believed by it to be genuine and correct and to have
\nbeen signed, sent or made by the proper Person or Persons and upon advice and
\nstatements of legal counsel (including, without limitation, counsel to the
\nSeller, the Servicer or Raytheon), independent accountants and other experts
\nselected by the Managing Facility Agent or such Administrative Agent. The
\nManaging Facility Agent and each Administrative Agent shall be fully justified
\nin failing or refusing to take any action under this Agreement or any other
\nPurchase Document unless it shall first receive such advice or concurrence of
\nthe Majority Purchasers as it deems appropriate or it shall first be indemnified
\nto its satisfaction by the Purchasers against any and all liability and expense
\nwhich may be incurred by it by reason of taking or continuing to take any<\/p>\n
116<\/p>\n
such action. The Managing Facility Agent and each Administrative Agent shall in
\nall cases be fully protected in acting, or in refraining from acting, under this
\nAgreement and the other Purchase Documents in accordance with a request of the
\nRequired Purchasers or the Majority Purchasers, as appropriate, and such request
\nand any action taken or failure to act pursuant thereto shall be binding upon
\neach Purchaser.<\/p>\n
10.5 Notice of Certain Events. Neither the Managing
\n ————————
\nFacility Agent nor any Administrative Agent shall be deemed to have knowledge or
\nnotice of the occurrence of an Amortization Event, Discount Event, Rating Event,
\nRemittance Event or Ineligibility Event (each, an “Occurrence”) hereunder unless
\n ———-
\nthe Managing Facility Agent has received notice from a Purchaser, the Seller,
\nthe Servicer, RAC or Raytheon referring to this Agreement, describing such
\nOccurrence and stating that such notice is a notice thereof. In the event that
\nthe Managing Facility Agent receives such a notice, the Managing Facility Agent
\nshall promptly give notice thereof to the Purchasers. The Managing Facility
\nAgent shall take such action with respect to any Amortization Event as shall be
\nreasonably directed by the Majority Purchasers; provided that unless and until
\n ——–
\nthe Managing Facility Agent shall have received such directions, the Managing
\nFacility Agent may (but shall not be obligated to) take such action, or refrain
\nfrom taking such action, with respect to any such Amortization Event as it shall
\ndeem advisable in the best interests of the Purchasers.<\/p>\n
10.6 Non-Reliance on Managing Facility Agent, the
\n ——————————————–
\nAdministrative Agent, the Co-Administrative Agents and the Purchasers. Each
\n———————————————————————
\nPurchaser expressly acknowledges that neither the Managing Facility Agent,
\neither Administrative Agent, the Co-Administrative Agents nor any of their
\nofficers, directors, employees, agents, attorneys-in-fact or Affiliates has made
\nany representations or warranties to it and that no act by the Managing Facility
\nAgent, either Administrative Agent or the Co-Administrative Agents hereafter
\ntaken, including any review of the affairs of the Seller, the Servicer or
\nRaytheon, shall be deemed to constitute any representation or warranty by the
\nManaging Facility Agent, either Administrative Agent or the Co-Administrative
\nAgents to any Purchaser. Each Purchaser represents to the Managing Facility
\nAgent, each Administrative Agent and the Co-Administrative Agents that it has,
\nindependently and without reliance upon the Managing Facility Agent, either
\nAdministrative Agent, the Co-Administrative Agents or any other Purchaser, and
\nbased on such documents and information as it has deemed appropriate, made its
\nown appraisal of and investigation into the business, operations, property,
\nfinancial and other condition and creditworthiness of the Seller, the Servicer
\nand Raytheon and made its own decision to make its purchases hereunder and enter
\ninto this Agreement. Each Purchaser also represents that it will, independently
\nand without reliance upon the Managing Facility Agent, either Administrative
\nAgent or the Co-Administrative Agents or any Purchaser, and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit analysis, appraisals and decisions in taking or not taking
\naction under this Agreement and the other Purchase Documents, and to make such
\ninvestigation as it deems necessary to inform itself as to the business,
\noperations, property, financial and other condition and creditworthiness of the
\nSeller, the Servicer and Raytheon. Except for notices, reports and other
\ndocuments expressly required to be furnished to the Purchasers by the Managing
\nFacility Agent hereunder, neither the Managing Facility Agent, either
\nAdministrative Agent nor the Co-Administrative Agents shall have any duty or
\nresponsibility to provide any Purchaser with any credit or other information
\nconcerning the<\/p>\n
117<\/p>\n
business, operations, property, condition (financial or otherwise), prospects or
\ncreditworthiness of the Seller or Raytheon which may come into the possession of
\nthe Managing Facility Agent, either Administrative Agent or the
\nCo-Administrative Agents or any of their officers, directors, employees, agents,
\nattorneys-in-fact or Affiliates.<\/p>\n
10.7 Indemnification. The Purchasers agree to indemnify
\n —————
\nthe Managing Facility Agent and each Administrative Agent in its capacity as
\nsuch (to the extent not reimbursed by the Seller or Raytheon and without
\nlimiting the obligation of the Seller or Raytheon to do so), ratably according
\nto the respective amounts of their Commitments, from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements of any kind whatsoever which may at any time
\n(including, without limitation, at any time after the Outstanding Purchase Price
\nis reduced to zero) be imposed on, incurred by or asserted against the Managing
\nFacility Agent or either Administrative Agent in any way relating to or arising
\nout of this Agreement, any other Purchase Document or any documents contemplated
\nby or referred to herein or therein or the transactions contemplated hereby or
\nthereby or any action taken or omitted by the Managing Facility Agent or either
\nAdministrative Agent under or in connection with any of the foregoing; provided
\n ——–
\nthat no Purchaser shall be liable for the payment of any portion of such
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements resulting solely from the Managing Facility
\nAgent’s or either Administrative Agent’s gross negligence or willful misconduct.
\nThe agreements in this subsection shall survive the reduction of the Outstanding
\nPurchase Price to zero and payment of all other amounts payable hereunder.<\/p>\n
10.8 Managing Facility Agent and Administrative Agent in
\n —————————————————
\nTheir Individual Capacities. The Managing Facility Agent and each Administrative
\n—————————
\nAgent and their respective Affiliates may make loans to, accept deposits from
\nand generally engage in any kind of business with the Seller, the Servicer, RAC
\nand Raytheon and their Affiliates as though the Managing Facility Agent were not
\nthe Managing Facility Agent, or such Administrative Agent was not an
\nAdministrative Agent, hereunder and under the other Purchase Documents. With
\nrespect to purchases made by it, the Managing Facility Agent and each
\nAdministrative Agent shall have the same rights and powers under this Agreement
\nand the other Purchase Documents as any Purchaser and may exercise the same as
\nthough it were not the Managing Facility Agent or an Administrative Agent, as
\nthe case may be, and the terms “Purchaser” and “Purchasers” shall include the
\nManaging Facility Agent and each Administrative Agent, each in its individual
\ncapacity.<\/p>\n
10.9 Successor Managing Facility Agent or Administrative
\n —————————————————
\nAgent. The Managing Facility Agent may resign as Managing Facility Agent upon 30
\n—–
\ndays’ notice to the Purchasers and such resignation shall be effective upon the
\nearlier of (i) the expiration of such 30 day notice period and (ii) the
\nappointment of a successor Managing Facility Agent pursuant to the provisions of
\nthis Section 10.9.; provided that, if a successor Managing Facility Agent shall
\n ——– —-
\nnot have been appointed prior to the end of such 30 day notice period, the
\nManaging Facility Agent shall remain the Administrative Agent until a successor
\nManaging Facility Agent is appointed in accordance with this Section 10.9. If
\nthe Managing Facility Agent shall resign as Managing Facility Agent under this
\nAgreement and the other Purchase Documents, then the Required Purchasers shall
\nappoint from among the Purchasers a successor agent for the Purchasers, which
\nsuccessor agent shall, subject to the consent of the Seller and Raytheon (which<\/p>\n
118<\/p>\n
consent shall not be unreasonably withheld), succeed to the rights, powers and
\nduties of the Managing Facility Agent including its rights powers and duties as
\nAdministrative Agent hereunder, and the term “Managing Facility Agent” shall
\nmean such successor agent effective upon its appointment, and the former
\nManaging Facility Agent’s rights, powers and duties as Managing Facility Agent
\nand as an Administrative Agent shall be terminated, without any other or further
\nact or deed on the part of such former Managing Facility Agent or any of the
\nparties to this Agreement or any holder of an Assignment. After any retiring
\nManaging Facility Agent’s resignation as Managing Facility Agent, the provisions
\nof this subsection shall inure to its benefit as to any actions taken or omitted
\nto be taken by it while it was Managing Facility Agent under this Agreement and
\nthe other Purchase Documents. The rights, obligations and duties of the Old
\nAdministrative Agent shall be governed by the terms and provisions of the
\nletters, dated as of March 9, 2001 and March 8, 2002, among the Old
\nAdministrative Agent, Raytheon, Raytheon Credit and the Managing Facility Agent.<\/p>\n
SECTION 11. MISCELLANEOUS<\/p>\n
11.1 Amendments and Waivers. Neither this Agreement nor
\n ———————-
\nany other Purchase Document nor any terms hereof or thereof may be amended,
\nsupplemented or modified except in accordance with the provisions of this
\nsubsection. Unless otherwise specifically provided herein, with the written
\nconsent of the Majority Purchasers, the Managing Facility Agent, the Seller, the
\nServicer, RAC and Raytheon may, from time to time, enter into written
\namendments, supplements or modifications hereto and to the other Purchase
\nDocuments for the purpose of adding or deleting any provisions to this Agreement
\nor the other Purchase Documents or changing in any manner the rights of the
\nPurchasers, the Seller, the Servicer, RAC, or Raytheon hereunder or thereunder
\nor waiving, on such terms and conditions as the Managing Facility Agent may
\nspecify in such instrument, any of the requirements of this Agreement or the
\nother Purchase Documents; provided, however, that no such waiver and no such
\n ——– ——-
\namendment, supplement or modification shall (a) increase the Commitment of any
\nPurchaser or extend the Expiration Date or reduce the rate or amount of interest
\nor any fee payable to any Purchaser hereunder or extend (beyond the applicable
\nperiod of grace) the scheduled date for any payment or deposit by the Seller or
\nthe Servicer (if not then the Seller) hereunder, in each case without the
\nconsent of the Purchaser affected thereby, or (b) (i) amend, modify or waive any
\nprovision of this subsection or reduce the percentage specified in or amend the
\ndefinitions of “Required Purchasers”, or “Majority Purchasers”, (ii) consent to
\nthe assignment or transfer by the Seller of any rights and obligations under
\nthis Agreement and the other Purchase Documents, (iii) take action with respect
\nto any Purchased Receivable pursuant to subsection 7.1(b)(iii), (iv) amend the
\ncriteria set forth in the definition of “Eligible Receivable” or “Ineligible
\nReceivable” or any definition contained in either such definition if the effect
\nthereof is to decrease the Seller’s or RAC’s repurchase obligation, (v) after
\nthe occurrence of a Rating Event release or reassign any material interest of
\nthe Purchasers in the Financed Aircraft (except as provided in subsections
\n11.10, 11.24 or 11.25), (vi) release Raytheon as Guarantor under the Guarantee
\nor make any material modification or amendment to the Guarantee or release RAC
\nfrom its obligations under the Repurchase Agreement or make any material
\nmodification or amendment to the Repurchase Agreement, (vii) release the
\ninterest of the Purchasers in the Intercompany Purchase Agreement, (viii) amend
\nthe definition of “Aggregate Repurchase Obligation” or amend subsection 2.10(b)
\nor any definition contained therein if the effect thereof is to decrease the
\nRARC Repurchase Obligation, (ix) amend, modify or waive any provision of
\nsubsection 2.6, 2.18, 2.20(a) or<\/p>\n
119<\/p>\n
11.7(a), or (x) amend the definition of “Purchase Price”, without, in each case
\nspecified in this clause (b), the written consent of all the Purchasers, or (c)
\namend, modify or waive any provision of Section 10 without the written consent
\nof the then Managing Facility Agent or (d) waive any Amortization Event
\n(including, any Trigger Amortization Event, any Specified Amortization Event or
\nany Note Rate Amortization Event) or its consequences without the written
\nconsent of the Required Purchasers. Any such waiver and any such amendment,
\nsupplement or modification shall apply equally to each of the Purchasers and
\nshall be binding upon the Seller, the Servicer, the Purchasers and the Managing
\nFacility Agent. In the case of any waiver, the Seller, the Servicer, RAC,
\nRaytheon, the Purchasers and the Managing Facility Agent shall be restored to
\ntheir former position and rights hereunder and under any other Purchase
\nDocuments, and any Amortization Event (including, any Trigger Amortization
\nEvent, any Specified Amortization Event or any Note Rate Amortization Event)
\nwaived shall be deemed to be cured and not continuing; but no such waiver shall
\nextend to any subsequent or other Amortization Event, Trigger Amortization
\nEvent, Specified Amortization Event or Note Rate Amortization Event, or impair
\nany right consequent thereon.<\/p>\n
Notwithstanding any of the provisions of this Section 11.1 no
\nprovision of the Agreement which affects the rights or obligations of the Old
\nAdministrative Agent shall be amended without the written consent of the Old
\nAdministrative Agent.<\/p>\n
11.2 Notices. (a) All notices, requests, demands and
\n ——-
\nconsents to or upon the respective parties hereto to be effective shall be in
\nwriting (including by telecopy or telex), and, unless otherwise expressly
\nprovided herein, shall be deemed to have been duly given or made when delivered
\nby hand, or three Business Days after being deposited in the mail, postage
\nprepaid, or, in the case of telecopy notice, when received, or, in the case of
\ntelex notice, when sent, answerback received, addressed as follows in the case
\nof the Seller and the Managing Facility Agent, and as set forth in Schedule I in
\nthe case of the Co-Administrative Agents and any Purchaser, or to such other
\naddress as may be hereafter notified by the respective parties hereto:<\/p>\n
120<\/p>\n
The Seller: Raytheon Aircraft Receivables Corporation
\n 9709 East Central
\n Wichita, Kansas 67206
\n Attention: Andrew A. Mathews
\n Telephone: (316) 676-7166
\n Telecopy: (316) 676-6975<\/p>\n
The Servicer: Raytheon Aircraft Credit Corporation
\n 9709 East Central Avenue
\n Wichita, Kansas 67206
\n Attention: Andrew A. Mathews
\n Telephone: (316) 676-7673
\n Telecopy: (316) 676-6975<\/p>\n
The Managing
\n Facility Agent: Bank of America, N.A.
\n Agency Management 10831
\n Mail Code: CA5-701-05-19
\n 1455 Market Street, 5th Floor
\n San Francisco, California 94103
\n Attention: Kathleen Carry
\n Telephone: (415) 436-4001
\n Telecopy: (415) 503-5001<\/p>\n
With a copy to: Bank of America, N.A.
\n Credit Services – West
\n Mail Code: CA4-706-05-09
\n 1850 Gateway Boulevard
\n Concord, California 94520
\n Attention: Pamela Greer-Tillman
\n Telephone: (925) 675-8453
\n Telecopy: (925) 969-2815
\n Account No.: 12335-16573;<\/p>\n
provided that any notice, request or demand to or upon the Managing Facility
\n——–
\nAgent or the Purchasers pursuant to subsection 2.2, 2.3, 2.8 or 2.20 shall not
\nbe effective until received.<\/p>\n
(b) The Managing Facility Agent agrees to promptly notify
\nthe Purchasers of (i) each address of the Seller or the Servicer forwarded to
\nthe Managing Facility Agent under subsection 6.1(f) or 6.2(e), respectively, and
\n(ii) any change in the fiscal year of the Seller under subsection 7.1(h).<\/p>\n
11.3 No Waiver; Cumulative Remedies. No failure to
\n ——————————
\nexercise and no delay in exercising, on the part of the Managing Facility Agent,
\neither Administrative Agent or any Purchaser, any right, remedy, power or
\nprivilege hereunder shall operate as a waiver thereof; nor shall any single or
\npartial exercise of any right, remedy, power or privilege hereunder preclude any
\nother or further exercise thereof or the exercise of any other right, remedy,
\npower or<\/p>\n
121<\/p>\n
privilege. The rights, remedies, powers and privileges herein provided are
\ncumulative and not exclusive of any rights, remedies, powers and privileges
\nprovided by law.<\/p>\n
11.4 Survival of Representations and Warranties. All
\n ——————————————
\nrepresentations and warranties made hereunder and in any document, certificate
\nor statement delivered pursuant hereto or in connection herewith shall survive
\nthe execution and delivery of this Agreement.<\/p>\n
11.5 Payment of Expenses and Taxes. The Seller agrees (a)
\n —————————–
\nto pay or reimburse the Managing Facility Agent and each Administrative Agent
\nfor all its out-of-pocket costs and expenses incurred in connection with the
\ndevelopment, preparation and execution of, and any amendment, supplement or
\nmodification to, this Agreement, the other Purchase Documents, any Commitment
\nTransfer Supplement executed and delivered pursuant to subsection 11.6 and any
\nother document prepared in connection herewith or therewith, and the
\nconsummation and administration of the transactions contemplated hereby and
\nthereby, including, without limitation, the reasonable fees and disbursements of
\ncounsel to the Managing Facility Agent and such Administrative Agent, (b) to pay
\nor reimburse each Purchaser, the Managing Facility Agent and each Administrative
\nAgent for all its respective costs and expenses incurred in connection with the
\nenforcement or preservation of any rights under this Agreement, the other
\nPurchase Documents and any such other documents, including, without limitation,
\nreasonable fees and disbursements of counsel to the Managing Facility Agent,
\nsuch Administrative Agent and to the several Purchasers (including, but not
\nlimited to, allocated costs of in-house counsel and costs incurred by counsel
\nwith respect to the Foreign Receivables and the Affiliate Receivables), and (c)
\nto pay, indemnify, and hold each Purchaser, the Managing Facility Agent, each
\nAdministrative Agent and each Co-Administrative Agent harmless from, any and all
\nrecording and filing fees and any and all liabilities with respect to, or
\nresulting from any delay in paying, stamp, excise and other taxes, if any, which
\nmay be payable or determined to be payable in connection with the execution and
\ndelivery of, or consummation or administration of any of the transactions
\ncontemplated by, or any amendment, supplement or modification of, or any waiver
\nor consent under or in respect of, this Agreement, the other Purchase Documents
\nand any such other documents (all the foregoing, collectively, the “indemnified
\n ———–
\nliabilities”), provided, that the Seller shall have no obligation hereunder to
\n———– ——–
\nthe Managing Facility Agent, either Administrative Agent or any Purchaser (each,
\nan “Indemnitee”) with respect to indemnified liabilities arising from (i) the
\n ———-
\ngross negligence or willful misconduct of such Indemnitee, (ii) legal
\nproceedings commenced against such Indemnitee by any security holder or creditor
\nthereof arising out of and based upon rights afforded any such security holder
\nor creditor solely in its capacity as such, or (iii) legal proceedings commenced
\nagainst such Indemnitee by any other Purchaser or by any Transferee. The
\nagreements in this subsection shall survive the completion of the Amortization
\nPeriod.<\/p>\n
11.6 Successors and Assigns; Participations; Purchasing
\n ————————————————–
\nParties.
\n——-<\/p>\n
(a) This Agreement shall be binding upon and inure to the
\nbenefit of the Seller, the Purchasers, the Co-Administrative Agents, the
\nManaging Facility Agent, the Administrative Agent and their respective
\nsuccessors and assigns, except that (i) the Seller may not assign or transfer
\nany of its rights or obligations under this Agreement without the prior written
\nconsent of the Managing Facility Agent, the Administrative Agent and each
\nPurchaser and (ii) certain governmental authorities in foreign jurisdictions may
\nrequire the completion of certain<\/p>\n
122<\/p>\n
procedures in order for any such assignment to be effective with respect to the
\nForeign Receivables and the Affiliate Receivables.<\/p>\n
(b) Any Purchaser may, in the ordinary course of its
\ncommercial banking business and in accordance with applicable law, at any time
\nsell to one or more banks or other entities (“Participants”) participating
\n ————
\ninterests in such Purchaser’s Outstanding Purchase Price, the Commitment of such
\nPurchaser or any other interest of such Purchaser hereunder and under the other
\nPurchase Documents. In the event of any such sale by a Purchaser of
\nparticipating interests to a Participant, such Purchaser’s obligations under
\nthis Agreement to the other parties to this Agreement shall remain unchanged,
\nsuch Purchaser shall remain solely responsible for the performance thereof, such
\nPurchaser shall be the “Purchaser” for all purposes under this Agreement and the
\nother Purchase Documents, and the Seller and the Managing Facility Agent shall
\ncontinue to deal solely and directly with such Purchaser in connection with such
\nPurchaser’s rights and obligations under this Agreement and the other Purchase
\nDocuments. The Seller agrees that, upon the occurrence and continuance of a
\nRating Event and an Amortization Event of the type described in subsection
\n8.1(a), (b), (i) or (j), each Participant shall be deemed to have the right of
\nsetoff in respect of its participating interest in amounts owing under this
\nAgreement to the same extent as if the amount of its participating interest were
\nowing directly to it as a Purchaser under this Agreement; provided that such
\n ——–
\nParticipant shall only be entitled to such right of setoff pursuant to this
\nsentence if it shall have agreed in the agreement pursuant to which it shall
\nhave acquired its participating interest to share with the Purchasers the
\nproceeds thereof as provided in subsection 11.7. The Seller also agrees that
\neach Participant shall be entitled to the benefits of subsections 2.22, 2.23 and
\n2.24 and 11.5 with respect to its participation in the Commitments and the
\nOutstanding Purchase Price; provided that no Participant shall be entitled to
\n ——–
\nreceive any greater amount pursuant to such subsections than the transferor
\nPurchaser would have been entitled to receive in respect of the amount of the
\nparticipation transferred by such transferor Purchaser to such Participant had
\nno such transfer occurred. Promptly after the sale of any such participation,
\nthe selling Purchaser shall give the Managing Facility Agent, Servicer and
\nSeller notice of the amount sold and the identity of the Participant.<\/p>\n
(c) Any Purchaser may, in the ordinary course of its
\ncommercial banking business and in accordance with applicable law, at any time
\nsell to any Purchaser or any affiliate thereof and, with the consent of the
\nSeller and the Managing Facility Agent (which in each case shall not be
\nunreasonably withheld), to one or more additional financial institutions (each,
\na “Purchasing Party”) all or any part of such Purchaser’s Outstanding Purchase
\n —————-
\nPrice, the Commitment of such Purchaser or any other interest of such Purchaser
\nhereunder and under the other Purchase Documents; provided that such assignment
\n ——–
\nshall be in a minimum amount of $1,000,000 unless such assignment is to a
\nfinancial institution not then a party to this Agreement, in which case such
\nassignment shall be in a minimum amount of $10,000,000. Each such assignment
\nshall be made pursuant to a Commitment Transfer Supplement executed by such
\nPurchasing Party, such Transferor Purchaser and, in the case of a Purchasing
\nParty that is not then a Purchaser or an Affiliate thereof, by the Seller and
\nthe Managing Facility Agent, and delivered to the Managing Facility Agent for
\nits acceptance and recording in the Register. Any SPC may, without obtaining
\nany consent hereunder, assign all or a portion of its interests in any Purchased
\nReceivable under this Agreement to its SPC Bank, its Liquidity Bank or another
\nSPC<\/p>\n
123<\/p>\n
managed by the same SPC Bank as such SPC or any other SPC Bank hereunder. Each
\nsuch assignment shall be made pursuant to written notice (a “Transfer Notice”)
\n —————
\ndelivered to the Managing Facility Agent for recording in the Register. Upon
\nthe execution, delivery, acceptance (if required) and recording of any Transfer
\nNotice or Commitment Transfer Supplement, as the case may be, from and after the
\nTransfer Effective Date determined pursuant to such Commitment Transfer
\nSupplement (or after the effective date set forth in the Transfer Notice), (x)
\nthe Purchasing Party thereunder shall be a party hereto and, to the extent
\nprovided in such Commitment Transfer Supplement (or such Transfer Notice, as the
\ncase may be), have the rights and obligations of a Purchaser hereunder with a
\nCommitment as set forth therein, and (y) the transferor Purchaser thereunder
\nshall, to the extent provided in such Commitment Transfer Supplement (or such
\nTransfer Notice, as the case may be), be released from its obligations under
\nthis Agreement (and, in the case of a Commitment Transfer Supplement, or
\nTransfer Notice, as the case may be, covering all or the remaining portion of a
\ntransferor Purchaser’s rights and obligations under this Agreement, such
\ntransferor Purchaser shall cease to be a party hereto). Such Commitment Transfer
\nSupplement (or such Transfer Notice, as the case may be) shall be deemed to
\namend this Agreement to the extent, and only to the extent, necessary to reflect
\nthe addition of such Purchasing Party and the resulting adjustment of Commitment
\nPercentages or Available Commitment Percentages arising from the purchase by
\nsuch Purchasing Party of all or a portion of the rights and obligations of such
\ntransferor Purchaser under this Agreement.<\/p>\n
(d) The Managing Facility Agent shall maintain at its
\naddress referred to in subsection 11.2 a copy of each Commitment Transfer
\nSupplement and each Transfer Notice delivered to it and a register (the
\n“Register”) for the recordation of the names and addresses of the Purchasers and
\n ——–
\nthe Commitment of, and proportionate share of the Outstanding Purchase Price
\nfrom time to time payable to, each Purchaser from time to time. The entries in
\nthe Register shall be conclusive, in the absence of manifest error, and the
\nSeller, the Managing Facility Agent and the Purchasers may treat each Person
\nwhose name is recorded in the Register as the holder of the Commitment recorded
\ntherein for all purposes of this Agreement. The Register shall be available for
\ninspection by the Seller, the Servicer or any Purchaser at any reasonable time
\nand from time to time upon reasonable prior notice to the Managing Facility
\nAgent.<\/p>\n
(e) Upon its receipt of a Commitment Transfer Supplement
\nor a Transfer Notice executed by a transferor Purchaser and Purchasing Party
\n(and, in the case of a Purchasing Party that is not then a Purchaser or an
\nAffiliate thereof, by the Seller and the Managing Facility Agent) and, except in
\nthe case of a transfer from an SPC to its Liquidity Bank, payment by the
\ntransferor Purchaser or the Purchasing Party of a servicing fee of $3,500 to the
\nManaging Facility Agent, the Managing Facility Agent shall (i) promptly accept
\nsuch Commitment Transfer Supplement or Transfer Notice, as the case may be, and
\n(ii) on the Transfer Effective Date determined pursuant thereto record the
\ninformation contained therein in the Register and give notice of such acceptance
\nand recordation to the Seller, such transferor Purchaser and such Purchasing
\nParty.<\/p>\n
(f) The Seller authorizes each Purchaser to disclose to
\nany Participant or Purchasing Party (each, a “Transferee”) and any prospective
\n ———-
\nTransferee any and all financial information in such Purchaser’s possession
\nconcerning the Seller and its Affiliates which has been delivered to such
\nPurchaser by or on behalf of the Seller pursuant to this Agreement or which has
\nbeen delivered to such Purchaser by or on behalf of the Seller in connection
\nwith such<\/p>\n
124<\/p>\n
Purchaser’s credit evaluation of the Seller and its Affiliates prior to becoming
\na party to this Agreement; provided that such Transferee or such prospective
\n ——–
\nTransferee shall have agreed in writing to be bound by the same confidentiality
\nprovisions as a Purchaser with respect to all information delivered hereunder.<\/p>\n
(g) If, pursuant to this subsection, any interest in this
\nAgreement is transferred to any Transferee which is organized under the laws of
\nany jurisdiction other than the United States or any state thereof, the
\ntransferor Purchaser shall cause such Transferee, concurrently with the
\neffectiveness of such transfer, (i) to represent to the transferor Purchaser
\n(for the benefit of the transferor Purchaser, the Managing Facility Agent,
\nRaytheon, RAC, the Servicer and the Seller) that under applicable law and
\ntreaties no taxes will be required to be withheld by the Managing Facility
\nAgent, the Seller, Raytheon, RAC, the Servicer or the transferor Purchaser with
\nrespect to any payments to be made to such Transferee in respect of the
\nOutstanding Purchase Price, (ii) to furnish to the transferor Purchaser (and, in
\nthe case of any Purchasing Party registered in the Register, the Managing
\nFacility Agent and the Seller) (A) either U.S. Internal Revenue Service Form
\nW-8BEN or U.S. Internal Revenue Service Form W-8ECI (wherein such Transferee
\nclaims entitlement to complete exemption from U.S. federal withholding tax on
\nall interest payments hereunder) and (B) an Internal Revenue Service Form W-8 or
\nW-9 and (iii) to agree (for the benefit of the transferor Purchaser, the
\nManaging Facility Agent, Raytheon, RAC and the Seller) to provide the transferor
\nPurchaser (and, in the case of any Purchasing Party registered in the Register,
\nthe Managing Facility Agent and the Seller) a new Form W-8BEN or Form W-8ECI, or
\nForm W-8 or W-9, if applicable, upon the expiration or obsolescence of any
\npreviously delivered form and comparable statements in accordance with
\napplicable U.S. laws and regulations and amendments duly executed and completed
\nby such Transferee, and to comply from time to time with all applicable U.S.
\nlaws and regulations with regard to such withholding tax exemption.<\/p>\n
(h) Nothing herein shall prohibit any Purchaser from
\npledging or assigning its interests hereunder to any Federal Reserve Bank in
\naccordance with applicable law or prohibit any SPC from pledging or assigning
\nits interests hereunder to its SPC Bank.<\/p>\n
11.7 Adjustments; Set-off.
\n ——————–<\/p>\n
(a) If any Purchaser (a “Benefitted Purchaser”) shall at
\n ——————–
\nany time receive any payment of all or part of its Outstanding Purchase Price,
\nor interest thereon, or receive any collateral in respect thereof (whether
\nvoluntarily or involuntarily, by set-off, pursuant to events or proceedings of
\nthe nature referred to in subsection 8.1(j) or pursuant to the Guarantee, the
\nRepurchase Agreement or otherwise), in a greater proportion than any such
\npayment to or collateral received by any other Purchaser, if any, in respect of
\nsuch other Purchaser’s Outstanding Purchase Price, or interest payable thereon,
\nsuch Benefitted Purchaser shall purchase for cash from the other Purchasers such
\nportion of each such other Purchaser’s Outstanding Purchase Price, or shall
\nprovide such other Purchasers with the benefits of any such collateral, or the
\nproceeds thereof, as shall be necessary to cause such Benefitted Purchaser to
\nshare the excess payment or benefits of such collateral or proceeds ratably with
\neach of the Purchasers; provided, however, that if all or any portion of such
\n ——– ——-
\nexcess payment or benefits is thereafter recovered from such Benefitted
\nPurchaser, such purchase shall be rescinded, and the Purchase Price and benefits
\nreturned, to the extent of such recovery, but without interest. The Seller
\nagrees that each Purchaser so purchasing a portion of another Purchaser’s
\nOutstanding<\/p>\n
125<\/p>\n
Purchase Price may exercise all rights of payment (including, without
\nlimitation, rights of set-off) with respect to such portion as fully as if such
\nPurchaser were the direct holder of such portion.<\/p>\n
(b) In addition to any rights and remedies of the
\nPurchasers provided by law, each Purchaser shall have the right, without prior
\nnotice to the Seller, any such notice being expressly waived by the Seller to
\nthe extent permitted by applicable law, upon the occurrence and continuance of a
\nRating Event or an Amortization Event of the type described in subsection
\n8.1(a), (b), (i) or (j), to set-off and appropriate and apply against such
\namount any and all deposits (general or special, time or demand, provisional or
\nfinal), in any currency, and any other credits, indebtedness or claims, in any
\ncurrency, in each case whether direct or indirect, absolute or contingent,
\nmatured or unmatured, at any time held or owing by such Purchaser or any branch
\nor agency thereof to or for the credit or the account of the Seller. Each
\nPurchaser agrees promptly to notify the Seller and the Managing Facility Agent
\nafter any such set-off and application made by such Purchaser, provided that the
\n ——–
\nfailure to give such notice shall not affect the validity of such set-off and
\napplication.<\/p>\n
11.8 Responsibilities of the Seller. Anything herein to
\n ——————————
\nthe contrary notwithstanding:<\/p>\n
(a) the Seller shall perform all of its obligations under
\n Contracts related to the Purchased Receivables to the same extent as
\n if such Purchased Receivables had not been sold hereunder and the
\n exercise by either Administrative Agent or the Managing Facility Agent
\n or any Purchaser of any of their rights hereunder shall not relieve
\n the Seller from such obligations or its obligations with respect to
\n such Purchased Receivables; and<\/p>\n
(b) neither Administrative Agent, nor the Managing
\n Facility Agent nor any Purchaser shall have any obligation or
\n liability with respect to any Purchased Receivables or the related
\n Contracts or Financed Aircraft, nor shall any of them be obligated to
\n perform any of the obligations of the Seller thereunder.<\/p>\n
11.9 Optional Repurchase. If the Outstanding Purchase
\n ——————-
\nPrice at any time during the Amortization Period is less than 10% of the maximum
\nOutstanding Purchase Price at any time during the Revolving Period, then on any
\nSettlement Date thereafter the Seller may, by 10 days prior irrevocable notice
\nto the Managing Facility Agent, repurchase the ownership interests in the
\nPurchased Receivables by payment to the Managing Facility Agent for the account
\nof the Purchasers of an amount equal to the sum of (i) the Outstanding Purchase
\nPrice on such Settlement Date, (ii) interest accrued to such Settlement Date and
\n(iii) all other amounts payable to the Managing Facility Agent and the
\nPurchasers under this Agreement.<\/p>\n
11.10 Reassignments. (a) The Purchasers (or a Dissenting
\n ————-
\nPurchaser, as the case may be) shall assign (subject to the Purchasers’ right to
\nreceive Net Recoveries in certain circumstances as described herein) to the
\nSeller all their (or its) ownership interests in any Purchased Receivable (or
\nportion thereof) sold hereunder (i) which has been repurchased pursuant to
\nsubsection 2.8(b) or 2.13(c) (in the case of repurchases from a Dissenting
\nPurchaser) or subsection 2.7(b), 2.10A, 2.10, 2.11, 2.12, or 11.9 (in all other
\ncases) or for which an indemnity in an amount satisfactory to the Managing
\nFacility Agent and the Purchasers has been<\/p>\n
126<\/p>\n
paid pursuant to subsection 9.1(a)(vi) or 9.1(a)(xii) or (ii) when the Principal
\nBalance of any such Purchased Receivable has been reduced to zero. In connection
\nwith reassignments pursuant to this subsection 11.10(a), the Managing Facility
\nAgent, the Administrative Agent and the Purchasers shall promptly execute and
\ndeliver to the Seller, at the Seller’s expense, such documents and instruments
\nof reassignment as the Seller may reasonably request.<\/p>\n
(b) With respect to any Contract for which all amounts
\noutstanding thereunder (including accrued interest) are paid prior to the Final
\nPayment Date of such Contract, and upon receipt by the Managing Facility Agent
\nof certification by the Servicer of such prepayment in full, the Administrative
\nAgent agrees to execute such documents and instruments (including releases of
\nsecurity interests) for recording and filing with the FAA Registry which are
\nnecessary to release the Lien on the related Financed Aircraft as a result of
\nsuch prepayment in full. In order to facilitate the business operations of the
\nSeller and the Servicer, the Administrative Agent may provide the Servicer with
\na limited number of executed releases; provided that, the Servicer shall not
\n ——–
\nfile any such release without the written consent of the Managing Facility
\nAgent; provided further that, the Servicer shall promptly return all such
\n ——– ——-
\nreleases to the Managing Facility Agent upon the occurrence of an Amortization
\nEvent or if the Managing Facility Agent shall so request. With respect to any
\nsubstitution of Lease Receivables made pursuant to subsection 2.13(e), the
\nAdministrative Agent agrees to execute such documents and instruments (including
\nreleases of security interests) for recording and filing with the FAA Registry
\nwhich are necessary (i) to release the Lien on the lease related to the Replaced
\nLease Receivable so long as, prior to or concurrently with the recording and
\nfiling with the FAA Registry of any such document or instrument of release, the
\nconditions contained in subsection 5.2(e) with respect to the lease and the
\nFinanced Aircraft related to the Substituted Lease Receivable substituted for
\nsuch Replaced Lease Receivable have been satisfied and (ii) if amounts are
\nrequired to be paid pursuant to subsection 2.13(e) because the Outstanding
\nBalance of the Replaced Lease Receivable is greater than the Purchase Price of
\nthe Substituted Lease Receivable at the time the substitution occurs have been
\nso paid, to release the Financed Aircraft related to such Replaced Lease
\nReceivable. Each Purchaser authorizes the Administrative Agent to execute such
\ndocuments and instruments in accordance with this subsection 11.10(b) and with
\nrespect to Foreign Receivables and Affiliate Receivables, except for Uncertified
\nForeign Receivables, to take whatever action is necessary to release any Liens
\nin accordance with the intent of this subsection 11.10(b).<\/p>\n
(c) In connection with any Receivable not purchased by
\nthe Purchasers hereunder for which an FAA Assignment was filed with respect to
\nthe related Financed Aircraft, the Administrative Agent agrees to promptly
\nexecute such documents and instruments for recording and filing with the FAA
\nRegistry which are necessary to reassign to the Seller the interests covered by
\nsuch FAA Assignment in such Financed Aircraft and to take whatever actions with
\nrespect to any Foreign Receivable and any Affiliate Receivables are necessary to
\neffect a reassignment in the applicable foreign jurisdictions.<\/p>\n
(d) The Purchasers shall assign (subject to the
\nPurchasers’ right to receive Net Recoveries in certain circumstances as
\ndescribed herein) to Raytheon all of their ownership interests in any Receivable
\n(or portion thereof) purchased by Raytheon pursuant to paragraph 2(e) of the
\nGuarantee. In addition, the Purchasers shall assign (subject to the Purchasers’
\nright to receive Net Recoveries in certain circumstances as described herein) to
\nRAC all of their<\/p>\n
127<\/p>\n
ownership interests in any Receivable (or portion thereof) purchased by RAC
\npursuant to Section 2 of the Repurchase Agreement. In connection with
\nreassignments pursuant to this subsection 11.10(d), the Managing Facility Agent,
\nthe Administrative Agent and the Purchasers shall promptly execute and deliver
\nto Raytheon or RAC, as appropriate, such documents and instruments of
\nreassignment as Raytheon or RAC, as the case may be, may reasonably request.<\/p>\n
(e) All reassignments by the Managing Facility Agent, the
\nAdministrative Agent and the Purchasers pursuant to this Section 11.10 shall be
\nmade without any recourse, representation or warranty whatsoever.<\/p>\n
11.11 Intention of the Parties; Lien on Intercompany
\n ———————————————-
\nPurchase Agreement. (a) It is expressly intended that each purchase hereunder
\n——————
\nbe, and be construed as, an absolute sale of the Purchased Receivables by the
\nSeller to the Purchasers conveying good title thereto free and clear of any
\nLien, and that the Purchased Receivables not be part of the estate of the Seller
\nin the event of bankruptcy or insolvency of the Seller. It is further expressly
\nintended that such conveyance not be deemed a pledge of the Purchased Receivable
\nby the Seller to the Purchasers or the Administrative Agent for the ratable
\nbenefit of the Purchasers to secure a debt or other obligation of the Seller.
\nHowever, in the event that the Purchased Receivables are held to be the property
\nof the Seller, or if for any other reason this Agreement is held or deemed not
\nto effect an absolute sale of the Purchased Receivables, then (i) the parties
\nhereto intend that the extensions of credit from the Purchasers to the Seller
\nshall be a loan in a principal amount equal to the then Outstanding Purchase
\nPrice with interest payable thereon pursuant to subsection 2.17, (ii) the
\nparties hereto intend that this Agreement constitute a security agreement and
\n(iii) the Seller hereby grants to the Administrative Agent for the ratable
\nbenefit of the Purchasers, as collateral security for all of the obligations of
\nthe Seller and Raytheon Credit hereunder, a first priority security interest in
\nall of the right, title and interest of the Seller whether now owned or
\nhereafter acquired, in and to:<\/p>\n
(A) all accounts, contract rights, general
\n intangibles, chattel paper, instruments, documents, proceeds
\n of a letter of credit and money consisting of, arising from,
\n constituting or relating to the Purchased Receivables
\n (including, without limitation, amounts from time to time on
\n deposit in the Cash Collateral Account or the Concentration
\n Account);<\/p>\n
(B) all of the Seller’s rights in, under and to
\n the Contracts and its interest in the related Financed
\n Aircraft, including any security interests in such Financed
\n Aircraft, and the Applicable Leases;<\/p>\n
(C) all accounts, contract rights, general
\n intangibles, chattel paper, instruments, documents and money
\n and other rights arising from or by virtue of or constituting
\n the Collections; and<\/p>\n
(D) all proceeds of the collateral described in
\n the foregoing clauses A, B and C (clauses A through D,
\n collectively, the “Receivables Collateral”).
\n ———————-<\/p>\n
(b) In connection with the transfer of the Receivables
\nCollateral as aforesaid (whether or not such transfer constitutes a sale or the
\ngrant of a Lien) the Seller hereby grants to<\/p>\n
128<\/p>\n
the Administrative Agent for the ratable benefit of the Purchasers, as
\ncollateral security for all of the obligations of the Seller and Raytheon Credit
\nhereunder, a first priority security interest in all of the right, title and
\ninterest of the Seller, whether now owned or hereafter acquired, in and to the
\nIntercompany Purchase Agreement, including, without limitation, the obligation
\nof Raytheon Credit to make repurchases thereunder (together with the Receivables
\nCollateral, the “Collateral”).
\n ———-<\/p>\n
(c) In connection herewith, if this Agreement is held or
\ndeemed not to effect on absolute sale of the Purchased Receivables to the
\nPurchasers, the Managing Facility Agent and each Purchaser shall have all the
\nrights and remedies of a secured party and a creditor under the UCC and all
\nother applicable laws in each relevant jurisdiction. Without limiting the
\ngenerality of the foregoing, upon the occurrence and during the continuance of a
\nTrigger Amortization Event, if this Agreement is held or deemed not to effect an
\nabsolute sale of the Purchased Receivables to the Purchasers, with the consent
\nof the Required Purchasers the Managing Facility Agent may, or at the direction
\nof the Required Purchasers, the Managing Facility Agent shall, by notice to the
\nSeller, declare the Outstanding Purchase Price to be immediately due and
\npayable, whereupon such amount shall become immediately due and payable and, at
\nsuch time or at any time after such declaration, the Administrative Agent,
\nwithout demand of performance or other demand, presentment, protest,
\nadvertisement or notice of any kind (except any notice required by law referred
\nto below) to or upon the Seller or any other Person (all and each of which
\ndemands, defenses, advertisements and notices are hereby waived), may in such
\ncircumstances forthwith collect, receive, appropriate and realize upon the
\nCollateral, or any part thereof, and\/or may forthwith sell, lease, assign, give
\noption or options to purchase, or otherwise dispose of and deliver the
\nCollateral or any part thereof (or contract to do any of the foregoing), in one
\nor more parcels at public or private sale or sales, at any exchange, broker’s
\nboard or office of the Administrative Agent or any Purchaser or elsewhere upon
\nsuch terms and conditions as it may deem advisable and at such prices as it may
\ndeem best, for cash or on credit or for future delivery without assumption of
\nany credit risk. The Administrative Agent or any Purchaser shall have the right
\nupon any such public sale or sales, and, to the extent permitted by law, upon
\nany such private sale or sales, to purchase the whole or any part of the
\nCollateral so sold, free of any right or equity of redemption in the Seller,
\nwhich right or equity is hereby waived or released. The Seller further agrees,
\nat the Administrative Agent’s request, to assemble the Collateral and make it
\navailable to the Administrative Agent at places which the Administrative Agent
\nshall reasonably select, whether at the Seller’s premises or elsewhere. The
\nAdministrative Agent shall apply the net proceeds of any such collection,
\nrecovery, receipt, appropriation, realization or sale, after deducting all
\nreasonable costs and expenses of every kind incurred therein or incidental to
\nthe care or safekeeping of any of the Collateral or in any way relating to the
\nCollateral or the rights of the Administrative Agent and the Purchasers
\nhereunder, including, without limitation, reasonable attorneys’ fees and
\ndisbursements, to the payment in whole or in part of the Obligations, in such
\norder as the Administrative Agent in its reasonable discretion may elect, and
\nonly after such application and after the payment by the Administrative Agent of
\nany other amount required by any provision of law, including, without
\nlimitation, Section 9-610 of the UCC in the relevant jurisdiction, need the
\nAdministrative Agent account for the surplus, if any, to the Seller. To the
\nextent permitted by applicable law, the Seller waives all claims, damages and
\ndemands it may acquire against the Administrative Agent or any Purchaser arising
\nout of the exercise by them of any rights hereunder. If any notice of a proposed
\nsale or other disposition of<\/p>\n
129<\/p>\n
Collateral shall be required by law, such notice shall be deemed reasonable and
\nproper if given at least 10 days before such sale or other disposition. The
\nSeller shall remain liable for any deficiency if the proceeds of any sale or
\nother disposition of the Collateral are insufficient to pay the Obligations and
\nthe fees and disbursements of any attorneys employed by the Administrative Agent
\nor any Purchaser to collect such deficiency. The Seller authorizes the
\nAdministrative Agent and the Purchasers, at any time and from time to time, to
\nexecute, in connection with the sale provided for in this subsection 11.11(c),
\nany endorsements, assignments or other instruments of conveyance or transfer
\nwith respect to the Collateral.<\/p>\n
(d) Each Administrative Agent’s sole duty with respect to
\nthe custody, safekeeping and physical preservation of the Collateral in its
\npossession, under Section 9-207 of the UCC in the relevant jurisdiction or
\notherwise, shall be to deal with it in the same manner as such Administrative
\nAgent deals with similar property for its own account. Neither the Managing
\nFacility Agent, either Administrative Agent, any Co-Administrative Agent, any
\nPurchaser nor any of their respective directors, officers, employees or agents
\nshall be liable for failure to demand, collect or realize upon all or any part
\nof the Collateral or for any delay in doing so or shall be under any obligation
\nto sell or otherwise dispose of any Collateral upon the request of the Seller or
\notherwise. Nothing in this subsection 11.11 shall be construed to prejudice any
\nrights the Purchasers have as purchasers or owners of the Purchased Receivables.<\/p>\n
(e) The foregoing transfer, assignment, set-over and
\nconveyance does not constitute and is not intended to result in the creation or
\nan assumption by either Administrative Agent or any Purchaser of any obligation
\nof the Seller, the Servicer or any other Person in connection with the Purchased
\nReceivables or any agreement or instrument relating thereto, including, without
\nlimitation, any obligation to any Obligors or insurers, or in connection with
\nthe Intercompany Purchase Agreement.<\/p>\n
11.12 Leases; Grant of Security Interest. (a) The Seller
\n ———————————-
\nagrees to perform and to cause each Affiliate Obligor to perform all its
\nrespective obligations under (other than the payment by such Affiliate Obligor
\nof the rent payable under such Lease), and not to terminate or to permit
\n(voluntarily or involuntarily, whether during a bankruptcy case involving the
\nSeller or such Affiliate Obligor or otherwise) the termination of, any
\nApplicable Lease or any lease related to a Lease Receivable (other than in
\nconnection with substitutions of Lease Receivables in accordance with subsection
\n2.13(e)) or the lease by an Obligor on an ExIm Bank Receivable (such leases,
\ncollectively, the “Security Interest Leases”) sold or substituted hereunder;
\n ————————
\nprovided that (i) if a Substituted Lease Receivable which is substituted on any
\n——–
\nday other than a Settlement Date in accordance with subsection 2.13(e) has a
\nPurchase Price less than the related Replaced Lease Receivable, the Seller
\nagrees to deposit into the Concentration Account on the Settlement Date
\nfollowing such date of substitution (or, if a Remittance Event has occurred,
\nwithin two Business Days after such substitution) the difference between the
\nOutstanding Balance of such Replaced Lease Receivable and the Purchase Price of
\nsuch Substituted Lease Receivable and (ii) if such Security Interest Lease has
\nbeen declared to be in default, the Seller may terminate and may permit any
\nAffiliate Obligor to terminate, such Security Interest Lease if the Seller pays
\non the date of termination to the Administrative Agent for the account of the
\nPurchasers an amount equal to the aggregate amount of rent payable for the
\nremaining term under such Lease (including any interest thereon on amounts past
\ndue), up to the then Outstanding Balance of the related Receivable together with
\ninterest on such Outstanding Balance at the rate set forth in such<\/p>\n
130<\/p>\n
Lease Receivable or Applicable Lease related to such Affiliate Receivable for
\nthe period from the last date of payment on such Receivable (all of the
\nforegoing, including any damages resulting from a breach of the foregoing,
\ncollectively, the “Lease Obligations”). As collateral security for (i) the
\n —————–
\nprompt and complete payment and performance of the Lease Obligations and (ii)
\nthe agreement of the Seller not to reject or permit an Affiliate Obligor to
\nreject pursuant to 11 U.S.C. ss.365 any Lease after the occurrence of a
\nbankruptcy case involving the Seller or such Affiliate Obligor (and all other
\nObligations under this Agreement) the Seller does hereby grant, bargain, sell,
\nassign, transfer, convey, mortgage, pledge, grant a security interest in and
\nconfirm unto the Administrative Agent for the ratable benefit of the Purchasers
\nthe following:<\/p>\n
(A) each Financed Aircraft subject to a Security Interest
\n Lease, the related Receivable of which is sold or substituted
\n hereunder on the Closing Date or on any Settlement Date; and<\/p>\n
(B) all proceeds thereof (clauses A and B, collectively,
\n the “Lease Collateral”).
\n —————-<\/p>\n
(b) In connection with the foregoing grant, the
\nAdministrative Agent and each Purchaser shall have all the rights and remedies
\nof a secured party and a creditor under the UCC and all other applicable laws in
\neach relevant jurisdiction. Without limiting the generality of the foregoing,
\nupon the occurrence and during the continuance of a Trigger Amortization Event,
\nthe Administrative Agent, without demand of performance or other demand,
\npresentment, protest, advertisement or notice of any kind (except any notice
\nrequired by law referred to below) to or upon the Seller or any other Person
\n(all and each of which demands, defenses, advertisements and notices are hereby
\nwaived), may in such circumstances forthwith collect, receive, appropriate and
\nrealize upon the Lease Collateral, or any part thereof, and\/or may forthwith
\nsell, lease, assign, give option or options to purchase, or otherwise dispose of
\nand deliver the Lease Collateral or any part thereof (or contract to do any of
\nthe foregoing), in one or more parcels at a public or private sale or sales, at
\nany exchange, broker’s board or office of the Administrative Agent or any
\nPurchaser or elsewhere upon such terms and conditions as it may deem advisable
\nand at such prices as it may deem best, for cash or on credit or for future
\ndelivery without assumption of any credit risk. The Administrative Agent or any
\nPurchaser shall have the right upon any such public sale or sales, and, to the
\nextent permitted by law, upon any such private sale or sales, to purchase the
\nwhole or any part of the Lease Collateral so sold, free of any right or equity
\nof redemption in the Seller, which right or equity is hereby waived or released.
\nThe Seller further agrees, at the Administrative Agent’s request, to assemble
\nthe Lease Collateral, to the extent available to the Seller under applicable
\nlaw, and make it available to the Administrative Agent at places which the
\nAdministrative Agent shall reasonably select, whether at the Seller’s premises
\nor elsewhere. The Administrative Agent shall apply the net proceeds of any such
\ncollection, recovery, receipt, appropriation, realization or sale, after
\ndeducting all reasonable costs and expenses of every kind incurred therein or
\nincidental to the care or safekeeping of any of the Lease Collateral or in any
\nway relating to the Lease Collateral or the rights of the Administrative Agent
\nand the Purchasers hereunder, including, without limitation, reasonable
\nattorneys’ fees and disbursements, to the payment in whole or in part of the
\nLease Obligations, in such order as the Administrative Agent in its reasonable
\ndiscretion may elect, and only after such application and after the payment by
\nthe Administrative Agent of any other amount required by any provision of law,
\nincluding, without limitation, Section 9-610 of the<\/p>\n
131<\/p>\n
UCC in the relevant jurisdiction, need the Administrative Agent account for the
\nsurplus, if any, to the Seller. To the extent permitted by applicable law, the
\nSeller waives all claims, damages and demands it may acquire against the
\nAdministrative Agent or any Purchaser arising out of the exercise by them of any
\nrights hereunder. If any notice of a proposed sale or other disposition of Lease
\nCollateral shall be required by law, such notice shall be deemed reasonable and
\nproper if given at least 10 days before such sale or other disposition. The
\nSeller shall remain liable for any deficiency if the proceeds of any sale or
\nother disposition of the Lease Collateral are insufficient to pay the Lease
\nObligations and the fees and disbursements of any attorneys employed by the
\nAdministrative Agent or any Purchaser to collect such deficiency. The Seller
\nauthorizes the Administrative Agent and the Purchasers, at any time and from
\ntime to time, to execute, in connection with the sale provided for in this
\nsubsection 11.12(b), any endorsements, assignments or other instruments of
\nconveyance or transfer with respect to the Lease Collateral.<\/p>\n
(c) Each Administrative Agent’s sole duty with respect to the
\ncustody, safekeeping and physical preservation of the Lease Collateral in its
\npossession, under Section 9-207 of the UCC in the relevant jurisdiction or
\notherwise, shall be to deal with it in the same manner as such Administrative
\nAgent deals with similar property for its own account. Neither the Managing
\nFacility Agent, any Administrative Agent, any Co-Administrative Agent or any
\nPurchaser nor any of their respective directors, officers, employees or agents
\nshall be liable for failure to demand, collect or realize upon all or any part
\nof the Lease Collateral or for any delay in doing so or shall be under any
\nobligation to sell or otherwise dispose of any Lease Collateral upon the request
\nof the Seller or otherwise.<\/p>\n
11.13 Power of Attorney. (a) The Seller hereby irrevocably
\n —————–
\nconstitutes and appoints the Managing Facility Agent and any officer or agent
\nthereof, with full power of substitution, as its true and lawful
\nattorney-in-fact with full irrevocable power and authority in the place and
\nstead of the Seller and in the name of the Seller or in its own name, from time
\nto time after the occurrence and during the continuance of a Specified
\nAmortization Event or in connection with any action taken pursuant to subsection
\n11.11(c) or subsection 11.12(b) in the Managing Facility Agent’s discretion, for
\nthe purpose of carrying out the terms of this Agreement and obtaining the
\nbenefit of the Purchased Receivables, the Collections with respect thereto and
\nthe related Contracts and Financed Aircraft, to take any and all appropriate
\naction and to execute any and all documents and instruments which may be
\nnecessary to perform the duties and obligations of the Seller or the Servicer
\nunder this Agreement or desirable to accomplish the purposes of this Agreement,
\nincluding the power and right, on behalf of the Seller, without notice to or
\nassent by the Seller, to do the following after the occurrence and during the
\ncontinuance of a Specified Amortization Event or in connection with any action
\ntaken pursuant to subsection 11.11(c) or subsection 11.12(b):<\/p>\n
(i) in the name of the Seller or its own name, or
\n otherwise, to take possession of and endorse and collect any
\n checks, drafts, notes, acceptances or other instruments for
\n the payment of moneys due under any Purchased Receivable or on
\n account of Collections with respect thereto or the related
\n Contract or Financed Aircraft (collectively, the “Transferred
\n ———–
\n Property”) and to file any claim or to take any other action
\n ——–
\n or proceeding in any court of law or equity or otherwise
\n deemed appropriate by the Managing Facility Agent for the
\n purpose of<\/p>\n
132<\/p>\n
collecting any and all such moneys due under any Purchased
\n Receivable or with respect to any other Transferred Property
\n whenever payable;<\/p>\n
(ii) to pay or discharge taxes and Liens levied or
\n placed on or threatened against any of the Transferred
\n Property, to effect any repairs or any insurance called for by
\n the terms of this Agreement and to pay all or any part of the
\n premiums therefor and the costs thereof; and<\/p>\n
(iii) to file financing or continuation statements
\n under the UCC, or with respect to Foreign Receivables and
\n Affiliate Receivables, excluding Uncertified Foreign
\n Receivables, under the appropriate foreign statute, in any
\n relevant jurisdiction covering the interests of the
\n Administrative Agent, the Managing Facility Agent and the
\n Purchasers in the Transferred Property; and<\/p>\n
(iv) (A) to commence and prosecute any suits, actions
\n or proceedings at law or in equity in any court of competent
\n jurisdiction to collect any of the Transferred Property or any
\n thereof and to enforce any other right in respect of any
\n Transferred Property; (B) to defend any suit, action or
\n proceeding brought against the Seller with respect to any
\n Transferred Property; and (C) to settle, compromise or adjust
\n any suit, action or proceeding described in clause (B) above
\n and, in connection therewith, to give such discharges or
\n releases as the Managing Facility Agent may deem appropriate.<\/p>\n
(b) The Seller hereby ratifies all that said attorneys shall
\nlawfully do or cause to be done by virtue hereof. This power of attorney is a
\npower coupled with an interest and shall be irrevocable.<\/p>\n
11.14 Counterparts. This Agreement may be executed by one or
\n ————
\nmore of the parties to this Agreement on any number of separate counterparts,
\nand all of said counterparts taken together shall be deemed to constitute one
\nand the same instrument. A set of the copies of this Agreement signed by all the
\nparties shall be lodged with the Seller and the Managing Facility Agent.<\/p>\n
11.15 Severability; Headings. Any provision of this Agreement
\n ———————-
\nwhich is prohibited or unenforceable in any jurisdiction shall, as to such
\njurisdiction, be ineffective to the extent of such prohibition or
\nunenforceability without invalidating the remaining provisions hereof, and any
\nsuch prohibition or unenforceability in any jurisdiction shall not invalidate or
\nrender unenforceable such provision in any other jurisdiction. The section and
\nsubsection headings used in this Agreement are for convenience of reference only
\nand are not to affect the construction hereof or to be taken into consideration
\nin the interpretation hereof.<\/p>\n
11.16 Integration. This Agreement represents the agreement of
\n ———–
\nthe Seller, the Servicer, the Managing Facility Agent, each Administrative
\nAgent, the Co-Administrative Agents and the Purchasers with respect to the
\nsubject matter hereof, and there are no promises, undertakings, representations
\nor warranties by the Managing Facility Agent, either Administrative Agent, the
\nCo-Administrative Agents or any Purchaser relative to subject matter hereof not
\nexpressly set forth or referred to herein.<\/p>\n
133<\/p>\n
11.17 GOVERNING LAW. THIS AGREEMENT, THE ASSIGNMENTS AND THE
\n ————-
\nRIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,
\nAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
\nYORK.<\/p>\n
11.18 Submission To Jurisdiction; Waivers. Each of the Seller
\n ———————————–
\nand the Servicer hereby irrevocably and unconditionally:<\/p>\n
(a) submits for itself and its property in any legal action
\n or proceeding relating to this Agreement and the Assignments, or for
\n recognition and enforcement of any judgement in respect thereof, to
\n the non-exclusive general jurisdiction of the courts of the State of
\n New York, the courts of the United States of America for the Southern
\n District of New York, and appellate courts from any thereof;<\/p>\n
(b) consents that any such action or proceeding may be
\n brought in such courts and waives any objection that it may now or
\n thereafter have to the venue of any such action or proceeding in any
\n such court or that such action or proceeding was brought in an
\n inconvenient court and agrees not to plead or claim the same;<\/p>\n
(c) agrees that service of process in any such action or
\n proceeding may be effected by mailing a copy thereof by registered or
\n certified mail (or any substantially similar form of mail), postage
\n prepaid, to such Person at its address set forth in subsection 11.2 or
\n at such other address of which the Managing Facility Agent shall have
\n been notified pursuant thereto;<\/p>\n
(d) agrees that nothing herein shall affect the right to
\n effect service of process in any other manner permitted by law or
\n shall limit the right to sue in any other jurisdiction; and<\/p>\n
(e) waives, to the maximum extent not prohibited by law, any
\n right it may have to claim or recover in any legal action or
\n proceeding referred to in this subsection any special, exemplary,
\n punitive or consequential damages.<\/p>\n
11.19 Acknowledgements. (a) The Seller hereby acknowledges
\n —————-
\nwith respect to the transactions contemplated by the Purchase Documents that:<\/p>\n
(i) it has been advised by counsel in the
\n negotiation, execution and delivery of this Agreement and the
\n other Purchase Documents;<\/p>\n
(ii) neither the Managing Facility Agent, either
\n Administrative Agent, any Co-Administrative Agent nor any
\n Purchaser has any fiduciary relationship to the Seller; and<\/p>\n
(iii) no joint venture exists among the Purchasers or
\n among the Seller and the Purchasers or among the Guarantor,
\n RAC, the Servicer, the Seller and the Purchasers.<\/p>\n
134<\/p>\n
(b) By execution of this Agreement, each Purchaser
\nacknowledges and agrees to be bound by the provisions of paragraph 18 of the
\nGuarantee and paragraph 18 of the Repurchase Agreement.<\/p>\n
11.20 WAIVERS OF JURY TRIAL. THE SELLER, THE SERVICER, THE
\n ———————
\nMANAGING FACILITY AGENT, EACH ADMINISTRATIVE AGENT, EACH CO-ADMINISTRATIVE AGENT
\nAND EACH PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER PURCHASE
\nDOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.<\/p>\n
11.21 Bankruptcy Petition. (a) Each of the Seller, the
\n ——————-
\nServicer, the Managing Facility Agent, each Administrative Agent, each
\nCo-Administrative Agent and each Purchaser hereby covenants and agrees that,
\nprior to the date which is one year and one day after the payment in full of all
\noutstanding senior indebtedness of any SPC, it will not institute against, or
\njoin any other Person in instituting against, such SPC any bankruptcy,
\nreorganization, arrangement, insolvency or liquidation proceedings or other
\nsimilar proceeding under the laws of the United States or any state of the
\nUnited States.<\/p>\n
(b) Each of the Servicer, the Managing Facility Agent, each
\nAdministrative Agent, each Co-Administrative Agent and each Purchaser hereby
\ncovenants and agrees that, prior to the date that is one year and one day after
\nthe payment in full of the Outstanding Purchase Price and all amounts owing with
\nrespect thereto and hereunder, it will not institute against the Seller, or join
\nany other Person in instituting against the Seller, any bankruptcy,
\nreorganization, arrangement, insolvency or liquidation proceedings or other
\nsimilar proceedings under the laws of the United States or any state of the
\nUnited States.<\/p>\n
11.22 Confidentiality. Each of the Managing Facility Agent,
\n —————
\nthe Co-Administrative Agent and the Purchasers agrees to maintain the
\nconfidentiality of the Information (as defined below), except that Information
\nmay be disclosed (a) to its and its Affiliates’ directors, officers, employees
\nand agents, including accountants, legal counsel and other advisors (it being
\nunderstood that the Persons to whom such disclosure is made will be informed of
\nthe confidential nature of such Information and instructed to keep such
\nInformation confidential), (b) to the extent requested by any regulatory
\nauthority, (c) to the extent required by applicable laws or regulations or by
\nany subpoena or similar legal process, (d) to any other party to this Agreement,
\n(e) in connection with the exercise of any remedies hereunder or any suit,
\naction or proceeding relating to this Agreement or the enforcement of rights
\nhereunder, (f) subject to an agreement containing provisions substantially the
\nsame as those of this subsection, to any assignee of or Participant in, or any
\nprospective assignee of or Participant in, any of its rights or obligations
\nunder this Agreement, (g) with the consent of the Seller or (h) to the extent
\nsuch Information (i) becomes publicly available other than as a result of a
\nbreach of this subsection by such Person or (ii) becomes available to the
\nManaging Facility Agent, any Co-Administrative Agent or any Purchaser on a
\nnonconfidential basis from a source other than Raytheon, RAC, Raytheon Credit or
\nthe Seller. For the purposes of this Section, “Information” means all
\n ———–
\ninformation received from Raytheon, RAC, Raytheon Credit or the Seller relating
\nto Raytheon, RAC, Raytheon Credit or the Seller or their business, other than
\nany such information that is available to the Managing Facility Agent, any
\nCo-Administrative or any Purchaser on a<\/p>\n
135<\/p>\n
nonconfidential basis prior to disclosure by Raytheon, RAC, Raytheon Credit or
\nthe Seller; provided that, in the case of information received from the
\n ——–
\nRaytheon, RAC, Raytheon Credit or the Seller after the date hereof, such
\ninformation is clearly identified at the time of delivery as confidential. Any
\nPerson required to maintain the confidentiality of Information as provided in
\nthis subsection shall be considered to have complied with its obligation to do
\nso if such Person has exercised the same degree of care to maintain the
\nconfidentiality of such Information as such Person would accord to its own
\nconfidential information. The Seller and the Servicer hereby consent to the
\ndisclosure of any non-public information with respect to either of them as
\nrelated to this transaction and the assets sold hereunder by any SPC to any
\nrating agency, commercial paper dealer, or provider of a surety, guaranty or
\ncredit or liquidity enhancement to that SPC.<\/p>\n
11.23 Claims Against SPCs. The obligations of each SPC under
\n ——————-
\nthis Agreement and the other Purchase Documents are solely its corporate
\nobligations. No recourse shall be had for the payment of any amount owing by any
\nSPC under this Agreement or the other Purchase Documents or for the payment by
\nany SPC of any fee in respect of this Agreement or the other Purchase Documents
\nor any other obligations or claim of or against any SPC arising out of or based
\nupon this Agreement or the other Purchase Documents, against any of the SPC’s
\nemployees, officers, directors, incorporators or stockholders. It is further
\nagreed that each SPC shall be liable for any claims against such SPC in
\nconnection with this Agreement and other Purchase Documents only to the extent
\nthat such SPC has, on any date of determination, excess funds not required to
\npay or provide for the payment of all commercial paper notes that such SPC has
\noutstanding. Any and all claims against any SPC in connection with this
\nAgreement and the other Purchase Documents shall be subordinate to the claims of
\nthe holders of commercial paper notes issued by such SPC.<\/p>\n
11.24 Resales. (a) The Administrative Agent is authorized to
\n ——-
\nsell from time to time Purchased Receivables or 100% participations therein (the
\n“Resold Receivables”) to either (i) a third party buyer (each, a “Third Party
\n —————— ———–
\nBuyer”) or (ii) the Seller for ultimate sale to a Third Party Buyer (each, a
\n—–
\n“Resale”); provided that:
\n —— ——–<\/p>\n
(x) with respect to Resales made of the Receivables set forth
\non Schedule IV (the “Specified Resales”), the proceeds of such Specified Resales
\n —————–
\nshall reduce the aggregate Commitment of the Purchasers in accordance with
\nSection 2.9(b); and<\/p>\n
(y) with respect to Resales which are not Specified Resales,
\nthe aggregate Principal Balance of Purchased Receivables so resold shall not
\nexceed $400,000,000.<\/p>\n
The Principal Balance of a Resold Receivable will be determined at the time of
\nthe applicable Resale.<\/p>\n
(b) The sale of any Resold Receivable by the Administrative
\nAgent is conditioned upon receipt by the Managing Facility Agent, prior to or
\ncontemporaneously with such sale or on the next Settlement Date immediately
\nfollowing such sale, as the case may be, of a purchase price in immediately
\navailable funds (the “Resale Purchase Price”) from the Third Party Buyer and\/or
\n ———————
\nthe Seller equal to the Outstanding Balance of such Resold Receivable. On each
\nSettlement Date, the Seller shall deposit into the Collection Account the
\naggregate Resale Purchase Price of Receivables resold during the preceding
\nSettlement Period pursuant to clauses<\/p>\n
136<\/p>\n
(x) and (y) of Section 11.24(a), together with all amounts owing on the related
\nOutstanding Purchase Price on such Settlement Date, provided that if a
\n ——–
\nRemittance Event shall occur and be continuing, the Resale Purchase Price of any
\nResold Receivable shall be deposited into the Collection Account prior to or
\ncontemporaneously with such sale and any amounts due to be deposited into the
\nCollection Account on the next Settlement Date on account of previously
\nconsummated Resales shall be immediately deposited into the Collection Account.
\nEach Purchaser’s Outstanding Purchase Price will only be reduced as a result of
\nResales in accordance with the preceding sentence.<\/p>\n
(c) In connection with the Resales, the Administrative Agent
\nis authorized to execute, either directly or through a power of attorney
\nprovided to a representative of the Seller or the Servicer, all documentation
\nrequested by the Seller in order to transfer ownership of the Resold
\nReceivables, together with any interest held by the Administrative Agent in
\ncollateral securing the Resold Receivables, to either the Third Party Buyer or
\nthe Seller.<\/p>\n
(d) Any Resale, and any documentation executed in connection
\nwith a Resale, shall be made without any representations or warranties from the
\nPurchasers, except for any representations or warranties from the Administrative
\nAgent made in such capacity as are agreed upon with the Seller and the
\nServicer.<\/p>\n
11.25 Repurchase of Delinquent Receivables. On any Settlement
\n ————————————
\nDate, the Managing Facility Agent, at its discretion, may instruct the
\nAdministrative Agent to sell, without any further consent or approval of any of
\nthe Purchasers, any Delinquent Receivable for an amount not less than the
\nOutstanding Balance of such Delinquent Receivable on the last day of the
\nSettlement Period preceding such Settlement Date; provided that the Seller or,
\n ——–
\nif the Seller elects not to repurchase such Delinquent Receivable, RAC, shall
\nhave a right of first refusal to repurchase such Delinquent Receivable on such
\nSettlement Date by depositing into the Concentration Account cash in an amount
\nequal to the Outstanding Balance of such Delinquent Receivable. Any amounts
\nreceived by the Administrative Agent, or deposited into the Concentration
\nAccount, in respect of Delinquent Receivables sold pursuant to this Subsection
\n11.25 shall be applied and distributed in accordance with Subsections 2.15 and
\n2.16.<\/p>\n
11.26 Amendment to Repurchase Agreement. The Purchasers hereby
\n ———————————
\nconsent to the amendment and restatement of the Repurchase Agreement as set
\nforth in the Form of Second Amended and Restated Repurchase Agreement, attached
\nhereto as Exhibit G.<\/p>\n
(End of Page)<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be duly executed and delivered in New York, New York by their
\nproper and duly authorized officers as of the day and year first above written.<\/p>\n
RAYTHEON AIRCRAFT RECEIVABLES CORPORATION,
\n as Seller<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
RAYTHEON AIRCRAFT CREDIT CORPORATION,
\n as Servicer<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
BANK OF AMERICA, N.A.
\n as Managing Facility Agent,
\n Co-Administrative Agent and Administrative
\n Agent<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
JPMORGAN CHASE BANK,
\n as Co-Administrative Agent<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
J.P. MORGAN SECURITIES INC.,
\n as Syndication Agent<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
UBS AG, STAMFORD BRANCH,
\n solely as Administrative Agent<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n
By:_________________________________________
\n Name:
\n Title:<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,7104,7234,7545,8652],"corporate_contracts_industries":[9415,9418,9476],"corporate_contracts_types":[9564,9560],"class_list":["post-41231","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-credit-suisse-first-boston-inc","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_companies-raytheon-co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-financial__securities","corporate_contracts_industries-aerospace__space","corporate_contracts_types-finance__factor","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41231","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41231"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41231"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41231"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41231"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}