PROMISSORY NOTE
U.S.$22,000,000 Dated: October 5, 1999
FOR VALUE RECEIVED, the undersigned, THOMSON-CSF HOLDING
CORPORATION, a Delaware corporation (the "Payor"), HEREBY PROMISES TO PAY to the
order of IFE SALES, LLC, a Delaware limited liability company (the "Payee") (i)
the principal amount of $11,000,000 on the first anniversary of the making of
this Note, plus interest on such amount at an interest rate per annum equal at
all times to 5% and (ii) the principal amount of $11,000,000 on the second
anniversary of the making of this Note (the "Maturity Date"), plus interest on
such amount at an interest rate per annum equal at all times to 5%; provided,
however, that any overdue amount (after giving effect to any applicable grace
period) of principal, interest or other amounts payable hereunder shall, to the
fullest extent permitted by law, bear interest, payable on demand, at 8% per
annum.
SECTION 1. REPAYMENT. The Payor shall repay to the Payee on
the Maturity Date the aggregate principal amount hereof then outstanding.
SECTION 2. PREPAYMENTS. The Payor may, upon at least one
Business Day's (as defined below) notice to the Payee stating the proposed date
and principal amount of the prepayment, and if such notice is given the Payor
shall, prepay the outstanding principal amount hereof in whole or in part, with
accrued interest to the date of such prepayment on the amount prepaid, provided
that each optional partial prepayment shall be in a principal amount not less
than $250,000. "Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or Washington, D.C.
SECTION 3. PAYMENTS AND COMPUTATIONS. (a) The Payor shall make
each payment hereunder not later than 1:00 P.M. (New York City time) on the day
when due in U.S. dollars to the Payee at its address referred to in Section 6 or
at an account maintained by the Payee with a commercial bank organized under the
laws of the United States, or any State thereof, and designated by the Payee for
such purposes at least two Business Days in advance, in same day funds.
(b) All computations of interest shall be made on the basis of
a year of 365 or 366 days, as the case may be, for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest.
(d) In this Note in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding".
SECTION 4. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) The Payor shall fail to perform its obligations
pursuant to Section 1; or (ii) the Payor shall fail to pay any interest
on the outstanding principal amount hereof within 15 Business Days
after the same becomes due and payable; or
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(b) The Payor shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Payor seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur;
then, and in any such event, the Payee may, by written notice to the
Payor, declare this Note, all interest thereon and all other amounts
payable under this Note to be forthwith due and payable, whereupon this
Note, all such interest and all such amounts shall become and be
forthwith due and payable.
SECTION 5. RIGHT OF SET-OFF. Payor shall have the right to set
off against amounts due under this Note any amount then due and unpaid by the
Payee or the other parties to each of (i) the Purchase Agreement dated as of
January 25, 1999 between Thomson-CSF Sextant, Inc. and BE Aerospace, Inc. and
(ii) the Purchase Agreement dated as of September 1, 1999 among Thomson-CSF
Sextant, Inc., the Payee, BE Aerospace, Inc., BE Intellectual Property, Inc. and
Puritan-Bennett Aero Systems, Inc. owing to the Payor or any Affiliate thereof.
SECTION 6. NOTICES, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier) and mailed,
telecopied or delivered, if to the Payor, at its address at 100 West Commons
Boulevard, One Corporate Commons, Suite 302, New Castle, Delaware 19720, fax no.
(302) 326-0837, Attention: Dan O'Brien, with a copy to Thomson-CSF North
America, Inc., 99 Canal Center Plaza, Suite 480, Alexandria, Virginia 22314, fax
no. (703) 836-2967, Attention: Martita Cooper, Esq., and if to the Payee, at its
address at 1400 Corporate Center Way, Wellington, Florida 33414, fax no. (561)
791-3966, Attention: Thomas P. McCaffrey, or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
party. All such notices and communications shall, when mailed, be effective when
deposited in the mails, or when telecopied, be effective upon confirmation of
the sending thereof, or when delivered, be effective upon delivery thereof.
SECTION 7. BINDING EFFECT. This Note shall be binding upon and
inure to the benefit of the Payor and the Payee and their respective successors
and assigns, except that neither the Payor nor the Payee shall have the right to
assign or transfer its rights hereunder or any interest herein without the prior
written consent of the other party.
SECTION 8. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL,
ETC. (a) This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
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(b) In the event of any Dispute, the parties hereto shall
attempt in good faith to negotiate and resolve any such Dispute. If after good
faith negotiations the Dispute shall have not been resolved, either party may
deliver written notice of its intent to submit the matter to arbitration (the
"Arbitration Notice") to the other party. If the matter is not resolved within
ten (10) Business Days after the delivery of the Arbitration Notice, or such
later date as may be mutually agreed upon, then all Disputes shall be finally
settled by arbitration.
(c) The seat of the arbitration shall be in New York, and the
arbitration shall be conducted in English, in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by one or
more arbitrators appointed in accordance with such rules. The arbitrators are
precluded from considering or awarding consequential, special, punitive or
exemplary damages to any party in any arbitration conducted pursuant hereto. The
parties shall have the right to present documentary evidence and witnesses. The
parties shall also have the right to cross-examine witnesses. The decision of
the arbitrators shall be final and binding upon the parties, and no party shall
seek recourse to a law court or other authorities to appeal for revisions of
such decision. Nothing herein shall limit the ability of a party to seek
temporary or preliminary injunctive relief pending arbitration.
(d) Each of the Payor and the Payee hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this Note.
IN WITNESS WHEREOF, each of the Payor and the Payee has caused
this Note to be executed by its officer thereunto duly authorized, as of the
date first above written.
THOMSON-CSF HOLDING CORPORATION
By_____________________________
Name:
Title:
Acknowledged and Agreed to:
IFE SALES, LLC
By ______________________________________
Name: Thomas P. McCaffrey
Title: Vice President