AMENDMENT NO. 2
AMENDMENT NO. 2 dated as of December 21, 1999, between BE
AEROSPACE, INC., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"); each of the lenders that is a
signatory hereto (individually, a "Lender" and, collectively, the "Lenders");
and THE CHASE MANHATTAN BANK, a New York banking corporation, as agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company, the Lenders and the Administrative Agent are
parties to a Fifth Amended and Restated Credit Agreement dated as of August 7,
1998, as amended by Amendment, Release and Waiver No. 1 dated as of December 4,
1998 (as amended, modified and supplemented and in effect on the date hereof,
the "Credit Agreement"). The Company has requested that the Credit Agreement be
amended and accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 2, terms defined in the Credit Agreement (as amended hereby) are
used herein as defined therein.
Section 2. AMENDMENTS. Subject to the satisfaction of the
condition precedent specified in Section 4 below, but effective as of the date
hereof (the "Amendment Effective Date"), the Credit Agreement shall be amended
as follows:
2.01. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Credit Agreement as amended hereby.
2.02. The definition of "Adjusted Net Worth" in Section 1.01
of the Credit Agreement shall be amended by adding following words at the end
thereof:
" plus (f) an amount not to exceed $28,000,000 in the
aggregate of the after-tax amount (calculated using the then effective
corporate Federal tax rate, regardless of the after-tax amount
determined in accordance with GAAP) of the non-cash portion of the
non-recurring charges and operating inefficiencies discussed by the
Company in its November 22, 1999 press release."
2.03. The definition of "Applicable Margin" in Section 1.01 of
the Credit Agreement shall be amended to read in its entirety as follows:
"'APPLICABLE MARGIN' shall mean with respect to Base Rate
Loans and Eurodollar Loans, the rate for such Type of Loan for each level period
set forth in the schedule below:
Applicable Margin
Level Period Base Rate Loans Eurodollar Loans
- --------------------------------------- ----------------------------- -------------------
Level I Period 0.00% 0.750%
Level II Period 0.00% 0.875%
Level III Period 0.00% 1.000%
Level IV Period 0.50% 1.500%
Level V Period 0.75% 1.750%
Level VI Period 1.00% 2.000%
Level VII Period 1.50% 2.500%
PROVIDED that notwithstanding anything herein to the contrary, the Applicable
Margin shall not be less than the rate for a Level V Period from the Amendment
Effective Date until the third Business Day following of the receipt of the
financial statements under Section 8.01(b) as at and for the fiscal quarter
ending on the Fiscal Date in November, 1999."
2.04. The definition of "Commitment Fee Rate" in Section 1.01
of the Credit Agreement shall be amended to read in its entirety as follows:
"'COMMITMENT FEE RATE' shall mean (a) 0.2000% for any Level I
Period, (b) 0.2500% for any Level II Period, (c) 0.2500% for any Level
III Period, (d) 0.3750% for any Level IV Period, (e) 0.3750% for any
Level V Period, (f) 0.5000% for any Level VI Period and (e) 0.5000% for
any Level VII Period, provided that notwithstanding anything herein to
the contrary, the Commitment Fee Rate shall not be less than the rate
for a Level V Period from the Amendment Effective Date until the third
Business Day following of the receipt of the financial statements under
Section 8.01(b) as at and for the fiscal quarter ending on the Fiscal
Date in November, 1999."
2.05. The definition of "EBITDA" in Section 1.01 of the Credit
Agreement shall be amended by adding following words at the end thereof:
"; PROVIDED, HOWEVER, that for the purpose of calculating
EBITDA for the five fiscal quarters of the Company beginning with
November 1999 and ending with November 2000, EBITDA shall be adjusted
to add back the non-recurring charges and operating inefficiencies
discussed by the Company in its November 22, 1999 press release in an
amount not to exceed, without duplication, (i) $72,300,000 for the
quarter ending November 1999, (ii) $83,900,000 for each of the three
quarters ending February 2000, May 2000 and August 2000 and (iii)
$11,600,000 for the quarter ending November 2000."
2.06. The definition of "Indebtedness" in Section 1.01 of the
Credit Agreement shall be amended by inserting at the end thereof the words
"excluding, however, any guaranty or indemnity given by the Company in
connection with the sale of the Sextant In-Flight Entertainment Note".
2.07. Section 8.10 of the Credit Agreement shall be amended to
read in its entirety as follows:
"8.10 Leverage Ratio. The Company will not permit the Leverage
Ratio to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
From the Fiscal Date in
November 1999 through
the Fiscal Date in February 2001 5.25 to 1
From (but not including) the
Fiscal Date in February 2001
through the Fiscal Date in
February 2002 4.75 to 1
From (but not including) the
Fiscal Date in February 2002
through the Fiscal Date in
February 2003 4.25 to 1
Thereafter 4.00 to 1"
2.08. Section 8.11 of the Credit Agreement shall be amended to
read in its entirety as follows:
"ADJUSTED NET WORTH. The Company will not at any date permit
Adjusted Net Worth to be less than the sum of (a) $170,000,000 plus (b)
75% of the aggregate amount of Net Available Proceeds of Equity
Issuances received after November 27, 1999 plus (c) 75% of the sum of
consolidated net earnings of the Company and its Subsidiaries
(determined on a consolidated basis without duplication in accordance
with GAAP) for each fiscal quarter of the Company ending after November
27, 1999; provided that consolidated net earnings for any fiscal
quarter in which there is a consolidated net loss shall be deemed to be
zero."
2.09. Section 8.12 of the Credit Agreement shall be amended to
read in its entirety as follows:
"INTEREST COVERAGE RATIO. The Company will not permit the
Interest Coverage Ratio to be less than the following respective ratios during
the following respective periods:
Period Ratio
From the Fiscal Date in
November 1999 through
the Fiscal Date in February 2001 2.00 to 1
From (but not including) the
Fiscal Date in February 2001
through the Fiscal Date in
February 2002 2.25 to 1
From (but not including) the
Fiscal Date in February 2002
through the Fiscal Date in
February 2003 2.50 to 1
Thereafter 2.75 to 1"
Section 3. Representations and Warranties. The Company
represents and warrants to the Lenders that the representations and warranties
set forth in Section 7 of the Credit Agreement (as amended hereby) are true and
complete on the date hereof as if made on and as of the date hereof (or, if such
representation or warranty is expressly stated to be made as of a specific date,
as of such specific date) and as if each reference in said Section 7 to "this
Agreement" included reference to this Amendment No. 2.
Section 4. CONDITION PRECEDENT. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of the date hereof, upon receipt by the Administrative
Agent of the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
4.01. AMENDMENT NO. 2. Duly executed counterparts of this
Amendment No. 2 by the Company, the Administrative Agent and the Majority
Lenders.
4.02. OPINION OF COUNSEL TO THE COMPANY. An opinion, dated the
Amendment Effective Date, of Shearman & Sterling, counsel to the
Company, (i) as to the due authorization, execution and delivery of
this Amendment No. 2 and (ii) that this Amendment No. 2 is legal,
valid, binding and enforceable in accordance with its terms (subject to
customary exceptions) and the Company hereby instructs such counsel to
deliver such opinions to the Lenders and the Administrative Agent.
4.03. OTHER DOCUMENTS. Such other documents that the
Administrative agent or special New York counsel to Chase may
reasonably request.
Section 5. MISCELLANEOUS. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 2 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed and delivered as of the day and year first
above written.
BE AEROSPACE, INC.
By_______________________
Name:
Title:
Address for Notices:
BE Aerospace, Inc.
1400 Corporate Center Way
Wellington, Florida 33414
Attention: Jeffrey P. Holtzman,
Vice President - Finance and Treasurer
Telecopier No.: (561) 791-3966
Telephone No.: (561) 791-5000
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attention: Maura O'Sullivan, Esq.
Telecopier No.: (212) 848-7179
Telephone No.: (212) 848-7897
LENDERS
THE CHASE MANHATTAN BANK
By_______________________
Name:
Title:
BANK OF AMERICA, N.A.
(f/k/a NationsBank, N.A.)
By_______________________
Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By_______________________
Name:
Title:
LASALLE BUSINESS CREDIT, INC.
By_______________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By_______________________
Name:
Title:
THE FUJI BANK AND TRUST COMPANY
By_______________________
Name:
Title:
WACHOVIA BANK, N.A.
By_______________________
Name:
Title:
AMSOUTH BANK
By_______________________
Name:
Title:
THE BANK OF NEW YORK
By_______________________
Name:
Title:
FIRST UNION NATIONAL BANK
By_______________________
Name:
Title:
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK AG,
CAYMAN ISLANDS BRANCH
By_______________________
Name:
Title:
By_______________________
Name:
Title:
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By_______________________
Name:
Title:
ABN AMRO BANK N.V.
By_______________________
Name:
Title:
By_______________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_______________________
Name:
Title:
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
Loan and Agency Services Group
1 Chase Manhattan Plaza
New York, New York 10081