EXECUTION COPY
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of October 26, 2004 between BE
AEROSPACE, INC., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Borrower"), each of the lenders that is a
signatory hereto under the caption "LENDERS" on the signature pages hereto
(individually a "Lender" and collectively the "Lenders") and JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank) as administrative agent (in such
capacity, together with its successors in such capacity, the "Administrative
Agent") under the Credit Agreement referred to below.
The Borrower, the Lenders and the Administrative Agent are
parties to an Amended and Restated Credit Agreement dated as of February 12,
2004 (the "Credit Agreement"). The Borrower and the Lenders wish to amend the
Credit Agreement in certain respects and, accordingly, the parties hereto hereby
agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions set forth in Section 4 hereof, the Credit Agreement shall be amended
as follows:
Section 2.01. Deletion of Certain Definitions. The definition
of "Restricted Cash Compliance Period" is hereby deleted from Section 1.01 of
the Credit Agreement.
Section 2.02. Cash Collateralization. Section 2.04(k) of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
"(k) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing
more than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, or (ii) the Borrower shall be
required to provide cover for LC Exposure pursuant to Section 2.09(b),
the Borrower shall immediately deposit into the Collateral Account an
amount in cash equal to, in the case of an Event of Default, the LC
Exposure as of such date plus any accrued and unpaid interest thereon
and, in the case of cover pursuant to Section 2.09(b), the amount
required under Section 2.09(b); provided that the obligation to deposit
such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (f) or (g) of Article
VII. Such deposit shall be held by the Administrative Agent in the
Collateral Account as collateral in the first instance for the LC
Exposure under this Agreement and thereafter for the payment of the
"Secured Obligations" under and as defined in the Security Agreement,
and for these purposes the Borrower hereby grants a security interest
to the Administrative Agent for the benefit of the Lenders in the
Collateral Account and in any financial assets (as defined in the
Uniform Commercial Code) or other property held therein."
Section 2.03. Mandatory Prepayments. Section 2.09(b) of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
"(b) Mandatory Prepayments. The Borrower shall from time to
time prepay the Revolving Credit Loans (and/or provide cover for LC
Exposure as specified in Section 2.04(k)) in such amounts as shall be
necessary so that at all times the aggregate Revolving Credit Exposure,
shall not exceed the Borrowing Base, such amounts to be applied, first
to the prepayment of outstanding Loans and, second, as cover for LC
Exposure, in each case without reduction of the Revolving Credit
Commitments."
Section 2.04. Conditions Precedent. Section 4.02(d) of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
"(d) this clause (d) has been intentionally left blank; and"
Section 2.05. Financial Statements and other Information.
Section 5.01(g) of the Credit Agreement shall be amended and restated in its
entirety to read as follows:
"(g) (1) no later than 15 days following the end of each
monthly accounting period, a completed Borrowing Base Certificate
showing the Borrowing Base as of the close of business on the last day
of such monthly accounting period and (2) if requested by the
Administrative Agent following the occurrence of a Casualty Event or a
Disposition, and at any other time that the Administrative Agent
reasonably believes the then-existing Borrowing Base Certificate may be
materially inaccurate, as soon as reasonably available but in no event
later than 3 Business Days after such request, a completed Borrowing
Base Certificate showing the Borrowing Base as of the date so
requested, in each case with supporting documentation and additional
reports with respect to the Borrowing Base as the Administrative Agent
may reasonably request; and"
Section 2.06. Insurance. The last paragraph of Section 5.04 of
the Credit Agreement shall be deleted.
Section 2.07. Fundamental Changes. The last paragraph of
Section 6.03 of the Credit Agreement shall be amended and restated in its
entirety to read as follows:
"Notwithstanding anything to the contrary contained in this
Section 6.03, during any time and after giving effect to any
Acquisition, so long as the aggregate amount of Restricted Cash is
equal to or greater than $15,000,000 and there are no Revolving Credit
Loans outstanding and so long as no Event of Default exists, the
Borrower may make any such Acquisitions (so long as within the
Borrower's line of business)."
Section 2.08. Investments. The last paragraph of Section 6.05
of the Credit Agreement shall be amended and restated in its entirety to read as
follows:
"Notwithstanding anything to the contrary contained in this
Section 6.05, during any time and after giving effect to any
Investment, so long as the aggregate amount of Restricted Cash is equal
to or greater than $15,000,000 and there are no Revolving Credit Loans
outstanding and so long as no Event of Default exists, the Borrower may
make any such Investment (so long as within the Borrower's line of
business)."
Section 2.09. Restricted Payments. The last sentence of
Section 6.06 of the Credit Agreement shall be amended and restated in its
entirety to read as follows:
"Notwithstanding anything to the contrary contained in this
Section 6.06, during any time and after giving effect to any Restricted
Payments, so long as the aggregate amount of Restricted Cash is equal
to or greater than $15,000,000 and there are no Revolving Credit Loans
outstanding and so long as no Event of Default exists, the Borrower may
make any such Restricted Payments."
Section 2.10. Financial Covenants. Section 6.08 of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
"SECTION 6.08. Interest Coverage Ratio. The Borrower will not
permit the Interest Coverage Ratio to be less than 1.15 to 1 at any
time for Calculation Periods beginning after the date hereof. For the
purposes of this calculation, upon consummation by the Borrower of the
redemption of its $200,000,000 9 1/2 percent Senior Subordinated Notes
due 2008, such redemption shall be deemed to have occurred as of the
beginning of the relevant Calculation Period".
Section 2.11. Redemption of Senior and Senior Subordinated
Indebtedness. Section 6.10(c) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
"(c) Certain Exclusions. Notwithstanding anything to the
contrary contained in this Section 6.10, during any time that the
aggregate amount of Restricted Cash is equal to or greater than
$15,000,000 and there are no Revolving Credit Loans outstanding and so
long as no Event of Default exists, the provisions of Section 6.10(a)
or Section 6.10(b) shall not apply. Nothing in this Section 6.10 shall
be deemed to prohibit any extension, renewal, refunding or refinancing
of Indebtedness permitted under Section 6.01(j)."
Section 3. Representations and Warranties. The Borrower
represents and warrants to the Lenders that the representations and warranties
set forth in Article III 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 Article III to
"this Agreement" included reference to this Amendment No. 1.
Section 4. Condition Precedent. The amendments to the Credit
Agreement set forth in Section 2 above shall become effective as of the date
hereof upon (a) receipt by the Administrative Agent of this Amendment No. 1,
duly executed and delivered by the Borrower and the Required Lenders, (b)
payment of all fees and expenses as the Borrower shall have agreed to pay to any
Lender or the Administrative Agent in connection with this Amendment No. 1,
including the reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy
LLP, special New York counsel to the Administrative Agent, and (c) such other
documents that the Administrative Agent or special New York counsel to the
Administrative Agent may reasonably request.
Section 5. Miscellaneous. Except as expressly herein provided,
the Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 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. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the day and year first above written.
BE AEROSPACE, INC.
By /s/ Thomas P. McCaffrey
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Name: Thomas P. McCaffrey
Title: Corporate Vice President and
Chief Financial Officer
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LENDERS
JPMORGAN CHASE BANK
By /s/ Matthew H. Massie
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Name: Matthew H. Massie
Title: Managing Director
GE CAPITAL CORPORATION
By /s/ Robert M. Kadlick
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Name: Robert M. Kadlick
Title: Duly Authorized Signatory
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
By /s/ Thomas S. Hall
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Name: Thomas S. Hall
Title: Vice President
By /s/ Doreen Barr
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Name: Doreen Barr
Title: Associate