Exhibit 10.1
[Execution copy]
AMENDMENT NO. 5
AMENDMENT NO. 5 dated as of October 2, 2003 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 a Credit Agreement dated as of August 21, 2001 (as heretofore
amended, the "Credit Agreement"). The Borrower, the Lenders and the
Administrative Agent 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 6 hereof, Section 6.01 of the Credit Agreement
shall be amended by adding a new paragraph (h) therein and by relettering the
existing paragraphs (h) and (i) as paragraphs (i) and (j):
"(h) unsecured Indebtedness of the Borrower (and of its
Subsidiaries in respect of any Guarantees thereof) of up to
$150,000,000 aggregate principal amount of its senior notes due 2010 to
be issued on or about October 8, 2003 (but not in any event later than
October 31, 2003);"
Section 3. Reduction of Aggregate Revolving Credit
Commitments. Upon the effectiveness of the amendment to the Credit Agreement
provided for in Section 2 of this Amendment No. 5, the aggregate amount of the
Revolving Credit Commitments of the Lenders shall be reduced, on a ratable basis
as provided in Section 2.07(d) of the Credit Agreement, to $50,000,000, such
reduction to occur automatically, and without delivery of any notice, as would
otherwise be required under Section 2.07 of the Credit Agreement.
Section 4. 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. 5.
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Section 5. Condition Precedent. The effectiveness of the
amendments to the Credit Agreement set forth in Section 2 hereof shall be
subject to the satisfaction of the following conditions precedent:
(a) Execution. The Administrative Agent shall have received
counterparts of this Amendment No. 5, duly executed and delivered by
the Borrower, the Required Lenders and the Administrative Agent.
(b) Issuance of the Senior Notes. The Borrower shall have
issued the senior notes referred to in Section 6.01(h) of the Credit
Agreement (as such Section is amended hereby) for aggregate
consideration of not less than $100,000,000 and applied the proceeds
thereof (to the extent necessary) to the prepayment of the outstanding
Revolving Credit Loans in accordance with the provisions of Section
2.09(a) of the Credit Agreement (and, in that connection, the
Administrative Agent hereby waives the requirement of prior notice to
such prepayment set forth in Section 2.09(c) of the Credit Agreement).
(c) Other Documents. The Administrative Agent shall have
received such other documents as it, or special New York counsel to
Administrative Agent, shall have reasonably requested.
Section 6. Miscellaneous. Except as expressly provided herein,
the Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 5 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. 5 by signing any such
counterpart. This Amendment No. 5 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. 5 to be duly executed as of the day and year first above written.
BE AEROSPACE, INC.
By Thomas P. McCaffrey
------------------------------------
Name: Thomas P. McCaffrey
Title: Corporate Senior Vice
President of Administration
and Chief Financial Officer
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LENDERS
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By /s/ Matthew H. Massie
------------------------------------
Name: Matthew H. Massie
Title: Managing Director
BANK OF AMERICA, N.A.
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch
By /s/ Jay Chall
------------------------------------
Name: Jay Chall
Title: Director
By /s/ Barbara Wong
------------------------------------
Name: Barbara Wong
Title: Associate
MERRILL LYNCH CREDIT PRODUCTS LLC
By /s/ Graham Goldsmith
------------------------------------
Name: Graham Goldsmith
Title: President
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THE BANK OF NEW YORK
By /s/ Brendan T. Nedzi
------------------------------------
Name: Brendan T. Nedzi
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Karl Kieffer
------------------------------------
Name: Karl Kieffer
Title: Duly Authorized Signatory
BARCLAYS
By /s/ Steven Landzberg
------------------------------------
Name: Steven Landzberg
Title: Director
LONGACRE MASTER FUND, LTD.
By /s/ Steven S. Weissman
------------------------------------
Name: Steven S. Weissman
Title: Director
PAMCO CAYMAN, LTD.
By
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Name:
Title:
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PRESIDENT & FELLOWS OF HARVARD COLLEGE
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By /s/ Timothy S. Peterson
------------------------------------
Name: Timothy S. Peterson
Title: President
REGIMENT CAPITAL, LTD
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By /s/ Timothy S. Peterson
------------------------------------
Name: Timothy S. Peterson
Title: President
RESTORATION FUNDING CLO, LTD.
By
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Name:
Title:
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