EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture"),
dated as of July 21, 2006 between BE Aerospace, Inc., a Delaware corporation
(the "Company"), and The Bank of New York Trust Company, NA, as trustee under
the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
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WHEREAS, the Company and the Trustee heretofore executed and delivered
an Indenture, dated as of October 7, 2003 (the "Indenture"), providing for the
issuance of the 8 1/2% Senior Notes due 2010 (the "Securities") (capitalized
terms used herein but not otherwise defined have the meanings ascribed thereto
in the Indenture);
WHEREAS, in accordance with Section 902 of the Indenture, the Trustee
and the Company, together with the written consent of the Holders of not less
than a majority in principal amount of the Outstanding Securities as of the date
hereof, may add or amend certain terms and covenants in the Indenture as
described below;
WHEREAS, the Company is undertaking to execute and deliver this First
Supplemental Indenture to amend certain terms and covenants in the Indenture
(the "Proposed Amendments") in connection with its offer to purchase the
Securities pursuant to the Offer to Purchase and Consent Solicitation Statement
and accompanying Consent and Letter of Transmittal of the Company, dated as of
July 10, 2006, and any amendments, modifications or supplements thereto (the
"Offer and Consent Solicitation");
WHEREAS, the Company has obtained the written consent to the Proposed
Amendments to the Indenture from the Holders of at least a majority in principal
amount of the Outstanding Securities in order to effect the Proposed Amendments;
WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Company.
NOW, THEREFORE, in consideration for the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders as follows:
ARTICLE I
Amendments
Section 1.1. Amendments to the Indenture. The Indenture is hereby
amended as follows:
(i) Sections 803, 1006, 1007, 1008, 1009, 1010, 1011, 1013, 1014,
1015, 1016, 1017, 1018, 1020, 1021 and 1023 are hereby amended by
deleting
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all such Sections in their entirety and all references thereto
contained elsewhere in the Indenture in their entirety;
(ii) Clause (2) of Section 801 is hereby amended by deleting all of
such clause in its entirety and all references thereto contained
elsewhere in the Indenture in their entirety, and all references
to Section 801 in the Indenture shall mean Section 801 as amended
hereby;
(iii) Section 501 is hereby amended by deleting clauses (3), (5), (6)
and (7) thereof in their entirety, and all references thereto
contained elsewhere in the Indenture in their entirety, and by
deleting the references to "Significant Subsidiary" set forth in
each of clauses (8) and (9) thereof, and all references to
Section 501 in the Indenture shall mean Section 501 as amended
hereby;
(iv) The introductory clause of Section 1105 is hereby amended by
deleting the phrase "not less than 30 nor more than 60 days" and
replacing it with the phrase "not less than three (3) nor more
than 60 days". All references to Section 1105 in the Indenture
shall mean Section 1105 as amended hereby; and
(v) All definitions set forth in Section 101 of the Indenture that
relate to defined terms used solely in sections deleted by this
First Supplemental Indenture are deleted in their entirety
hereby.
ARTICLE II
Miscellaneous
Section 2.1. Effectiveness. This First Supplemental Indenture shall
become effective on and as of the date the counterparts hereto shall have been
executed and delivered by each of the parties hereto. This First Supplemental
Indenture will become operative upon the earlier to occur of (x) the date on
which the tendered Securities are accepted for payment and are paid for by the
Company in accordance with the terms of the Offer and Consent Solicitation and
(y) the date on which the Company delivers a written, irrevocable notice to
Global Bondholder Services Corporation, as Depositary, that all conditions of
the Offer and Consent Solicitation have been waived or satisfied and it shall
not amend, extend or terminate the Offer and Consent Solicitation and shall
consummate the Offer and Consent Solicitation on the expiration date, or 5:00
p.m., New York City time, on August 7, 2006, unless extended or earlier
terminated by the Company, in which case this First Supplemental Indenture will
become operative as of the date hereof.
Section 2.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 2.3. Indenture and Supplemental Indenture Construed Together.
This First Supplemental Indenture is an indenture supplemental to and in
implementation of the
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Indenture, and the Indenture and this First Supplemental Indenture shall
henceforth be read and construed together.
Section 2.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this First Supplemental Indenture is in all respects
confirmed and preserved.
Section 2.5. Conflict with the Trust Indenture Act. If any provision of
this First Supplemental Indenture limits, qualifies or conflicts with any
provision of the TIA that is required under the TIA to be a part of and govern
any provision of this First Supplemental Indenture, the provision of the TIA
shall control. If any provision of this First Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
provision of the TIA shall be deemed to apply to the Indenture as so modified or
to be excluded by this First Supplemental Indenture, as the case may be.
Section 2.6. Severability. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 2.7. Benefits of Supplemental Indenture. Nothing in this First
Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Securities, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this First Supplemental
Indenture or the Securities.
Section 2.8. Successors. All agreements of the Company in this First
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this First Supplemental Indenture shall bind its successors.
Section 2.9. Certain Duties and Responsibilities of the Trustee. In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture and the Securities relating
to the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
Section 2.10. Governing Law. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
Section 2.11. Multiple Originals. The parties may sign any number of
copies of this First Supplemental Indenture, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 2.12. Headings. The Article and Section headings herein are
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
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Section 2.13. The Trustee. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
BE AEROSPACE, INC.
By: /s/ Thomas P. McCaffrey
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Name: Thomas P. McCaffrey
Title: Senior Vice President of
Administration and Chief
Financial Officer
THE BANK OF NEW YORK TRUST COMPANY, NA,
as Trustee
By: /s/ Geraldine Creswell
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Name: Geraldine Creswell
Title: Assistant Treasurer
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