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Exhibit 1.1
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BE AEROSPACE, INC.
(a Delaware corporation)
$250,000,000
8 7/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
Dated: April 11, 2001
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BE AEROSPACE, INC.
(a Delaware corporation)
$250,000,000
8 7/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
April 11, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
CIBC World Markets
First Union Securities, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Credit Suisse First Boston Corporation, Chase Securities,
Inc., CIBC World Markets and First Union Securities, Inc. (each an "Initial
Purchaser" and together the "Initial Purchasers") $250,000,000 aggregate
principal amount of its 8 7/8% Senior Subordinated Notes due 2011 (the
"Securities"). The Securities are to be issued pursuant to an indenture to be
dated as of April 17, 2001 (the "Indenture") between the Company and The Bank of
New York, as trustee (the "Trustee"). The Securities and the Indenture are more
fully described in the Offering Memorandum (as hereinafter defined). Capitalized
terms used herein and not otherwise defined herein have the respective meanings
specified in the Offering Memorandum.
The Securities will be offered and sold to you without being
registered under the Securities Act of 1933, as amended (the "1933 Act"), in
reliance on an exemption therefrom.
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The Company has prepared a preliminary offering memorandum, dated April 9, 2001
(such preliminary offering memorandum being hereinafter referred to as the
"Preliminary Offering Memorandum"), and is preparing a final offering
memorandum, dated April 11, 2001 (such final offering memorandum, in the form
first furnished to the Initial Purchasers for use in connection with the
offering of the Securities being hereinafter referred to as the "Offering
Memorandum"), each setting forth information regarding the Company and the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Securities.
The Company intends to use approximately $104.9 million of the net
proceeds from the offering to redeem the Company's outstanding 9 7/8% Senior
Subordinated Notes due 2006 and satisfy and discharge the related Indenture (the
"Note Redemption").
The Company understands that you propose to make an offering of the
Securities on the terms set forth in the Offering Memorandum, as soon as you
deem advisable after this Agreement has been executed and delivered, to persons
in the United States whom you reasonably believe to be qualified institutional
buyers ("Qualified Institutional Buyers") as defined in Rule 144A under the 1933
Act, as such rule may be amended from time to time ("Rule 144A"), in
transactions under Rule 144A.
The holders of Securities will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached hereto as
Exhibit A with such changes as shall be agreed to by the parties hereto (the
"Registration Rights Agreement"), pursuant to which the Company will file a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering the Securities or the
Exchange Securities referred to in the Registration Rights Agreement under the
1933 Act.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with the Initial Purchasers as of the date
hereof and as of the Closing Time as follows:
(i) As of their respective dates and as of the Closing Time, none of
the Preliminary Offering Memorandum, the Offering Memorandum or any
amendment or supplement thereto will include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Initial Purchasers through Xxxxxxx Xxxxx expressly for use in the
Preliminary Offering Memorandum, the Offering Memorandum or any amendment
or supplement thereto.
(ii) Except for the Company's 9 1/2% Senior Subordinated Notes due
2008, the Company's 8% Senior Subordinated Notes due 2008 and the
Company's 9 7/8% Senior Subordinated Notes due 2006, there are no debt
securities of the Company registered under the 1934 Act, or listed on a
national securities exchange or quoted in a
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U.S. automated inter-dealer quotation system. The Company has been advised
that the Securities have been designated PORTAL securities in accordance
with the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD").
(iii) None of the Company or any affiliate of the Company (as
defined in Rule 501(b) under the 0000 Xxx) has directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the 1933 Act) by or
for the Company that are of the same or similar class as the Securities
(other than with respect to the Exchange Securities) in a manner that
would require the registration of the Securities under the 1933 Act.
(iv) None of the Company or any affiliate of the Company or any
person acting on their behalf has (A) engaged, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising (as those terms are used within the meaning of Regulation D)
or (B) solicited offers for, or offered or sold, such Securities by means
of any form of general solicitation or general advertising (as those terms
are used in Regulation D under the 0000 Xxx) or in any manner involving a
public offering within the meaning of Section 4(2) of the 1933 Act.
(v) Deloitte & Touche L.L.P, which is reporting upon the audited
financial statements and related notes included in the Offering
Memorandum, is an independent public accountant with respect to the
Company in accordance with the provisions of the 1933 Act and the rules
and regulations of the Commission thereunder.
(vi) The financial statements of the Company included in the
Offering Memorandum present fairly (a) the financial position of the
Company and its subsidiaries on a consolidated basis as of the dates
indicated and (b) the results of operations and cash flows of the Company
and its subsidiaries on a consolidated basis for the periods specified,
subject, in the case of unaudited financial statements, to normal year-end
adjustments which shall not be materially adverse to the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved. The financial statement schedules, if any, included
in the Offering Memorandum present fairly the information required to be
stated therein. The selected financial data included in the Offering
Memorandum present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included in the Offering Memorandum. There are no
historical or pro forma financial statements which would be required to be
included in the Offering Memorandum if it were filed as part of a
registration statement on Form S-1 under the 1933 Act, which are not
included as would be so required.
(vii) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Offering
Memorandum; and the Company is duly qualified to transact
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business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except
to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(viii) The Company's only subsidiaries (either direct or indirect)
are: BE Aerospace International Ltd., a company incorporated under the
laws of Barbados ("BEA International"), BE Aerospace (UK) Holdings
Limited, a company incorporated under the Companies Act (England and
Wales) ("BEAH (UK)"), BE Aerospace (UK) Limited, a company incorporated
under the laws of Northern Ireland ("BEA(UK)"), XX Xxxxxx (B/E) UK
Limited, a company incorporated under the Companies Act (England and
Wales) ("XX Xxxxxx (UK)"), X.X. Xxxxxx (England and Wales) Ltd., a company
incorporated under the Companies Act (United Kingdom), Fort Hill Aircraft
Limited, a company incorporated under the Companies Act (England and
Wales) ("Fort Hill"), BE Aerospace (Services) Limited, a company
incorporated under the Companies Act (England and Wales ), Flight
Equipment Engineering Limited, a company incorporated under the Companies
Act (England and Wales ), AFI Holdings Limited, a company incorporated
under the Companies Act (Northern Ireland) ("AFI"), BE Aerospace (USA),
Inc., a Delaware corporation ("BEA USA"), BE Aerospace Netherlands B.V., a
company incorporated under the laws of the Netherlands ("BEA
Netherlands"), Royal Inventum, B.V., a company incorporated under the laws
of the Netherlands ("Royal Inventum"), BE Aerospace (Sales & Services)
B.V., a company incorporated under the laws of the Netherlands, Xxxxxxxx
Industries, Inc., a California Corporation ("Xxxxxxxx"), Acurex
Corporation, a Delaware corporation ("Acurex"), BE Aerospace (France)
S.A.R.L., a company incorporated under the laws of France ("BEA France"),
Xxxxx Aerospace (France) S.A.R.L., a company incorporated under the laws
of France ("Xxxxx France"), B/E Oxygen Systems Company, a California
corporation, Aerospace Lighting Corporation, a New York corporation, SMR
Technologies, Inc. an Ohio corporation ("SMR"), Flight Structures, Inc., a
Washington corporation, BE Intellectual Property, Inc., a Delaware
corporation, B/E Aerospace Services, Inc., a Delaware corporation, BE
Aerospace Australia, Inc., a Delaware corporation, BE Aerospace Canada,
Inc., a Delaware corporation, B/E Aerospace (Canada) Company, a Canadian
corporation, BE Aerospace El Salvador, Inc., a Delaware corporation, BE
Aerospace El Salvador, Sociedad Anonima de Capital Variable, an El
Salvadorian corporation, B/E Aerospace Machined Products, Inc., a Delaware
corporation, T.L. Windust Machine, Inc., a California corporation, DMGI,
Inc., a California corporation, Xxxxx Industries, Inc., a California
corporation and Xxxxxxx Precision, Inc., a California corporation, (each
individually, a "Subsidiary" and collectively, the "Subsidiaries"). The
Company has no significant subsidiaries (as defined in Rule 1.02 of the
Commission's Regulation S-X), other than SMR and BEAH(UK), (each
individually, a "Significant Subsidiary" and collectively, the
"Significant Subsidiaries"). AFI, Fort Hill and Xxxxxxxx are inactive
subsidiaries with no significant assets and are not engaged in any active
trade or business. Each Significant Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
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business; and each Significant Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except
to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly issued or
created and are fully paid and non-assessable and, other than in the case
of BEA France, of which five shares are owned by Xxxx Xxxxxxxx, a French
national and director of BEA France, and five shares are owned by The
K.A.D. Companies, Inc., an investment, venture capital and consulting firm
owned by Xxxx X. Xxxxxx, the Chairman of the Company, are owned by the
Company, directly or through one or more Subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind, except that (1) 65% of the issued and outstanding Ordinary
Shares of BEAH(UK) are pledged to the Agent under the Bank Credit
Facility, (2) 65% of the issued and outstanding capital stock of BEA
Netherlands is pledged to the Agent under the Bank Credit Facility (3) the
outstanding capital stock of each of BEA USA, Acurex, and B/E Services,
Inc. is pledged to the Agent under the Bank Credit Facility. The Company
does not, directly or indirectly, own any equity or long term debt
securities of any corporation, firm, partnership, joint venture or other
entity, other than the stock of its Subsidiaries and a note from BEA
Netherlands in the principal amount of Dfls. 49,385,000.
(ix) The Company had, at the date indicated in the Offering
Memorandum, a duly authorized, issued and outstanding capitalization as
set forth in the Offering Memorandum under the caption "Capitalization".
(x) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive rights of any
stockholder of the Company. There are no outstanding options to purchase,
or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, any shares of Common Stock of the Company, any shares of capital
stock of any subsidiary, or any such warrants, convertible securities or
obligations, except as set forth in the Offering Memorandum.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally, (y) the availability of equitable
remedies may be limited by equitable principles of general applicability
and (z) any rights to indemnity and
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contribution may be limited by federal and state securities laws and
public policy considerations.
(xiii) The Indenture has been duly authorized by the Company, will
be substantially in the form heretofore delivered to you and, when duly
executed and delivered by the Company and the Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
and the Indenture conforms to the description thereof in the Offering
Memorandum.
(xiv) The Securities have been duly authorized by the Company. When
executed, authenticated, issued and delivered in the manner provided for
in the Indenture and sold and paid for as provided in this Agreement, the
Securities will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law); and the Securities conform to the description thereof in the
Offering Memorandum.
(xv) Since the respective dates as of which information is given in
the Offering Memorandum, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse change
in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any subsidiary, other than
in the ordinary course of business, that is material to the Company and
its subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(xvi) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise. The execution and delivery by the Company of this Agreement,
the Registration Rights Agreement and the Indenture, the issuance, sale
and delivery of the Securities by the Company, the consummation by the
Company of the transactions contemplated in this
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Agreement, the Offering Memorandum and compliance by the Company with the
terms of this Agreement, the Registration Rights Agreement and the
Indenture have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation of
the charter or by-laws of the Company or any Subsidiary, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any Subsidiary under, (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company or any Subsidiary is a party or by which they may be
bound or to which any of their respective properties may be subject except
as such would not have a material adverse on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise or (B) any
existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any of
their respective properties.
(xvii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the rules and regulations thereunder
with respect to the Registration Rights Agreement and the transactions
contemplated thereunder and the securities or "blue sky" laws of the
various states) is required for the valid authorization, issuance, sale
and delivery of the Securities, for the execution, delivery or performance
by the Company of this Agreement, the Registration Rights Agreement and
the Indenture or for the consummation by the Company of the transactions
contemplated in this Agreement and the Offering Memorandum (including,
without limitation, the Note Redemption), except such of the foregoing as
will be obtained prior to the Closing Time.
(xviii) Except as disclosed in the Offering Memorandum, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any of their respective officers, in their capacity as
such, that could result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise, or that
could materially and adversely affect the properties or assets of the
Company and its subsidiaries, considered as one enterprise, or that could
adversely affect the consummation of the transactions contemplated in this
Agreement or the Offering Memorandum (including, without limitation, the
Note Redemption); the aggregate of all pending legal or governmental
proceedings that are not described in the Offering Memorandum to which the
Company or any Subsidiary is a party or which affect any of their
respective properties, including ordinary routine litigation incidental to
the business of the Company or any Subsidiary, would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
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(xix) There are no contracts or documents of a character that would
be required to be described in the Offering Memorandum, if it were a
prospectus filed as part of a registration statement on Form S-1 under the
1933 Act, that are not described as would be so required (other than
contracts or documents described in the Company's most recent proxy
statement filed with the Commission).
(xx) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Offering Memorandum as
owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Offering Memorandum
or (B) are neither material in amount nor materially significant in
relation to the business of the Company and its subsidiaries, considered
as one enterprise; all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any Subsidiary holds properties
described in the Offering Memorandum, are in full force and effect, and
neither the Company nor any Subsidiary has received any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxi) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations, including, without
limitation, any licenses, permits, certificates, consents, orders,
approvals and other authorizations required to be obtained from the
Federal Aviation Administration, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
presently conducted, and neither the Company nor any Subsidiary has
received any notice of proceedings relating to revocation or modification
of any such licenses, permits, certificates, consents, orders, approvals
or authorizations except as such would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxii) The Company and the Subsidiaries each owns or possesses
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to carry on its business as presently conducted, and
neither the Company nor any Subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect to
any patents, patent licenses, trademarks, service marks or trade names
that in the aggregate, if the subject of an unfavorable decision, ruling
or finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxiii) To the best knowledge of the Company, no labor problem
exists with its employees or with the employees of any Subsidiary or is
imminent that could materially adversely affect the Company and its
subsidiaries, considered as one enterprise, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any of
its or any Subsidiary's principal suppliers, contractors or customers that
could be
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expected to materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxiv) Neither the Company nor any Subsidiary has taken or will
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation
of the price of the Securities.
(xxv) Assuming (A) the accuracy of the representations and
warranties of the Initial Purchasers in Section 2 hereof and (B) the due
performance by the Initial Purchasers of the covenants and agreements set
forth in Section 2 hereof, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers
under, or in connection with the initial resale of such Securities by the
Initial Purchasers in accordance with, this Agreement to register the
Securities under the 1933 Act or to qualify any indenture in respect of
the Securities under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
(xxvi) No part of the proceeds of the sale of the Securities will be
used for any purpose that violates the provisions of any of Regulation T,
U or X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board of Governors.
(xxvii) All United States federal income tax returns of the Company
and the Subsidiaries required by law to be filed have been filed and all
United States federal income taxes which are due and payable have been
paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The
United States federal income tax returns of the Company through the period
ended February 24, 1996 have been settled and no assessment in connection
therewith has been made against the Company other than $322,487.10 paid in
connection with the Company's February 25, 1995 and February 24, 1996
federal income tax returns. The Company and the Subsidiaries each has
filed all other tax returns that are required to have been filed by it
pursuant to applicable foreign, state, local or other law except insofar
as the failure to file such returns would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company and the
Subsidiaries, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company in respect of
any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxviii) The Company and the Subsidiaries each maintains a system of
internal
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accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company
and its subsidiaries have not made, and, to the knowledge of the Company,
no employee or agent of the Company or any subsidiary has made, any
payment of the Company's funds or any subsidiary's funds or received or
retained any funds in violation of any applicable law, regulation or rule
or that would be required to be disclosed in the Offering Memorandum.
(xxix) Except as disclosed in the Offering Memorandum, there are no
holders of securities of the Company who have the right to require the
Company to register securities held by them under the 1933 Act on any
registration statement that will be used to register the Securities or the
Exchange Securities.
(xxx) The Company is not an "investment company," and will not be as
a result of the sale of the Securities pursuant to this Agreement, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(xxxi) Except as disclosed in the Offering Memorandum and except as
would not individually or in the aggregate have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, (A) the Company and the Subsidiaries are each in compliance
with all applicable Environmental Laws, (B) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened Environmental Claims
against the Company or any of the Subsidiaries, and (D) there are no
circumstances with respect to any property or operations of the Company or
any Subsidiary that could reasonably be anticipated to form the basis of
an Environmental Claim against the Company or any Subsidiary.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
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(b) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to the
Initial Purchasers as to the matters covered thereby.
Section 2. Purchase, Sale and Resale of the Securities; Closing;
Representations and Warranties of the Initial Purchasers. (a) On the basis of
the representations and warranties herein contained, and subject to the terms
and conditions herein set forth, the Company agrees to sell to each of you,
severally and not jointly, and each of you severally agrees to purchase from the
Company, at a purchase price of 97.5% of the principal amount thereof, the
principal amount of the Securities set forth opposite your name on Schedule I.
(b) Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Company and you, at 9:00 A.M., New York time, on
April 17, 2001 or at such other time not more than ten full business days
thereafter as you and the Company shall determine (such date and time of payment
and delivery being herein called the "Closing Time"). The Securities shall be in
such denominations and registered in such names as you may request in writing at
least two business days before the Closing Time. The Securities, which may be in
temporary form, will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the last business day prior to the
Closing Time.
(c) At the Closing Time, payment shall be made to an account, or
accounts, designated by the Company in the aggregate amount of $243,750,000 in
immediately available funds payable to the order of the Company against delivery
of the Securities to you.
(d) You have advised the Company that you propose to offer the
Securities for sale, upon the terms and conditions set forth in this Agreement
and in the Offering Memorandum. You hereby represent and warrant to the Company
that you are a Qualified Institutional Buyer as defined in Rule 144A and an
"Accredited Investor" as defined in Rule 501 of Regulation D. You agree with the
Company that you (i) will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general advertising
or in any manner involving a public offering within the meaning of Section 4(2)
of the 1933 Act and (ii) will solicit offers for the Securities only from, and
will offer, sell or deliver the Securities, as part of its initial offering,
only to persons in the United States whom you reasonably believe to be Qualified
Institutional Buyers or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to you that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in a
transaction under Rule 144A.
Section 3. Certain Covenants of the Company. The Company
covenants with you as follows:
(a) The Company will not at any time make any amendment or
supplement to
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13
the Offering Memorandum of which you shall not have previously been
advised and furnished a copy or to which you or your counsel shall
reasonably object.
(b) The Company will promptly deliver to you, without charge, during
the period from the date hereof to the date of the completion of the
distribution of the Securities by you, such number of copies of the
Offering Memorandum, as it may then be amended or supplemented, or the
Preliminary Offering Memorandum, as it may then be amended or
supplemented, as you may reasonably request.
(c) If, at any time prior to completion of the distribution of the
Securities by you, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of your counsel or counsel for the
Company, to amend or supplement the Offering Memorandum in order that the
Offering Memorandum will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time
it is delivered to a purchaser, not misleading or if, in the opinion of
your counsel or counsel for the Company, it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, the
Company, at its own expense, will promptly prepare such amendment or
supplement as may be necessary so that the statements in the Offering
Memorandum as so amended or supplemented will not, in the light of the
circumstances existing at the time it is delivered to a purchaser, be
misleading or so that such Offering Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and
furnish you such number of copies as you may reasonably request.
(d) The Company will endeavor, in cooperation with you, to qualify
the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as you may designate and to
maintain such qualifications in effect for a period of not less than a
year from the date of the Offering Memorandum; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above
provided. The Company will also supply you with such information as is
necessary for the determination of the legality of the Securities for
investment under the laws of such jurisdictions as you may request.
(e) Except following the effectiveness of the Registration
Statement, neither the Company nor any of its affiliates (as such term is
defined in Rule 501(b) of Regulation D) will solicit any offer to buy or
offer to sell the Securities by means of any form of general solicitation
or general advertising (within the meaning of Rule 502(C) of Regulation D)
or in any manner involving a public offering within the meaning of Section
4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is
defined in Rule 501(b) of the 0000 Xxx) will offer, sell or solicit offers
to buy or otherwise negotiate
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in respect of any security (as defined in the 0000 Xxx) the offering of
which security could be integrated with the sale of the Securities in a
manner that would require the registration of any of the Securities under
the 1933 Act.
(g) The Company will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under the 1940 Act, and will not be or
become a closed-end investment company required to be registered, but not
registered, thereunder.
(h) During the period from the Closing Time to the earlier of (i)
two years after the Closing Time or (ii) the date of effectiveness of the
Registration Statement, the Company will not, and will not permit any of
its affiliates (as such term is defined in Rule 144 under the 0000 Xxx)
to, resell any of the Securities that have been reacquired thereby, except
for Securities purchased by the Company or any of its affiliates and
resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under the
1933 Act, either (i) file reports and other information with the
Commission under Section 13 or Section 15(d) of the 1934 Act, or (ii) in
the event the Company is not subject to Section 13 or Section 15(d) of the
1934 Act, furnish to holders of the Securities and prospective purchasers
of the Securities designated by such holders, upon request of such holders
or such prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the 1933 Act to permit compliance with
Rule 144A in connection with resale of the Securities. For a period of
five years after the Closing Time, the Company will make available to you
upon request copies of all such reports and information, together with
such other documents, reports and information as shall be furnished by the
Company to the holders of the Securities issued by it.
(j) If requested by you, the Company will use its best efforts in
cooperation with you to permit the Securities sold in transactions
described in Section 2(d)(ii) hereof to be eligible for clearance and
settlement through The Depository Trust Company.
(k) Each Security will bear the following legend until such legend
shall no longer be necessary or advisable because such Security is no
longer subject to the restrictions on transfer described therein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE
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TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE.
(l) The Company will apply the net proceeds that it receives from
the offer and sale of the Securities issued by it in the manner set forth
with respect to it in the Offering Memorandum under the heading "Use of
Proceeds."
(m) Prior to the Closing Time, the Company will not issue any press
release or other communications directly or indirectly or hold any press
conference with respect to the Company, the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, without your prior consent, which shall not be unreasonably
withheld, unless in the judgment of the Company and its counsel, and after
notification to you, such press release or communication is required by
law.
(n) For a period of 120 days from the date of the Offering
Memorandum, the Company will not, without your prior written consent,
directly or indirectly, offer, pledge, sell, grant any option, right or
warrant for the sale of or otherwise dispose of any debt securities of the
Company (or securities convertible or exchangeable into or exercisable for
debt securities of the Company), or file any registration statement with
respect to the foregoing, other than the Securities or the Exchange
Securities referred to in the Registration Rights Agreement.
Section 4. Payment of Expenses. Whether or not any sale of the
Securities is
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consummated, the Company will pay and bear all costs and expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparation and printing of the Preliminary Offering Memorandum, the Offering
Memorandum and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Initial Purchasers, (b) the preparation, reproduction and
distribution of the Securities, this Agreement, the Registration Rights
Agreement, the Indenture and any "blue sky" or legal investment memoranda, (c)
the delivery of the Securities to the Initial Purchasers, (d) the fees and
disbursements of the Company's counsel and accountants, (e) the qualification of
the Securities under the applicable securities laws in accordance with Section
3(d) and any filing for review of the offering with NASD, including filing fees
and fees and disbursements of counsel for the Initial Purchasers in connection
therewith and in connection with the preparation of any "blue sky" or legal
investment memoranda, (f) any fees charged by rating agencies for rating the
Securities, (g) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Indenture and
the Securities and (h) the cost of obtaining approval for the trading of the
Securities through PORTAL.
If this Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 5 or 9(a)(i), the Company shall
reimburse the Initial Purchasers for all of their out-of-pocket expenses,
including the fees and disbursements of counsel for the Initial Purchasers.
Section 5. Conditions of Initial Purchasers' Obligations. The
obligations of each Initial Purchaser to purchase and pay for the Securities
that it has severally agreed to purchase hereunder are subject to the accuracy
of the representations and warranties of the Company contained herein and in
certificates of any officer of the Company and any Subsidiary delivered pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the Closing Time, each of you shall have received a signed
opinion of each of Shearman & Sterling, counsel for the Company, and
Xxxxxx Xxxxxxxx, General Counsel of the Company, in each case dated as of
the Closing Time, in substantially the form attached hereto as Exhibit
B-1. Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the sale of the Securities
pursuant to this Agreement as counsel for the Initial Purchasers may
reasonably request. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the Initial
Purchasers, in which case the opinion shall state that they believe you
are entitled to so rely. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the
Subsidiaries and certificates of public officials; provided that such
certificates have been delivered to the Initial Purchasers.
(b) At the Closing Time, each of you shall have received a signed
opinion of Xxxxxx Xxxxx Xxxxxxx, counsel to BEAH(UK), dated as of Closing
Time, in substantially
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the form attached hereto as Exhibit B-2. Such opinion shall be to such
further effect with respect to other legal matters relating to this
Agreement and the sale of the Securities pursuant to this Agreement as
counsel for the Initial Purchasers may reasonably request.
(c) At the Closing Time, each of you shall have received the
favorable opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for
the Initial Purchasers, dated as of the Closing Time, to the effect that
the opinions delivered pursuant to Sections 5(a) and 5(b) appear on their
face to be appropriately responsive to the requirements of this Agreement
except, specifying the same, to the extent waived by you, and with respect
to the incorporation and legal existence of the Company, the Securities,
this Agreement, the Indenture, the Registration Rights Agreement, the
Offering Memorandum and such other related matters as you may require. In
giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to you. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Subsidiaries and
certificates of public officials; provided that such certificates have
been delivered to the Initial Purchasers.
(d) At the Closing Time, (i) the Offering Memorandum, as it may then
be amended or supplemented, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
there shall not have been, since the respective dates as of which
information is given in the Offering Memorandum, any material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary that would be required to be set
forth in the Offering Memorandum other than as set forth therein and no
proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company or any Subsidiary before or by any
government, governmental instrumentality or court, domestic or foreign,
that could result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise, other
than as set forth in the Offering Memorandum, (iv) the Company shall have
in all material respects complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, (v) no event of default shall exist under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or to which
the Company or any Subsidiary is subject except as such would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as enterprise and (vi) the other representations
and warranties of the Company set forth herein shall be accurate in all
material respects as though expressly made at and as of the Closing Time.
At the Closing Time, each of you shall have received a certificate of the
Chief Executive
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Officer and the Chief Financial Officer of the Company, dated as of the
Closing Time, to such effect.
(e) At the time that this Agreement is executed by the Company, each
of you shall have received from Deloitte & Touche L.L.P., independent
auditors for the Company, a letter, dated such date, in form of Exhibit
C-1 hereto.
(f) At the Closing Time, each of you shall have received from
Deloitte & Touche L.L.P. a letter, in form and substance satisfactory to
you and dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 5(e), except
that the specified date referred to shall be a date not more than five
days prior to the Closing Time.
(g) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Time, there shall not have been any downgrading in
the rating accorded any of the Company's securities, including the
Securities, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act, nor shall such rating organization have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities, including the
Securities.
(h) At the Closing Time, counsel for the Initial Purchasers shall
have been furnished with all such documents, certificates and opinions as
they may reasonably request for the purpose of enabling them to pass upon
the issuance and sale of the Securities as contemplated in this Agreement
and the matters referred to in Section 5(d) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company, the performance of any of the covenants of the
Company, or the fulfillment of any of the conditions herein contained; and
all proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Securities as
contemplated in this Agreement shall be reasonably satisfactory in form
and substance to the Initial Purchasers and to counsel for the Initial
Purchasers.
(i) At the Closing Time, the Registration Rights Agreement shall
have been fully executed and be in full force and effect.
(j) At the Closing Time, you shall have received satisfactory
evidence of satisfaction and discharge of the indenture relating to the 9
7/8% Senior Subordinated Notes due 2006.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 8 provides for the
survival of such representations or warranties), 6, 7 and 8 shall remain in
effect.
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Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any,
who controls any Initial Purchaser within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact included in any preliminary offering
memorandum or the Offering Memorandum (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers through Xxxxxxx Xxxxx expressly for use in any preliminary
offering memorandum or the Offering Memorandum (or any amendment or supplement
thereto). The foregoing indemnity with respect to any untrue statement contained
in or any omission from a preliminary offering memorandum shall not inure to the
benefit of any Initial Purchaser (or any person who controls such Initial
Purchaser within the meaning of Section 5 of the 0000 Xxx) from whom the person
asserting any such loss, liability, claim, damage or expense purchased any of
the Securities that are the subject thereof if the Company shall sustain the
burden of proving that such person was not sent or given a copy of the Offering
Memorandum (or any amendment or supplement thereto) at or prior to the written
confirmation of the sale of such Securities to such person and the untrue
statement contained in or the omission from such preliminary offering memorandum
was corrected in the Offering Memorandum (or any amendment or supplement
thereto).
(b) Each Initial Purchaser severally (but not jointly) agrees to
indemnify and hold harmless the Company, its directors, each of its officers and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act, against any and all loss,
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liability, claim, damage and expense described in the indemnity agreement in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions made in any preliminary offering memorandum or the Offering Memorandum
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Initial Purchaser through
Xxxxxxx Xxxxx expressly for use in such preliminary offering memorandum or the
Offering Memorandum (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request with such request prior to the date of such
settlement.
Section 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial
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Purchasers on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and
the Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were distributed to the
purchasers thereof exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
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have the same rights to contribution as the Company. The Initial Purchasers'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, the Initial Purchasers or any
person who controls the Company or the Initial Purchasers within the meaning of
Section 15 of the 1933 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement. (a) The Initial Purchasers may
terminate this Agreement, by notice to the Company, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the Initial Purchasers'
judgment, impracticable to market the Securities or enforce contracts for the
sale of the Securities or (iii) if trading in any securities of the Company has
been suspended by the Commission or the Nasdaq National Market, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or by order of the
Commission, the NASD or any other governmental authority or (iv) if a banking
moratorium has been declared by either federal, New York or Florida authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 1 (insofar as Section 8 provides for the survival of such
representations or warranties), 6, 7 and 8 shall survive such termination and
remain in full force and effect.
Section 10. Default. If one or more of the Initial Purchasers shall
fail at the Closing Time to purchase the Securities that it or they are
obligated to purchase (the "Defaulted Securities"), the non-defaulting Initial
Purchasers shall have the right, within 24 hours thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
upon the terms herein set forth; if, however, such non-defaulting Initial
Purchasers have not completed such arrangements within such 24-hour period,
then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased, the non-
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23
defaulting Initial Purchasers shall be obligated to purchase the full
amount thereof, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased, this Agreement shall terminate without liability on the part of
the non-defaulting Initial Purchasers.
No action taken pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements. As used herein, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section 10.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication. Notices to the
Initial Purchasers shall be directed to the Initial Purchasers at Xxxxxxx Xxxxx
World Headquarters, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx. Xxxxxxx X. Xxxxx with copies to Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxx Jacob; and notices to the Company shall be directed to it at 0000
Xxxxxxxxx Xxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xx. Xxxx X. Xxxxxx,
Chairman of the Board of Directors and Chief Executive Officer with copies to
Shearman & Sterling at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxxx X. Xxxxxxxxxxx.
Section 12. Parties. This Agreement is made solely for the benefit
of the Initial Purchasers, the Company and, to the extent expressed, any person
who controls the Company or any Initial Purchaser within the meaning of Section
15 of the 1933 Act, and the directors of the Company, its officers and their
respective executors, administrators, successors and assigns and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the Initial Purchasers of the Securities.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day
refer to New York City time.
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
-------------------------
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24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the Initial
Purchasers in accordance with its terms.
Very truly yours,
BE AEROSPACE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
First Union Securities, Inc.
CIBC World Markets
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
25
SCHEDULE I
Principal Amount
of Securities
Initial Purchasers to be Purchased
------------------ ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $ 75,000,000
Incorporated.....................
Credit Suisse First Boston Corporation.............. 75,000,000
Chase Securities, Inc............................... 75,000,000
CIBC World Markets.................................. 12,500,000
First Union Securities, Inc......................... 12,500,000
------------
Total.......................................... $250,000,000
26
EXHIBIT A
FORM OF
REGISTRATION RIGHTS AGREEMENT
27
EXHIBIT B-1
FORM OF OPINION OF SHEARMAN & STERLING
[Shearman & Sterling Letterhead]
April 17, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
CIBC World Markets
First Union Securities, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
We are acting as counsel to BE Aerospace, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Credit Suisse First Boston
Corporation, Chase Securities, Inc., First Union Securities, Inc. and CIBC World
Markets (collectively, the "Initial Purchasers"), subject to the terms and
conditions set forth in the Purchase Agreement, dated April 11, 2001 (the
"Purchase Agreement"), among the Company and the Initial Purchasers, of
$250,000,000 aggregate principal amount of the Company's 8 7/8% Senior
Subordinated Notes due 2011 (the "Notes") issued pursuant to an Indenture, dated
as of April 17, 2001 (the "Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee"), and further subject to the terms and
conditions set forth in the Registration Rights Agreement, dated April 17, 2001
(the "Registration Rights Agreement"), among the Company and the Initial
Purchasers. Unless otherwise noted, capitalized terms used but not defined
herein are used as defined in the Purchase Agreement.
This opinion is being delivered pursuant to Section 5(a) of the
Purchase Agreement.
In this capacity we have examined a copy of the Preliminary Offering
Memorandum dated April 9, 2001, and the final Offering Memorandum dated April
11, 2001
28
relating to the offering of the Notes (such final Offering Memorandum being
hereinafter referred to as the "Offering Memorandum"). We have also examined the
Purchase Agreement, the Indenture, the Registration Rights Agreement, a specimen
of the Notes and the originals, or copies identified to our satisfaction, of
such corporate records of the Company and its subsidiaries, certificates of
public officials, officers of the Company and its subsidiaries and other
persons, and such other documents, agreements and instruments as we have deemed
necessary as a basis for the opinions hereinafter expressed. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies. In rendering our
opinion, we have relied as to factual matters, to the extent we deem proper,
upon the representations and warranties of the Company and its subsidiaries
contained in or made pursuant to the Purchase Agreement, the Registration Rights
Agreement, certificates of officers of the Company and its subsidiaries and
certificates of public officials.
The opinions stated herein are limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States, and we do not express any opinion herein concerning
any other laws.
Based upon the foregoing, we are of the opinion that:
(i) The Notes and the Indenture conform in all material respects to
the respective descriptions thereof contained in the Offering Memorandum under
the caption "Description of the Notes."
(ii) The statements made in the Offering Memorandum under the
caption "Exchange Offer; Registration Rights," to the extent that they
constitute matters of law or legal conclusions, have been reviewed by us and
fairly present the information disclosed therein in all material respects.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(v) The Notes have been duly authorized and executed by the Company
and, assuming that the Notes have been duly authenticated by the Trustee in the
manner described in its certificate delivered to you today (which facts we have
not determined by an inspection of the Notes), the Notes have been duly issued
and delivered by the Company and constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their
-2-
29
terms, except as enforcement may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and the holders of the Notes will be entitled
to the benefits of the Indenture.
(vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) and except that rights to indemnification or
contribution may be limited by federal or state securities laws or public policy
relating thereto.
(vii) The execution and delivery by the Company of the Purchase
Agreement, the Registration Rights Agreement and the Indenture, the consummation
by the Company of the transactions contemplated in the Purchase Agreement
(including, without limitation, the Note Redemption), the execution and delivery
of the Notes, and compliance by the Company with the terms of the Purchase
Agreement, the Registration Rights Agreement and the Indenture (x) do not and
will not result in any violation of the certificate of incorporation or by-laws
of the Company or SMR Technologies, Inc. ("SMR"), and (y) and do not and will
not conflict with or constitute an event of default (or an event which with
notice or lapse of time or both would become an event of default) under, or
result in the creation of or imposition of any a lien, charge or encumbrance
upon any property or assets of the Company or SMR under (a) any contract,
indenture, mortgage, lease or other agreement, to which the Company or any of
its significant subsidiaries is a party or by which any of them may be bound or
to which it or any of its properties or assets are bound, that has been filed as
an exhibit to the Company's Form 10-K for the year ended February 26, 2000, the
Company's Form 10-Qs for the quarter ended May 27, 2000, for the quarter ended
August 26, 2000 and for the quarter ended November 25, 2000, or which is listed
on Schedule I hereto, in each case, on their face, or (b) any existing
applicable New York State, Delaware (limited to the General Corporation Law), or
United States federal law, rule or regulation, or any judgment, order or decree
known to such counsel of any New York State or United States federal government,
governmental or regulatory instrumentality or agency or court having
jurisdiction over the Company or any of its properties or assets.
(viii) No authorization, approval, consent or license of any
governmental or regulatory body, agency or instrumentality of the United States
or New York State is required for the (i) valid issuance of the Notes in
accordance with the provisions of the Indenture, (ii) sale of the Notes to you
as contemplated by the Purchase Agreement, (iii) execution, delivery or
performance by the Company of the Purchase Agreement, the Registration Rights
Agreement or the Indenture or (iv) consummation of the transactions contemplated
by the Purchase Agreement (including, without limitation, the Note Redemption),
except such as may be required by the Securities Act of 1933, as amended (the
"Securities Act"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the securities or blue sky laws of the various states.
-3-
30
(ix) The Company is not, and will not be as a result of the sale of
the Notes pursuant to the Purchase Agreement, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(x) Assuming (i) the accuracy of the representations and warranties
of the Initial Purchasers and the Company in the Purchase Agreement and (ii) the
due performance by the Initial Purchasers and the Company of the covenants and
agreements set forth in the Purchase Agreement, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by the Purchase Agreement and the Offering
Memorandum under the Purchase Agreement, or in connection with the initial
resale of such Notes by the Initial Purchasers to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act, it
being understood that no opinion is expressed as to any subsequent resale of any
Notes.
This opinion is being furnished to you solely for your benefit, and
is not to be used, circulated, quoted or otherwise referred to for any other
purpose.
-4-
31
Schedule I
1. Fifth Amended and Restated Credit Agreement dated as of October 29,
1993, amended and restated as of August 7, 1998, as further amended as of
December 4, 1998 and December 21, 1999, among BE Aerospace, Inc., the Chase
Manhattan Bank, as Administrative Agent and Nationsbank, N.A. (South), as
Co-Agent.
2. The (UK) Credit Agreement (as described in the Offering Memorandum).
3. The Inventum Credit Agreement (as described in the Offering
Memorandum).
4. Order dated January 13, 1998 of the United States Department of
Commerce Bureau of Export Administration, regarding the settlement of the U.S.
Government's investigation of export sales to Iran between 1992-5.
5. Indenture, dated as of January 24, 1996, as amended, between the
Company and State Street Bank and Trust Company (successor to Fleet National
Bank of Connecticut, N.A.).
6. Indenture, dated February 13, 0000 xxxxxxx xxx Xxxxxxx xxx Xxxxxx
Xxxxxx Trust Company of New York.
7. Indenture, dated November 2, 1998 between the Company and The Bank of
New York.
32
April 17, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
CIBC World Markets
First Union Securities, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
We are acting as counsel to BE Aerospace, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Credit Suisse First Boston
Corporation, Chase Securities, Inc., First Union Securities, Inc. and CIBC World
Markets (collectively, the "Initial Purchasers"), subject to the terms and
conditions set forth in the Purchase Agreement dated April 11, 2001 (the
"Purchase Agreement"), among the Company and the Initial Purchasers, of
$250,000,000 aggregate principal amount of the Company's 8 7/8% Senior
Subordinated Notes due 2011 (the "Notes") issued pursuant to an Indenture, dated
as of April 17, 2001 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee"), and further subject to the terms and
conditions set forth in the Registration Rights Agreement dated April 17, 2001
(the "Registration Rights Agreement"), among the Company and the Initial
Purchasers. Unless otherwise noted, capitalized terms used but not defined
herein are used as defined in the Purchase Agreement.
In this capacity, we have examined copies of the Preliminary
Offering Memorandum, dated April 9, 2001, and the final Offering Memorandum,
dated April 11, 2001, relating to the offering of the Notes (such final Offering
Memorandum being hereinafter referred to as the "Offering Memorandum").
We have also reviewed and participated in discussions concerning the
preparation of the Offering Memorandum with certain officers and employees of
the Company, with its counsel and its auditors, and with your representatives.
The limitations inherent in the independent verification of factual matters and
in the role of outside counsel are such, however, that we cannot and do not
assume any responsibility for the accuracy, completeness or fairness of any of
the statements made in the Offering Memorandum, except as set forth in paragraph
(i) of our opinion addressed to you dated the date hereof. In addition, with
your approval, matters governed by the laws of the United Kingdom have been
passed upon by Xxxxxx Xxxxx Xxxxxxx,
33
British counsel to the Company, and we have assumed, without independent
verification, the accuracy of its legal opinion delivered to you today pursuant
to the Purchase Agreement with respect to such laws or matters governed or
affected by such laws.
Subject to the limitations set forth in the immediately preceding
paragraph, we advise you that, on the basis of the information we gained in the
course of performing the services referred to above, no facts came to our
attention which gave us reason to believe that the Offering Memorandum (other
than the financial statements and other financial data contained therein or
omitted therefrom, as to which we have not been requested to comment), as of its
date or the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
This letter is being furnished to you solely for your benefit, and
is not to be used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
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34
FORM OF OPINION OF XXXXXX XXXXXXXX
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
First Union Securities, Inc.
CIBC World Markets
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
I am Corporate Vice President Law, General Counsel and Secretary of
BE Aerospace, Inc., a Delaware corporation (the "Company"), and have advised the
Company in connection with the sale by the Company to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Credit Suisse First Boston Corporation, Chase
Securities, Inc., First Union Securities, Inc. and CIBC World Markets
(collectively, the "Initial Purchasers"), subject to the terms and conditions
set forth in the Purchase Agreement dated April 11, 2001 (the "Purchase
Agreement"), among the Company and the Initial Purchasers, of $250,000,000
aggregate principal amount of the Company's 8 7/8% Senior Subordinated Notes due
2011 (the "Notes") issued pursuant to an Indenture dated as of April 17, 2001
(the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee"), and further subject to the terms and conditions set forth in the
Registration Rights Agreement dated April 17, 2001 (the "Registration Rights
Agreement"), among the Company and the Initial Purchasers.
This opinion is being delivered pursuant to Section 5(a) of the
Purchase Agreement.
In such capacity I have examined a copy of the Preliminary Offering
Memorandum, dated April 9, 2001, and the Final Offering Memorandum dated as of
April 11, 2001, related to the sale of the Notes (the "Offering Memorandum").
I have also examined the Purchase Agreement, the Indenture, the
Registration Rights Agreement, and the originals, or copies identified to my
satisfaction, of such corporate records of the Company and its subsidiaries,
certificates of public officials, officers of the Company and its subsidiaries
and other persons, and such other documents, agreements and instruments as I
have deemed necessary as a basis for the opinions hereinafter expressed. In my
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as originals and the conformity with the
originals of all documents submitted to me as copies. As to any facts material
to the opinions expressed herein which I did not
-1-
35
independently establish or verify, I have relied, without investigation, and
believe that I am justified in relying, upon such statements or representations
of officers and other representatives of the Company or others.
I am a member of the Bar of the State of Wisconsin. My opinions set
forth below are limited to the laws of the State of Wisconsin, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
Based upon the foregoing, I am of the opinion that:
(i) The Company is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum. SMR Technologies, Inc. is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Ohio, with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering Memorandum.
The Company has all requisite corporate power and authority to issue, sell and
deliver the Notes, to execute and deliver the Purchase Agreement, the
Registration Rights Agreement and the Indenture, and to perform its obligations
thereunder. The Company is qualified to transact business, and is in good
standing as a foreign corporation, in California, Connecticut, Florida, Indiana,
Kansas, Massachusetts, Minnesota, New Jersey, North Carolina, Ohio, Oklahoma,
Pennsylvania, Texas and Washington; the states of California, Connecticut,
Florida, Massachusetts, Minnesota, North Carolina and Oklahoma, being the only
jurisdictions in the United States in which the Company owns or leases real
property. SMR Technologies, Inc. is qualified to transact business, and is in
good standing as a foreign corporation, in the states of Missouri and West
Virginia; the states of Ohio and West Virginia being the only jurisdictions in
which SMR Technologies, Inc. owns or leases real property.
(ii) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Capitalization table in the Offering Memorandum under the
caption "Actual", except for issuances or forfeitures subsequent to the date of
the information provided in such table, if any, pursuant to the Company's stock
option plans. The shares of the Company's common stock, $.01 par value (the
"Common Stock") issued and outstanding on this date have been duly authorized
and validly issued and are fully paid and nonassessable. None of the outstanding
shares of Common Stock was issued in violation of any preemptive rights under
the Delaware General Corporation Law or the Restated Certificate of
Incorporation of the Company or, to the best of my knowledge, any preemptive
rights pursuant to any contract to which the Company is a party or by which it
is bound.
(iii) To the best of my knowledge, (i) neither of the Company nor SMR
Technologies, Inc. is in violation of its certificate of incorporation or
certificate of registration or by-laws or limited liability company agreement,
as the case may be, or in default in the performance of any obligation,
agreement or condition in any agreement or instrument known to us to which the
Company or SMR Technologies, Inc. is a party or by which any of them is bound
and which default could have a material adverse effect on the business or
financial condition of the Company and its subsidiaries taken as a whole and
(ii) neither the Company nor SMR Technologies, Inc. is in violation of any
applicable law, rule or regulation, or, to our knowledge
-2-
36
after having made inquiry of the Company, any order, writ, injunction or decree,
of any jurisdiction, court or governmental instrumentality, where such violation
or default could have a material adverse effect on the business or financial
condition of the Company and its subsidiaries taken as a whole.
(iv) The statements made in the Offering Memorandum under the captions
"Business-Legal Proceedings," to the extent that they constitute matters of law
or legal conclusions or descriptions of legal proceedings, have been reviewed by
me and fairly present the information disclosed therein in all material
respects.
(v) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a material adverse effect on the
Company and its subsidiaries, taken as a whole, or which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company of its
obligations thereunder.
I have reviewed and participated in the preparation of the Offering
Memorandum with other officers or employees of the Company, with its counsel and
its auditors, and with representatives of the Initial Purchasers and I advise
you that, on the basis of the information I gained in the course of performing
the services referred to above, no facts came to my attention which gave me
reason to believe that the Offering Memorandum (other than the financial
statements and other financial data contained therein or omitted therefrom, as
to which I have not been requested to comment), as of its date or the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
This opinion is being furnished by me as General Counsel for the Company
to you solely for your benefit, and is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
-3-
37
EXHIBIT B-2
FORM OF OPINION OF XXXXXX XXXXX XXXXXXX
[Xxxxxx Xxxxx Xxxxxxx Letterhead]
April 17, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Chase Securities, Inc.
First Union Securities, Inc.
CIBC World Markets
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
XXX
Dear Sirs
BE AEROSPACE HOLDINGS (UK) LIMITED
1. We have acted as English legal advisers to BE Aerospace Holdings (UK)
Limited (formerly BE Aerospace (UK) Limited and Flight Equipment and
Engineering Limited), a company registered in England and Wales under
registered number 516846, the registered office of which is located at
Xxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx
("BEAH(UK)"), since its acquisition by BE Aerospace, Inc. (formerly BE
Avionics, Inc.) (the "Issuer") on 2 April, 1992. We have been asked by
the Issuer, a Delaware corporation, to provide this opinion in
connection with the issue and sale by the Issuer of US $250,000,000
principal amount of 8 7/8% Senior Subordinated Notes due 2011
(together, the "Securities"). We have been provided with copies of:
(a) an offering memorandum dated April 11, 2001, relating to the
Issuer and the Securities (the "Offering Memorandum");
(b) a draft dated April [__], 2001of an indenture to be dated as of
April 17, 2001 between the Issuer and the trustee named therein (the
"Indenture") which we have been advised is the final form thereof;
(c) the purchase agreement dated as of April 11, 2001, between the
Issuer and you relating to the issue and sale of the Securities (the
"Purchase Agreement"); and
38
(d) the registration rights agreement to be dated as of 2 November, 1998
between the Issuer and you relating to the filing of a registration
statement with respect to the Securities (the "Registration Rights
Agreement").
2. We understand that this opinion is required by you pursuant to Section
5(b) of the Purchase Agreement.
3. For the purposes of giving this opinion, we have examined the following
documents relating to BEAH(UK):-
(a) the statutory books, including the register of members and the
minutes of board meetings and general meetings of the
shareholders contained therein;
(b) copies of the Memorandum and Articles of Association, Certificate
of Incorporation and Certificates of Incorporation on Change of
Name; and
(c) certificate of good standing issued by the Registrar of Companies on
April [__], 2001, copies of which are annexed hereto marked "A".
4. We have carried out a search of the microfiche relating to BEAH(UK)
supplied to us by the Companies Registration Office on April [__],
2001, which revealed no order or resolution to wind up BEAH(UK) and no
notice of the appointment of an administrator or receiver of BEAH(UK).
We have also carried out a search at the Central Registry of Winding Up
Petitions, London on April [__], 2001, which shows no pending petition
to wind up BEAH(UK). We have not conducted any further search, or any
search in any District Registry of the High Court where winding-up and
administration petitions may also be presented in certain cases, and
accordingly this opinion is given on the assumption that such searches
(if made) would not reveal any circumstances which would require
amendment of this opinion.
5. Except for the documents listed in paragraphs 1 and 3 above, we have
not examined for the purposes of this opinion any contracts or other
documents entered into by or affecting BEAH(UK) or any corporate
records of BEAH(UK). We have not made any other enquiries or searches
concerning BEAH(UK) (whether within this firm or otherwise), except as
mentioned in paragraph 4 above. For the purposes of this opinion, we
have relied as to factual matters upon certificates of officers and
directors of the Issuer and of BEAH(UK) (copies of which are annexed
hereto marked "B") and have relied on representations made by the
Issuer in the Purchase Agreement.
6. This opinion is given only with respect to English law in force at the
date of this letter as applied by English Courts and is given on the basis
that it will be governed by and construed in accordance with English law.
No opinion is expressed or implied as to the laws of any other territory.
7. This opinion is based on the assumptions set out in the appendix to this
letter, which we have taken no steps to verify independently.
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8. Based upon and subject to the foregoing, and subject as stated herein
and to any matters not disclosed to us, we are of the opinion that:
(a) BEAH(UK) is duly incorporated under the Companies Xxx 0000 as a
private company with limited liability under English law, is
validly existing under English law and has the necessary
corporate power under the Companies Acts 1985 and 1989 and its
Memorandum and Articles of Association to conduct its business
and to own, lease and operate its properties as described in the
Offering Memorandum at pages 61, 62 and 63 (copies of which are
annexed hereto marked "C");
(b) as reflected in the register of members of BEAH(UK), the Issuer
is the registered holder of all of the 500,000 issued ordinary
shares of L1 each of BEAH(UK) and all of the 916,900 issued
3% cumulative redeemable preference shares of L1 each of
BEAH(UK). Pursuant to Section 361 Companies Xxx 0000, the
register of members of a company (as defined in that Act) is
prima facie evidence of any matters which are by that Act
directed or authorised to be inserted in it, and of legal
ownership of shares;
(c) in the absence of any circumstance by which a member of a company
limited by shares (as defined in the Companies Act 1985) may
become liable for the company's debts, the liability of the
member (including, with respect to BEAH(UK), the Issuer) for such
debts will be limited to the par value of the shares held and any
premium agreed to be paid, to the extent that such amounts have
not previously been paid. According to the register of members
of BEAH(UK), the search of the microfiche relating to BEAH(UK)
referred to in paragraph 4 above and the certificates of the
officers and directors of the Issuer, BEAH(UK), but having made
no other enquiry, investigation or verification, we are of the
opinion that the issued ordinary shares and preference shares of
L1 each in the capital of BEAH(UK) are fully paid;
(d) the issued cumulative redeemable preference shares of L1 each
of BEAH(UK) have been duly authorised and validly issued;
(e) the issued cumulative redeemable preference shares of L1 each
of BEAH(UK) were not issued in violation of any pre-emptive rights
under statute or under the Memorandum and Articles of Association of
BEAH(UK);
(f) none of the following will result in any breach of the Memorandum
and Articles of Association of BEAH(UK):-
(i) the execution and delivery by the Issuer of the Purchase
Agreement, the consummation by the Issuer of the transactions
therein contemplated and the compliance by the Issuer with its
terms;
(ii) the execution and delivery by the Issuer of the
Registration Rights Agreement and the compliance by the
Issuer with its terms;
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(iii) the execution and delivery by the Issuer of the Indenture
and the compliance by the Issuer with its terms;
(iv) the issue and delivery by the Issuer of the Securities as
contemplated by the Offering Memorandum; and
(v) the consummation by the Issuer of the transactions
contemplated in the Offering Memorandum.
(g) the matters referred to in paragraph 8(f)(i) to (v) inclusive above
do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of BEAH(UK) under:-
(i) any existing English law, rule or regulation; or
(ii) to our knowledge (based solely upon written notification by
BEAH(UK)) and on the basis of the certificates of the officers
and directors of BEAH(UK) and the Issuer, any judgment, order
or decree of any government, governmental instrumentality or
court having jurisdiction over BEAH(UK) or any of its
properties.
9. This opinion is addressed to you in connection with the Issuer. It is
given for your benefit for the purpose of the issue of the Securities
only, and may not be disclosed or quoted to or relied upon by any other
person, without our prior written consent in each specific case, or used
for any other purpose. No person (other than you) into whose possession a
copy of this opinion may come may rely on this opinion without our express
written consent addressed to him.
Yours faithfully
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Appendix to Opinion
In this opinion, we have assumed that:-
(a) All documents submitted to us as originals are authentic and complete
and all signatures and seals are genuine.
(b) All documents supplied to us as photocopies or facsimile transmitted
copies or other copies conform to the originals and such originals are
authentic and complete.
(c) All documents, forms, notices and information which should have been
delivered to the Companies Registration Office and the Central Registry
of Winding Up Petitions on behalf of or relating to BEAH(UK) have been
so delivered and the file of records maintained at the Companies
Registration Office and the Central Registry of Winding Up Petitions
concerning BEAH(UK), and reproduced on microfiche for public inspection
or disclosed to us orally, was complete, accurate and up-to-date at the
time of the respective searches referred to in paragraph 4 of this
opinion letter and there has been no change in the information filed or
the oral disclosure made since the date on which those searches were
made.
(d) All documents dated earlier than the date of this opinion letter on which
we have expressed reliance remain accurate, complete and in full force and
effect at the date of this opinion.
(e) BEAH(UK) has not passed a resolution for its winding-up and no proceedings
have been instituted or steps taken for the winding-up of BEAH(UK) or the
appointment of an administrator or receiver in respect of all or any
assets of BEAH(UK).
(f) No law (other than English law) affects any of the conclusions stated in
this opinion.
(g) Each of the resolutions contained in the minutes referred to in
paragraph 3(a) of this opinion was duly passed at a properly convened,
constituted and conducted meeting of duly appointed directors or, as
the case may be, shareholders, of BEAH(UK) at which all constitutional,
statutory and other formalities were duly observed (including, if
applicable, those relating to the declaration of directors' interests
or the power of interested directors to vote); such resolutions have
not been amended or rescinded and are in full force and effect; and the
minutes of such meetings referred to in paragraph 3(a) of this opinion
are a true record of the proceedings at such meetings.
(h) The certificates of the officers and directors of the Issuer and BEAH(UK)
provided for the purposes of this opinion letter are true and accurate in
all respects.
