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Exhibit 10.3
EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of January 28, 1998, between BE AEROSPACE,
INC., a corporation duly organized and validly existing under the laws of the
State of Delaware (the "Company") each of the lenders that is a signatory
hereto (individually, a "Lender" and, collectively, the "Lenders") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as agent for the Lenders (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company, the Lenders and the Administrative Agent are parties to
a Third Amended and Restated Credit Agreement dated as of October 29, 1993, as
amended and restated as of May 29, 1997, as further amended as of November 19,
1997 (as heretofore modified and supplemented and in effect on the date hereof,
the "Credit Agreement"). The Company has requested that the Credit Agreement be
amended and accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 2, terms defined in the Credit Agreement (as amended hereby) are
used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the condition
precedent specified in Section 5 below, but effective as of the date hereof (the
"Second Amendment Effective Date"), the Credit Agreement shall be amended as
follows:
2.01. References in the Credit Agreement (including references to
the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Credit Agreement as amended hereby.
2.02. The definition of "Restricted Payment" in Section 1.01 of the
Credit Agreement shall be amended to read in its entirety as follows:
"'Restricted Payment' shall mean, with respect to any Person, (a)
dividends (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking
or other analogous fund for, or the purchase, redemption, retirement or
other acquisition of, any shares of any class of stock of such Person or
of any warrants (other than of shares of common stock, warrants or options
of such Person as payment for the exercise price of options or warrants to
purchase common stock of such Person having a fair market value equal to
such exercise price), options or other rights to acquire the same (or to
make any payments to any other Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market
or equity value of such Person or any of its Subsidiaries), but excluding
dividends payable solely in shares of common stock or in options, warrants
or other rights to purchase such common stock of such Person or (b) any
payment (whether made by such Person or any of its Subsidiaries) on
account of the purchase, redemption, prepayment, defeasance or other
acquisition or retirement of value of any Indebtedness (such Indebtedness,
'Retired Indebtedness') (i) which is subordinated in right of payment to
the prior payment of the Loans or (ii) which is
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evidenced by the Senior Notes, except any such payment made from the
proceeds of (x) the issuance of any equity securities or (y) any
additional unsecured Indebtedness that does not rank senior in right of
payment to, and does not mature or have any mandatory prepayment, which
does not include required prepayments as a result of a change of control
or asset sale, prior to the maturity of, such Retired Indebtedness.".
Section 2.03. Section 6.02(b) of the Credit Agreement shall be
amended to read in its entirety as follows:
"The Administrative Agent shall have received a certificate of a
senior financial officer of the Company setting forth in reasonable
detail the computations necessary to demonstrate that both immediately
prior to the making of such Loan or other extension of credit and
immediately after giving effect thereto, the Company is or will be in
compliance with (i) Section 1010 of the Senior Subordinated Indenture,
(ii) any provisions in any other indenture to which the Company is a party
that restrict the incurrence or existence of Indebtedness or Liens and
(iii) the Borrowing Base as at the end of the quarterly fiscal period of
the Company ending on or most recently ended prior to the date of such
extension of credit."
Section 2.04. References in the Credit Agreement to the Senior
Subordinated Notes and to the Senior Subordinated Indenture shall be deemed to
include references to the Senior Subordinated Notes due 2008 issued by the
Company during the first quarter of 1998 and to the indenture pursuant to which
such Senior Subordinated Notes due 2008 are issued, respectively.
Section 2.05. The proviso at the end of Section 8.07 of the Credit
Agreement shall be amended to read in its entirety as follows:
"provided that the Company may incur additional unsecured Indebtedness
that has no regularly scheduled maturity or mandatory prepayments, which
does not include required prepayments as a result of a change of control
or asset sale, on or before the Series A Commitment Termination Date.
Section 3. Waiver. The Banks hereby waive any restriction in Section
8.18 of the Credit Agreement or otherwise to the redemption or repurchase by
means of a tender offer and consent solicitation of the Senior Notes with the
proceeds of the Senior Subordinated Notes due 2008 proposed to be issued by the
Company during the first quarter of 1998 and the amendments to the Senior
Indenture contemplated thereby.
Section 4. Representations and Warranties. The Company represents
and warrants to the Lenders that the representations and warranties set forth in
Section 7 of the Credit Agreement (as amended hereby) are true and complete on
the date hereof as if made on and as of the date hereof (or, if such
representation or warranty is expressly stated to be made as of a specific date,
as of such specific date) and as if each reference in said Section 7 to "this
Agreement" included reference to this Amendment No. 2.
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Section 5. Condition Precedent. As provided in Section 2 above, the
amendments to the Credit Agreement set forth in said Section 2 and the waiver
set forth in Section 3 above shall become effective, as of the date hereof, upon
the due execution and delivery of this Amendment No. 2 by the Company, the
Guarantor referred to below, the Administrative Agent and the Majority Lenders.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 2 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 2 by signing any such counterpart. This
Amendment No. 2 shall be governed by, and construed in accordance with, the law
of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By /s/ Xxxxxx X. XxXxxxxxx
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Title:
/s/ Xxxxx Xxxxxxxxxx
XXXXX XXXXXXXXXX, Notary Public
My Commission Expires May 22, 2003
LENDERS
THE CHASE MANHATTAN BANK NATIONSBANK, N.A. (SOUTH)
By By
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Title: Title:
LASALLE BUSINESS CREDIT, INC. LTCB TRUST COMPANY
By By
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Title: Title:
CREDITANSTALT-BANKVEREIN FUJI BANK & TRUST COMPANY
By By
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Title: Title:
By
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By
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Title:
LENDERS
THE CHASE MANHATTAN BANK NATIONSBANK, N.A. (SOUTH)
By /s/ [Illegible] By
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Title: Title:
LASALLE BUSINESS CREDIT, INC. LTCB TRUST COMPANY
By By
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Title: Title:
CREDITANSTALT-BANKVEREIN FUJI BANK & TRUST COMPANY
By By
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Title: Title:
By
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By
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Title:
LENDERS
THE CHASE MANHATTAN BANK NATIONSBANK, N.A. (SOUTH)
By By /s/ [Illegible]
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Title: Title: Vice President
LASALLE BUSINESS CREDIT, INC. LTCB TRUST COMPANY
By By
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Title: Title:
CREDITANSTALT-BANKVEREIN FUJI BANK & TRUST COMPANY
By By
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Title: Title:
By
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By
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Title:
LENDERS
THE CHASE MANHATTAN BANK NATIONSBANK, N.A. (SOUTH)
By By
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Title: Title:
LASALLE BUSINESS CREDIT, INC. LTCB TRUST COMPANY
By By /s/ [Illegible]
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Title: Title: SVP
CREDITANSTALT-BANKVEREIN FUJI BANK & TRUST COMPANY
By By
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Title: Title:
By
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By
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Title:
LENDERS
THE CHASE MANHATTAN BANK NATIONSBANK, N.A. (SOUTH)
By By
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Title: Title:
LASALLE BUSINESS CREDIT, INC. LTCB TRUST COMPANY
By By
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Title: Title:
CREDITANSTALT-BANKVEREIN FUJI BANK & TRUST COMPANY
By By /s/ [Illegible]
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Title: Title: Vice President and Manager
By
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Title:
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CREDIT LYONNAIS, THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/ Xxxxxx Xxxxxxxxx By
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Title: Xxxxxx Xxxxxxxxx Title:
Senior Vice President
By
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Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
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Title:
GUARANTOR
Consent to the foregoing:
IN-FLIGHT ENTERTAINMENT, LLC
By
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Title:
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CREDIT LYONNAIS, THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By By /s/ Xxxxxxx X. Xxxx
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Title: Title: XXXXXXX X. XXXX
VICE PRESIDENT AND MANAGER
By /s/ Xxxxx X. Xxxxx
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Title: XXXXX X. XXXXX
SENIOR VICE PRESIDENT &
REGIONAL MANAGER (EAST)
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
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Title:
GUARANTOR
Consent to the foregoing:
IN-FLIGHT ENTERTAINMENT, LLC
By
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Title:
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CREDIT LYONNAIS, THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By By
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Title: Title:
By
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Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ [Illegible]
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Title:
GUARANTOR
Consent to the foregoing:
IN-FLIGHT ENTERTAINMENT, LLC
By
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Title:
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CREDIT LYONNAIS, THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By By
------------------------ ----------------------------
Title: Title:
By
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Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
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Title:
GUARANTOR
Consent to the foregoing:
IN-FLIGHT ENTERTAINMENT, LLC
By /s/ Xxxxxx X. XxXxxxxxx
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Title:
/s/ Xxxxx Xxxxxxxxxx
XXXXX XXXXXXXXXX, Notary Public
My Commission Expires May 22, 2003
