Exhibit 1.1
BE AEROSPACE, INC.
(A DELAWARE CORPORATION)
$175,000,000
8 1/2% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
OCTOBER 2, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
c/o Credit Suisse First Boston LLC
AT&T Corporate Center
000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to each of Credit Suisse First Boston LLC ("CS First Boston"),
X.X. Xxxxxx Securities Inc., Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company,
Inc. and Xxxxxxxx Inc. (each an "Initial Purchaser" and together the "Initial
Purchasers") $175,000,000 aggregate principal amount of its 8 1/2 % Senior Notes
due 2010 (the "Securities"). The Securities are to be issued pursuant to an
indenture to be dated as of October 7, 2003 (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. The Company has prepared a preliminary
offering memorandum, dated September 26, 2003 (such preliminary offering
memorandum being hereinafter referred to as the "Preliminary Offering
Memorandum"), and is preparing a final offering memorandum, dated October 2,
2003 (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 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, (i) 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 and (ii) outside the United States to persons
other than U.S. persons in reliance upon Regulation S ("Regulation S") under the
Act. As used herein, the terms "United States" and "U.S. persons" have the
meaning given them in Regulation S.
The holders of Securities will be entitled to the benefits of a
Registration Rights Agreement to be dated October 7, 2003, in form and substance
agreed upon 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 CS First Boston expressly for use in the
Preliminary Offering Memorandum, the Offering Memorandum or any amendment
or supplement thereto.
(ii) Except for the Company's 8 7/8% Senior Subordinated Notes
due 2011, the Company's 9 1/2% Senior Subordinated Notes due 2008 and the
Company's 8% Senior Subordinated Notes due 2008, there are no debt
securities of the Company registered under the 1934 Act, or listed on a
national securities exchange or quoted in a 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 1933 Act) 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
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1933 Act) by or for the Company that is 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 1933 Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the 1933 Act. With
respect to those Securities sold in reliance upon Regulation S, none of the
Company, its Affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no representation
or warranty) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S and (ii) each of the Company, its
Affiliates and any person acting on its or their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation or
warranty) has complied and will comply with the offering restrictions set
forth in Regulation S.
(v) Xxxxxxxx & 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 business as a
foreign corporation and is in good standing in each other jurisdiction in
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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 as listed in Exhibit A attached hereto (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 BE Aerospace Holdings (UK) Limited ("BEAH(UK)").
BE Aerospace Services, LLC, Xxxxxxx Acquisition, Inc., Xxxxxx Jet
Interiors, LLC, Xxxxxx Aerospace, LLC, Xxxxxxx Precision, LLC, BEA
Aerospace (U.S.A.), LLC, Flight Structures, Inc., DMGI, LLC, T.L. Windust
Machine, LLC, Acurex, LLC, Modern Metals, LLC, Xxxxxxxx Industries, Inc.,
M&M Aerospace Hardware, Inc., B/E Aerospace Development Corporation, and
B/E Aerospace Machined Products, Inc. are inactive subsidiaries with no
significant assets and are not engaged in any active trade or business.
BEAH(UK) 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 business; and BEAH(UK) 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 BE Aerospace (France) S.A.R.L., 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, and Advanced Thermal Sciences Corporation, of which approximately
6% of the outstanding shares are owned by officers and employees 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 Aerospace Netherlands B.V. is pledged to the Agent
under the Bank Credit Facility, and (3) the outstanding capital stock of
each of BEA Aerospace USA, LLC, Acurex LLC, and BE Aerospace Services, LLC
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 Aerospace
Netherlands B.V. 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".
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(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, as described in the Company's most recent
proxy statement filed with the Commission, issuances pursuant to plans
referred to in the Offering Memorandum or the Company's most recent proxy
statement filed with the Commission or issuances pursuant the Company's
Schedule TO (file no. 005-41351).
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) The Registration Rights Agreement has been duly authorized
by the Company and, when executed and delivered by the Company and the
Initial Purchasers, will constitute 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 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
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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 Agreement and 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
effect 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, the Trust Indenture 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
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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, 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 reasonably be expected to 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 reasonably be expected to
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; 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, could not
reasonably be expected to 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.
(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
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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 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
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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 27, 1999 have been settled
and no assessment in connection therewith has been made against the
Company. 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 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; (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; and (E) any
significant deficiencies or material weaknesses in the design or operation
of internal accounting controls which could adversely affect the Company's
ability to record, process, summarize and report financial information
data, and any fraud whether or not material that involves management or
other employees who have a significant role in the Company's internal
accounting controls, are adequately and promptly disclosed to the Company's
independent auditors and the audit committee of the Company's board of
directors. The Company and the 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"
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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.
(xxxii) There are no transactions, arrangements or other
relationships, including but not limited to off balance sheet transactions,
which would be required to be included in the Offering Memorandum if the
Offering Memorandum was a registration statement on Form S-1 by the
Commission's "Statement About Management's Discussion and Analysis of
Financial Condition and Results of Operations" (January 22, 2002) which are
not so described or described as required.
(xxxiii) The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company and its subsidiary in
the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission's rules and forms, and is accumulated and communicated to
the Company's management and its subsidiaries management, including its
principal executive officer or officers and principal financial officer or
officers, as appropriate to allow timely decisions regarding disclosure.
(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.
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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 8 1/2% of the principal amount thereof, the
principal amount of the Securities set forth opposite your name on Schedule A.
(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
October 7, 2003 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 $170,187,500 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/or an
"Accredited Investor" as defined in Rule 501 of Regulation D. You agree that you
have offered and sold the offered Securities, and will offer and sell the
offered Securities only in accordance with Rule 903 or Rule 144A. Accordingly,
neither you nor your affiliates, nor any persons acting on your or their behalf,
have engaged or will engage in any directed selling efforts with respect to the
offered Securities, and you, your affiliates and all persons acting on your or
their behalf have complied and will comply with the offering restrictions
requirement of Regulation S and Rule 144A. 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,
(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 and (iii) for
offers and sales of the offered Securities outside the United States, will
comply with all laws, rules and regulations of such non-U.S. jurisdictions
applicable to such offers, sales or delivery.
(e) You hereby represent and warrant to the Company that you (i)
have not offered or sold and prior to the expiry of a period of six months from
the Closing Time, will not offer or sell any offered Securities to persons in
the United Kingdom except to persons whose
- 11 -
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) have only communicated or caused to
be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received
by you in connection with the issue or sale of any offered Securities in
circumstances in which section 21(1) of the FSMA does not apply to the Company
and (iii) complied and will comply with all applicable provisions of the FSMA
with respect to anything done by you in relation to the offered Securities in,
from or otherwise involving the United Kingdom.
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 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
- 12 -
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 1933 Act) will offer, sell or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the 1933
Act) 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. With respect to those Securities sold in reliance
upon Regulation S, none of the Company, its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and each of the Company, its
Affiliates and any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation or warranty) has
complied and will comply with the offering restrictions set forth in
Regulation S.
(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 1933 Act) 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 unless
they are available through the Electronic Data Gathering, Analysis and Retrieval
System.
- 13 -
(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) The purchaser understands that the notes will, until the
expiration of the applicable holding period with respect to the notes set forth
in Rule 144(k) of the Securities Act, unless otherwise agreed to by BE
Aerospace, Inc. and the holder thereof, bear a legend substantially to the
following effect:
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 TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO
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 SEUCRITIES 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) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) 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 (E)
OR (F) 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
- 14 -
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 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, (h) the cost of obtaining
approval for the trading of the Securities through PORTAL and (i) plane or
private jet expenses of the Initial Purchasers and the Company's officers and
employees in connection with attending or hosting meetings with prospective
purchasers of the offered Securities.
If this Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 5, 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.
- 15 -
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 Xxxxxxxx & Xxxxxxxx, 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 Xxxxxxx, counsel to BEAH(UK), dated as of Closing Time, in
substantially 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 Xxxxx, Xxxxx, Xxxxxx, 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
- 16 -
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 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 a date, in form and substance satisfactory
to you.
(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) 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.
(h) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company
- 17 -
and the Subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Initial Purchasers, including CS First Boston, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Securities; (ii)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Initial Purchasers, including CS
First Boston, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Securities, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material suspension or
material limitation of trading in securities generally on the Nasdaq National
Market or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or
New York authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of a majority in interest of the Initial
Purchasers, including CS First Boston, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and payment
for the Securities.
(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, the Initial Purchasers shall have received
a certificate of the Chief Financial Officer of the Company as to certain agreed
upon line items contained in the Offering Memorandum.
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 7 provides for the
survival of such representations or warranties), 6 and 7 shall remain in effect.
Section 6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless each Initial Purchaser, its affiliates, partners,
directors and officers and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the 1933 Act, against any losses,
claims, damages or liabilities, joint or several, to which the such Initial
Purchaser, its affiliate, partner, director and officer and any person
controlling such Initial Purchaser may become subject, under the 1933 Act or the
1934 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Offering
- 18 -
Memorandum, or any amendment or supplement thereto, or any related Preliminary
Offering Memorandum, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, including any losses, claims, damages or liabilities arising out
of or based upon the Company's failure to perform its obligations under Section
3(a) of this Agreement, and will reimburse each Initial Purchaser for any legal
or other expenses reasonably incurred by such Initial Purchaser in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser through CS First Boston specifically for use
therein, it being understood and agreed that the only such information consists
of the information described as such in subsection (b) below; provided, further,
however, that the foregoing indemnity agreement with respect to losses, claims,
damages or liabilities shall not inure to the benefit of any Initial Purchaser,
its affiliates, partners, directors and officers (or any person controlling any
Initial Purchaser,) with respect to any losses, claims, damages arising out of
or based upon (x) any untrue statement or alleged untrue statement of any
material fact in the Preliminary Offering Memorandum or (y) the omission or
alleged omission to state in the Preliminary Offering Memorandum a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, if: (1) the Company furnished
sufficient copies of the Offering Memorandum on a timely basis to permit
delivery of the Offering Memorandum to all persons purchasing notes from the
Initial Purchasers in the initial resale of such notes (such persons "Initial
Resale Purchasers") at or prior to the written confirmation of the sale of the
Securities to such person; (2) the Initial Resale Purchaser asserting such
losses, claims, damages or liabilities purchased Securities in the initial
resale from the Initial Purchasers and a copy of the Offering Memorandum was not
sent or given by or on behalf of such Initial Purchaser to such Initial Resale
Purchaser; and (3) the Offering Memorandum would have cured the defect giving
rise to such losses, claims, damages or liabilities.
(b) Each Initial Purchaser will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Memorandum, or any
amendment or supplement thereto, or any related Preliminary Offering Memorandum,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Initial Purchaser through CS First Boston specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
- 19 -
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the any Initial Purchaser
consists of the following information in the Offering Memorandum furnished on
behalf of each Initial Purchaser: under the caption "Plan of Distribution," the
third paragraph, the third sentence of the ninth paragraph and the tenth
paragraph; provided however, that the Initial Purchasers shall not be liable for
any losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 3(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed in
writing to the contrary; (ii) the indemnifying party has failed within a
reasonable time after receiving notice of the commencement of the action to
retain counsel reasonably satisfactory to the indemnified party; (iii) the
indemnified party shall have reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it that
are different from or in addition to those available to the indemnifying party;
or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would (based upon advice of
counsel to the indemnified party) be inappropriate due to a conflict or
potential conflict between them. It is understood and agreed that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Initial Purchaser, its affiliates,
directors and officers and any control persons of such Initial Purchaser shall
be designated in writing by CS First Boston and any such separate firm for the
Company, its directors and officers and any control persons of the Company shall
be designated in writing by the Company. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any
- 20 -
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Initial Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above 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 the Initial
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities 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 shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by the Initial Purchasers from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased by it were
resold 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. The Initial Purchasers' obligations
in this subsection (d) to contribute are several in proportion to their
respective purchase obligations and not joint.
(e) The obligations of the Company under this section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Initial Purchaser within the meaning of the 1933 Act or the 1934 Act; and the
obligations of the Initial Purchasers under this section shall be in addition to
any liability which the respective Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act.
Section 7. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the
- 21 -
Company or its officers and of the several Initial Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Initial Purchaser, the Company, or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Securities by the Initial Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 3 and the respective obligations of the Company and the Initial
Purchasers pursuant to Section 6 shall remain in effect. If the purchase of the
Securities by the Initial Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 5(h), the Company will reimburse the Initial Purchasers for all
out-of-pocket expenses (including fees and disbursement of counsel) reasonably
incurred by them in connection with the offering of Securities.
Section 8. 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-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 8.
Section 9. TAX DISCLOSURE. Notwithstanding any other provision of
this Agreement, except as reasonably necessary to comply with applicable
securities law, from the commencement of discussions with respect to the
transactions contemplated hereby, the Company and the Initial Purchasers (and
each employee, representative or other agent of the Company and the Initial
Purchasers) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure (as such terms are used in Sections 6011,
6111 and 6112 of the Internal Revenue Code and the Treasury regulations
promulgated thereunder) of the
- 22 -
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided relating to such
tax treatment and tax structure.
Section 10. 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 Credit Suisse
First Boston LLC, AT&T Corporate Center, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX
00000, Attention: Xxxxx Xxxxxx with copies to Fried, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx
Xxxxx; 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 11. 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 12. 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 13. 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.
----------
- 23 -
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/ Xxxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Corporate Senior Vice President of
Administration and Chief Financial Officer
- 24 -
Confirmed and accepted as of the date first above written:
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
By: Credit Suisse First Boston LLC
By /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Director
- 25 -
================================================================================
BE AEROSPACE, INC.
(a Delaware corporation)
$175,000,000
8 1/2% Senior Notes due 2010
PURCHASE AGREEMENT
Dated: October 2, 2003
================================================================================
SCHEDULE A
Principal Amount
of Securities
Initial Purchasers to be Purchased
------------------ ---------------
Credit Suisse First Boston LLC .................................. $ 113,750,000
X.X. Xxxxxx Securities Inc. ..................................... $ 26,250,000
Xxxxxxxxx/Quarterdeck, LLC ...................................... $ 100,000
Xxxxxxxxx & Company, Inc. ....................................... $ 17,400,000
Xxxxxxxx Inc. ................................................... $ 17,500,000
----------------
Total ................................................... $ 175,000,000
EXHIBIT A
LIST OF SUBSIDIARIES
BE Aerospace International Ltd., a company incorporated under the laws of
Barbados
BE Aerospace (UK) Holdings Limited, a company incorporated under the Companies
Act (England and Wales)
BE Aerospace (UK) Limited, a company incorporated under the laws of Northern
Ireland XX Xxxxxx (B/E) UK Limited, a company incorporated under the Companies
Act (England and Wales)
BE Aerospace (Services) Limited, a company incorporated under the Companies Act
(England and Wales)
BE Aerospace (USA), LLC., a Delaware limited liability company
BE Aerospace Netherlands B.V., a company incorporated under the laws of the
Netherlands
Royal Inventum, B.V., a company incorporated under the laws of the Netherlands
Xxxxxxxx Industries, Inc., a California Corporation
Acurex LLC, a Delaware limited liability company
BE Aerospace (France) S.A.R.L., a company incorporated under the laws of France
Xxxxx Aerospace (France) S.A.R.L., a company incorporated under the laws of
France
Aerospace Lighting Corporation, a
New York corporation
Flight Structures, Inc., a Washington corporation
BE Intellectual Property, Inc., a Delaware corporation
BE Aerospace Services, LLC, a Delaware limited liability company
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, LLC, a California limited liability company
DMGI, LLC, a California limited liability company
Xxxxxxx Precision, Inc., a California corporation
Xxxxxxx Precision, LLC, a California limited liability company
Advanced Thermal Sciences Corporation, a Delaware company
Modoc Engineering Corporation, a California corporation
Advanced Thermal Sciences Corporation, a Delaware corporation
ATS Japan Corporation, a Japanese Kabushiki Kaisha
Advanced Thermal Sciences Taiwan Corporation, a Taiwanese Corporation
Denton Jet Interiors, LLC, a Texas limited liability company
Modern Metals, LLC, a California limited liability company
Xxxxxx Aero Space, LLC, a California limited liability company
M&M Aerospace Hardware, Inc., a Florida corporation
M&M Aerospace Hardware SARL, a French SARL
M&M Aerospace Hardware GmbH, a German company
M&M Aerospace Hardware LTD, a UK company
Xxxxxxx Acquisition, Inc., a Delaware corporation
B/E Aerospace Development Corporation, a Delaware corporation
EXHIBIT B-1
FORM OF OPINION OF XXXXXXXX & XXXXXXXX
[Shearman & Sterling Letterhead]
October 7, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
c/o Credit Suisse First Boston LLC
AT&T Corporate Center
000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000
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 Credit Suisse
First Boston LLC, X.X. Xxxxxx Securities Inc., Xxxxxxxxx/Quarterdeck, LLC and
Xxxxxxxxx & Company, Inc. and Xxxxxxxx Inc. (collectively, the "Initial
Purchasers"), subject to the terms and conditions set forth in the
Purchase
Agreement, dated October 2, 2003 (the "
Purchase Agreement"), among the Company
and the Initial Purchasers, of $175,000,000 aggregate principal amount of the
Company's 8 1/2% Senior Notes due 2010 (the "Notes") issued pursuant to an
Indenture, dated as of October 7, 2003 (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
October 7, 2003 (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 September 26, 2003 and the final Offering Memorandum dated
October 2, 2003 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 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.
- 2 -
(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 repayment of the balance outstanding under
its existing bank credit facility (the "Facility Pay-Down")), 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, 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 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 December 31, 2002, the Company's Form
10-Qs for the quarter ended March 31, 2003, and for the quarter ended June 30,
2003, 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 Facility
Pay-Down), 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.
(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.
- 3 -
(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 -
Schedule I
1. Credit Agreement dated as of August 21, 2001, as amended as of
December 14, 2001, January 23, 2003, March 4, 2003, September 26, 2003 and
October 2, 2003, among BE Aerospace, Inc., the Chase Manhattan Bank, as
Administrative Agent and the lenders party thereto.
2. Indenture, dated February 13, 1998 between the Company and United
States Trust Company of New York.
3. Indenture, dated November 2, 1998 between the Company and The Bank of
New York.
4. Indenture, dated April 17, 2001 between the Company and The Bank of
New York.
October 7, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
c/o Credit Suisse First Boston LLC
AT&T Corporate Center
000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000
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 Credit Suisse
First Boston LLC and X.X. Xxxxxx Securities Inc., Xxxxxxxxx/Quarterdeck, LLC and
Xxxxxxxxx & Company, Inc. and Xxxxxxxx Inc. (collectively, the "Initial
Purchasers"), subject to the terms and conditions set forth in the Purchase
Agreement, dated October 2, 2003 (the "Purchase Agreement"), among the Company
and the Initial Purchasers, of $175,000,000 aggregate principal amount of the
Company's 8 1/2% Senior Notes due 2010 (the "Notes") issued pursuant to an
Indenture, dated as of October 7, 2003 (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
October 7, 2003 (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 September 26, 2003 and the final Offering Memorandum, dated
October 2, 2003, 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 Xxxxxxx, 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,
- 2 -
FORM OF OPINION OF XXXXXX XXXXXXXX
October 7, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
c/o Credit Suisse First Boston LLC
AT&T Corporate Center
000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000
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 Credit Suisse First Boston
LLC, X.X. Xxxxxx Securities Inc., Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx &
Company, Inc. and Xxxxxxxx Inc. (collectively, the "Initial Purchasers"),
subject to the terms and conditions set forth in the Purchase Agreement dated
October 2, 2003 (the "Purchase Agreement"), among the Company and the Initial
Purchasers, of $175,000,000 aggregate principal amount of the Company's 8 1/2%
Senior Notes due 2010 (the "Notes") issued pursuant to an Indenture dated as of
October 7, 2003 (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 October 7, 2003 (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 September 26, 2003 and the Final Offering Memorandum dated as
of October 2, 2003, 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 independently establish or
verify, I have relied, without investigation, and believe that I am
- 1 -
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. 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, Tennessee, Texas,
Washington and West Virginia; these states including among them the only
jurisdictions in the United States in which the Company 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) the Company is not in violation of
its certificate of organization 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 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) the Company is not in violation of any applicable law, rule or regulation,
or, to our knowledge 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
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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
their 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,
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EXHIBIT B-2
FORM OF OPINION OF XXXXXXX
Lovells Letterhead
October 7, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxxxxxx Inc.
c/o Credit Suisse First Boston LLC
AT&T Corporate Center
000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000
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 House, Grovebury Road, Xxxxxxxx Xxxxxxx, Bedfordshire (the
"Company"), 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 $175,000,000 principal amount of
8 1/2% Senior Notes due 2010 (the "Securities"). We have been provided with
copies of:
(a) an offering memorandum dated October 2, 2003, relating to the Issue
and the Securities (the "Offering Memorandum");
(b) a draft dated October ___, 2003 of an indenture to be dated October 7,
2003, made 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 October 2, 2003, made between the Issuer
and you, relating to the issue and sale of the Securities (the
"Purchase Agreement");
(d) the registration rights agreement to be dated October 7, 2003 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 purpose of giving this opinion, we have examined the following
documents relating to the Company:
(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 Certificate of Incorporation on Change of Name; and
(c) a certificate of good standing issued by the Registrar of Companies on
October ___, 2003, a copy of which is annexed hereto marked "A".
4. We have carried out an on-line search of the Company on Companies House
Direct on October ___, 2003, which revealed no order or resolution to wind
up the Company and no notice of the appointment of an administrator or
receiver of the Company. We have also carried out a search at the Central
Registry of Winding Up Petitions, London on October ___, 2003, which shows
no pending petition to wind up the Company. 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 the Company or any corporate records of the
Company. We have not made any other enquiries or searches concerning the
Company (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 the Company (copies of which are annexed hereto and 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.
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) the Company is duly incorporated under the Companies Act 1948 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 of
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1985 and 1989 and its Memorandum and Articles of Association to
conduct its business and to own, lease and operate its properties;
(b) as reflected in the register of members of the Company, the Issuer is
the registered holder of all of the 1,781,268 issued ordinary shares
of L 1 each of the Company and all of the 916,900 issued 3%
cumulative redeemable preference shares of L 1 each of the
Company. Pursuant to Section 361 Companies Act 1985, 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 the Company, 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 the Company, the
on-line search of the Company on Companies House Direct referred to in
paragraph 4 above and the certificates of the officers and directors
of the Issuer and the Company, but having made no other enquiry,
investigation or verification, we are of the opinion that the issued
ordinary shares and preference shares of L 1 each in the capital
of the Company are fully paid;
(d) the issued cumulative redeemable preference shares of L 1 each of
the Company have been duly authorised and validly issued;
(e) the issued cumulative redeemable preference shares of L 1 each of
the Company were not issued in violation of any pre-emptive rights
under statute or under the Memorandum and Articles of Association of
the Company;
(f) none of the following will result in any breach of the Memorandum and
Articles of Association of the Company:
(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;
(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
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(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 the Company under:
(i) any existing English law, rule or regulation; or
(ii) to our knowledge (based solely upon written notification by the
Company) and on the basis of the certificates of the officers and
directors of the Company and the Issuer, any judgment, order or
decree of any government, governmental instrumentality or court
having jurisdiction over the Company 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. All photocopies or facsimile
transmitted copies or other copies conform to the originals and the
originals are authentic and complete. All copies certified and other
documents dated earlier than the date of this opinion on which we have
relied remain accurate, complete and in full force and effect at the date
of this opinion.
(b) 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 the Company have been so
delivered and the file of records maintained at the Companies Registration
Office and the Central Registry of Winding Up Petitions concerning the
Company was complete, accurate and up-to-date at the time of the respective
searches referred to in paragraph 4 of this opinion.
(c) The Company has not passed a resolution for its winding-up and no
proceedings have been instituted or steps taken for the winding-up of the
Company or the appointment of an administrator or receiver in respect of
all or any assets of the Company.
(d) No law (other than English law) affects any of the conclusions stated in
this opinion.
(e) 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 the Company 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.
(f) The certificates of the officers and directors of the Issuer and the
Company provided for the purposes of this opinion letter are true and
accurate in all respects.
