GUARANTY
Dated October 5, 1999
From
THOMSON-CSF SEXTANT
as Guarantor
in favor of
IFE SALES, LLC,
BE AEROSPACE, INC.,
BE INTELLECTUAL PROPERTY, INC.
and
PURITAN-XXXXXXX AERO SYSTEMS CO.
T A B L E OF C O N T E N T S
Section Page
1. Guaranty............................................................1
2. Guaranty Absolute...................................................1
3. Waivers and Acknowledgments.........................................2
4. Representations and Warranties......................................3
5. Amendments, Etc.....................................................4
6. Notices, Etc........................................................4
7. No Waiver; Remedies.................................................4
8. Indemnification.....................................................4
9. Continuing Guaranty.................................................5
10. Governing Law; Arbitration.........................................5
GUARANTY
GUARANTY dated October 5, 1999 made by Thomson-CSF Sextant, a
societe anonyme organized under the laws of France (the "Guarantor"), in favor
of IFE Sales, LLC, a Delaware limited liability company (the "Seller"), BE
Aerospace, Inc., a Delaware corporation ("BE Aerospace"), BE Intellectual
Property, Inc., a Delaware corporation ("BE IP"), Puritan-Xxxxxxx Aero Systems
Co., a Delaware corporation ("Puritan-Xxxxxxx" and together with BE Aerospace
and BE IP, the "Former Interest Holders").
PRELIMINARY STATEMENT. The Seller and the Former Interest
Holders are parties to a Purchase Agreement dated as of September 1, 1999
(together with the attached Disclosure Schedule and exhibits, as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Purchase Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Thomson-CSF Sextant
Inc., a Florida corporation ("Sextant"), pursuant to which Sextant agreed to
purchase from the Seller 100% of the Class Two Interests in Sextant In-Flight
Systems, LLC (formerly known as In-Flight Entertainment LLC), a Delaware limited
liability company ("SIFS"). Pursuant to an Assignment and Assumption Agreement
dated as of September 30, 1999, Sextant assigned its rights and obligations
under the Purchase Agreement to Thomson-CSF Holding Corporation, a Delaware
corporation (the "Purchaser"). The Guarantor is an Affiliate of the Purchaser.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Seller and the Former Interest Holders to enter into the Purchase
Agreement, the Guarantor hereby agrees as follows:
Section 1. GUARANTY. The Guarantor hereby unconditionally and
irrevocably guarantees the punctual performance and payment when due of all
obligations, amounts and other liabilities of the Purchaser now or hereafter
existing under the Purchase Agreement, and the obligations of SIFS to BE
Aerospace referred to in Section 2.06 of the Purchase Agreement (such
obligations, amounts and other liabilities being the "Guaranteed Obligations"),
and agrees to pay any and all expenses (including reasonable counsel fees and
expenses) incurred by the Seller and the Former Interest Holders in successfully
enforcing any rights under this Guaranty. Without limiting the generality of the
foregoing, the Guarantor's liability shall extend to all amounts and obligations
that constitute part of the Guaranteed Obligations and would be owed by the
Purchaser to the Seller and the Former Interest Holders under the Purchase
Agreement but for the fact that they are unenforceable or not allowable in
either case due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Purchaser.
Section 2. GUARANTY ABSOLUTE. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Purchase Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Seller and the Former Interest Holders with respect thereto. The
obligations of the Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other obligations of the Purchaser under the
Purchase Agreement, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Purchaser or whether the Purchaser is
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joined in any such action or actions. The liability of the Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Purchase
Agreement or any agreement or instrument relating thereto arising from
the failure of the Purchaser to properly authorize, execute and deliver
the Purchase Agreement;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of the Purchaser under the Purchase Agreement or any
agreement or instrument relating thereto, or any other amendment or
waiver of or any consent to departure from the Purchase Agreement;
(c) any change, restructuring or termination of the corporate
structure or existence of the Purchaser, SIFS or any of their
respective subsidiaries; or
(d) any failure of the Seller or the Former Interest Holders
to disclose to the Guarantor any information relating to the financial
condition, operations, properties or prospects of SIFS or any of its
subsidiaries now or in the future known to the Seller and the Former
Interest Holders (the Guarantor waiving any duty on the part of the
Seller and the Former Interest Holders to disclose such information).
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Seller, any Former Interest Holder or any
other Person upon the insolvency, bankruptcy or reorganization of the Purchaser
or SIFS or otherwise, all as though such payment had not been made.
Section 3. WAIVERS AND ACKNOWLEDGMENTS. (a) The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Seller and the Former Interest Holders exhaust any right,
pursue any remedy or take any action against the Purchaser or any other Person.
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(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
Section 4. REPRESENTATIONS AND WARRANTIES. The Guarantor
hereby represents and warrants as follows:
(a) The Guarantor is a societe anonyme duly incorporated,
validly existing and in good standing under the laws of France and has all
necessary corporate power and authority to enter into this Guaranty, to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby.
(b) The Guarantor has taken all requisite corporate action to
duly authorize the execution and delivery of this Guaranty by the Guarantor, the
performance by the Guarantor of its obligations hereunder and the consummation
by the Guarantor of the transactions contemplated hereby.
(c) This Guaranty has been duly executed and delivered by the
Guarantor, and constitutes a legal, valid and binding obligation of the
Guarantor enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to
enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(d) Except as may result from any facts or circumstances
relating solely to the Seller and the Former Interest Holders, the execution,
delivery and performance of this Guaranty by the Guarantor does not and will
not: (i) conflict with or violate the Certificate of Incorporation or By-laws
(or other similar applicable documents) of the Guarantor; (ii) conflict with or
violate any Law or Governmental Order applicable to the Guarantor, except as
would not, individually or in the aggregate, have a material adverse effect on
the ability of the Guarantor to consummate, or delay the consummation of, the
transactions contemplated by this Guaranty; or (iii) result in any breach of, or
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of the Guarantor
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument relating to such assets or
properties to which the Guarantor or any of its subsidiaries is a party or by
which any of such assets or properties is bound or affected, except as would
not, individually or in the aggregate, have a material adverse effect on the
ability of the Guarantor to consummate, or delay the consummation of, the
transactions contemplated by this Guaranty.
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(e) The execution and delivery of this Guaranty by the
Guarantor do not, and the performance of this Guaranty by the Guarantor will
not, require any consent, approval, authorization or other action by, or filing
with or notification to, any governmental or regulatory authority.
(f) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
Section 5. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Guarantor, the Seller and the Former Interest Holders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
Section 6. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to the Guarantor, addressed to it at Thomson-CSF Sextant, Zone
Aeronautique, Louis Breguet - XX 000, 00000 Xxxxxx - Villacoublay Cedex, France,
Attention: Alain Villevieille, if to the Seller and the Former Interest Holders,
to BE Aerospace, at its address specified in the Purchase Agreement. All such
notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
Section 7. NO WAIVER; REMEDIES. No failure on the part of the
Seller or any Former Interest Holders to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 8. INDEMNIFICATION. Without limitation on any other
obligations of the Guarantor or remedies of the Seller and the Former Interest
Holders under this Guaranty, the Guarantor shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless the Seller and
the Former Interest Holders from and against, and shall pay on demand, any and
all losses, liabilities, damages, expenses and charges (including the fees and
disbursements of legal counsel to the Seller and the Former Interest Holders)
suffered or incurred by the Seller and the Former Interest Holders as a result
of any failure of any Guaranteed Obligations to be the legal, valid and binding
obligations of the Purchaser enforceable against the Purchaser in accordance
with their terms arising from the failure of the Purchaser to properly
authorize, execute and deliver the Purchase Agreement.
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Section 9. CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the later of the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the performance by the Purchaser of all its
obligations under the Purchase Agreement and (b) not be assignable by the
Guarantor, the Seller or the Former Interest Holders.
Section 10. GOVERNING LAW; ARBITRATION. (a) This Guaranty
shall be goverened by, and construed in accordance with, the laws of the State
of New York.
(b) In the event of any dispute in connection with or arising
out of the existence, validity, construction or performance of this Guaranty (or
any terms hereof) (collectively, a "Dispute"), the Guarantor shall attempt in
good faith to negotiate and resolve any such Dispute with the Seller and the
Former Interest Holders. If after good faith negotiations the Dispute shall have
not been resolved, any party may deliver to any other party written notice of
its intention to submit the matter to arbitration (the "Arbitration Notice"). If
the matter is not resolved within 10 Business Days after the delivery of the
Arbitration Notice, or such later date as may be mutually agreed upon, then all
Disputes shall be finally settled by arbitration. The seat of the arbitration
shall be in New York, and the arbitration shall be conducted in English, in
accordance with the Rules of Conciliation and Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance with such
rules. The arbitrators are precluded from considering or awarding consequential,
special, punitive or exemplary damages to any party in any arbitration conducted
pursuant hereto. The parties shall have the right to present documentary
evidence and witnesses. The parties shall also have the right to cross-examine
witnesses. The decision of the arbitrators shall be final and binding upon all
the parties, and no party shall seek recourse to a law court or other
authorities to appeal for revisions of such decision. Nothing herein shall limit
the ability of any party to seek temporary or preliminary injunctive relief
pending arbitration.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
THOMSON-CSF SEXTANT
By ________________________
Title:
