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BE AEROSPACE, INC.
(a Delaware corporation)
$200,000,000
9 1/2% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
Dated: October 28, 1998
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BE AEROSPACE, INC.
(a Delaware corporation)
$200,000,000
9 1/2% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
October 28, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), BT Xxxx. Xxxxx Incorporated, Chase Securities
Inc., Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx & Co. Incorporated
and PaineWebber Incorporated (each an "Initial Purchaser" and together the
"Initial Purchasers") $200,000,000 aggregate principal amount of its 9 1/2%
Senior Subordinated Notes due 2008 (the "Securities"). The Securities are to be
issued pursuant to an indenture to be dated as of November 2, 1998 (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.
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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 October 26, 1998 (such preliminary offering
memorandum being hereinafter referred to as the "Preliminary Offering
Memorandum"), and is preparing a final offering memorandum, dated October 28,
1998 (such final offering memorandum, in the form first furnished to the Initial
Purchasers for use in connection with the offering of the Securities being
hereinafter referred to as the "Offering Memorandum"), each setting forth
information regarding the Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Securities.
The Company intends to use approximately $118.0 million of the
net proceeds from the offering to repurchase four million shares of the
Company's Common Stock previously issued in connection with the Company's
acquisition of SMR Aerospace, Inc. (the "Stock Repurchase").
The Company understands that you propose to make an offering
of the Securities on the terms set forth in the Offering Memorandum, as soon as
you deem advisable after this Agreement has been executed and delivered, to
persons in the United States whom you reasonably believe to be qualified
institutional buyers ("Qualified Institutional Buyers") as defined in Rule 144A
under the 1933 Act, as such rule may be amended from time to time ("Rule 144A"),
in transactions under Rule 144A.
The holders of Securities will be entitled to the benefits of
a Registration Rights Agreement, in substantially the form attached hereto as
Exhibit A with such changes as shall be agreed to by the parties hereto (the
"Registration Rights Agreement"), pursuant to which the Company will file a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering the Securities or the
Exchange Securities referred to in the Registration Rights Agreement under the
1933 Act.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with the Initial Purchasers as of the date
hereof and as of the Closing Time as follows:
(i) As of their respective dates and as of the Closing Time,
none of the Preliminary Offering Memorandum, the Offering Memorandum or
any amendment or supplement thereto will include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that this representation
and warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by the Initial Purchasers through Xxxxxxx Xxxxx expressly for
use in the Preliminary Offering Memorandum, the Offering Memorandum or
any amendment or supplement thereto.
(ii) Except for the Company's 8% Senior Subordinated Notes due
2008 and
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the Company's 9 7/8% Senior Subordinated Notes due 2006, there are no
debt securities of the Company registered under the Securities Exchange
Act of 1934, as amended (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 0000 Xxx) has directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the 1933 Act) by
or for the Company that are of the same or similar class as the
Securities (other than with respect to the Exchange Securities) in a
manner that would require the registration of the Securities under the
1933 Act.
(iv) None of the Company or any affiliate of the Company or
any person acting on their behalf has (A) engaged, in connection with
the offering of the Securities, in any form of general solicitation or
general advertising (as those terms are used within the meaning of
Regulation D) or (B) solicited offers for, or offered or sold, such
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the 0000
Xxx) or in any manner involving a public offering within the meaning of
Section 4(2) of the 1933 Act.
(v) Each of Deloitte & Touche L.L.P., Zalick, Torok,
Kirgesner, Xxxx & Co. and Xxxx, Xxxxxxx & Banner, which are reporting
upon the audited financial statements and related notes included in the
Offering Memorandum or underlying the pro forma financial statements
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. To our knowledge, the
financial statements of SMR Aerospace, Inc. ("SMR") and its
subsidiaries included in or incorporated by reference in the Offering
Memorandum present fairly (a) the financial position of the SMR and its
subsidiaries on a consolidated basis as of the dates indicated and (b)
the results of operations and cash flows of SMR 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 SMR and
its subsidiaries, considered as one enterprise. To our
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knowledge, such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved. To our knowledge, the financial
statements of Aircraft Modular Products ("AMP") for the twelve months
ended January 31, 1998 and the month ended March 31, 1998 and Puritan
Xxxxxxx Aero Systems Co. ("PBASCO") for the year ended December 31,
1997 and the month ended March 31, 1998 underlying the pro forma
financial statements present fairly (a) the financial position of each
such entity and each such entity's subsidiaries on a consolidated basis
as of the dates indicated and (b) the results of operations and cash
flows of each such entity and each such entity's 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 each
such entity and each such entity's subsidiaries, considered as one
enterprise. To our knowledge, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. To our
knowledge, the financial statements for the year ended December 31,
1997, the six months ended June 30, 1998 and as of August 31, 1998, of
XX Xxxxxx Interiors Limited and its affiliate ("XX Xxxxxx") underlying
the pro forma financial statements present fairly (a) the financial
position of XX Xxxxxx as of the dates indicated and (b) the results of
operations and cash flows of XX Xxxxxx 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 XX Xxxxxx. To our knowledge, such financial
statements have been prepared in conformity with generally accepted
accounting principles of the United Kingdom ("U.K. GAAP") applied on a
consistent basis throughout the periods involved. The differences
between U.K. GAAP and U.S. generally accepted accounting principles
insofar as they affect the financial statements of XX Xxxxxx are not
material. 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. The pro forma
financial information included in the Offering Memorandum present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(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 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
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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: BEA Aerospace International Ltd., a company incorporated
under the laws of Barbados ("BEA International"), BE Aerospace Holdings
(U.K.) Limited, a company incorporated under the Companies Act (United
Kingdom) ("BEAH(UK)"), BE Aerospace (UK) Limited, a company
incorporated under the laws of Northern Ireland ("BEA(UK)"), XX Xxxxxx
(B/E) UK Limited, a company incorporated under the Companies Act
(United Kingdom) ("XX Xxxxxx (UK)"), XX Xxxxxx (Wales), a company
incorporated under the Companies Act (United Kingdom), Fort Hill
Aircraft Holdings Limited, a company incorporated under the Companies
Act (United Kingdom) ("Fort Hill"), AFI Holdings Limited, a company
incorporated under the Companies Act (United Kingdom) ("AFI"), BE
Aerospace (U.S.A.), Inc., a Delaware corporation ("BEA USA"), BE
Aerospace (Netherlands) B.V., a company incorporated under the laws of
the Netherlands ("BEA Netherlands"), Royal Inventum, B.V., a company
incorporated under the laws of the Netherlands ("Royal Inventum"), BE
Aerospace (Sales & Services) B.V., a company incorporated under the
laws of the Netherlands, Xxxxxxxx Industries, Inc., a California
corporation ("Xxxxxxxx"), Acurex Corporation, a Delaware corporation
("Acurex"), BE Aerospace (France) S.A.R.L., a company incorporated
under the laws of France ("BEA France"), Xxxxx Aerospace (France)
S.A.R.L., a company incorporated under the laws of France ("Xxxxx
France"), PBASCO, a California corporation, Aerospace Interiors, Inc.,
a Texas corporation ("ASI"), Aerospace Lighting Corporation, a New York
corporation and SMR, an Ohio corporation, B/E Xxxxxx Live TV LLC, a
Delaware limited liability company (of which, the Company owns 51%),
B/E Advanced Thermal Technologies, Inc., a Delaware corporation,
In-Flight Entertainment, LLC, a Delaware corporation and SMR Developers
LLC, a Delaware limited liability company, SMR Holdings, Inc., a
Delaware corporation, SMR Aerospace Management Co., Inc., a Delaware
corporation, Plush Xxxxx, Inc., a Delaware corporation, SMR
Technologies, Inc., a Delaware corporation, Flight Structures, Inc., a
Delaware corporation, Flight Structures International, Inc., a company
incorporated under the laws of Barbados LLC, B/E Intellectual Property,
Inc. and B/E Services, Inc., a Delaware corporation (each individually,
a "Subsidiary" and collectively, the "Subsidiaries"). The Company has
no significant subsidiaries (as defined in Rule 1.02 of the
Commission's Regulation S-X), other than SMR, BEAH(UK) and In-Flight
Entertainment, LLC. (each individually, a "Significant Subsidiary" and
collectively, the "Significant Subsidiaries"). AFI, Fort Hill and
Xxxxxxxx are inactive subsidiaries with no significant assets and are
not engaged in any active trade or business. Each Significant
Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business; and each Significant
Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital
stock of each Subsidiary have been duly authorized and
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validly issued or created and are fully paid and non-assessable and,
other than in the case of BEA France, of which five shares are owned by
Xxxx Xxxxxxxx, a French national and director of BEA France, and five
shares are owned by The K.A.D. Companies, Inc., an investment, venture
capital and consulting firm owned by Xxxx X. Xxxxxx, the Chairman of
the Company, are owned by the Company, directly or through one or more
Subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, except that (1) 65%
of the issued and outstanding Ordinary Shares of BEAH(UK) are pledged
to the Agent under the Bank Credit Facility, (2) 65% of the issued and
outstanding capital stock of BEA Netherlands is pledged to the Agent
under the Bank Credit Facility (3) the outstanding capital stock of
each of BEA USA, Acurex, B/E Services, Inc. and ASI 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 2,237,442.58 of convertible
preferred shares valued at approximately $2,237,443 in Interactive
Entertainment, Inc. and a note from BEA Netherlands in the principal
amount of Dfls. 49,385,000.
(ix) The Company had, at the date indicated in the Offering
Memorandum, a duly authorized, issued and outstanding capitalization as
set forth in the Offering Memorandum under the caption
"Capitalization".
(x) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive rights of any
stockholder of the Company. There are no outstanding options to
purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock of the Company, any shares of
capital stock of any subsidiary, or any such warrants, convertible
securities or obligations, except as set forth in the Offering
Memorandum.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws affecting creditors' rights generally, (y) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (z) any rights to indemnity and
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
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the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Indenture conforms to the description
thereof in the Offering Memorandum.
(xiv) The Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided in this
Agreement, the Securities will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
and the Securities conform to the description thereof in the Offering
Memorandum.
(xv) Since the respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, (B) any transaction entered into by the Company or
any subsidiary, other than in the ordinary course of business, that is
material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any kind declared,
paid or made by the Company on its capital stock.
(xvi) Neither the Company nor any Subsidiary is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise. The execution and delivery
by the Company of this Agreement, the Registration Rights Agreement and
the Indenture, the issuance, sale and delivery of the Securities by the
Company, the consummation by the Company of the transactions
contemplated in this Agreement, the Offering Memorandum and compliance
by the Company with the terms of this Agreement, the Registration
Rights Agreement and the Indenture have been duly authorized by all
necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the
Company or any Subsidiary, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any
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lien, charge or encumbrance upon any property or assets of the Company
or any Subsidiary under, (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any Subsidiary is a party or by which they may be bound or
to which any of their respective properties may be subject except as
such would not have a material adverse on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise or (B) any
existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any
of their respective properties.
(xvii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the rules and regulations thereunder
with respect to the Registration Rights Agreement and the transactions
contemplated thereunder and the securities or "blue sky" laws of the
various states) is required for the valid authorization, issuance, sale
and delivery of the Securities, for the execution, delivery or
performance by the Company of this Agreement, the Registration Rights
Agreement and the Indenture or for the consummation by the Company of
the transactions contemplated in this Agreement and the Offering
Memorandum (including, without limitation, the Stock Repurchase),
except such of the foregoing as will be obtained prior to the Closing
Time.
(xviii) Except as disclosed in the Offering Memorandum, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending
or, to the knowledge of the Company, threatened against or affecting
the Company or any Subsidiary or any of their respective officers, in
their capacity as such, that could result in any material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, or that could materially and adversely
affect the properties or assets of the Company and its subsidiaries,
considered as one enterprise, or that could adversely affect the
consummation of the transactions contemplated in this Agreement or the
Offering Memorandum (including, without limitation, the Stock
Repurchase); the aggregate of all pending legal or governmental
proceedings that are not described in the Offering Memorandum to which
the Company or any Subsidiary is a party or which affect any of their
respective properties, including ordinary routine litigation incidental
to the business of the Company or any Subsidiary, would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(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).
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(xx) All disclosure regarding year 2000 compliance and the
Euro conversion that is required to be described in a registration
statement on Form S-1 under the 1933 Act (including disclosures
required by Staff Legal Bulletin No. 6 and SEC Release No. 33-7558
(July 29, 1998)) has been included in the Offering Memorandum. The
Company and the Subsidiaries will not incur significant operating
expenses or costs to ensure that its information systems will be year
2000 compliant or to adjust its operating and information systems to
the conversion to a single currency in Europe, other than as disclosed
in the Offering Memorandum.
(xxi) 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.
(xxii) The Company and the Subsidiaries each owns, possesses
or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations,
including, without limitation, any licenses, permits, certificates,
consents, orders, approvals and other authorizations required to be
obtained from the Federal Aviation Administration, necessary to own or
lease, as the case may be, and to operate its properties and to carry
on its business as presently conducted, and neither the Company nor any
Subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations except as such would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxiii) 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.
(xxiv) 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
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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.
(xxv) 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.
(xxvi) 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").
(xxvii) 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.
(xxviii) All United States federal income tax returns of the
Company and the Subsidiaries required by law to be filed have been
filed and all United States federal income taxes which are due and
payable have been paid, except assessments against which appeals have
been or will be promptly taken and as to which adequate reserves have
been provided. The United States federal income tax returns of the
Company through the period ended February 26, 1994 have been settled
and no assessment in connection therewith has been made against the
Company other than $210,462.41 paid in connection with the Company's
February 27, 1993 and February 26, 1994 federal income tax returns. The
Company and the Subsidiaries each has filed all other tax returns that
are required to have been filed by it pursuant to applicable foreign,
state, local or other law except insofar as the failure to file such
returns would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise, and has paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and the
Subsidiaries, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company in respect
of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as
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one enterprise.
(xxix) 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;
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and its subsidiaries have
not made, and, to the knowledge of the Company, no employee or agent of
the Company or any subsidiary has made, any payment of the Company's
funds or any subsidiary's funds or received or retained any funds in
violation of any applicable law, regulation or rule or that would be
required to be disclosed in the Offering Memorandum.
(xxx) 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.
(xxxi) The Company is not an "investment company," and will
not be as a result of the sale of the Securities pursuant to this
Agreement, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxxii) 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,
- 11 -
demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental
Law.
(b) Any certificate signed by any officer of the Company or
any Subsidiary and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers shall be deemed a representation and warranty by the Company
to the Initial Purchasers as to the matters covered thereby.
Section 2. Purchase, Sale and Resale of the Securities;
Closing; Representations and Warranties of the Initial Purchasers. (a) On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to sell to each of
you, severally and not jointly, and each of you severally agrees to purchase
from the Company, at a purchase price of 9 1/2% of the principal amount thereof,
the principal amount of the Securities set forth opposite your name on Schedule
I.
(b) Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Company and you, at 9:00 A.M., New York time, on
November 2, 1998 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 the Company
in the aggregate amount of $194,750,000 in immediately available funds payable
to the order of the Company against delivery of the Securities to you.
(d) You have advised the Company that you propose to offer the
Securities for sale, upon the terms and conditions set forth in this Agreement
and in the Offering Memorandum. You hereby represent and warrant to the Company
that you are a Qualified Institutional Buyer as defined in Rule 144A and an
"Accredited Investor" as defined in Rule 501 of Regulation D. You agree with the
Company that you (i) will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general advertising
or in any manner involving a public offering within the meaning of Section 4(2)
of the 1933 Act and (ii) will solicit offers for the Securities only from, and
will offer, sell or deliver the Securities, as part of its initial offering,
only to persons in the United States whom you reasonably believe to be Qualified
Institutional Buyers or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to you that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in a
transaction under Rule 144A.
Section 3. Certain Covenants of the Company. The Company
covenants with you
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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 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.
- 13 -
(f) Neither the Company nor any of its affiliates (as such
term is defined in Rule 501(b) of the 0000 Xxx) will offer, sell or
solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the 0000 Xxx) the offering of which security could be
integrated with the sale of the Securities in a manner that would
require the registration of any of the Securities under the 1933 Act.
(g) The Company will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under the 1940 Act, and will not be
or become a closed-end investment company required to be registered,
but not registered, thereunder.
(h) During the period from the Closing Time to the earlier of
(i) two years after the Closing Time or (ii) the date of effectiveness
of the Registration Statement, the Company will not, and will not
permit any of its affiliates (as such term is defined in Rule 144 under
the 0000 Xxx) to, resell any of the Securities that have been
reacquired thereby, except for Securities purchased by the Company or
any of its affiliates and resold in a transaction registered under the
1933 Act.
(i) The Company will, so long as the Securities are
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the 1933 Act, either (i) file reports and other
information with the Commission under Section 13 or Section 15(d) of
the 1934 Act, or (ii) in the event the Company is not subject to
Section 13 or Section 15(d) of the 1934 Act, furnish to holders of the
Securities and prospective purchasers of the Securities designated by
such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule
144A(d)(4) under the 1933 Act to permit compliance with Rule 144A in
connection with resale of the Securities. For a period of five years
after the Closing Time, the Company will make available to you upon
request copies of all such reports and information, together with such
other documents, reports and information as shall be furnished by the
Company to the holders of the Securities issued by it.
(j) If requested by you, the Company will use its best efforts
in cooperation with you to permit the Securities sold in transactions
described in Section 2(d)(ii) hereof to be eligible for clearance and
settlement through The Depository Trust Company.
(k) Each Security will bear the following legend until such
legend shall no longer be necessary or advisable because such Security
is no longer subject to the restrictions on transfer described therein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
- 14 -
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 THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY),
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
(l) The Company will apply the net proceeds that it receives
from the offer and sale of the Securities issued by it in the manner
set forth with respect to it in the Offering Memorandum under the
heading "Use of Proceeds."
(m) Prior to the Closing Time, the Company will not issue any
press release or other communications directly or indirectly or hold
any press conference with respect to the Company, the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company, without your prior consent, which shall not
be unreasonably withheld, unless in the judgment of the Company and its
counsel, and after notification to you, such press release or
communication is required by law.
(n) For a period of 120 days from the date of the Offering
Memorandum, the Company will not, without your prior written consent,
directly or indirectly, offer, pledge, sell, grant any option, right or
warrant for the sale of or otherwise dispose of any debt securities of
the Company (or securities convertible or exchangeable into or
exercisable for debt securities of the Company), or file any
registration statement with respect to the foregoing, other than the
Exchange Securities referred to in the Registration Rights
- 15 -
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 and (h) the cost of
obtaining approval for the trading of the Securities through PORTAL.
If this Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 5 or 9(a)(i), the Company shall
reimburse the Initial Purchasers for all of their out-of-pocket expenses,
including the fees and disbursements of counsel for the Initial Purchasers.
Section 5. Conditions of Initial Purchasers' Obligations. The
obligations of each Initial Purchaser to purchase and pay for the Securities
that it has severally agreed to purchase hereunder are subject to the accuracy
of the representations and warranties of the Company contained herein and in
certificates of any officer of the Company and any Subsidiary delivered pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the Closing Time, each of you shall have received a
signed opinion of each of Shearman & Sterling, counsel for the Company,
and Xxxxxx Xxxxxxxx, General Counsel of the Company, in each case dated
as of the Closing Time, in substantially the form attached hereto as
Exhibit B-1. Such opinion shall be to such further effect with respect
to other legal matters relating to this Agreement and the sale of the
Securities pursuant to this Agreement as counsel for the Initial
Purchasers may reasonably request. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon
opinions of other counsel, who shall be counsel satisfactory to counsel
for the Initial Purchasers, in which case the opinion shall state that
they believe you are entitled to so rely. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and the Subsidiaries and certificates of public
officials; provided that such certificates have been delivered to the
Initial Purchasers.
- 16 -
(b) At the Closing Time, each of you shall have received a
signed opinion of Xxxxxx Xxxxx Xxxxxxx, counsel to BEAH(UK), dated as
of Closing Time, in substantially the form attached hereto as Exhibit
B-2. Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the sale of the Securities
pursuant to this Agreement as counsel for the Initial Purchasers may
reasonably request.
(c) At the Closing Time, each of you shall have received the
favorable opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel
for the Initial Purchasers, dated as of the Closing Time, to the effect
that the opinions delivered pursuant to Sections 5(a) and 5(b) appear
on their face to be appropriately responsive to the requirements of
this Agreement except, specifying the same, to the extent waived by
you, and with respect to the incorporation and legal existence of the
Company, the Securities, this Agreement, the Indenture, the
Registration Rights Agreement, the Offering Memorandum and such other
related matters as you may require. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to you. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and the Subsidiaries and certificates of public
officials; provided that such certificates have been delivered to the
Initial Purchasers.
(d) At the Closing Time, (i) the Offering Memorandum, as it
may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) there shall not have been, since the respective dates
as of which information is given in the Offering Memorandum, any
material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (iii) no action, suit or proceeding at
law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any Subsidiary that would be required
to be set forth in the Offering Memorandum other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary before or by
any government, governmental instrumentality or court, domestic or
foreign, that could result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, other than as set forth in the Offering Memorandum,
(iv) the Company shall have in all material respects complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, (v) no event of default
shall exist under any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or
any Subsidiary is a party or to which the Company or any Subsidiary is
subject except as such would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
enterprise and (vi)
- 17 -
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 and PBASCO, a letter, dated such
date, in form of Exhibit C-1 hereto.
(f) At the time that this Agreement is executed by the
Company, each of you shall have received from Zalick, Torok, Kirgesner
& Co., independent auditors for SMR, a letter, dated such date in the
form of Exhibit C-2 hereto.
(g) At the time that this Agreement is executed by the
Company, each of you shall have received from Xxxx, Xxxxxxx & Xxxxxx,
P.A., independent auditors for AMP, a letter in the form of Exhibit C-3
hereto.
(h) At the Closing Time, each of you shall have received from
each of Deloitte & Touche L.L.P., Zalick, Torok, Kirgesner, Xxxx & Co.
and Xxxx, Xxxxxxx & Xxxxxx, P.A. letters, 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 Sections 5(e) through 5(g), as the case may be, except that the
specified date referred to shall be a date not more than five days
prior to the Closing Time.
(i) Prior to the Closing Time, the Company shall have obtained
consents from the lenders under its Bank Credit Facility which permits
the Stock Repurchase as described in the Offering Memorandum under "Use
of Proceeds" and such consents shall be binding on the Company.
(j) At the Closing Time, each of you shall have received a
certificate regarding the financial data and information relating to XX
Xxxxxx from an officer of the Company or from an official of the
Company who has responsibility for financial and accounting matters in
a form to be agreed upon by the Company and Xxxxxxx Xxxxx.
(k) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Time, there shall not have been any
downgrading in the rating accorded any of the Company's securities,
including the Securities, by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act, nor shall such rating organization have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
securities, including the Securities.
(l) 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
- 18 -
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.
(m) At the Closing Time, the Registration Rights Agreement
shall have been fully executed and be in full force and effect.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 8 provides for the
survival of such representations or warranties), 6, 7 and 8 shall remain in
effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
offering memorandum or the Offering Memorandum (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by you), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue
- 19 -
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchasers through Xxxxxxx
Xxxxx expressly for use in any preliminary offering memorandum or the Offering
Memorandum (or any amendment or supplement thereto). The foregoing indemnity
with respect to any untrue statement contained in or any omission from a
preliminary offering memorandum shall not inure to the benefit of any Initial
Purchaser (or any person who controls such Initial Purchaser within the meaning
of Section 5 of the 0000 Xxx) from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Securities that are the
subject thereof if the Company shall sustain the burden of proving that such
person was not sent or given a copy of the Offering Memorandum (or any amendment
or supplement thereto) at or prior to the written confirmation of the sale of
such Securities to such person and the untrue statement contained in or the
omission from such preliminary offering memorandum was corrected in the Offering
Memorandum (or any amendment or supplement thereto).
(b) Each Initial Purchaser severally (but not jointly) agrees
to indemnify and hold harmless the Company, its directors, each of its officers
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity agreement in Section 6(a), as incurred, but
only with respect to untrue statements or omissions made in any preliminary
offering memorandum or the Offering Memorandum (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser through Xxxxxxx Xxxxx expressly for use
in such preliminary offering memorandum or the Offering Memorandum (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
- 20 -
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request with such request prior to the date of such
settlement.
Section 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the
Initial Purchasers on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or
- 21 -
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities sold by it were distributed to the
purchasers thereof exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Initial Purchasers'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company, the Initial Purchasers or
any person who controls the Company or the Initial Purchasers within the meaning
of Section 15 of the 1933 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement. (a) The Initial
Purchasers may terminate this Agreement, by notice to the Company, at any time
at or prior to the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the Initial Purchasers' judgment, impracticable to market the Securities or
enforce contracts for the sale of the Securities or (iii) if trading in any
securities of the Company has been suspended by the Commission or the Nasdaq
National Market, or if trading generally on either the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
such exchange or by order of the Commission, the NASD or any other governmental
authority or (iv) if a banking moratorium has been declared by either federal,
New York or Florida authorities.
- 22 -
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 8 provides for the
survival of such representations or warranties), 6, 7 and 8 shall survive such
termination and remain in full force and effect.
Section 10. Default. If one or more of the Initial Purchasers
shall fail at the Closing Time to purchase the Securities that it or they are
obligated to purchase (the "Defaulted Securities"), the non-defaulting Initial
Purchasers shall have the right, within 24 hours thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
upon the terms herein set forth; if, however, such non-defaulting Initial
Purchasers have not completed such arrangements within such 24-hour period,
then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities
to be purchased, the non-defaulting Initial Purchasers shall be
obligated to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased, this Agreement shall terminate without liability on the part
of the non-defaulting Initial Purchasers.
No action taken pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements. As used herein, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section 10.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Initial Purchasers shall be directed to the Initial Purchasers at
Xxxxxxx Xxxxx World Headquarters, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxx with copies to Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxx Jacob; and notices to the Company shall be directed to
it at 0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xx. Xxxx
X. Xxxxxx, Chairman of the Board of Directors and Chief Executive Officer with
copies to Shearman & Sterling at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxxx X. Xxxxxxxxxxx.
Section 12. Parties. This Agreement is made solely for the
benefit of the Initial Purchasers, the Company and, to the extent expressed, any
person who controls the Company or any Initial Purchaser within the meaning of
Section 15 of the 1933 Act, and the directors of the Company, its officers and
their respective executors, administrators, successors and assigns and
- 23 -
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, as
such purchaser, from the Initial Purchasers of the Securities.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day refer
to New York City time.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts and when a counterpart has been executed by each party,
all such counterparts taken together shall constitute one and the same
agreement.
-------------------------
- 24 -
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the Initial
Purchasers in accordance with its terms.
Very truly yours,
BE AEROSPACE, INC.
By:
---------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By
--------------------------------
Name:
Title:
- 25 -
SCHEDULE I
Principal Amount
of Securities
Initial Purchasers to be Purchased
------------------ ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................... 75,000,000
BT Alex. Xxxxx Incorporated............................... 10,000,000
Chase Securities Inc...................................... 20,000,000
Credit Suisse First Boston Corporation.................... 43,000,000
Xxxxxx Xxxxxxx & Co. Incorporated......................... 40,000,000
PaineWebber Incorporated.................................. 12,000,000
------------
Total............................................. $200,000,000
EXHIBIT A
FORM OF
REGISTRATION RIGHTS AGREEMENT
================================================================================
Registration Rights Agreement
Dated as of November 2, 1998
among
BE Aerospace, Inc.
and
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
BT Alex. Xxxxx Incorporated,
Chase Securities Inc.,
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
and
PaineWebber Incorporated
================================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into November 2, 1998, among BE AEROSPACE, INC., a Delaware
corporation (the "Company"), and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, BT ALEX. XXXXX INCORPORATED, CHASE SECURITIES INC., CREDIT SUISSE
FIRST BOSTON CORPORATION, XXXXXX XXXXXXX & CO. INCORPORATED and PAINEWEBBER
INCORPORATED (the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated October 28, 1998 among the Company and the Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Purchasers of an
aggregate of $200,000,000 principal amount of the Company's 9 1/2% Senior
Subordinated Notes due 2008 (the "Securities"). In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
also includes the Company's successors.
"Depositary" shall mean the Depository Trust Company, or any
other depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
- 1 -
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Securities" shall mean 9 1/2% Series B Senior
Subordinated Notes due 2008 issued by the Company under the Indenture
containing terms identical to the Securities (except that (i) interest
thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from the date of
their original issue, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an increase in the
stated rate of interest thereon shall be eliminated), to be offered to
Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"Holders" shall mean the Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the
Securities dated as of November 2, 1998 between the Company and The
Bank of New York, as trustee, as the same may be amended from time to
time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by
a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchaser" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that the
- 2 -
Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such
Securities shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the
1933 Act, (iii) such Securities shall have ceased to be outstanding or
(iv) such Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. ("NASD") registration
and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (vi)
the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses
of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, and (viii) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933
- 3 -
Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its best efforts
(A) to file within 30 days after the Closing Date an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Securities for Exchange Securities, (B) to cause such Exchange
Offer Registration Statement to be declared effective by the SEC within 120 days
after the Closing Date, (C) to cause such Registration Statement to remain
effective until the closing of the Exchange Offer and (D) to consummate the
Exchange Offer within 150 days following the Closing Date. The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers (as defined in Section 3(f))
eligible and electing to exchange Registrable Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements or understandings with
any person to participate in the Exchange Offer for the purpose of distributing
the Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall remain
open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is withdrawing
his election to have such Securities exchanged; and
- 4 -
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities equal in
amount to the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of its original issue. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer, or the making of
any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff of the SEC. Each Holder of Registrable Securities
(other than Participating Broker-Dealers) who wishes to exchange such
Registrable Securities for Exchange Securities in the Exchange Offer will be
required to represent that (i) it is not an affiliate of the Company, (ii) any
Exchange Securities to be received by it were acquired in the ordinary course of
business and (iii) at the time of the commencement of the Exchange Offer it has
no arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities. The Company shall
inform the Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Purchasers shall have the right to contact such
Holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the Staff of the SEC, the Company is
not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the Exchange Offer is not consummated
within 150 days after the Closing Date, or (iii) if any Holder (other than a
Purchaser) is not eligible to participate in the Exchange Offer or (iv) upon the
request of any Purchaser (with respect to any Registrable Securities which it
acquired directly from the Company) following the consummation of the Exchange
Offer if such Purchaser shall hold Registrable Securities which it acquired
directly from the Company and if such Purchaser is not permitted, in the opinion
of counsel to such Purchaser, pursuant to applicable law or applicable
interpretation of the Staff of the SEC to participate in the Exchange Offer, the
Company shall, at its cost,
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders
- 5 -
from time to time in accordance with the methods of distribution
elected by the Majority Holders of such Registrable Securities and set
forth in such Shelf Registration Statement, and use its best efforts to
cause such Shelf Registration Statement to be declared effective by the
SEC by 150 days after the Closing Date. In the event that the Company
is required to file a Shelf Registration Statement upon the request of
any Holder (other than a Purchaser) not eligible to participate in the
Exchange Offer pursuant to clause (iii) above or upon the request of
any Purchaser pursuant to clause (iv) above, the Company shall file and
have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Securities held by such
Holder or such Purchaser after completion of the Exchange Offer.
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC (or one year from the date the Shelf Registration Statement is
declared effective if such Shelf Registration Statement is filed upon
the request of any Purchaser pursuant to clause (iv) above) or such
shorter period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement.
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration to become usable as
soon as thereafter practicable and to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
- 6 -
(c) Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or
Purchasers for the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Registrable Securities in connection therewith, and, in the case of an
Exchange Offer Registration Statement, will reimburse the Purchasers, as
applicable, for the reasonable fees and disbursements of counsel in connection
therewith. Each Holder shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if it voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities covered thereby
not being able to exchange or offer and sell such Registrable Securities during
that period unless (A) such action is required by applicable law or (B) such
action is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly complies
with the requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 30th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 120th
calendar day after the Closing Date or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement with respect to the Registrable
Securities is not declared effective on or prior to the 150th calendar day after
the Closing Date, the interest rate borne by the Securities shall be increased
by one-half of one percent per annum following such 30-day period in the case of
clause (i) above, such 120-day period in the case of clause (ii) above, or such
150-day period in the case of clause (iii) above; provided that the aggregate
increase in such interest rate will in no event exceed one-half of one percent
per annum. Upon (x) the filing of the Exchange Offer Registration Statement
after the 30-day period described in clause (i) above, (y) the effectiveness of
the Exchange Offer Registration Statement after the 120-day period described in
clause (ii) above or (z) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be, after the
150-day period described in clause (iii) above, the interest rate borne by the
Securities from the date of such filing, effectiveness or consummation, as the
case may be, will be reduced to the original
- 7 -
interest rate.
(f) Specific Enforcement. Without limiting the remedies
available to the Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Purchasers
or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
- 8 -
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method elected by the Majority Holders; and (ii) furnish to each
Holder of Registrable Securities, to counsel for the Purchasers, to
counsel for the Holders and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such
Holder or underwriter may reasonably request, including financial
statements and schedules and, if the Holder so requests, all exhibits
(including those incorporated by reference) in order to facilitate the
public sale or other disposition of the Registrable Securities; and
(iii) subject to the last paragraph of Section 3, hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction if it
is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for the Purchasers promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any event or the
discovery of
- 9 -
any facts during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in
order to make the statements therein not misleading and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (iv) subject to the last paragraph of Section 3,
hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer
of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities
and acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the exchange of registrable Securities,
the broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to cause
to be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be
- 10 -
one of the Purchasers, unless they elect not to act as such
representative) only one, if any, "cold comfort" letter with respect to
the Prospectus in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and with respect
to each subsequent amendment or supplement, if any, effected during the
period specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement
for a period of one year following the closing of the Exchange Offer;
and
(D) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement
as would otherwise be contemplated by Section 3(b), or take any other
action as a result of this Section 3(f), for a period exceeding 180
days after the last date for which exchanges are accepted pursuant to
the Exchange Offer (as such period may be extended by the Company) and
Participating Broker-Dealers shall not be authorized by the Company to,
and shall not, deliver such Prospectus after such period in connection
with resales contemplated by this Section 3.
(g) (A) in the case of an Exchange Offer, furnish counsel for
the Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any request
by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters, if any, may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use its best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any
- 11 -
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees to
notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or
the Company determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such numbers of
copies of the Prospectus, as amended or supplemented, as such Holder
may reasonably request;
(l) obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities, or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and (iii) execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders) in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority
in principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders
and underwriters;
- 12 -
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and will
use reasonable best efforts to have such letter addressed to
the selling Holders of Registrable Securities, such letters to
be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may
be reasonably requested and as are customarily delivered in
similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of
all Registrable Securities of such underwritten offering at least 30
days prior to the filing of a prospectus supplement for such
underwritten offering. Such notice shall (x) offer each such Holder the
right to participate in such underwritten offering, (y) specify a date,
which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in
connection with a Registration Statement;
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Purchasers, and make such changes in any such
- 13 -
document prior to the filing thereof as any of the Purchasers or their
counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in
any such document prior to the filing thereof as the Holders of
Registrable Securities, the Purchasers on behalf of such Holders, their
counsel and any underwriter may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Purchasers on behalf of such Holders or any underwriter
and shall not at any time make any filing of any such document of which
such Holders, the Purchasers on behalf of such Holders, their counsel
or any underwriter shall not have previously been advised and furnished
a copy or to which such Holders, the Purchasers on behalf of such
Holders, their counsel or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use its best efforts
to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are
then listed if requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Securities,
if any;
(r) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Securities to be rated with the appropriate
rating agencies, if so requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, unless the Registrable Securities are already so
rated;
(s) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(t) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii) - (vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
- 14 -
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense)
all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement as a
result of the happening of any event or the discovery of any facts,
each of the kind described in Section 3(e)(vi) hereof, the Company
shall be deemed to have used its best efforts to keep the Shelf
Registration Statement effective during such period of suspension
provided that the Company shall use its best efforts to file and have
declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall
extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received
copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
4. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, and the respective directors, officers,
employees, agents and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
- 15 -
(ii) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement (subject to Section 5(d) below) is effected with the written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Purchasers,
any Holder, including Participating Broker-Dealers or any underwriter expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Purchasers, each underwriter who participates in an offering of Registrable
Securities and the other selling Holders and each of their respective directors
and officers (including each officer of the Company who signed the Registration
Statement) and each Person, if any, who controls the Company, the Purchasers,
any underwriter or any other selling Holder within the meaning of Section 15 of
the 1933 Act, against any and all losses, liabilities, claims, damages and
expenses described in the indemnity contained in Section 5(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder, as the case may be, expressly for use in the
Registration Statement (or any amendment thereto), or the Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have other than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in
- 16 -
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 5 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this Section
5 are for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Purchasers
and the Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company, the Purchasers and the Holders, as incurred; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person that was not guilty of such fraudulent misrepresentation.
As between the Company, the Purchasers and the Holders, such parties
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect (i) the relative benefits received
by the Company on the one hand, the Purchasers on another hand, and the Holders
on another hand, from the offering of the Exchange Securities or Registrable
Securities included in such offering, and (ii) the relative fault of the Company
on the one hand, the Purchasers on another hand, and the Holders on another
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and the Holders and the Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Holders or the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
- 17 -
The Company, the Purchasers and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 5 were to be determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the relevant equitable
considerations. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
5 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities sold by it were offered exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
For purposes of this Section 5, each affiliate of a Purchaser or
Holder, and each director, officer, employee, agent and Person, if any, who
controls a Purchaser or Holder or such affiliate within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Purchaser or Holder, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The parties hereto agree that any underwriting discount or
commission or reimbursement of fees paid to any Purchaser pursuant to the
Purchase Agreement shall not be deemed to be a benefit received by any Purchaser
in connection with the offering of the Exchange Securities or Registrable
Securities included in such offering. The Purchasers' respective obligations to
contribute pursuant to this Section are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A to
the Purchase Agreement and not joint.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Company covenants that it will file the reports required to be
filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder, that if it ceases to be
so required to file such reports, it will upon the request of any Holder of
Registrable Securities (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1993 Act, as such Rule may be
amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the
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request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure; provided, however, that no amendment, modification,
supplement or waiver or consent to any departure from the provisions of Section
5 hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is, with respect to a Purchaser, the
address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the
- 19 -
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(f) Third Party Beneficiary. The Purchasers shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
- 20 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BE AEROSPACE, INC.
By:
----------------------------
Name:
Title:
Confirmed and accepted as of
the date first above
written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BT ALEX. XXXXX INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
--------------------------
Name:
Title:
EXHIBIT B-1
FORM OF OPINION OF SHEARMAN & STERLING
[Shearman & Sterling Letterhead]
November 2, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
We are acting as counsel to BE Aerospace, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BT Alex. Xxxxx Incorporated,
Chase Securities Inc., Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx &
Co. Incorporated and PaineWebber Incorporated (collectively, the "Initial
Purchasers"), subject to the terms and conditions set forth in the Purchase
Agreement, dated October 28, 1998 (the "Purchase Agreement"), among the Company
and the Initial Purchasers, of $200,000,000 aggregate principal amount of the
Company's 9 1/2% Senior Subordinated Notes due 2008 (the "Notes") issued
pursuant to an Indenture, dated as of November 2, 1998 (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 November 2, 1998 (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 October 26, 1998, and the final Offering Memorandum dated
October 28, 1998 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
- 2 -
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.
(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 Stock Repurchase, the execution and
delivery of the Notes, and compliance by the Company with the terms of the
Purchase Agreement, the Registration Rights Agreement and the Indenture (x) do
not and will not result in any violation of the certificate of incorporation or
by-laws of the Company or SMR Aerospace, Inc. ("SMR") or the certificate of
registration or limited liability company agreement of In-Flight Entertainment,
LLC ("In-Flight"), 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, SMR or In-Flight under (a) any contract, indenture, mortgage, lease
or other agreement, to which the Company or any of its significant subsidiaries
is a party or by which any of them may be bound or to which it or any of its
properties or assets are bound, that has been filed as an exhibit to the
Company's Form 10-K for the year ended February 28, 1998, the Company's Form
10-Qs for the quarter ended May 30, 1998 and for the quarter ended August 29,
1998 and the Company's Form 8-Ks filed on April 13, 1998, April 27, 1998, May 8,
1998 and August 24, 1998, 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
- 3 -
(including without limitation the Stock Repurchase), 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.
(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. Fifth Amended and Restated Credit Agreement dated as of October 29,
1993, amended and restated as of August 7, 1998, among BE Aerospace, Inc., the
Chase Manhattan Bank, as Administrative Agent and Nationsbank, N.A. (South), as
Co-Agent.
2. The (UK) Credit Agreement (as defined in the Offering Memorandum).
3. The Inventum Credit Agreement (as defined in the Offering
Memorandum.
4. Amended and Restated Limited Liability Company Agreement of B/E
Xxxxxx LiveTV, LLC, dated as of February 10, 1998 by and between In-Flight
Entertainment, LLC, Xxxxxx Corporation and In-Flight Phone Corp.
5. Order dated January 13, 1998 of the United States Department of
Commerce Bureau of Export Administration, regarding the settlement of the U.S.
Government's investigation of export sales to Iran between 1992-5.
6. Indenture, dated as of January 24, 1996, as amended, between the
Company and Fleet National Bank of Connecticut, N.A.
7. Indenture, dated February 13, 0000 xxxxxxx xxx Xxxxxxx xxx Xxxxxx
Xxxxxx Trust Company of New York.
November 2, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporation
PaineWebber Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
We are acting as counsel to BE Aerospace, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BT Alex. Xxxxx Incorporated,
Chase Securities Inc., Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx &
Co. Incorporated, and PaineWebber Incorporated (collectively, the "Initial
Purchasers"), subject to the terms and conditions set forth in the Purchase
Agreement dated October 28, 1998 (the "Purchase Agreement"), among the Company
and the Initial Purchasers, of $200,000,000 aggregate principal amount of the
Company's 9 1/2% Senior Subordinated Notes due 2008 (the "Notes") issued
pursuant to an Indenture, dated as of November 2, 1998 (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 November 2, 1998 (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 October 26, 1998, and the final Offering Memorandum,
dated October 28, 1998, relating to the offering of the Notes (such final
Offering Memorandum being hereinafter referred to as the "Offering Memorandum").
We have also reviewed and participated in discussions
concerning the preparation of the Offering Memorandum with certain officers and
employees of the Company, with its counsel and its auditors, and with your
representatives. The limitations inherent in the independent verification of
factual matters and in the role of outside counsel are such, however, that we
cannot and do not assume any responsibility for the accuracy, completeness or
fairness of any of the statements made in the Offering Memorandum, except as set
forth in paragraph (i) of our opinion addressed to you dated the date hereof. In
addition, with your approval, matters
governed by the laws of the United Kingdom have been passed upon by Xxxxxx Xxxxx
Xxxxxxx, 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
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporation
PaineWebber Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
I am Corporate Vice President Law, General Counsel and
Secretary of BE Aerospace, Inc., a Delaware corporation (the "Company"), and
have advised the Company in connection with the sale by the Company to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BT Alex. Xxxxx Incorporated, Chase
Securities Inc., Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx & Co.
Incorporated and PaineWebber Incorporated (collectively, the "Initial
Purchasers"), subject to the terms and conditions set forth in the Purchase
Agreement dated October 28, 1998 (the "Purchase Agreement"), among the Company
and the Initial Purchasers, of $200,000,000 aggregate principal amount of the
Company's 9 1/2% Senior Subordinated Notes due 2008 (the "Notes") issued
pursuant to an Indenture dated as of November 2, 1998 (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 November 2, 1998 (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 October 26, 1998, and the Final Offering Memorandum
dated as of October 28, 1998, 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
- 1 -
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 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) Each of the Company and In-Flight Entertainment, LLC is a
corporation or limited liability company, as the case may be, duly organized,
validly existing and in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum. SMR Aerospace,
Inc. is a corporation duly organized, validly existing and in good standing
under the laws of the State of Ohio, with corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum. The Company has all requisite corporate power and authority
to issue, sell and deliver the Notes, to execute and deliver the Purchase
Agreement, the Registration Rights Agreement and the Indenture, and to perform
its obligations thereunder. The Company is qualified to transact business, and
is in good standing as a foreign corporation, in California, Connecticut,
Florida, Massachusetts, Minnesota, North Carolina and Oklahoma; the states of
California, Connecticut, Florida, Massachusetts, Minnesota, North Carolina and
Oklahoma, being the only jurisdictions in the United States in which the Company
owns or leases real property. In-Flight Entertainment, LLC is qualified to
transact business, and is in good standing as a foreign limited liability
company, in California and Washington; California and Washington being the only
jurisdictions in which In-Flight Entertainment, LLC owns or leases property. SMR
Aerospace, Inc. is qualified to transact business, and is in good standing as a
foreign corporation, in the state of West Virginia; the states of Ohio and West
Virginia being the only jurisdictions in which SMR Aerospace, Inc. owns or
leases real property.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Capitalization table in the Offering Memorandum
under the caption "Actual", except for issuances or forfeitures subsequent to
the date of the information provided in such table, if any, pursuant to the
Company's stock option plans. The shares of the Company's common stock, $.01 par
value (the "Common Stock") issued and outstanding on this date have been duly
authorized and validly issued and are fully paid and nonassessable. None of the
outstanding shares of Common Stock was issued in violation of any preemptive
rights under the Delaware General Corporation Law or the Restated Certificate of
Incorporation of the Company or, to the best of my knowledge, any preemptive
rights pursuant to any contract to which the Company is a party or by which it
is bound.
(iii) To the best of my knowledge, (i) none of the Company, SMR
Aerospace, Inc. nor In-Flight Entertainment, LLC is in violation of its
certificate of incorporation or certificate of registration or by-laws or
limited liability company agreement, as the case may be, or in default in
- 2 -
the
performance of any obligation, agreement or condition in any agreement or
instrument known to us to which the Company, SMR Aerospace, Inc. or In-Flight
Entertainment, LLC is a party or by which any of them is bound and which default
could have a material adverse effect on the business or financial condition of
the Company and its subsidiaries taken as a whole and (ii) neither the Company,
SMR Aerospace, Inc. nor In-Flight Entertainment, LLC is 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 descriptions of legal proceedings, have been reviewed by
me and fairly present the information disclosed therein in all material
respects.
(v) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a material adverse effect on the
Company and its subsidiaries, taken as a whole, or which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company of its
obligations thereunder.
I have reviewed and participated in the preparation of the
Offering Memorandum with other officers or employees of the Company, with its
counsel and its auditors, and with representatives of the Initial Purchasers and
I advise you that, on the basis of the information I gained in the course of
performing the services referred to above, no facts came to my attention which
gave me reason to believe that the Offering Memorandum (other than the financial
statements and other financial data contained therein or omitted therefrom, as
to which I have not been requested to comment), as of its date or the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
This opinion is being furnished by me as General Counsel for the
Company to you solely for your benefit, and is not to be used, circulated,
quoted or otherwise referred to for any other purpose.
Very truly yours,
- 3 -
EXHIBIT B-2
FORM OF OPINION OF XXXXXX XXXXX XXXXXXX
[Xxxxxx Xxxxx Xxxxxxx Letterhead]
November 2, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporation
PaineWebber Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
XXX
Dear Sirs
BE Aerospace Holdings (UK) Limited
1. We have acted as English legal advisers to BE Aerospace Holdings (UK)
Limited (formerly BE Aerospace (UK) Limited and Flight Equipment and
Engineering Limited), a company registered in England and Wales under
registered number 516846, the registered office of which is located at
Xxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx
("BEAH(UK)"), since its acquisition by BE Aerospace, Inc. (formerly BE
Avionics, Inc.) (the "Issuer") on 2 April, 1992. We have been asked by
the Issuer, a Delaware corporation, to provide this opinion in
connection with the issue and sale by the Issuer of US$200,000,000
principal amount of 9 1/2% Senior Subordinated Notes due 2008
(together, the "Securities").
We have been provided with copies of:
(a) an offering memorandum dated 28 October, 1998, relating to the
Issuer and the Securities (the "Offering Memorandum";
(b) a draft dated 22 October, 1998 of an indenture to be dated as
of 2 November, 1998 between the Issuer and the trustee named
therein (the "Indenture") which we have been advised is the
final form thereof;
(c) the purchase agreement dated as of 28 October, 1998, between
the Issuer and you relating to the issue and sale of the
Securities (the "Purchase Agreement"); and
(d) the registration rights agreement to be dated as of 2
November, 1998 between the Issuer and you relating to the
filing of a registration statement with respect to the
Securities (the "Registration Rights Agreement).
2. We understand that this opinion is required by you pursuant to Section
5(b) of the Purchase Agreement.
3. For the purposes of giving this opinion, we have examined the following
documents relating to BEAH(UK):-
(a) the statutory books, including the register of members and the
minutes of board meetings and general meetings of the
shareholders contained therein;
(b) copies of the Memorandum and Articles of Association,
Certificate of Incorporation and Certificates of Incorporation
on Change of Name; and
(c) certificate of good standing issued by the Registrar of
Companies on 29 October, 1998, copies of which are annexed
hereto marked "A".
4. We have carried out a search of the microfiche relating to BEAH(UK)
supplied to us by the Companies Registration Office on Friday 30
October, 1998, which revealed no order or resolution to wind up
BEAH(UK) and no notice of the appointment of an administrator or
receiver of BEAH(UK). We have also carried out a search at the Central
Registry of Winding Up Petitions, London on Friday 30 October, 1998,
which shows no pending petition to wind up BEAH(UK). We have not
conducted any further search, or any search in any District Registry of
the High Court where winding-up and administration petitions may also
be presented in certain cases, and accordingly this opinion is given on
the assumption that such searches (if made) would not reveal any
circumstances which would require amendment of this opinion.
5. Except for the documents listed in paragraphs 1 and 3 above, we have
not examined for the purposes of this opinion any contracts or other
documents entered into by or affecting BEAH(UK) or any corporate
records of BEAH(UK). We have not made any other enquiries or searches
concerning BEAH(UK) (whether within this firm or otherwise), except as
mentioned in paragraph 4 above. For the purposes of this opinion, we
have relied as to factual matters upon certificates of officers and
directors of the Issuer and of BEAH(UK) (copies of which are annexed
hereto marked "B") and have relied on representations made by the
Issuer in the Purchase Agreement.
6. This opinion is given only with respect to English law in force at the
date of this letter as applied by English Courts and is given on the
basis that it will be governed by and construed in accordance with
English law. No opinion is expressed or implied as to the laws of any
other territory.
7. This opinion is based on the assumptions set out in the appendix to
this letter, which we have taken no steps to verify independently.
- 7 -
8. Based upon and subject to the foregoing, and subject as stated herein
and to any matters not disclosed to us, we are of the opinion that:
(a) BEAH(UK) is duly incorporated under the Companies Xxx 0000 as
a private company with limited liability under English law, is
validly existing under English law and has the necessary
corporate power under the Companies Acts 1985 and 1989 and its
Memorandum and Articles of Association to conduct its business
and to own, lease and operate its properties as described in
the Offering Memorandum at pages 61, 62 and 63 (copies of
which are annexed hereto marked "C");
(b) as reflected in the register of members of BEAH(UK), the
Issuer is the registered holder of all of the 500,000 issued
ordinary shares of British Pound 1 each of BEAH(UK) and all of
the 916,900 issued 3% cumulative redeemable preference shares
of British Pound 1 each of BEAH(UK). Pursuant to Section 361
Companies Xxx 0000, the register of members of a company (as
defined in that Act) is prima facie evidence of any matters
which are by that Act directed or authorised to be inserted in
it, and of legal ownership of shares;
(c) in the absence of any circumstance by which a member of a
company limited by shares (as defined in the Companies Act
1985) may become liable for the company's debts, the liability
of the member (including, with respect to BEAH(UK), the
Issuer) for such debts will be limited to the par value of the
shares held and any premium agreed to be paid, to the extent
that such amounts have not previously been paid. According to
the register of members of BEAH(UK), the search of the
microfiche relating to BEAH(UK) referred to in paragraph 4
above and the certificates of the officers and directors of
the Issuer, BEAH(UK), but having made no other enquiry,
investigation or verification, we are of the opinion that the
issued ordinary shares and preference shares of British Pound
1 each in the capital of BEAH(UK) are fully paid;
(d) the issued cumulative redeemable preference shares of British
Pound 1 each of BEAH(UK) have been duly authorised and validly
issued;
(e) the issued cumulative redeemable preference shares of British
Pound 1 each of BEAH(UK) were not issued in violation of any
pre-emptive rights under statute or under the Memorandum and
Articles of Association of BEAH(UK);
(f) none of the following will result in any breach of the
Memorandum and Articles of Association of BEAH(UK):-
(i) the execution and delivery by the Issuer of the
Purchase Agreement, the consummation by the Issuer of
the transactions therein contemplated and the
compliance by the Issuer with its terms;
(ii) the execution and delivery by the Issuer of the
Registration Rights Agreement and the compliance by
the Issuer with its terms;
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(iii) the execution and delivery by the Issuer of the
Indenture and the compliance by the Issuer with its
terms;
(iv) the issue and delivery by the Issuer of the
Securities as contemplated by the Offering
Memorandum; and
(v) the consummation by the Issuer of the transactions
contemplated in the Offering Memorandum.
(g) the matters referred to in paragraph 8(f)(i) to (v) inclusive
above do not and will not conflict with, or result in a breach
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of BEAH(UK)
under:-
(i) any existing English law, rule or regulation; or
(ii) to our knowledge (based solely upon written
notification by BEAH(UK)) and on the basis of the
certificates of the officers and directors of
BEAH(UK) and the Issuer, any judgment, order or
decree of any government, governmental
instrumentality or court having jurisdiction over
BEAH(UK) or any of its properties.
9. This opinion is addressed to you in connection with the Issuer. It is
given for your benefit for the purpose of the issue of the Securities
only, and may not be disclosed or quoted to or relied upon by any other
person, without our prior written consent in each specific case, or
used for any other purpose. No person (other than you) into whose
possession a copy of this opinion may come may rely on this opinion
without our express written consent addressed to him.
Yours faithfully
- 4 -
Appendix to Opinion
In this opinion, we have assumed that:-
(a) All documents submitted to us as originals are authentic and complete
and all signatures and seals are genuine.
(b) All documents supplied to us as photocopies or facsimile transmitted
copies or other copies conform to the originals and such originals are
authentic and complete.
(c) All documents, forms, notices and information which should have been
delivered to the Companies Registration Office and the Central Registry
of Winding Up Petitions on behalf of or relating to BEAH(UK) have been
so delivered and the file of records maintained at the Companies
Registration Office and the Central Registry of Winding Up Petitions
concerning BEAH(UK), and reproduced on microfiche for public inspection
or disclosed to us orally, was complete, accurate and up-to-date at the
time of the respective searches referred to in paragraph 4 of this
opinion letter and there has been no change in the information filed or
the oral disclosure made since the date on which those searches were
made.
(d) All documents dated earlier than the date of this opinion letter on
which we have expressed reliance remain accurate, complete and in full
force and effect at the date of this opinion.
(e) BEAH(UK) has not passed a resolution for its winding-up and no
proceedings have been instituted or steps taken for the winding-up of
BEAH(UK) or the appointment of an administrator or receiver in respect
of all or any assets of BEAH(UK).
(f) No law (other than English law) affects any of the conclusions stated
in this opinion.
(g) Each of the resolutions contained in the minutes referred to in
paragraph 3(a) of this opinion was duly passed at a properly convened,
constituted and conducted meeting of duly appointed directors or, as
the case may be, shareholders, of BEAH(UK) at which all constitutional,
statutory and other formalities were duly observed (including, if
applicable, those relating to the declaration of directors' interests
or the power of interested directors to vote); such resolutions have
not been amended or rescinded and are in full force and effect; and the
minutes of such meetings referred to in paragraph 3(a) of this opinion
are a true record of the proceedings at such meetings.
(h) The certificates of the officers and directors of the Issuer and
BEAH(UK) provided for the purposes of this opinion letter are true and
accurate in all respects.
