1
Exhibit 10.2
CONFORMED COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of November 19, 1997, between BE AEROSPACE,
INC., a corporation duly organized and validly existing under the laws of the
State of Delaware (the "Company"); each of the lenders that is a signatory
hereto (individually, a "Lender" and, collectively, the "Lenders"); and THE
CHASE MANHATTAN BANK, a New York banking corporation, as agent for the Lenders
(in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company, the Lenders and the Administrative Agent are parties to
a Third Amended and Restated Credit Agreement dated as of October 29, 1993, as
amended and restated as of May 29, 1997 (as heretofore modified and supplemented
and in effect on the date hereof, the "Credit Agreement"). The Company and the
Administrative Agent are parties to a Revolving Credit Security Agreement dated
as of October 29, 1993 (as heretofore modified and supplemented and in effect on
the date hereof, the "Revolving Credit Security Agreement"). The Company has
requested that the Credit Agreement and the Revolving Credit Security Agreement
be amended in certain respects, and accordingly, the parties hereto hereby agree
as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1. terms defined in the Credit Agreement (as amended hereby) are
used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof (the
"First Amendment Effective Date"), the Credit Agreement and the Revolving Credit
Security Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references to
the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Credit Agreement as amended hereby. References in the
Revolving Credit Security Agreement (including references to the Revolving
Credit Security Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Revolving Credit Security Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement shall be amended by
adding the following new definitions (to the extent not already included in
said Section 1.01) and inserting the same in the appropriate alphabetical
locations and by amending the following definitions (to the extent already
included in said Section 1.01) to read in their entirety, as follows:
"Amendment No. 1" shall mean Amendment No. 1 dated as of November
13, 1997 to this Agreement.
"BE Services" shall mean B/E Services, Inc. a Delaware corporation
and Wholly Owned Subsidiary of the Company.
2
-2-
"First Amendment Effective Date" shall have the meaning ascribed
thereto in Amendment No. 1.
"GE Lease Agreement" shall mean the Master Lease Agreement dated as
of October 20, 1997 between the Company and General Electric Capital
Corporation, for itself and as Agent for Certain Participants.
"Guarantee and Security Agreement" shall mean a Guarantee and
Security Agreement substantially in the form of Exhibit A to Amendment No.
1, dated the First Amendment Effective Date, between In-Flight
Entertainment, LLC and the Administrative Agent as the same shall be
modified and supplemented and in effect from time to time.
"In-Flight Entertainment LLC" shall mean In-Flight Entertainment,
LLC, a Delaware limited liability company and Wholly Owned Subsidiary of
the Company.
"Revolving Credit Security Agreement" shall mean the Revolving
Credit Security Agreement dated as of October 29, 1993 between the Company
and the Agent, a copy of which is attached as Exhibit A-1 hereto, as
amended by Sections 11.13(a) and 11.13(c) hereof and as the same shall be
further modified, supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the Revolving Credit
Security Agreement, the Term Loan Security Agreement and the Guarantee and
Security Agreement."
"Term Loan Security Agreement" shall mean the Term Loan Security
Agreement dated as of October 29, 1993, a copy of which is attached as
Exhibit A-2 hereto, as amended by Sections 11.13(b) and 11.13(d) hereof
and as the same shall be further modified, supplemented and in effect from
time to time.
2.03. The definition of "Borrowing Base" in Section 1.01 of the
Credit Agreement is hereby amended by (i) inserting, In-Flight Entertainment LLC
and BE Services" immediately following "Company" therein and (ii) inserting ",
other than in the case of BE Services," immediately after "the Administrative
Agent has" therein.
2.04. The definition of "Eligible inventory" in Section 1.01 of the
Credit Agreement is hereby amended by (i) inserting ", In-Flight Entertainment
LLC and BE Services" immediately following "Company" in the third line therein
and (ii) inserting ", other than in the case of BE Services," immediately after
"the Administrative Agent has" therein.
2.05. The definition of "Eligible Receivables" in Section 1.01 of
the Credit Agreement is hereby amended by (i) inserting ", In-Flight
Entertainment LLC and BE Services" immediately following "Company" in the second
line therein and (ii) inserting ", other than in the case of BE Services,"
immediately after "the Administrative Agent has" therein.
3
-3-
2.06. Section 8.06(i) of the Credit Agreement is hereby amended by
inserting "and/or software and license rights with respect to software
(including, without limitation, software and license rights with respect to
software under the GE Lease Agreement)" immediately following "real and/or
tangible personal Property" therein.
2.07. Section 8.17(a) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(a) The Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that
the Company and each of its Subsidiaries at all times owns (subject only
to the Lien of the Security Documents) at least the same percentage of the
issued and outstanding shares of each class of stock or partnership or
other ownership interest of each of its Subsidiaries as is owned on the
Restatement Date (or, with respect to any Subsidiary acquired or organized
after the date hereof, as of the date of such acquisition or
organization). Without limiting the generality of the foregoing, none of
the Company nor any of its Subsidiaries shall sell, transfer or otherwise
dispose of any shares of stock or partnership or other ownership interest
in any Subsidiary owned by them, nor permit an Subsidiary to issue any
shares of stock of any class or partnership or other ownership interest
whatsoever to any Person (other than to the Company or the immediate
parent of such Subsidiary which is a Wholly Owned Subsidiary of the
Company). In the event that (a) an" such additional shares of stock or
partnership or other ownership interest shall be issued by any such
Subsidiary or (b) the Company shall directly or indirectly create any new
Subsidiary or Acquire any additional Subsidiary and shall thereby become
the owner, directly or indirectly, of the shares of capital stock or
partnership or other ownership interest of such new or additional
Subsidiary, the Company agrees forthwith to deliver to the Administrative
Agent pursuant to security documents satisfactory to the Banks, any
shares, certificates of ownership, membership interests or other evidence
of ownership, or other securities received as a result therefrom (together
with undated stock or other powers executed in blank) and shall give,
execute, deliver, file and/or record any financing statement, notice,
instrument, document, agreement or other papers that may be necessary or
desirable in the judgment of the Administrative Agent) to create, preserve
or validate the security interest created therein, including, without
limitation, causing any or all of the Revolving Credit Collateral and
Series A Collateral (as defined in the Revoking Credit Security Agreement
and Guarantee and Security Agreement, respectively) to be transferred of
record into the name of the Administrative Agent; provided that if any
such Subsidiary is organized under the laws of a jurisdiction other than
the United States of America or a State thereof, the Company need not
pledge to the Administrative Agent more than 65% of the capital stock,
partnership or other ownership interest in such Subsidiary and such pledge
shall, at the request of the Majority Series A Lenders, be made either
under the Revolving Credit Security Agreement or under a pledge or other
agreement governed by the law of such Subsidiary's jurisdiction of
organization."
2.08. Section 9(d) of the Credit Agreement is hereby amended by
adding the following at the end thereof:
4
-4-
"In-Flight Entertainment LLC shall default in the performance of any
of its obligations under Section 6.02 of the Guarantee and Security
Agreement; or"
2.09. Section 10.05 of the Credit Agreement is hereby amended by
inserting "or Section 5.02 of the Guarantee and Security Agreement" immediately
following "Section 4.02 of the Revolving Credit Security Agreement" wherever the
same occurs therein.
2.10. Section 10.09 of the Credit Agreement is hereby amended by
inserting "or the Guarantee and Security Agreement" immediately following "the
Revolving Credit Security Agreement" in clauses (ii) and (iv) therein.
2.11. Section 10.10 of the Credit Agreement is hereby amended by
inserting "and Section 5.03 of the Guarantee and Security Agreement" immediately
following "Section 4.03 of the Revolving Credit Security Agreement" therein.
2.12. Section 11.03 of the Credit Agreement is hereby amended by
inserting "or Section 5.02 of the Guarantee and Security Agreement" immediately
following "Section 4.02 of the Revolving Credit Security Agreement" therein.
2.13. Section 11.13 of the Credit Agreement is hereby amended by
adding the following at the end thereof:
"(c) The Revolving Credit Security Agreement is hereby amended so
that (i) from and after the Amendment Effective Date, (x) all references
therein to the Credit Agreement shall be deemed to be a reference to the
Credit Agreement as amended and restated hereby and (y) all references
therein to '$85,000,000' shall be deemed to be a reference to
'$125,000,000', and (ii) from and after May 18, 1994, all references
therein to 'Revolving Credit Notes' and 'Revolving Credit Commitments'
shall be deemed to be references to 'Series A Lenders', 'Series A Loans',
'Series A Notes' and 'Series A Commitments', respectively.
(d) The Term Loan Security Agreement is hereby amended so that (i)
from and after the Amendment Effective Date, (x) all references therein to
the Credit Agreement shall be deemed to be a reference to the Credit
Agreement as amended and restated hereby and (y) all references therein to
'$85,000,000' shall be deemed to be a reference to '$125,000,000', and
(ii) from and after May 18, 1994, all references therein to 'Term Loan
Lenders', 'Term Loans', 'Term Loan Notes' and 'Term Loan Commitments'
shall be deemed to be references to 'Series B Lenders', 'Series B Loans',
'Series B Notes' and 'Series B Commitments', respectively."
2.14. Section 1 of the Revolving Credit Security Agreement shall be
amended by adding the following new definitions and inserting the same in the
appropriate alphabetical locations, as follows:
"LLC Agreements" shall have the meaning ascribed thereto in Section
3(m) hereof.
5
-5-
"LLC Collateral" shall have the meaning ascribed thereto in Section
3(m) hereof.
"LLC Issuers" shall mean the respective limited liability companies
identified on Annex 7 hereto.
"Pledged Membership Interests" shall have the meaning ascribed
thereto in Section 3(m) hereof.
2.15. Section 2 of the Revolving Credit Security Agreement is hereby
amended by adding the following at the end thereof:
"(i) the Pledged Membership Interests, and all other Pledged
Membership Interests in which the Company shall hereafter grant a security
interest pursuant to Section 3 hereof, will be duly authorized, validly
existing, fully paid and non-assessable and none of such Pledged
Membership Interests is or will be subject to any contractual restriction,
upon the transfer of such Pledged Membership Interests (except for any
such restriction contained herein).
(j) the Pledged Membership Interests constitute all of the ownership
interests in the LLC Issuers held by the Company on the date hereof
(whether or not registered in the name of the Company). and the Company is
the registered owner of all such ownership interests."
2.16. Section 3 of the Revolving Credit Security Agreement is hereby
amended by relettering clause (m) as clause (r) and by inserting the following
immediately following clause (l) therein:
"(m) the ownership interests of the Company in the LLC Issuers
identified in Annex 7 hereto, all certificates (if any) representing or
evidencing such ownership interests, and all right, title and interest in,
to and under the limited liability company agreements (the "LLC
Agreements") of such LLC Issuers (including without limitation all of the
right, title and interest (if any) as a member to participate in the
operation or management the LLC Issuers and all of its ownership interests
under the LLC Agreements), and all present and future rights of the
Company to receive payment of money or other distribution of payments
arising out of or in connection with its ownership interests and its
rights under the LLC Agreements, now or hereafter owned by the Company,
in each case together with any certificates evidencing the same
(collectively, the "Pledged Membership Interests" and, together with the
Revolving Credit Collateral pledged hereunder pursuant to clauses (n)
through (r) being herein collectively called the "LLC Collateral");
(n) any and all moneys, and any and all rights to receive such
moneys, due or to become due to the Company now or in the future by way
of a distribution made to the Company in its capacity as a member of any
of the LLC Issuers or otherwise pursuant to the LLC Agreements;
(o) any other property or assets, and any and all rights to receive
such property or assets, of any of the LLC Issuers to which the Company
now or in the future may be entitled in its capacity as a member of such
LLC Issuers;
6
-6-
(p) any other claim which the Company now has or may in the future
acquire in its capacity as a member of any of the LLC Issuers against any
such LLC Issuer and its property or arising out of or for breach of or
default under the LLC Agreements or otherwise relating to the property of
any of the LLC Issuers;
(q) all rights to terminate, amend, supplement, modify or waive
performance under the LLC Agreements, to perform thereunder and to compel
performance and to otherwise exercise all remedies thereunder;"
2.17. Section 5.01(a) of the Revolving Credit Security Agreement is
hereby amended by inserting the following immediately before "subject to Section
5.04(a)(1) hereof" therein:
"(i) with respect to any Pledged Membership Interests acquired,
received or hereafter held by the Company, take such action as the Agent
shall deem necessary or appropriate to perfect the pledge and security
interest granted by Section 3 of this Agreement in such Pledged Membership
Interests, including without limitation (a) to the extent that they
constitute Securities (as defined in Section 8-102(a)(15) of the Uniform
Commercial Code) which are not represented by a certificate, cause the LLC
Issuer of such Pledged Membership Interests to either register the Agent
as the registered owner thereof or agree that it will comply with
Instructions (as defined in Section 8-102(a)(12) of the Uniform Commercial
Code) originated by the Agent with respect to such Pledged Membership
Interests without further consent by the Company and (b) to the extent
that they constitute Securities (as defined in Section 8-102(a)(15) of
the Uniform Commercial Code) which are represented by a certificate,
deliver to the Agent any such certificates representing the Pledged
Membership Interests and (ii)"
2.18. Section 5.04 of the Revolving Credit Security Agreement is
hereby amended by inserting a new clause (c) at the end thereto reading as
follows:
"(c) LLC Collateral.
(1) The Company will cause the LLC Collateral to constitute at all
times 100% of the aggregate ownership and membership interest of each LLC Issuer
then outstanding.
(2) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the LLC Collateral for all purposes
not inconsistent with the terms of this Agreement, the Credit Agreement, the
Notes or any other instrument or agreement referred to herein or therein,
provided that the Company agrees that it will not vote the LLC Collateral in any
manner that is inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any such other instrument or agreement; and the Agent
shall execute and deliver to the Company or cause to be executed and delivered
to the Company all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as the Company may reasonably
request for the purpose of enabling the Company to exercise the rights and
powers that they are entitled to exercise pursuant to this Section 5.04(c).
7
-7-
(3) Unless and until an Event of Default has occurred and is
continuing, the Company shall be entitled to receive and retain any
distributions and dividends payable in respect of the LLC Collateral.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Series
A Lender exercises any available right to declare any Revolving Credit Secured
Obligations due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit
Agreement, the Notes or any other agreement relating to such Revolving Credit
Secured Obligations, all distributions and dividends on the LLC Collateral,
whether consisting of cash, checks and other near-cash items, shall be paid
directly to the Agent and retained by it as part of the Revolving Credit
Collateral, subject to the terms of this Agreement, and, if the Agent shall so
request in writing, the Company agrees to execute and deliver to the Agent
appropriate additional dividend, distribution and other orders and documents to
that end, and if the Company shall receive any such amounts, it shall hold the
same in trust for the Agent and deliver the same forthwith to the Agent in the
exact form received, duly indorsed by the Company to the Agent, if required;
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Agent shall, upon request of the Company
(except to the extent theretofore applied to the Revolving Credit Secured
Obligations), be returned by the Agent to the Company."
2.19. Section 5.11 of the Revolving Credit Security Agreement is
hereby amended by deleting "and" at the end of clause (ii) therein, inserting
"and" at the end of clause (iii) therein and inserting and clause (iv) thereto
reading as follows:
"(iv), in the case of the Pledged Membership Interests, take such
action as the Agent shall deem necessary or appropriate to perfect the
pledge and security interest granted by Section 3 of this Agreement in
such Pledged Membership Interests, including without limitation (x) to the
extent that they constitute Securities (as defined in Section 8-102(a)(15)
of the Uniform Commercial Code) which are not represented by a
certificate, cause the LLC Issuer of such Pledged Membership Interests to
either register the Agent as the registered owner thereof or agree that it
will comply with Instructions (as defined in Section 8-102(a)(12) of the
Uniform Commercial Code) originated by the Agent with respect to such
Pledged Membership Interests without further consent by the Company and
(y) to the extent that they constitute Securities (as defined in Section
8-102(a)(15) of the Uniform Commercial Code) which are represented by a
certificate, deliver to the Agent any such certificates representing the
Pledged Membership Interests"
2.20. Annex 1 to the Revolving Credit Security Agreement is hereby
amended by adding the following at the end thereof:
1,000 shares of
common stock
"B/E Services, Inc. 1 BE Aerospace Inc. $0.0l par value"
8
-8-
2.21. The Revolving Credit Security Agreement is hereby amended by
adding a new Annex 7 thereto as follows:
"Annex 7
PLEDGED MEMBERSHIP INTERESTS
Certificate Nos. Percentage of
LLC Issuer (if any) Registered Owner Ownership Interest
---------- --------------- ---------------- ------------------
In-Flight
Entertainment, LLC None BE Aerospace, Inc. 100%"
Section 3. Representations and Warranties. The Company represents
and warrants to the Lenders that the representations and warranties set forth in
Section 7 of the Credit Agreement (as amended hereby) are true and complete on
the date hereof as if made on and as of the date hereof (or, if such
representation or warranty is expressly stated to be made as of a specific date,
as of such specific date) and as if each reference in said Section 7 to "this
Agreement" included reference to this Amendment No. 1. The Company represents
and warrants to the Lenders that the representations and warranties set forth in
Section 2 of the Revolving Credit Security Agreement (as amended hereby) are
true and complete on the date hereof as if made on and as of the date hereof
(or, if such representation or warranty is expressly stated to be made as of a
specific date, as of such specific date) and as if each reference in said
Section 2 to "this Agreement" included reference to this Amendment No. 1.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Credit Agreement and Revolving Credit Security Agreement set
forth in said Section 2 shall become effective, as of the date hereof upon the
satisfaction of the following conditions:
4.01. Execution. This Amendment No. 1 shall have been executed and
delivered by the Company and the Majority Lenders.
4.02. Documents. The Administrative Agent shall have received the
following documents, each of which shall be satisfactory to the Administrative
Agent in form and substance:
(1) Corporate Documents. Certified copies of the organizational
documents of the Company, In-Flight Entertainment LLC and BE Services (or,
in the case of the Company, a certification to the effect that none of
such documents has been modified since delivery thereof on the Amendment
Effective Date pursuant to the Credit Agreement) and of all limited
liability company or corporate authority for the Company and In-Flight
Entertainment LLC (including, without limitation, board of director
resolutions, member approvals and evidence of incumbency, including
specimen signatures) with respect to the execution, delivery and
performance of this Amendment No. 1, the Credit Agreement as amended
hereby and the Guarantee and Security Agreement, as the case may be, and
each other document to be delivered by the Company and In-Flight
Entertainment LLC from time to time in connection
9
-9-
with the Credit Agreement as amended hereby and the Security Documents
(and the Administrative Agent and each Lender may conclusively rely on
such certificate until it receives notice in writing from the Company to
the contrary).
(2) Officer's Certificate. A certificate of a senior officer of the
Company, dated the date hereof, to the effect that, after giving effect to
this Amendment No. 1, no defaults shall have occurred and be continuing.
(3) Security. The Company and In-Flight Entertainment LLC shall have
taken such action (including, without limitation, delivery to the
Administrative Agent appropriately completed and duly executed copies of
the Guarantee and Security Agreement) as the Administrative Agent shall
have requested in order to perfect the security interests created pursuant
to the Security Documents after giving effect to the amendments
contemplated hereby.
(4) Opinion of Counsel to the Company and In-Flight Entertainment
LLC. An opinion, dated the date hereof, of Ropes & Xxxx, counsel to the
Company and In-Flight Entertainment LLC, in form and substance
satisfactory to the Administrative Agent (and the Company and In-Flight
Entertainment LLC hereby instruct such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(5) Compliance Certificate. A certificate of a senior officer of the
Company selling forth in reasonable detail the computations necessary to
demonstrate, effective as of the date hereof (and after giving effect to
this Amendment No. 1) that the Company will be in compliance with (x)
Section 1010 of the Senior Indenture, (y) Section 1010 of the Senior
Subordinated Indenture and (z) Section 1014 of the Senior Indenture.
(6) Expenses. Evidence of the payment or delivery by the Company of
the reasonable fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx,
special New York counsel to Chase, in connection with the negotiation,
preparation, execution and delivery of this Amendment No. 1 (to the extent
that statements for such fees and expenses shall have been delivered to
the Company.)
(7) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to Chase may reasonably
request.
Section 5. Consent to Release. Upon the satisfaction of the
conditions precedent set forth in Section 4 hereof, the Majority Lenders hereby
consent to the release of the Lien under the Revolving Credit Security Agreement
(i) covering the equipment subject to the GE Lease Agreement which is to be
transferred to General Electric Capital Corporation and/or the Participants
under the GE Lease Agreement (ii) on all or any part of the Company's In-Flight
Entertainment Division to the extent such Property is transferred to In-Flight
Entertainment LLC and (iii) on all or any part of the Company's Services
Division to the extent such Property is transferred to BE Services.
Section 6. GE Lease Obligations. The Administrative Agent and the
Lenders agree that the obligations of the Company incurred pursuant to the GE
Lease Agreement (including, without
10
-10-
limitation, those attributable to the X. X. Xxxxxxx software (as so defined
therein)) shall not constitute "Indebtedness" under the Credit Agreement.
Section 7. Miscellaneous. Except as herein provided, the Credit
Agreement and Revolving Credit Security Agreement shall remain unchanged and in
full force and effect. This Amendment No. 1 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
11
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
BE AEROSPACE, INC.
By /s/ Xxxxxx X. XxXxxxxxx
-----------------------------------
Title: Chief Financial Officer
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxxxxx
-----------------------------------
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Senior Vice President
LASALLE BUSINESS CREDIT, INC.
By /s/ Xxx Xxxxxxxxxxx
-----------------------------------
Title: Vice President
LTCB TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
12
-12-
CREDITANSTALT-BANKVEREIN
By /s/ Xxxx Xxxx
-----------------------------------
Title: Vice President
By /s/ Xxxx Xxxxxxx
-----------------------------------
Title: Senior Vice President
FUJI BANK & TRUST COMPANY
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Xxx X. Xxxxxx
-----------------------------------
Title: Vice President & Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Title: Senior Vice President &
Regional Manager (East)
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxx Xxxxxx
-----------------------------------
Title: Vice President
13
EXHIBIT A
[Conformed Copy]
GUARANTEE AND SECURITY AGREEMENT
GUARANTEE AND SECURITY AGREEMENT dated as of November 19, 1997
between In-Flight Entertainment, LLC, a limited liability company duly organized
and validly existing under the laws of Delaware (the "Guarantor"); and THE CHASE
MANHATTAN BANK, as agent for the lenders or other financial institutions or
entities party, as lenders, to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
BE Aerospace, Inc., a Delaware corporation (the "Company"), certain
lenders (the "Lenders") and the Administrative Agent are parties to a Credit
Agreement dated as of October 29, 1993, as amended and restated as of May 29,
1997 (as modified and supplemented and in effect from time to time, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by making of loans and issuing letters of credit) to be
made by said lenders to the Company in an aggregate principal or face amount not
exceeding $125,000,000. Contemporaneously with the execution of this Agreement,
the Company has requested, and the Lenders and the Administrative Agent have
agreed to amend the Credit Agreement on the terms, and subject to the
conditions, set forth in Amendment No. 1 to the Credit Agreement ("Amendment No.
1").
To induce the Lenders to (i) enter into Amendment No. 1 and to
agree, pursuant to Amendment No. 1, to include the Eligible Inventory (as so
defined) and Eligible Receivables (as so defined) of the Guarantor in the
Borrowing Base (as so defined) under the Credit Agreement, (ii) to extend credit
under the Credit Agreement and (iii) for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Guarantor has
agreed to guarantee the Guaranteed Obligations (as hereinafter defined), and to
pledge and grant a security interest in the Series A Collateral (as so defined)
as security for the Series A Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement (as
amended by Amendment No. 1) are used herein as defined therein. In addition, as
used herein:
"Accounts" shall have the meaning ascribed thereto in Section 4(a)
hereof.
"Collateral Account" shall have the meaning ascribed thereto in
Section 5.01 hereof.
Guarantee and Security Agreement
14
-2-
"Copyright Collateral" shall mean all Copyrights, whether now owned
or hereafter acquired by the Guarantor, including each Copyright
identified in Annex 1 hereto.
"Copyrights" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"Documents" shall have the meaning ascribed thereto in Section 4(g)
hereof.
"Equipment" shall have the meaning ascribed thereto in Section 4(e)
hereof.
"Guaranteed Obligations" shall have the meaning ascribed thereto in
Section 2.01 hereof.
"Instruments" shall have the meaning ascribed thereto in Section
4(b) hereof.
"Intellectual Property" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to the Guarantor with respect to any of the foregoing,
in each case whether now or hereafter owned or used including, without
limitation, the licenses or other agreements with respect to the Copyright
Collateral, the Patent Collateral or the Trademark Collateral, listed in
Annex 4 hereto; (c) all information, customer lists, identification of
suppliers, data, plans, blueprints, specifications, designs, drawings,
recorded knowledge, surveys, engineering reports, test reports, manuals,
materials standards, processing standards, performance standards,
catalogs, computer and automatic machinery software and programs; (d) all
field repair data, sales data and other information relating to sales or
service of products now or hereafter manufactured; (e) all accounting
information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all computer
programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits,
variances, certifications and approvals of governmental agencies now or
Guarantee and Security Agreement
15
-3-
hereafter held by the Guarantor; and (g) all causes of action, claims and
warranties now or hereafter owned or acquired by the Guarantor in respect
of any of the items listed above.
"Inventory" shall have the meaning ascribed thereto in Section 4.(c)
hereof.
"LiveTV LLC" shall mean B/E Xxxxxx LiveTV LLC, a Delaware limited
liability company.
"LiveTV LLC Agreement" shall mean the Limited Liability Company
Agreement of B/E Xxxxxx LiveTV LLC.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired by the Guarantor, including each Patent identified in
Annex 2 hereto.
"Patents" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to xxx for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"Series A Collateral" shall have the meaning ascribed thereto in
Section 4 hereof.
"Series A Secured Obligations" shall mean, collectively, (a) all
obligations of the Guarantor in respect of its Guarantee under Section 2
hereof and (b) all other obligations of the Guarantor to the Series A
Lenders and the Administrative Agent hereunder.
"Trademark Collateral" shall mean all Trademarks, whether now owned
or hereafter acquired by the Guarantor, including each Trademark
identified in Annex 3 hereto. Notwithstanding the foregoing, the Trademark
Collateral does not and shall not include any Trademark that would be
Guarantee and Security Agreement
16
-4-
rendered invalid, abandoned, void or unenforceable by reason of its being
included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and service
marks, logos, trademark and service xxxx registrations, and applications
for trademark and service xxxx registrations, including, without
limitation, all renewals of trademark and service xxxx registrations, all
rights corresponding thereto throughout the world, the right to recover
for all past, present and future infringements thereof, all other rights
of any kind whatsoever accruing thereunder or pertaining thereto,
together, in each case, with the product lines and goodwill of the
business connected with the use of, and symbolized by, each such trade
name, trademark and service xxxx.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York.
Section 2. The Guarantee.
2.01 The Guarantee. The Guarantor hereby guarantees to each Series A
Lender and the Administrative Agent and their respective successors and assigns
the prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the principal of and interest on the Series A Loans made by the
Series A Lenders to, and the Series A Note(s) held by each Series A Lender of,
the Company and all other amounts from time to time owing to the Series A
Lenders or the Administrative Agent by the Company under the Credit Agreement
and under the Basic Documents and all Reimbursement Obligations and interest
thereon, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Guarantor hereby further agrees that if the Company shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of the Guarantor
under Section 2.01 hereof are absolute and unconditional irrespective of the
value, genuineness, validity,
Guarantee and Security Agreement
17
-5-
regularity or enforceability of the Credit Agreement, the Basic Documents or any
other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.02 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Credit Agreement or the Basic Documents or any other agreement or
instrument referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Basic Documents or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Series A Lender or Series A Lenders as
security for any of the Guaranteed Obligations shall fail to be perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Series A Lender exhaust any right, power or remedy or proceed
against the Company under the Credit Agreement or the Basic Documents or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
Guarantee and Security Agreement
18
-6-
2.03 Reinstatement. The obligations of the Guarantor under this
Section 2 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Company in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantor agrees that it will indemnify
the Administrative Agent and each Series A Lender on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Administrative Agent or such Series A Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
2.04 Subrogation. The Guarantor hereby agrees that until the payment
and satisfaction in full of all Guaranteed Obligations and the expiration or
termination of the Commitments and all Letter of Credit Liabilities of the
Series A Lenders under the Credit Agreement it shall not exercise any right or
remedy arising by reason of any performance by it of its guarantee in Section
2.01 hereof, whether by subrogation or otherwise, against the Company or any
other guarantor of any of the Guaranteed Obligations or any security for any of
the Guaranteed Obligations.
2.05 Remedies. The Guarantor agrees that, as between the Guarantor
and the Series A Lenders, the obligations of the Company under the Credit
Agreement and the Basic Documents may be declared to be forthwith due and
payable as provided in Section 9 of the Credit Agreement (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9) for purposes of Section 2.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Company and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Company) shall forthwith become due and payable by the Guarantor for
purposes of said Section 2.01.
2.06 Instrument for the Payment of Money. The Guarantor hereby
acknowledges that the guarantee in this Section 2 constitutes an instrument for
the payment of money, and consents and agrees that any Series A Lender or the
Administrative Agent, at its sole option, in the event of a
Guarantee and Security Agreement
19
-7-
dispute by the Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3213.
2.07 Continuing Guarantee. The guarantee in this Section 2 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.08 General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Guarantor under Section 2.01
hereof would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under said Section 2.01, then, notwithstanding
any other provision hereof to the contrary, the amount of such liability shall,
without any further action by the Guarantor, the Administrative Agent, the
Series A Lenders or any other Person, be automatically limited and reduced to
the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
Section 3. Representations and Warranties. The Guarantor represents
and warrants to the Series A Lenders and the Administrative Agent that:
3.01 Action. The Guarantor has all necessary power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by the Guarantor of this Agreement have been
duly authorized by all necessary action on its part; and this Agreement has been
duly and validly executed and delivered by the Guarantor and constitutes its
legal, valid and binding obligation, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.02 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange are necessary for the execution, delivery or
performance by the Guarantor of this Agreement or for the validity or
Guarantee and Security Agreement
20
-8-
enforceability hereof, except for filings and recordings of the Liens created
pursuant to this Agreement.
3.03 Collateral.
(a) When the Guarantor acquires any rights therein, the Guarantor
will be the sole beneficial owner of the Series A Collateral and no Lien
will exist upon the Series A Collateral at any time (and no right or
option to acquire the same will exist in favor of any other Person),
except for Liens permitted under Section 8.06 of the Credit Agreement and
except for the pledge and security interest in favor of the Administrative
Agent for the benefit of the Series A Lenders created or provided for
herein, which pledge and security interest constitute a first priority
perfected pledge and security interest in and to all of the Series A
Collateral (other than Intellectual Property registered or otherwise
located outside of the United States of America).
(b) Annexes 1, 2 and 3 hereto, respectively, set forth a complete
and correct list of all Copyrights, Patents and Trademarks owned by the
Guarantor on the date hereof; except pursuant to licenses and other user
agreements entered into by the Guarantor in the ordinary course of
business, that are listed in Annex 4 hereto, the Guarantor owns and
possesses the right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark listed in said
Annexes 1, 2 and 3, and all registrations listed in said Annexes 1, 2 and
3 are valid and in full force and effect; except as may be set forth in
said Annex 4, the Guarantor owns and possesses the right to use all
Copyrights, Patents and Trademarks.
(c) Annex 4 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof.
(d) To the Guarantor's knowledge, (i) except as set forth in Annex 4
hereto, there is no violation by others of any right of the Guarantor with
respect to any Copyright, Patent or Trademark listed in Annexes 1, 2 and 3
hereto, respectively, and (ii) the Guarantor is not infringing in any
respect upon any Copyright, Patent or Trademark of any other Person; and
no proceedings have been instituted or are pending against the Guarantor
or, to the Guarantor's knowledge, threatened, and no claim against the
Guarantor
Guarantee and Security Agreement
21
-9-
has been received by the Guarantor, alleging any such violation, except as
may be set forth in said Annex 4.
(e) The Guarantor does not own any Trademarks registered in the
United States of America to which the last sentence of the definition of
Trademark Collateral applies.
(f) Any goods now or hereafter produced by the Guarantor included in
the Series A Collateral have been and will be produced in compliance with
the requirements of the Fair Labor Standards Act, as amended.
Section 4. Series A Collateral. As collateral security for the
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Series A Secured Obligations, the Guarantor hereby pledges and
grants to the Administrative Agent, for the benefit of the Series A Lenders as
hereinafter provided, a security interest in all of the Guarantor's right, title
and interest in the following property, whether now owned by the Guarantor or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Series A Collateral"):
(a) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Guarantor constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to the Guarantor in respect of any loans or advances or for
Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to the Guarantor under any
guarantee (not including a letter of credit) of the purchase price of
Inventory or Equipment sold by the Guarantor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being
herein called collectively "Accounts");
(b) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of the Guarantor evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "Instruments")
(c) all inventory (as defined in the Uniform Commercial Code) of the
Guarantor, including Motor Vehicles
Guarantee and Security Agreement
22
-10-
held by the Guarantor for lease (including lease to Subsidiaries of the
Guarantor), fuel, tires and other spare parts, all goods obtained by the
Guarantor in exchange for such inventory, and any products made or
processed from such inventory including all substances, if any, commingled
therewith or added thereto (herein collectively called "Inventory");
(d) all Intellectual Property and all other accounts or general
intangibles not constituting Intellectual Property or Accounts;
(e) all equipment (as defined in the Uniform Commercial Code) of the
Guarantor, including all Motor Vehicles (herein collectively called
"Equipment");
(f) each contract and other agreement of the Guarantor relating to
the sale or other disposition of Inventory or Equipment;
(g) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Guarantor covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(h) all rights, claims and benefits of the Guarantor against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by the Guarantor, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
(i) the balance from time to time in the Collateral Account; and
(j) all other tangible and intangible personal property of the
Guarantor, including, without limitation, all proceeds, products,
offspring, accessions, rents, profits, income, benefits, substitutions and
replacements of and to any of the property of the Guarantor described in
the preceding clauses of this Section 4 (including, without limitation,
any proceeds of insurance thereon) and, to the extent related to any
property described in said clauses or such proceeds, products and
accessions, all books, correspondence, credit files, records, invoices and
other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of
the Guarantor or any
Guarantee and Security Agreement
23
-11-
computer bureau or service company from time to time acting for the
Guarantor.
Notwithstanding the foregoing, the Series A Collateral does not and shall
not include:
(i) any ownership interest in, or right, title or interest of the
Guarantor as a member in LiveTV LLC, but shall include (w) any and all
moneys, and any and all rights to receive such moneys, due or to become
due to the Guarantor now or in the future by way of distribution made to
the Guarantor in its capacity as a member of LiveTV LLC or otherwise
pursuant to the LiveTV LLC Agreement, (x) any other property or assets,
and any and all rights to receive such property or assets, of LiveTV LLC
to which the Guarantor now or in the future may be entitled in its
capacity as a member of LiveTV LLC, (y) any other claim which the
Guarantor now has or may acquire in its capacity as a member of LiveTV LLC
against LiveTV LLC and its property or arising out of or for breach or
default under the LiveTV Limited Liability Agreement and (z) all proceeds
of and to any of the foregoing clauses (w) through (y); and
(ii) the assets to be transferred to LiveTV LLC, including, without
limitation, rights and claims of the Company against In-Flight Phone
Corporation transferred to the Guarantor, whether asserted or unasserted
with respect to matters prior to the formation of LiveTV LLC and the
rights to certain technology, trademarks and trade names licensed to the
Guarantor by the Company and to be licensed by the Guarantor to LiveTV
LLC.
Section 5. Cash Proceeds of Series A Collateral.
5.01 Collateral Account. The Administrative Agent may establish with
Chase a cash collateral account (the "Collateral Account"), which may be a
"securities account" (within the meaning of Section 8-501 of the Uniform
Commercial Code), in the name and under the sole control of the Administrative
Agent into which there shall be deposited from time to time the cash proceeds of
any of the Series A Collateral (including proceeds of insurance thereon)
required to be delivered to the Administrative Agent pursuant hereto and into
which the Guarantor may from time to time deposit any additional amounts that it
wishes to pledge to the Administrative Agent for the benefit of the Series A
Lenders as additional collateral security hereunder. The balance from time to
time in the Collateral Account shall constitute part
Guarantee and Security Agreement
24
-12-
of the Series A Collateral hereunder and shall not constitute payment of the
Series A Secured Obligations until applied as hereinafter provided. Except as
expressly provided in the next sentence, the Administrative Agent shall remit
the collected balance outstanding to the credit of the Collateral Account to or
upon the order of the Guarantor as the Guarantor shall from time to time
instruct. However, at any time following the occurrence and during the
continuance of an Event of Default, the Administrative Agent may (and, if
instructed by the Series A Lenders as specified in Section 10.03 of the Credit
Agreement, shall) in its (or their) discretion apply or cause to be applied
(subject to collection) the balance from time to time outstanding to the credit
of the Collateral Account to the payment of the Series A Secured Obligations in
the manner specified in Section 6.09 hereof. The balance from time to time in
the Collateral Account shall be subject to withdrawal only as provided herein.
5.02 Proceeds of Accounts. At any time after the occurrence and
during the continuance of an Event of Default, the Guarantor shall, upon the
request of the Administrative Agent, instruct all account debtors and other
Persons obligated in respect of all Accounts to make all payments in respect of
the Accounts either (a) directly to the Administrative Agent (by instructing
that such payments be remitted to a post office box which shall be in the name
and under the control of the Administrative Agent) or (b) to one or more other
banks in the United States of America (by instructing that such payments be
remitted to a post office box which shall be in the name and under the control
of the Administrative Agent) under arrangements, in form and substance
satisfactory to the Administrative Agent pursuant to which the Guarantor shall
have irrevocably instructed such other bank (and such other bank shall have
agreed) to remit all proceeds of such payments directly to the Administrative
Agent for deposit into the Collateral Account. All payments made to the
Administrative Agent, as provided in the preceding sentence, shall be
immediately deposited in the Collateral Account. In addition to the foregoing,
the Guarantor agrees that, at any time after the occurrence and during the
continuance of an Event of Default, if the proceeds of any Series A Collateral
hereunder (including the payments made in respect of Accounts) shall be received
by it, the Guarantor shall as promptly as possible deposit such proceeds into
the Collateral Account. Until so deposited, all such proceeds shall be held in
trust by the Guarantor for and as the property of the Administrative Agent and
shall not be commingled with any other funds or property of the Guarantor.
Guarantee and Security Agreement
25
-13-
5.03 Investment of Balance in Collateral Account. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Permitted
Investments as the Guarantor (or, after the occurrence and during the
continuance of a Default, the Administrative Agent) shall determine, which
Permitted Investments shall if the Collateral Account is a "securities account"
(within the meaning of Section 8-501 of the Uniform Commercial Code) be credited
to the Collateral Account and otherwise shall be held in the name and be under
the control of the Administrative Agent, provided that (i) at any time after the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may (and, if instructed by the Series A Lenders as specified in Section
10.03 of the Credit Agreement, shall) in its (or their) discretion at any time
and from time to time elect to liquidate any such Permitted Investments and to
apply or cause to be applied the proceeds thereof to the payment of the Series A
Secured Obligations in the manner specified in Section 6.09 hereof and (ii) if
requested by the Guarantor, such Permitted Investments may be held in the name
and under the control of one or more of the Series A Lenders (and in that
connection each Series A Lender, pursuant to Section 10.10 of the Credit
Agreement) has agreed that such Permitted Investments shall be held by such
Series A Lender as a collateral sub-agent for the Administrative Agent
hereunder).
5.04 Cover for Letter of Credit Liabilities. Amounts deposited into
the Collateral Account as cover for Letter of Credit Liabilities under the
Credit Agreement pursuant to Section 2.10(f) or Section 9 thereof shall be held
by the Administrative Agent in a separate sub-account (designated "Letter of
Credit Liabilities Sub-Account") and all amounts held in such sub-account shall
constitute collateral security first for the Letter of Credit Liabilities
outstanding from time to time and second as collateral security for the other
Series A Secured Obligations hereunder.
Section 6. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 4 hereof, the Guarantor
hereby agrees with each Series A Lender and the Administrative Agent as follows:
6.01 Delivery and Other Perfection. The Guarantor shall:
(a) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and
Guarantee and Security Agreement
26
-14-
substance as the Administrative Agent may request; provided, that so long
as no Default shall have occurred and be continuing, the Guarantor may
retain for collection in the ordinary course any Instruments received by
the Guarantor in the ordinary course of business and the Administrative
Agent shall, promptly upon request of the Guarantor, make appropriate
arrangements for making any Instrument pledged by the Guarantor available
to the Guarantor for purposes of presentation, collection or renewal (any
such arrangement to be effected, to the extent deemed appropriate by the
Administrative Agent, against trust receipt or like document);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Administrative
Agent) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to enable the Administrative Agent to exercise
and enforce its rights hereunder with respect to such pledge and security
interest, provided that notices to account debtors in respect of any
Accounts or Instruments shall be subject to the provisions of clause (h)
below;
(c) from time to time as requested by any Series A Lender, cause the
Administrative Agent to be listed as Lienholder of any Equipment covered
by a certificate of title or ownership, and within 120 days of such
request deliver evidence of the same to the Administrative Agent;
(d) keep full and accurate books and records relating to the Series
A Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(e) furnish to the Administrative Agent from time to time (but,
unless a Default shall have occurred and be continuing, no more frequently
than quarterly) statements and schedules further identifying and
describing the Copyright Collateral, the Patent Collateral and the
Trademark Collateral, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the Trademark Collateral,
as the Administrative Agent may reasonably request, all in reasonable
detail;
(f) promptly upon request of the Administrative Agent, following
receipt by the Administrative Agent of any
Guarantee and Security Agreement
27
-15-
statements, schedules or reports pursuant to clause (e) above, modify this
Agreement by amending Annexes 1, 2 and/or 3 hereto, as the case may be, to
include any Copyright, Patent ,or Trademark which becomes part of the
Series A Collateral under this Agreement;
(g) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Series A
Collateral, and permit representatives of the Administrative Agent to be
present at the Guarantor's place of business to receive copies of all
communications and remittances relating to the Series A Collateral, and
forward copies of any notices or communications received by the Guarantor
with respect to the Series A Collateral, all in such manner as the
Administrative Agent may require; and
(h) upon the occurrence and during the continuance of any Event of
Default, upon request of the Administrative Agent, promptly notify (and
the Guarantor hereby authorizes the Administrative Agent so to notify)
each account debtor in respect of any Accounts or Instruments that such
Series A Collateral has been assigned to the Administrative Agent
hereunder, and that any payments due or to become due in respect of such
Series A Collateral are to be made directly to the Administrative Agent.
6.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Administrative Agent (granted with the authorization of the
Series A Lenders as specified in Section 10.09 of the Credit Agreement), the
Guarantor shall not file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Series A Collateral in which the Administrative
Agent is not named as the sole secured party for the benefit of the Series A
Lenders.
6.03 Preservation of Rights. The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Series A Collateral.
6.04 Special Provisions Relating to Certain Collateral.
(a) Intellectual Property.
Guarantee and Security Agreement
28
-16-
(1) For the purpose of enabling the Administrative Agent to exercise
rights and remedies under Section 6.05 hereof at such time as the Administrative
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, the Guarantor hereby grants to the Administrative Agent, to
the extent assignable, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Guarantor) to use,
assign, license or sublicense any of the Intellectual Property now owned or
hereafter acquired by the Guarantor, wherever the same may be located, including
in such license reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer programs used for the
compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 8.05 of the Credit Agreement which limit
the right of the Company and its Subsidiaries to dispose of their property, so
long as no Event of Default shall have occurred and be continuing, the Guarantor
will be permitted to exploit, use, enjoy, protect, license, sublicense, assign,
sell, dispose of or take other actions with respect to the Intellectual Property
in the ordinary course of the business of the Guarantor. In furtherance of the
foregoing, unless an Event of Default shall have occurred and be continuing the
Administrative Agent shall from time to time, upon the request of the Guarantor,
execute and deliver any instruments, certificates or other documents, in the
form so requested, that the Guarantor shall have certified are appropriate (in
its judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to clause (1) immediately above
as to any specific Intellectual Property). Further, upon the payment in full of
all of the Series A Secured Obligations and cancellation or termination of the
Series A Commitments and Letter of Credit Liabilities or earlier expiration of
this Agreement or release of the Series A Collateral, the Administrative Agent
shall grant back to the Guarantor the license granted pursuant to clause (1)
immediately above. The exercise of rights and remedies under Section 6.05 hereof
by the Administrative Agent shall not terminate the rights of the holders of any
licenses or sublicenses theretofore granted by the Guarantor in accordance with
the first sentence of this clause (2).
6.05 Events of Default. Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) the Guarantor shall, at the request of the Administrative Agent,
assemble the Series A Collateral owned by it at such place or places,
reasonably convenient to both
Guarantee and Security Agreement
29
-17-
the Administrative Agent and the Guarantor, designated in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Series A Collateral
and may extend the time of payment, arrange for payment in installments,
or otherwise modify the terms of, any of the Series A Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Series A Collateral of a secured party under
the Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to
the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Series A Collateral as if
the Administrative Agent were the sole and absolute owner thereof (and the
Guarantor agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Administrative Agent in its discretion may, in its name or
in the name of the Guarantor or otherwise, demand, xxx for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Series A Collateral, but shall be under
no obligation to do so; and
(e) the Administrative Agent may, upon ten Business Days' prior
written notice to the Guarantor of the time and place, with respect to
the Series A Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Series A Lenders or any of their respective
agents, sell, lease, assign or otherwise dispose of all or any part of
such Series A Collateral, at such place or places as the Administrative
Agent deems best, and for cash or for credit or for future delivery
without thereby assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Administrative Agent or any Series A Lender or anyone else may be the
purchaser, lessee,
Guarantee and Security Agreement
30
-18-
assignee or recipient of any or all of the Series A Collateral so disposed
of at any public sale (or, to the extent permitted by law, at any private
sale) and thereafter hold the same absolutely, free from any claim or
right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of the Guarantor, any such demand, notice and
right or equity being hereby expressly waived and released. In the event
of any sale, assignment, or other disposition of any of the Trademark
Collateral, the goodwill connected with and symbolized by the Trademark
Collateral subject to such disposition shall be included, and the
Guarantor shall supply to the Administrative Agent or its designee, for
inclusion in such sale, assignment or other disposition, all Intellectual
Property relating to such Trademark Collateral. The Administrative Agent
may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
6.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 6.04(b) hereof, shall be applied in accordance
with Section 6.09 hereof.
The Guarantor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Series A Collateral, to limit purchasers to those
who will agree, among other things, to acquire the Series A Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof. The Guarantor acknowledges that any such private sales may be at prices
and on terms less favorable to the Administrative Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Administrative Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Series A Collateral for the period of time necessary to permit the
respective Issuer or issuer thereof to register it for public sale.
6.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Series A Collateral pursuant to Section 6.05 hereof
are insufficient to cover the costs and
Guarantee and Security Agreement
31
-19-
expenses of such realization and the payment in full of the Series A Secured
Obligations, the Guarantor shall remain liable for any deficiency.
6.07 Removals, Etc. Without at least 30 days' prior written notice
to the Administrative Agent, the Guarantor shall not (i) maintain any of its
books and records with respect to the Series A Collateral at any office or
maintain its principal place of business at any place, or permit any Inventory
or Equipment to be located anywhere, other than at the address indicated beneath
its signature hereto or at one of the locations identified in Part A of Annex 5
hereto or in transit from one of such locations to another or (ii) change its
corporate name, or the name under which it does business, from the name shown on
the signature pages hereto; provided, however, that the Guarantor may do
business in the states and under the names specified in Part B of Annex 5
hereto.
6.08 Private Sale. The Administrative Agent and the Series A Lenders
shall incur no liability as a result of the sale of the Series A Collateral, or
any part thereof, at any private sale pursuant to Section 6.05 hereof conducted
in a commercially reasonable manner. The Guarantor hereby waives any claims
against the Administrative Agent or any Series A Lender arising by reason of the
fact that the price at which the Series A Collateral may have been sold at such
a private sale was less than the price that might have been obtained at a public
sale or was less than the aggregate amount of the Series A Secured Obligations,
even if the Administrative Agent accepts the first offer received and does not
offer the Series A Collateral to more than one offeree.
6.09 Application of Proceeds. Except as otherwise herein expressly
provided and except as provided below in this Section 6.09, the proceeds of any
collection, sale or other realization of all or any part of the Series A
Collateral pursuant hereto, and any other cash at the time held by the
Administrative Agent under Section 5 hereof or this Section 6, shall be applied
by the Administrative Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the reasonable fees and expenses
of its agents and counsel, and all reasonable expenses incurred and
advances made by the Administrative Agent in connection therewith;
Guarantee and Security Agreement
32
-20-
Next, to the payment in full of the Series A Secured Obligations, in
each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Series A Lenders holding the same may
otherwise agree; and
Finally, to the payment to the Guarantor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "Letter of Credit Liabilities Sub-Account" of the Collateral Account
pursuant to Section 5.04 hereof shall be applied first to the Letter of Credit
Liabilities outstanding from time to time and second to the other Series A
Secured Obligations in the manner provided above in this Section 6.09.
As used in this Section 6, "proceeds" of Series A Collateral shall
mean cash, securities and other property realized in respect of, and
distributions in kind of, Series A Collateral, including any thereof received
under any reorganization, liquidation or adjustment of debt of the Guarantor or
any issuer of or obligor on any of the Series A collateral.
6.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of the Guarantor for the purpose of carrying out the provisions
of this Section 6 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 6 to make collections
in respect of the Series A Collateral, the Administrative Agent shall have the
right and power to receive, endorse and collect all checks made payable to the
order of the Guarantor representing any dividend, payment or other distribution
in respect of the Series A Collateral or any part thereof and to give full
discharge for the same.
6.11 Termination. When all Series A Secured Obligations shall have
been paid in full and the Series A Commitments of the Series A Lenders under the
Credit Agreement and all Letter of Credit Liabilities shall have expired or been
Guarantee and Security Agreement
33
-21-
terminated, this Agreement shall terminate, and the Administrative Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Series A Collateral and money received in respect thereof, to or on the order of
the Guarantor and to be released and canceled all licenses and rights referred
to in Section 6.04(a) hereof. The Administrative Agent shall also execute and
deliver to the Guarantor upon such termination such Uniform Commercial Code
termination statements, certificates for terminating the Liens on the Motor
Vehicles and such other documentation as shall be reasonably requested by the
Guarantor to effect the termination and release of the Liens on the Series A
Collateral.
6.12 Further Assurances. The Guarantor agrees that, from time to
time upon the written request of the Administrative Agent, the Guarantor will
execute and deliver such further documents and do such other acts and things as
the Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
6.13 Release of Motor Vehicles. So long as no Event of Default shall
have occurred and be continuing, upon the request of the Guarantor, the
Administrative Agent shall execute and deliver to the Guarantor such instruments
as the Guarantor shall reasonably request to remove the notation of the
Administrative Agent as lienholder on any certificate of title for any Motor
Vehicle; provided that any such instruments shall be delivered, and the release
effective only upon receipt by the Administrative Agent of a certificate from
the Guarantor stating that the Motor Vehicle the lien on which is to be released
is to be sold or has suffered a casualty loss (with title thereto passing to the
casualty insurance company therefor in settlement of the claim for such loss).
Section 7. Miscellaneous.
7.01 No Waiver. No failure on the part of the Administrative Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any of its agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Guarantee and Security Agreement
34
-22-
7.02 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telexed, telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof or, as to either party, at such other address as shall be
designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
7.03 Expenses. The Guarantor agrees to reimburse each of the Series
A Lenders and the Administrative Agent for all reasonable out-of-pocket costs
and expenses of the Series A Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (w) performance by the Administrative Agent of any
obligations of the Guarantor in respect of the Series A Collateral that the
Guarantor has failed or refused to perform, (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Series A Collateral, and for the care of the
Series A Collateral and defending or asserting rights and claims of the
Administrative Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 7.03, and all such costs and expenses shall be
Series A Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 4 hereof.
7.04. Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the
Guarantor and the Administrative Agent (with the consent of the Series A Lenders
as specified in Section 10.09 of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Administrative Agent and each Series A Lender,
each holder of any of the Series A Secured Obligations and the Guarantor.
7.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective
Guarantee and Security Agreement
35
-23-
successors and assigns of the Guarantor, the Administrative Agent, the Series A
Lenders and each holder of any of the Series A Secured Obligations (provided,
however, that the Guarantor shall not assign or transfer its rights hereunder
without the prior written consent of the Administrative Agent).
7.06 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
7.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
7.08 Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York. The Guarantor hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of the
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
7.09 Waiver of Jury Trial. EACH OF THE GUARANTOR, THE ADMINISTRATIVE
AGENT AND THE SERIES A LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.10 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
7.11 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest
Guarantee and Security Agreement
36
-24-
extent permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in favor
of the Administrative Agent and the Series A Lenders in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Guarantee and Security Agreement
37
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
and Security Agreement to be duly executed and delivered as of the day and year
first above written.
IN-FLIGHT ENTERTAINMENT, LLC
By: BE Aerospace, Inc., Member
By /s/ Xxxxxx X. XxXxxxxxx
----------------------------------
Title: Chief Financial Officer
Address for Notices:
In-Flight Entertainment, LLC
00000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxxx
Guarantee and Security Agreement
38
-26-
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxx Xxxxxx
----------------------------------
Title: Vice President
Address for Notices:
The Chase Manhattan Bank, as
Administrative Agent
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
The Chase Manhattan Bank
Agent Bank Services Group
0xx Xxxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Guarantee and Security Agreement
39
ANNEX 1
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
Title Date Filed Registration No. Effective Date
--------------------------------------------------------------------------------
[None]
Annex 1 to Guarantee and Security Agreement
40
ANNEX 2
LIST OF PATENTS AND PATENT APPLICATIONS
File Patent Country Registration No. Date
--------------------------------------------------------------------------------
[None]
Annex 2 to Guarantee and Security Agreement
41
ANNEX 3
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE XXXX REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE XXXX REGISTRATIONS
U.S. Trademarks
Application (A)
Registration (R) Registration
Xxxx or Series No. (S) or Filing Date
--------------------------------------------------------------------------------
[None]
Annex 3 to Guarantee and Security Agreement
42
-2-
Foreign Trademarks
Application (A) Registration or
Xxxx Registration (R) Country Filing Date (F)
--------------------------------------------------------------------------------
[None]
Annex 3 to Guarantee and Security Agreement
43
ANNEX 4
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[None]
Annex 4 to Guarantee and Security Agreement
44
ANNEX 5
LIST OF LOCATIONS
Part A - List of Locations.
Part B - Trade Names/State
Trade Name State
---------- -----
BE Aerospace, Inc. California
In-Flight Entertainment California
Annex 5 to Guarantee and Security Agreement
